Mid Term Notes

Question 1

Work Product Doctrine (Hickman) R.26(b)(3)

Answer 1

Work Product of Attorney in Prep for Litigation

Question 2

Work Product Doctrine R.26(b)(3)

Answer 2

It IS Protected if

1) Documents gathered in prep for litigation
2) Between Atty and other parties not the client

Have to overcome and show to get documents BUT NOT mental impressions of Atty

1) Not privileged, proportional, and relevant
2) SUBSTANTIAL NEED for the docs
3) Undue Hardship to get a substantial equivalent (someone died, the changed the road)

• Reasons for Allowing Party to have it *
  1) Where it is Hidden in Atty File But ESSENTIAL
  2) Difficulty in getting the info yourself

Question 3

Discovery Scope RULE - Only Stuff that:

Answer 3

a. Not Privileged
b. Only Relevant Info
c. Must be Proportional

Question 4

Voluntary Dismissal by Plaintiff

Answer 4

1. Without a Court Order R.41(a)(1)(A)
   (Free One b/c you messed up) if

**Before the Answer or motion for summary judgement **

Question 5

Impleader - When a Defending Party May Bring in a Third Party.
Contribution -

Answer 5

Rule 14 - also mention separation under R42

Question 6

Permissive Joinder of Parties

Answer 6

R. 20
(A) they assert any right to relief jointly arising out of STOO

(B) any question of law or fact common to all will arise in the action

Question 7

Cross - Claim - against a party who is …

Answer 7

…on same side as you

Question 8

Cross - Claim against a Co-party

Answer 8

R.13g if the claim arises out of
STOO that is the subject matter of

1) the original action or
2) of a counterclaim

Question 9

Joining Additional Parties.

Answer 9

R.13(h) Rule 20 STOO (of this claim / not original claim)
govern the addition of a person as a party to a
counterclaim
~or~
cross-claim

Question 10

C/ claim 3 Times It Matters whether Compulsory or Permissive

Answer 10

1) Out of state law / NOT a Federal Question and No diversity
(No independent subject matter jurisdiction)
2) When the Stat of Limitations has run
3) If D in first case didn’t file a counterclaim and has now filed a claim in a separate suit against initial P.

Question 11

Permissive C/C R.13(b) - does not …

Answer 11

arise out of STOO

Question 12

Permissive C/C R.13(b) - if not raised then …

Answer 12

not waived and the defendant is free to bring an independent action on the claim.

Question 13

Can only make her Permissive Counterclaim if

Answer 13

the Statute of Limitations has not expired.

Question 14

Permissive Counterclaim best with ____ test b/c ___

Answer 14

Best with Same Facts / Same Law Test b/c will not be STOO and THAT is what you WANT in order to bring it

Question 15

Logical Relationship Test

Answer 15

Will Always find that it came from STOO

Question 16

Same Facts / Same Law Test

Answer 16

Will Never find that it came from STOO

Question 17

Compulsory C/C R.13(a) – DOES …

Answer 17

Arise out of the Same Transaction or Occurrence / STOO

Question 18

Compulsory C/C R.13(a) – it ____ or else it is ____

Answer 18

it must be raised in the defendant’s answer, or it is waived.

Question 19

Compulsory C/C R.13(a) - 2 exceptions

Answer 19

Need Not state the counter claim (Will not lose it) if:

1. When the action was commenced, the claim was the subject of another pending action
2. The opposing party sued on its claim by attachment

Question 20

Compulsory C/C best with ____ test b/c ____

Answer 20

best asserted using the Logical Relationship Test b/c always STOO

Question 21

Defaults: R.55 Motion for Default Judgement

Answer 21

A NO SHOW

a. . When someone has failed to “plead” or otherwise Defend
b. NO DEFENSE PRESENTED

Question 22

Dis- Favored Pre-Answer Motions : Loose if ….

Answer 22

Not Pre-Answer or Answer (MUST BE IN RESPONSIVE PLEADING)

R.12(b) 2-5

Question 23

Favored is 12(b) __ : Latest is ___

Answer 23

6 // latest is at Trial

Question 24

Discretionary by Judge ~~ test ~~

Answer 24

BALANCING TEST
——- Harm vs. Fault
P =
Def =

Question 25

R.8(a) = complaint needs to be

Answer 25

a short plain statement showing that pleader is entitled to relief
- Fair notice and grounds / basis of complaint is what is needed

Question 26

Alternate (Competing) Theories in complaint are ok

Answer 26

R.8(d)(2)