Semester 2 Flashcards
What puts all potential claimants in one suit to avoid multiple inconsistent judgments?
Interpleader
What are the 2 types of interpleader?
Rule (regular) interpleader under R22, all rules of jurisdiction, service, and venue apply.
Statutory interpleader allows for diversity between any 2 claimants, an AIC of $500, and nationwide jurisdiction.
Under R23, what must be satisfied to certify a class?
Numerosity, commonality, Typicality, Adequate representation. Also the class category is one of Incompatible Standards, Limited Funds, Injunctive Relief, Damages.
What is a class category of Incompatible Standards?
Members of the class would risk inconsistent or varying adjudications individually.
What is a class category of Limited Funds?
The number of claims exceed the amount available to satisfy them.
What class category is based on Predominance and Superiority?
Damages class category, where predominant questions of law or fact are over individual questions, and class action is the superior method of adjudicating.
Under Rule 26, what is the scope of discovery?
Any non-privileged matter relevant to claim or defense of any party and proportional to the needs of the case.
How is discovery relevance different than evidentiary relevance?
In terms of discovery, relevance is much broader than evidence. Admissibility is not a determining factor.
Reasonably calculated to lead to the discovery of admissible evidence.
What is considered for the proportionality of discovery?
- Importance of the issues at stake.
- Amount in Controversy.
- Relevant access to the information.
- Resources of the parties.
- Importance of discovery to resolving out of court.
- Burden and expense weighed against benefit.
What must be included in a discovery certification?
Any disclosure or discovery request/response must be certified that it is correct as of time made, consistent with the rules, for proper purpose, and not unduly burdensome.
What can a party do to limit requested discovery?
R26(c) allows for a protective order to limit discovery. This can prevent annoyance, embarrassment, undue burden or protect trade secrets. It may also ask that production be of a certain format.
What is required prior to seeking a discovery protective order?
Parties must attempt to meet and confer prior to seeking a protective order on discovery.
How is discovery limited by rule?
Discovery must be nonprivileged and proportional by rule. Discovery can be further limited if unreasonably cumulative, easily obtainable elsewhere, outside the scope or already had ample chance to obtain.
Who may be ordered to produce discovery?
Any party to the case may be ordered to produce discovery. Also, non parties can be ordered to produce discovery under a R45 subpoena.
Who has the burden in discovery disputes?
The requester must show request is relevant. If arguing trade secrets/burdensome, the responding party has the burden.
What is ESI?
ESI is electronically stored information.
How is ESI specifically limited?
R26(b)(2)(B) places limits on ESI if not reasonably accessible because of undue burden or costs. If responding party shows not reasonably accessible, the court can still order production if requesting shows good cause.
When discovery is unduly burdensome, the court may shift costs. What factors are considered for cost-shifting?
The court will consider:
Extent request is specifically tailored to relevant info,
Availability from other sources,
Total costs of production compared to AIC and resources,
Ability of either to control costs,
Importance of issues at stake,
Relative benefits to the parties.
What is Attorney-Clint privilege in Civil Procedure?
Attorney client privilege mirrors evidence. Statements made between the attorney and client, or representatives.
What is an Upjohn warning?
An Upjohn warning provides notice to employees of a company that an attorney works for the company and not the employee, statements by employees may not be protected.
What is the work-product doctrine?
The work product doctrine protects documents and tangible things prepared in anticipation of litigation from discovery. However a court may order those disclosed upon a showing of substantial need.
What is never discoverable as work product?
The mental impressions, conclusions, opinions, or legal theories of a parties attorney are always protected.
What test is used to determine if material was prepared in anticipation of litigation?
The majority use a “because of” test to determine if material was prepared in anticipation of litigation.
What is a Privilege Log?
Under R26(b)(5), when information is withheld as privileged, a log must note the nature of information not disclosed in a manner that will allow parties to assess the claim without revealing the information.
What is the result of an inadvertent disclosure of privileged information?
When the party holding the privilege notices, the party must notify the receiver and the receiver must return or destroy. FRE 502 limits waiver when reasonable steps were made to prevent and promptly rectify, but it may extend to the subject matter if fairness dictates.
What are the ethics rules regarding inadvertent waiver of the privilege?
Professional Responsibility rules require the receiver not to look and notify the sender when found.
What is disclosure is required concerning expert witnesses?
When an expert may testify, the party must disclose a statement and basis of opinions, facts and data used, supporting exhibits.
The proponent must also disclose the experts qualifications, publications the last 10 years, other expert cases, and compensation.
When is a retained expert information not required disclosed?
When the expert is employed for trial prep only, and is not expected to be called as a witness.
What are the 5 general discovery devices?
Initial required disclosures; Requests for Production; Interrogatories; Depositions; Physical or Mental Examinations
What is required in the initial disclosures?
Name, Address and Contact of those likely to have info disclosing party may use.
Copy or good description of tangibles that may be used.
Computation of damages by claim.
Any insurance agreements that may be liable.
Who can be subject to RFP (request for production)?
Any party, or non-party via R45, may be subject to Request for Production of things in possession/control/custody. Once notified, a response is required within 30 days.
What are specific considerations for RFPs concerning ESI?
Is ESI if requested, any metadata must be relevant and expressly requested. ESI should be produced as usually kept or organized in usable form, unless otherwise agreed.
What limited are placed on Interrogatories?
Interrogatories are limited to 25 questions, included discreet subparts. Only parties are required to answer interrogatories.
Who may be required to give depositions?
Both parties and non-parties can be required to give depositions. Any objections must be non-argumentative/non-speaking, and are reserved unless privileged, court ordered, or a motion to terminate.
When may a party be required to undergo a medical examination?
When the findings would be in controversy or at issue, the requesting party shows good cause, and the court issues an order.
The submitted party may get a copy of the examination upon request.
What happens if there is a discovery dispute?
The parties are required to attempt meet and confer first. If no resolution, then a motion to compel is filed. The motion to compel must certify to good faith efforts of resolution.
What sanctions are available if a motion to compel is ignored?
A court may: Accept all facts as true, Prevent sanctioned from bringing withheld info, Dismiss or default, Strike pleadings, Order reasonable costs.
What is considered to find spoliation?
The duty to preserve the thing, Culpable behavior, and relevance & prejudice.
When is there a duty to preserve evidence?
A duty to preserve begins with:
Reasonable anticipation of litigation, OR
Statutory duty, OR
Receipt of a preservation letter.
What sanctions are available for ESI spoliation?
Under R37(e), sanctions for ESI spoliation are: No greater than necessary to cure prejudice, unless there was intent- then: Adverse Interest applied, Instruct may presume unfavorable, OR Dismiss or default judgment.
When is spoliation of ESI not sanctioned?
When unintentional and reasonable steps to preserve were taken.
When may a court enter a default judgment under R55?
When a party fails to plead or defend a court can enter a default judgment. If sum certain the clerk may enter, otherwise the court must enter.
What considerations are given to minors and incompetents under default judgment.
A minor or incompetent must have representation, and judgment may not be entered by the clerk.
When is a party considered in default?
If a party is non-responsive for 21 days after service.
When can a court set aside a default judgment?
A court can set aside a default for good cause, considering:
A meritorious defense of the moving party,
Reasonable promptness of the movant,
Personal responsibility of default party,
Prejudice to party,
History of delay action,
Available lesser sanctions.
What damages are available in a default judgment?
Damages are limited to that listed in the complaint. The court can conduct an accounting, determine damages, establish truth, investigate any matter.
