Final Review Flashcards
Interpleader
Two Types:
Rule 22: All rules apply, diversity rules apply, AIC is 75K, service applies, venue applies.
Statutory: AIC is just $500 or more, only one party needs to be diverse from one other party, PJ is nationwide, Venue is any claimant domicile.
Scope of Discovery 26(b)(1)
What can be discovered?
Anything that is non, privileged, relevant to claim or defense, proportional
What is relevancy as it pertains to Discovery?
Liberal standard - Most say it is anything that makes it more or less probable that it happened.
Something that can lead to the discovery of more evidence is also allowed
Minority says it needs to be relevant to the subject matter.
Protective Order
Why would you need one?
To prevent: AEEOU
- Annoyance
- Embarrassment
- Expense
- Oppression
- Undue burden
What remedies can protective orders give
- Forbid disclosure
- Specify terms
- prescribe methods of delivery or format
- Require Discovery be sealed.
- Gag orders
Limits on Scope of Discovery
Proportionality
How do you consider what is proportional?
- Importance of the issues
- Amount in controversy
- Patries relative aces to info
- Importance of settlement
- Burden and expense v. benefit
Limits on ESI Discovery
If ESI is not reasonably accessible, and shown by affidavit as so..
Not discoverable
Unless
Good cause
Good cause can be weakened by:
- Cumulative, duplicative
- Another opportunity to get
- Outside scope
How does ESI Cost-Shifting work?
Court may shift costs on finding of undue burden.
Zubulake:
- Extent of request specific to relevant info
- Otherwise available
- Total cost compared to AIC and party
- Ability and incentive of each party to control costs
- . Importance of issues
- Relative benefits
How do you resolve an ESI Dispute?
Good cause must be shown if it is not reasonably accessible.
(a) Good Cause limited by:
(1) Cumulative
(2) Ample opportunity
(3) Outside scope
Attorney-Client Privilege
Look to FRE
Usually holder of priv is a client seeking to be a client or is one already
Person communicated with is an attorney of the bar and was acting as an attorney during communication
Make sure that patter lays out that:
- Comm was by client
- in absence of strangers
- for purpose of seeking legal services or opinion
- not trying to commit a crime
- No one has waived the privilege
Work Product
Documents and tangible things that are produced in reasonable anticipation of litigation.
Usually prepared by atty or atty rep
What can overcome work product and what is always banned?
Substantial need can overcome WP.
- Must be otherwise undiscoverable
- Substantial to prepare case
- Not obtainable anywhere else
Always protected:
- Opinions
- legal theory
- Conclusions
- Mental Imressions
How does waiver apply to privilege?
Once waived, waiver extends to all communications relating to same subject matter
- Not party specific
What are party agreements?
Think Coca-Cola secret formula
Co-parties share privileged info for the purpose of winning now.
This is not waived for future reference
What is a claw-back?
When privileged info is accidentally released, party can request it back and other party must return, destroy,, sequester, etc.
They can’t use this info
Cost can make a determination
FRE 502
- Limits inadvertent waiver if reasonable steps to prevent disclosure, and
- Reasonable Steps to rectify error
- Intentional waivers extend to subject matter.
RPD’s (Rule 34)
Can be on party or non-party (need subpoena)
Requests need reasonable particularity
Unless different form is requested, responding party must produce as it is ordinarily maintained in reasonably usable form.
30 days to respond after service or agreement
Metadata
Information describing the code, history, tracking, management of the file.
Needs to be discussed in 26(f) conference
Must be specifically requested - 34(b)(2)(e)
Must be within scope of discovery and non-privliged
ROG’s
Can be sent to ONLY parties
Under oath
Limited to 25 questions unless agreed to
Sub parts to questions are ok
30 days to respond from service or agreement
Objections are based on FRE
Objections During Depositions
No speaking objections. That means they cannot be argumentative & not suggestive
When objected to, they are still answered, but may be reviewed by court later.
Do not Answer if:
- Motion to term
- Privileged
- Enforcing court order
Sanctions for Failing to Comply with Discovery
Make sure they meet with the other atty or at least make a good faith effort to fix it before going to the court.
Sanctions for Motion to Compel
Motion is granted, then they have a minor sanction - to produce the discover
if the do not follow the granted motion to compel then:
- All facts taken as true
- Strike pleadings
- Etc. . .
- Reasonable cost and expense
Preservation and Spoliation
How do you find it?
- When there is a duty to preserve
- Bad faith
- Relevant and prejudicial
When is their a duty to preserve?
- Reasonable anticipation of litigation
- By statutory duty
- Spoliation letter
If there is ESI Spoliation, what happens?
Unintentional - no greater than that to cure the prejudice
Intentional - adverse inference, jury presumes unfavorable, dismissal or default judgment
Default Judgment (FRCP 55)
Happens when a defendant does not respond to complaint by either answer or just choosing not to defend.
You get 21 days and then they go into default
Sum Certain: You can submit this with an affidavit and then the clerk will grant
All others: Damages hearing will set the damages amount
7 days of notice before hearing if the D has made an appearance in the case.
Minors and mentally impaired cannot have DJ entered against them without rep (atty, guardian, etc.)
Setting aside a Motion for Default Judgment
These can always be set aside for good cause:
What is looked at for good cause?
- Meritorious defense
- Promptness of Movant
- Responsibility of Moving Party
- How the party is being prejudiced.
- History of Delay
- Lesser sanctions available
Rule 41 Dismissals
Voluntary and Involuntary
Voluntary: Generally without prejudice unless second time around.
No reason to get court involved if before D has responded with answer or 12(b)(6)
Counterclaim will still survive
Involuntary: Someone is not doing their job. These are usually with prejudice.
Can be by the court or by motion
Summary adjudication under R. 16(c)(2)(E)
Court action on “appropriateness and timing” of Rule 56 adjudication
Court gives notice of potential sua sponte summary judgment
Permits discovery to determine further evidence likely.
The court may rule for SJ on issue without a material fact being in dispute.
Settlement Conference: FRCP 16
Court can order settlement discussion but cannot force people to settle.
They can encourage
Hinting at who will win is ok by court
Court can set settlement deadlines
Sanctions can be applied when parties do not attend conference: May include fees and expenses
Offer of Judgment
Offer to settle before trial
Make sure it is at least 14 days before
Official offer, served on party
If accepted, great, clerk enters a judgment and everyone goes home.
If declined, then:
If trial judgment is less than that offer,
The declining party must party costs
Summary Judgment (FRCP 56)
“No genuine dispute as to any material fact.”
Are they entitled to a “judgment as a matter of law”?
We do not need to go to trial.
Deadline is 30 days after the close of Discovery
What is looked at?
- Complaint
- Answer
- Discovery
Inference in favor of non-movant
Right to Jury Trial
7th Amendment
These are rights preserved from 1791 and suits in common law and suits in equity
Terry Test
- Compare claims to 1791 Standard
- Examine the remedy sought. (Similar?)
Second part has heavier emphasis on it.
What happens when there is a hybrid suit?
Legal issues tried by jury
Equitable issues tried by court
Jury Demand
Must be made no later 14-days after last pleading
- Must be written
- Waived if not on demand
- Withdrawn only with consent of all parties
- Joining other parties or amending claims resets the 14-day window
Remember rule 39 can fix this problem
Role of Jury
They are the fact-finders
Batson as applied through Edmonson in Civil Trials
Once challenged, burden shifts to adverse party to show they are not being discriminated against. Then back to court for determination.
JMOL (FRCP 50)
Basically a Summary Judgment during trial
Timing: After close of case in chief
Standard: Applied by trial judge that a reasonable jury wouldn’t be able to find for non-movant
Substantial evidence required to defeat JMOL
RJMOL
28 days to file from jury discharge
If no JMOL, then no RJMOL
If no RJMOL, then no appeal on sufficiency of evidence
Motion for New Trial (FRCP 59)
28 days from judgment not jury discharge
Motion for new trial factors to consider
- Weight of evidence
- Unfair trial for the movant
- Substantial legal error
- Excessive damages
What needs to happen if a motion for new trial (Rule 59) is based on new evidence?
- Needs to have existed at the time of trial
- Not overlooked because someone was not diligent
- Both material and admissible
Remittitur
Verdict shocks the conscious, so the court offers the winner less money or a new trial. Their choice.
Relief From Judgment (FRCP 60)
Last chance
What does the court look for?
- Mistake
- Inadvertance
- Surprise
- Excusable neglect
- New evidence that was undiscoverable in a Motion for New trial (28 days from judgment)
- Satisfied, released, discharged
- Any other reason the court sees fit
TRO
Ex-parte
Lasts 14 days
can renew for good cause
Adverse party can move to dissolve it.
2 days notice required
Prelim Injunction
Likely to succeed on merits
Substantial ground for difference of opinion
Immediate appeal from any order may material advance the termination of the case
54(b)
Under Rule 54(b), when an action presents more than one claim for relief, a district court “may direct the entry of a final judgment as to one or more, but fewer than all, claims upon determination that ‘there is no just reason for delay.’”
Writ of Mandamus
Directs lower court to withdraw order
Requires exceptional circumstances (rare)
Immediate review required to prevent harm
Issue not reviewable on final judgment
