Pleading and Discovery

Question 1

Define Legal sufficiency and legal insufficiency and its effect on pleading.

Answer 1

Legal Sufficiency is the idea that if a plaintiff gives us a complaint and we assume everything in it is true, the plaintiff would get relief
Legal insufficiency is when the claim leaves something out that even if everything is true, the plaintiff can’t win.

Question 2

What was held in Twombly and how does it effect pleading?

Answer 2

To satisfy the pleading requirements, you must plead enough facts to make your claim plausible. possible - plausible - probable
lowest - middle - highest

Question 3

What was the result of the following fact pattern and the name of the case:
A rule 12b(6) motion was filed. A pakistani muslim was detained after the 9/11 attacks and claimed that “they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin.

Answer 3

Iqball
It was held that the it was not more likely that the U.S. government acted not because of a neutral investigative purpose, but a purposeful discrimination motivation.
Thus, it was not plausible that they acted with a purposeful discrimination motivation, and the 12b(6) motion was granted for failure to state a claim.

Question 4

What are the options in an answer to a complaint?

Answer 4

Deny, affirm, or don’t have enough information (which serves as a denial)
Note: if you don’t deny or lack information, allegations are deemed admitted.

Question 5

What types of denial are there in an answer to a complaint?

Answer 5

General Denial: Federal rules - only if you can dispute every claim
Specific Denial: Go through each claim and deny or agree

Question 6

What are the two items that one must have in an answer to a complaint?

Answer 6

1. Respond to allegations in complaint (e.g. deny, affirm, or don’t have enough information.
2. Raise affirmative defenses
   Note: if you don’t raise some affirmative defenses, you may waive the right to assert them at a later point

Question 7

What are you trying to demonstrate when raising an affirmative defense?

Answer 7

If everything the other party says is true, you have some facts that are true and mean you have no liability or reduced liability

Question 8

What types of experts are there, and how what is discoverable about them?

Answer 8

Consulting expert: Discovery is extremely limited, cannot discover facts known unless under exceptional circumstances
Testifying expert: Expensive, write report, full disclosure, etc

Question 9

What privileges are available, and what is discoverable related to those privileges?

Answer 9

1. Attorney Client: confidential communication between attorney’s and clients. Absolute - no discovery
2. Work Product
   a) Opinion Work Product: attorney’s mental impressions - absolute protection
   b) Fact Work Product: substantial need and inability to obtain the equivalent without undue hardship
   Note: Underlying facts are discoverable