Holloway Review

Question 1

Compare Rule Interpleader and Statutory Interpleader

Answer 1

Interpleader (IP) is intended to put all claimants in one suit and avoid inconsistent judgments.
Rule IP requires all normal rules of jurisdiction, service, and venue.
Statutory IP allows Diversity between any 2 claimants; an AIC of $500+; PJx is nationwide; and Venue can be where any claimant resides.

Question 2

What is considered for the scope of discovery under R. 26(b)(1)?

Answer 2

Non-privileged, Relevant to a Claim or Defense, Proportional

Question 3

What is relevancy in the context of discovery?

Answer 3

Discovery relevance is broader than evidence relevance. Material must simply be reasonably calculated to lead to admissible evidence for any party’s claim or defense. .

Question 4

What are the purposes of a Protective Order under R. 26(c)?

Answer 4

To prevent AEEOU
Annoyance
Embarrassment
Expense 
Oppression
Undue Burden

Question 5

What might a court grant (remedies) in a protection order?

Answer 5

Forbid Disclosure;
Specify terms or allocate burden;
Prescribe alternate delivery method;
Limit the scope;
Seal discovery

Question 6

What is considered for the proportionality of discovery requests?

Answer 6

Importance of Issues;
AIC; 
Relative access to information;
Likelihood of leading to settlement;
Burden and Expense vs. Benefit

Question 7

How is ESI discovery limited under R. 26(b)(2)(B)?

Answer 7

ESI is specifically limited if it is not reasonably accessible and shown by affidavit.
Even when shown, this may be overcome for good cause as long as it is not Cumulative, Available Elsewhere; a previous opportunity to gain the info; or outside the scope.

Question 8

Courts may shift the costs of discovery upon finding undue burden. What factors are considered to shift costs?

Answer 8

Extent the request is specific to relevant info,
If the info is otherwise available;

Total cost compared to AIC and Party resources,
The ability and incentive of each to control the costs;

The importance of the issues;

Relative benefits to the party

Question 9

Holloway’s term for systems with ESI accessibility issues-

Answer 9

Legacy systems.

When faced with legacy systems, the court considers the cost compared to the value of the discovery.

Question 10

How are ESI disputes resolved when ESI is not reasonably accessible?

Answer 10

The requesting party must show good cause.

Good cause is weakened when Cumulative, Available Elsewhere; a previous opportunity to gain the info; or outside the scope.

Question 11

How does Attorney-Client privilege restrict discovery?

Answer 11

When the privilege is claimed by one who is or sought to be a client, and that person communicated to a lawyer or subordinate a fact for the purpose of securing legal services, opinion, or assistance- that information is privileged if not waived.

Question 12

What is an Upjohn warning?

Answer 12

An Upjohn warning advises employees of a company that the atty-client privilege is between the company and the lawyer, not the employees and the lawyer.

Question 13

What is protected from discovery as work-product?

Answer 13

Documents and Tangible things prepared in anticipation of litigation, based on the “because of” test.

Question 14

What can overcome the work-product privilege?

Answer 14

Substantial need can overcome work-product, if in scope, substantial to needs of the case, and not obtainable elsewhere.
Mental impressions, opinions, legal theories, and conclusions are always protected.

Question 15

What are the consequences of a waiver of the privilege?

Answer 15

Waiver of the attorney-client or work-product privilege extends to all communications about the same subject matter, this extension is not party specific.

Question 16

What are types of party agreements for waiver or privilege?

Answer 16

Parties may agree to share info for the purpose of a joint claim or defense and agree to limit the use of info to that litigation.
Parties may agree to a ‘claw-back’ agreement of inadvertently waived info.
Parties may agree to a ‘quick-peek’ agreement where the requesting party gets a quick scan and identifies a subset of documents that the responding party will then give a privilege review.

Question 17

What is the “Claw-back” rule under R. 26(b)(5)(B)?

Answer 17

Inadvertently disclosed privileged info must be returned or destroyed and not used if the receiver is notified when it is realized.

Question 18

When does FRE 502 limit inadvertent waiver?

Answer 18

When reasonable steps were taken to prevent disclosure and reasonable steps were taken to rectify the error.

Question 19

Requests for Production

Answer 19

May be items in possession, custody, or control of party or non-party;
Must be reasonably particular request;
Must be responded in 30 days of served or as agreed in conference.

Question 20

What form must ESI be produced in?

Answer 20

ESI must be produced as kept in the usual course of business or organized and labeled to correspond to categories.

Question 21

When is metadata discoverable?

Answer 21

Metadata must be specifically requested after discussion during a 26(f) conference.

Question 22

Interrogatories-

Answer 22

Only parties are subject to Rogs;
Limited to 25 questions, including discreet subparts, unless otherwise agreed.

A party may allow a review of business records in place of answering a Rog.

Question 23

How are objections considered in depositions?

Answer 23

Objections must not be ‘speaking’ objections.
Objections are generally reserved and answered.
Objections are not answered if: privileged, motion to terminate, or limited by court order.

Question 24

What are sanctions for failure to comply with discovery?

Answer 24

Once parties certify a meet-&-confer or attempt to, the court can compel discovery for failure to answer depo/rog, failure to designate a representative, or failure to produce. The court can also compel any required disclosures.

Question 25

When does a party have to preserve evidence?

Answer 25

A duty to preserve occurs when:

reasonable anticipation of litigation, a statute implicates, or a preservation letter was received.

Question 26

What is required to find spoliation?

Answer 26

A duty to preserve;
Bad faith;
Relevance and prejudice.

For intentional spoliation, the court may give adverse inference or presumption, or dismiss/default.

Question 27

When are default judgments granted?

Answer 27

When a party fails to plea or defend.

Question 28

What is the procedure for obtaining a default?

Answer 28

When party is non-responsive within 21 days of service, move for default. If the non-responsive party had a prior appearance, must give 7 days notice.
For sum certain claim, and no minor/incompetent, clerk can enter.
If not sum certain, must go to the court. If minor or incompetent, must have representative.

Question 29

When might a court set aside a default judgment under R. 55(c)?

Answer 29

For good cause, considering:
A Meritorious defense, 
Promptness of the movant, 
Lack of moving party fault for default, 
Prejudice to the party, 
Lack of delay tactic history.

Question 30

When is a voluntary dismissal appropriate?

Answer 30

When there has been no answer or R. 56 motion (no responsive pleading). Notice must be given to the defendant.
If there has been a response, the defendant must consent and counterclaims remain viable.

Question 31

When is involuntary dismissal appropriate?

Answer 31

When the plaintiff fails to comply with the rules. May be sua sponte or on motion and generally granted with prejudice.

Question 32

How is summary adjudication implicated in R. 16 conferences?

Answer 32

The court can take action on the appropriateness and timing of R. 56 adjudication, giving notice of potential summary judgment to spur discovery any further evidence likely to show/dismiss material fact dispute.

Question 33

What authority does the court have in settlement conferencing?

Answer 33

The court can order a settlement conference but not order a settlement. It can set settlement deadlines and sanction party for not participating in conference.

Question 34

What is an offer of judgment under R. 68?

Answer 34

If official offer is service at least 14 days before trial, and the offer is declined, the declining party may be responsible for costs afterward if the final judgment is less than the offer.

Question 35

What is the basis for a summary judgment?

Answer 35

“No genuine dispute as to any material fact”

Must be moved within 30-days of close of discovery, based on admissible evidence before the court.

Question 36

When does a party have a right to a civil jury trial?

Answer 36

Under the 7th Amendment, generally when a party has a claim in law (not equity). Claims are considered on the Terry-test, comparing to actions of 1791 and considering the relief sought.

Question 37

When must a jury demand be filed?

Answer 37

Jury demand must be filed within 14 days of the last pleading. This is renewed for a joining party or amended claim.
The court may grant a jury trial on later motion with consent, or have an advisory jury.

Question 38

What is the role of the jury?>

Answer 38

The jury is the finder of fact, to weight issues of fact.

Question 39

How is a jury selected?

Answer 39

A venire of randomly selected community members is struck to get a panel of 6-12. Strikes can be for cause or peremptory. Peremptory strikes and not constitutional right but tradition, each side gets 3, and are considered state action that must be used with due process.

Question 40

What is a Batson challenge?

Answer 40

Batson discussed discriminatory jury strikes in a criminal case. Edmonson (and JEB) address discriminatory strikes in civil. Cant be based on race or gender. Once the strike is challenged, the striking party must show non-discriminatory.

Question 41

When may a court grant a JMOL under R. 50?

Answer 41

A R. 50 JMOL may be granted any time before submission to the jury. The motion is generally first made at the close of the case-in-chief.

Question 42

What standard is applied to JMOL?

Answer 42

Court considered if “no legally sufficient evidence” to support any claim or defense.
The previous Scintilla Rule is now ‘sufficient evidence’

Question 43

What is a renewed JMOL?

Answer 43

A RJMOL is the renewal of a previous JMOL. It requires a previous JMOL and is allowed within 28 days of jury discharge.
If the RJMOL is not may to trial, there is no appeal based on sufficiency of the evidence.

Question 44

Motion for a New Trial under R. 59….

Answer 44

Must be filed 28 days from entry of judgment (not verdict). 
New Trial is considered on:
Weight of the evidence, 
Unfair trial, 
Substantial legal errors,
Excessive damages.

Question 45

When a Motion for a New Trial is based on new evidence, what does the court require?

Answer 45

The new evidence must have-
Existed at the time of the trial,
Not overlooked for lack of diligence,
Is both material and relevant.

Question 46

What is a conditional ruling or argument?

Answer 46

A court will give a conditional ruling on a new trial when a RMJOL is granted, in case overturned.
A party may make a conditional argument for a new trial in case a denied JMOL is overturned.

Question 47

What is remittitur?

Answer 47

When a verdict ‘shocks the conscious’ the court may offer a lower award in place of ordering a new trial.

Question 48

When might a court grant a R. 60 Relief from Judgment?

Answer 48

Mistake, Inadvertence, Surprise, Excusable Neglect;
New Evidence, undiscoverable in time for a R. 59;
Fraud, Misrepresentation, Misconduct;
Void Judgment;
Satisfied, Released, Discharged;
Any other good reason.

Question 49

What is the time limit for a R. 60 Relief from Judgment?

Answer 49

Must be filed within a Reasonable Time.

If based on Mistake/Fraud/New Evidence, maximum time is 1 year.

Question 50

Temporary Restraining Order…

Answer 50

Generally ex Parte and expires in 14 days. A TRO expedites a hearing on a preliminary injunction. The adverse party can move to dissolve with 2-days notice.

Question 51

What is required for a preliminary injunction?

Answer 51

Likely to succeed on merits;
Likely irreparable harm without;
Balance of equities in favor of movant;
Within public interest.

Question 52

What are the differences between TRO and Preliminary Injunction?

Answer 52

The presence of the defendant and the length of effect.

Question 53

What is the final judgment rule?

Answer 53

Generally appealable issues are limited to the final judgment of a case. Exceptions are questions of Constitutional nature, subject-matter jurisdiction, or fundamental error.

Question 54

When are interlocutory appeals considered?

Answer 54

Controlling question of law;
Substantial ground for difference of opinion,
Immediate appeal from order may materially advance termination of the case.
Interlocutory appeals must be filed within 10 days.

Question 55

When multiple claim or issues, how are interlocutory appeals handled?

Answer 55

Under R. 54(b) if a court certifies that one issue is entered as final, that issue may be appealed even if the others don’t have final judgment.

Question 56

What is a writ of mandamus?

Answer 56

An extraordinary writ that directs a lower court to withdraw a prior order.
Mandamus requires exceptional circumstances and extreme cases, where there was clear abuse of discretion or usurpation of judicial power. The immediate review must not be otherwise appealable and required to prevent irreparable harm.