Pre-trial procedure Flashcards
Summary judgment
A motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that:
(1) there is no genuine dispute as to any material fact; and
(2) that the movant is entitled to judgment as a matter of law.
A motion for summary judgment may be filed at any time until 30 days after the close of all discovery.
Summary judgment: genuine dispute of material fact
A genuine dispute of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.
In evaluating a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.
Summary judgment: admissibility of evidence
In deciding a motion for summary judgment, the court must consider the materials cited by the parties: affidavits, documents, electronically stored information, pleadings, deposition transcripts, interrogatory answers, admissions, and stipulations filed by the party,
The materials need not be presented in a form that is admissible at trial, so long as the facts contained in the submissions are admissible at trial.
Pretrial conferences
Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for purposes as:
- expediting disposition of the action;
- effective case management; and
- facilitating settlement.
If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.
Pretrial conferences: default
If counsel or a party:
- fails to appear,
- fails to participate in good faith, or
- fails to obey a pretrial conference order,
then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.
Pretrial disclosures
Under Rule 26(a)(3)(B), the parties must make pretrial disclosures at least 30 days before trial.
Pretrial disclosures include the name and, if not previously provided, the address and telephone number of each witness, separately identifying those a party expects to present and those it may call if the need arises.
Pretrial disclosures: experts
Experts who may testify at trial must be disclosed as part of the mandatory expert disclosure.
But experts employed in anticipation of litigation who are not expected to be called as a witness at trial need not be identified—even if requested pursuant to an interrogatory—absent exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Expert witness disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial.
Pretrial disclosures: default
Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless:
(1) the nondisclosure was substantially justified; or
(2) it was harmless.
Summary judgment: raising a genuine dispute
If a motion for summary judgment is properly made and supported, then an opposing party may not rely merely on allegations or denials in her own pleading.
Instead, she must either:
(a) set out specific facts showing a genuine dispute for trial; or
(b) show by affidavit or declaration that for specified reasons—e.g., insufficient opportunity to obtain discovery—she cannot present facts essential to oppose the motion.
If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party.
