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Civil Procedure Spring 22 > Final Review > Flashcards

Final Review Flashcards

1
Q

Interpleader

A

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.

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2
Q

Scope of Discovery 26(b)(1)

What can be discovered?

A

Anything that is non, privileged, relevant to claim or defense, proportional

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3
Q

What is relevancy as it pertains to Discovery?

A

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.

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4
Q

Protective Order

Why would you need one?

A

To prevent: AEEOU

  1. Annoyance
  2. Embarrassment
  3. Expense
  4. Oppression
  5. Undue burden
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5
Q

What remedies can protective orders give

A
  1. Forbid disclosure
  2. Specify terms
  3. prescribe methods of delivery or format
  4. Require Discovery be sealed.
  5. Gag orders
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6
Q

Limits on Scope of Discovery

Proportionality

How do you consider what is proportional?

A
  1. Importance of the issues
  2. Amount in controversy
  3. Patries relative aces to info
  4. Importance of settlement
  5. Burden and expense v. benefit
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7
Q

Limits on ESI Discovery

A

If ESI is not reasonably accessible, and shown by affidavit as so..

Not discoverable

Unless

Good cause

Good cause can be weakened by:

  1. Cumulative, duplicative
  2. Another opportunity to get
  3. Outside scope
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8
Q

How does ESI Cost-Shifting work?

A

Court may shift costs on finding of undue burden.

Zubulake:

  1. Extent of request specific to relevant info
  2. Otherwise available
  3. Total cost compared to AIC and party
  4. Ability and incentive of each party to control costs
  5. . Importance of issues
  6. Relative benefits
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9
Q

How do you resolve an ESI Dispute?

A

Good cause must be shown if it is not reasonably accessible.

(a) Good Cause limited by:
(1) Cumulative
(2) Ample opportunity
(3) Outside scope

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10
Q

Attorney-Client Privilege

A

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:

  1. Comm was by client
  2. in absence of strangers
  3. for purpose of seeking legal services or opinion
  4. not trying to commit a crime
  5. No one has waived the privilege
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11
Q

Work Product

A

Documents and tangible things that are produced in reasonable anticipation of litigation.

Usually prepared by atty or atty rep

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12
Q

What can overcome work product and what is always banned?

A

Substantial need can overcome WP.

  1. Must be otherwise undiscoverable
  2. Substantial to prepare case
  3. Not obtainable anywhere else

Always protected:

  1. Opinions
  2. legal theory
  3. Conclusions
  4. Mental Imressions
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13
Q

How does waiver apply to privilege?

A

Once waived, waiver extends to all communications relating to same subject matter

  1. Not party specific
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14
Q

What are party agreements?

A

Think Coca-Cola secret formula

Co-parties share privileged info for the purpose of winning now.

This is not waived for future reference

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15
Q

What is a claw-back?

A

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

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16
Q

FRE 502

A
  1. Limits inadvertent waiver if reasonable steps to prevent disclosure, and
  2. Reasonable Steps to rectify error
  3. Intentional waivers extend to subject matter.
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17
Q

RPD’s (Rule 34)

A

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

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18
Q

Metadata

A

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

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19
Q

ROG’s

A

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

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20
Q

Objections During Depositions

A

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:

  1. Motion to term
  2. Privileged
  3. Enforcing court order
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21
Q

Sanctions for Failing to Comply with Discovery

A

Make sure they meet with the other atty or at least make a good faith effort to fix it before going to the court.

22
Q

Sanctions for Motion to Compel

A

Motion is granted, then they have a minor sanction - to produce the discover

if the do not follow the granted motion to compel then:

  1. All facts taken as true
  2. Strike pleadings
  3. Etc. . .
  4. Reasonable cost and expense
23
Q

Preservation and Spoliation

How do you find it?

A
  1. When there is a duty to preserve
  2. Bad faith
  3. Relevant and prejudicial
24
Q

When is their a duty to preserve?

A
  1. Reasonable anticipation of litigation
  2. By statutory duty
  3. Spoliation letter
25
Q

If there is ESI Spoliation, what happens?

A

Unintentional - no greater than that to cure the prejudice

Intentional - adverse inference, jury presumes unfavorable, dismissal or default judgment

26
Q

Default Judgment (FRCP 55)

A

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.)

27
Q

Setting aside a Motion for Default Judgment

A

These can always be set aside for good cause:

28
Q

What is looked at for good cause?

A
  1. Meritorious defense
  2. Promptness of Movant
  3. Responsibility of Moving Party
  4. How the party is being prejudiced.
  5. History of Delay
  6. Lesser sanctions available
29
Q

Rule 41 Dismissals

A

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

30
Q

Summary adjudication under R. 16(c)(2)(E)

A

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.

31
Q

Settlement Conference: FRCP 16

A

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

32
Q

Offer of Judgment

A

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

33
Q

Summary Judgment (FRCP 56)

A

“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?

  1. Complaint
  2. Answer
  3. Discovery

Inference in favor of non-movant

34
Q

Right to Jury Trial

7th Amendment

A

These are rights preserved from 1791 and suits in common law and suits in equity

35
Q

Terry Test

A
  1. Compare claims to 1791 Standard
  2. Examine the remedy sought. (Similar?)

Second part has heavier emphasis on it.

36
Q

What happens when there is a hybrid suit?

A

Legal issues tried by jury

Equitable issues tried by court

37
Q

Jury Demand

A

Must be made no later 14-days after last pleading

  1. Must be written
  2. Waived if not on demand
  3. Withdrawn only with consent of all parties
  4. Joining other parties or amending claims resets the 14-day window

Remember rule 39 can fix this problem

38
Q

Role of Jury

A

They are the fact-finders

39
Q

Batson as applied through Edmonson in Civil Trials

A

Once challenged, burden shifts to adverse party to show they are not being discriminated against. Then back to court for determination.

40
Q

JMOL (FRCP 50)

A

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

41
Q

RJMOL

A

28 days to file from jury discharge

If no JMOL, then no RJMOL

If no RJMOL, then no appeal on sufficiency of evidence

42
Q

Motion for New Trial (FRCP 59)

A

28 days from judgment not jury discharge

43
Q

Motion for new trial factors to consider

A
  1. Weight of evidence
  2. Unfair trial for the movant
  3. Substantial legal error
  4. Excessive damages
44
Q

What needs to happen if a motion for new trial (Rule 59) is based on new evidence?

A
  1. Needs to have existed at the time of trial
  2. Not overlooked because someone was not diligent
  3. Both material and admissible
45
Q

Remittitur

A

Verdict shocks the conscious, so the court offers the winner less money or a new trial. Their choice.

46
Q

Relief From Judgment (FRCP 60)

A

Last chance

What does the court look for?

  1. Mistake
  2. Inadvertance
  3. Surprise
  4. Excusable neglect
  5. New evidence that was undiscoverable in a Motion for New trial (28 days from judgment)
  6. Satisfied, released, discharged
  7. Any other reason the court sees fit
47
Q

TRO

A

Ex-parte
Lasts 14 days
can renew for good cause
Adverse party can move to dissolve it.

2 days notice required

48
Q

Prelim Injunction

A

Likely to succeed on merits
Substantial ground for difference of opinion
Immediate appeal from any order may material advance the termination of the case

49
Q

54(b)

A

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.’”

50
Q

Writ of Mandamus

A

Directs lower court to withdraw order

Requires exceptional circumstances (rare)

Immediate review required to prevent harm

Issue not reviewable on final judgment

Civil Procedure Spring 22 (2 decks)

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