Parties and Claims: Joinder; Discovery Flashcards
Counterclaim
Claim by defendant against plaintiff
a) Permissive (do not arise out of the same transaction or occurrence, can be asserted now or at anytime
b) Compulsory-If arises out of the same transaction or occurrence, must be asserted now
Cross-claim
One defendant sues another
Impleader (3rd party claims)
defendant can bring in someone who may be liable to him; usually contribution claims, which have two or more tortfeasors and plaintiff has not sued all of them; or indemnity claims, where distributor is sued in products liability case and wants to bring in the manufacturer
Joinder of plaintiffs and defendants
Permissive (plaintiff is in driver seat) or person needed for just adjudication (few and rare situations where court will force the plaintiff to add someone
Permissive Joinder test
- ) assert right to relief jointly, severally, or in the alternative
- ) same transactions or series of transactions or occurrences; and
- ) there is a common question of law or fact
Necessary Joinder
Sometimes there are persons that will be so affected by the action that they ought to be joined if feasible;
Test: If an absent person could assert an interest in the subject of the action, so that the absent person could be harmed by the proceeding, then the absent person or entity is needed e.g. contestants in a suit to cancel deed or heirs in a will contest
If Necessary Joinder not feasible, test for proceeding
Court must determine in equity and good conscience whether the action should proceed based on
- ) Harm to absent parties
- ) Shaping the relief
- ) Adequacy of judgment
4) Plaintiff adequacy if dismissed.
Reason why necessary joinder not feasible:
Destruction of jurisdiction, judgment already rendered or case underway
Class Actions
has four prerequisites, three types, a certification order, and notice.
Four prerequisites for class action
- Numerosity- number so large that it is impractical to bring before the court
- Commonality- at least one common question
- Typicality- the claims of the represented parties have to be typical of the those of class members
- Adequate Representation- the named claimant must be such that he can adequately represent those who are absent
Class action type b1
Inconsistent results: individual suits would create inconsistent results; limited fund with numerous claimants
Class action type b2
Uniform injunctive or declaratory relief; civil rights class action, relief granted with respect to the class as a whole
Class action type b3
Most common; 2 Requirements Superiority and Predominance The common questions must predominate over questions that are individual to each member, and the class format must be the superior means of resolving the dispute
Four factor test for b3 actions
Four factor pertinent to the determinations are
1) class members’ interest in “individually controlling” their own actions
2) other pending litigation, if any
3. ) appropriateness of the forum
4. ) the difficulties in managing a class action
Class action notice
court must direct notice to class member in b3 action and must be the “best practicable under the circumstances”; must also provide for members to request “exclusion”
Class action certification
court must conduct a hearing to certify that four prerequisites are met and class action fits into one of the 3 types.
Interpleader
faced with multiple conflicting claims (claims are inconsistent), stakeholder requires interplead parties to litigate out entitlement in a single action against each other, getting them enjoined from suing elsewhere. Essential requirement is existence of conflict. e.g. $100,000 life insure policy and two separate claims of $100,000
Intervention
Of right or permissive, depending on circumstances. Intervention is entering into an existing case (means of joining an existing lawsuit in which you have an interest)
Judicial Panel on multidistrict litigation
can consolidate for pretrial. Federal panel that authority to transfer multiple lawsuits about the same matter to a single court for pretrial proceedings. Can transfer to have depositions taken, hear all motions for trial. Court must transfer cases back to original court for trial. Judicial panel has no authority over state cases unless they can be removed.
Information is discoverable if it is
proportional to the needs of the case, relevant (need not be admissable), not privileged.
Six factor for to determine if information is proportional are
- ) Importance of issues
- ) Amount in controversy
- ) Parties’ access to information
- ) Parties’ resources
- ) Importance of the discovery
- ) if burden outweighs its benefit
Limits of discovery
Not cumulative or unduly inconvenient;
if party already has had ample opportunity to discover; benefit heavily outweighed by burden;
also limited to geography, time, and subject
Work product
Litigation preparation material usually not discoverable. Note escape valve- if discovering party can show undue hardship and substantial need; needs to be in anticipation of litigation but does not cover investigations or work unrelated to litigation
Experts
- Testifying experts fully discoverable
- “Retained” consultants in extraordinary circumstances only.
- One court says informally consulted experts not discoverable at all (not in rules)
- If not consulted for trial, there is no restriction
Note difference in treatment of reports of physical or mental examination. Expenses usually to be paid by discoverer
Protective Orders
Court has powers to specify conditions and limits of discovery to protect against harassment, undue expense, embarrassment, trade secret exposure;
Protective Orders balancing test
Party wanting protective order shows that it would be significantly harmed by the disclosure; the opposing party shows that it has need for discovery. Court balances harm against need, and has great discretion.
Electronic Discovery
needs to be “reasonably accessible” or if not, court order requiring “good cause” There needs to be a litigation hold reasonably done, which is a duty of reasonable steps for preservation of material for trial.
Electronic Discovery Sanctions
No greater to cure prejudice unless intentional. adverse jury instructions, default, dismissal can be imposed only if the at-fault party has acted “with the intent to deprive another party of the information’s use”
Disclosure meeting
- Initial (required self-initiated disclosures) disclosure
- Expert testimony
- Pretrial disclosure of witnesses
- discovery meeting between counsel to discuss and arrange disclosures
Initial disclosure
- Identification of witnesses-persons who may have relevant facts about your claims or defenses
- Documents- may contain information relevant to claims or defenses
- Damage calculations
- Insurance
Discovery Methods
- Depositions
- Depositions on written questions
- Depositions to preserve testimony
- Interrogatories
- Request for admissions
- Request to produce or inspect (including electronic documents)
- Motions for physical or mental examination
Depositions
Oral questions asked of a witness under oath in from of a court reporter
Uses of Depositions
- Impeach
- May use deposition of party or party’s officer or agent
- Unavailable- dead, more than 100 miles from place of trial, age or illness, could not procure witness attendance by subpoena, exceptional circumstances in interest of justice.
- Completeness- may use part of deposition, but adverse party may use other parts
- Contrast Texas, other states- Texas allows use of deposition at trial freely
- Limitations- Less than 14 days notice and protective order; not able to obtain attorney
Deposition Notice
Need notice to all parties of time and place, must be reasonable
Nonparties deposition
Need subpoena, not required to go more than 100 miles
Deposition limit
limit of 10 for 7 hours each
Deposition Objections
Need prompt objection of defects (irregularities in notice, disqualification of reporter, etc.)
The “usual” agreement
Rule 29 allows the parties to make stipulations about the taking of deposition and to modify most other discovery procedures. Examples
- Waive requirement witness sign or it may be signed by any notary, not just court reporter
- Deposition by a non-certified court reporter
- Allocation of deposition expenses
- All objections may be made at trial
- Usual agreements are normal local stipulation
Deposition on written questions
Similar to interrogatories; weak form of discovery because you can’t follow up
Interrogatories
Presumptive limit 25; written questions that have to be answered under oath; superior if requires information that witness may not know offhand; they have to go look it up; also if getting information collectively form multiple people
Request for admissions
written questions to a party that have to be answered under oath; when they are not expected to contest
Motions for physical or mental exam
have to have good cause; condition has to be in controversy; relevance is not enough; condition has to be related to issue in the pleadings
Duty to supplement discovery answer
if incorrect when made or incomplete
Discovery sanctions (8)
- Ordering discovery
- Establishment- fact is established
- Preclusion- precluded form offering evidence about this subject; establishment/preclusion order-fact is established and you are precluded from challenging it
- Striking of claims or defenses
- Dismissal
- Default judgment against party
- Contempt- fines or incarceration against nonparty or party
- Payment of fees and expenses- only if no substantial justification for resistance
Sanctions above ordering discovery- Only upon showing of fault. Merit Sanctions usually require gross negligence or higher standard
Implied certifications; discovery conference
parallel to rule 11 (best of knowleged, based on reasonable investigation); court may order discovery conference to deal with discovery matters
