Pleadings and Pretrial Motions Flashcards
What is Discoverable
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Destruction of Evidence
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.
Sanctions for Destroying Evidence
Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
When retrieval of the information is possible, even if typically considered inaccessible due to cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.
Issuing a Temporary Restraining Order
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.
Issuing a Preliminary Injunction
A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide security (typically in the form of a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully enjoined.
Amending an Answer after the close of Discovery
Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.
When to grant a Motion for Summary Judgment
A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of the non-moving party.
Amending a pre-answer Motion
Under Rule 12(h)(1), if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.
Proper delivery of summons
Federal Rule of Civil Procedure 4(e) allows service by delivering a summons and complaint to an individual personally or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.”
