CIVIL PROCEDURE II OUTLINE
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I. DISCOVERY
STAGE 1: Initial Disclosures (Rule 26(a)(1))
Party must, without being requested, provide to the other parties 4 things (whichever relevant):
 Rule 26(a)(1)(A)(i) Witnesses
o Would need to know if the witness would likely be called upon at trial, and if yes, then would need to
disclose but if no, then likely not
 Would not want to call a witness to testify at trial if the witness would hurt your case and,
therefore, would not need to disclose them
o **ONLY NEED TO DISCLOSE THOSE THAT YOU WILL USE AT TRIAL TO SUPPORT YOUR CASE
o If you don’t disclose someone and then end up wanted to include them in your witness list at trial, it is
likely that you will be sanctioned at trial and will not be able to call them during the trial
 Rule 26(a)(1)(A)(ii) Documents: Like police reports, car maintenance records, medical records
 Rule 26(a)(1)(A)(iii) Damage Computation: Medical reports for damages (mainly for π)
 Rule 26(a)(1)(A)(iv) Insurance Agreements: Relates to the judgment (typically the ∆ is the one who discloses
under section iv)
o This will likely affect whether the π will proceed with the case and/or decide to settle
 Rule 26(a)(2) Expert testimony:
STAGE 2: Requests from one side to the other
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Depositions (Rule 27)
o Most expensive but also likely most useful method of discovery
o Limit: can only get 10
 But if the individual case requires more, you can ask for more so long as it is reasonable
o Time constraint: get 1 day of 7 hours
o Effective because answered directly by the witness, rather than the attorney & the attorney is not
allowed to constantly object; rules specifically say you can object but the person must still answer the
question
 Example: in deposition can’t object based on hearsay even though that testimony likely won’t be
admissible in trial due to hearsay
o Allows for follow-up questions as opposed to interrogatories
o Also helps you see how someone will react on the stand and frame questions for trial.
o Depositions can be used to impeach people at trial based on their changing testimony
o Can also use them to preserve testimony (like if a witness died before trial)
Interrogatories (Rule 33)
o Come first in terms of discovery to narrow down what documents to request or people to depose—
economically efficient— NOT document production in itself.
o Broadens disclosure b/c can ask for any documents and witnesses instead of those that help the other
side—which is the scope of disclosures.
o Answered by attorneys instead of individuals
o Typically time limit is 30 days to respond
o There is a limit of 25 written interrogatory questions (Rule 33(a)(1))
o Things like records under your control, in interrogatories you can have the requesting party find those
records themselves as long as they can find the as easily as you could (Rule 33(d)(1))
 If burden of deriving answer will be substantially the same for the other party as for the
responding party
o Can also object to the specific interrogatories, but need to be specific regarding why (Rule 33(b)(4))
Request to Produce Documents or Tangible things (Rule 34)
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Extremely broadly defines documents and tangible things (Rule 34(a)(1)(A))
 In order to discourage any “game playing” with the strict definition of words
 Example: past cases or claims of similar nature, drawings, documents, testing results, etc.
o How do you ask for the information knowing that “document” can mean anything?
 Don’t want to ask the document request too broadly but also don’t want to be too narrow
o Attorney’s responsibility to respond and hand over the documentary evidence to the other side; need to
make sure you do not send privileged or protected documents to the other side
Requests for Examinations (Rule 35)
o Need a court order (only rule that needs a court order) in order to get a medical (mental or physical)
examination of a party (Not witness—cannot subject a witness to examination).
o Must demonstrate good cause & the mental or physical condition that you are testing for is actually “in
controversy” aka particularly relevant to the case.
o Most often used by ∆ for π— If claiming physical or mental damage must show harm.
Requests for Admissions (Rule 36)
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Duty to Preserve Evidence and Attorney’s Responsibilities
Zubulake v. UBS Warburg LLC, pp. 376, SNDY NY 2004
 Gender discrimination case
 Asked for email correspondence among various UBS employees to show gender discrimination – there may be
something in those emails to show some sort of discriminatory intent
 3 problems with emails: 1. Deleted and lost, 2. Deleted and recovered but two years later, or 3. They were there
the entire time and never produced.
o Spoliation
 The destruction or significant alteration of evidence, or
 The failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.
 What are the requirements to show Spoliation
1. Obligation to preserve it at the time it was destroyed. This obligation kicks in even before the suit is
filed if you were on notice, since the definition has “reasonably foreseeable litigation.”
2. Culpable State of Mind – Negligent, bad faith, presumed
3. The destroyed evidence was relevant to the party’s claim – supporting requesting practice
 What are the sanctions that the plaintiff is seeking?
o Adverse inference instruction – “If you find that UBS could have produced evidence, in control and
would have been material in deciding facts, you are permitted to infer that the evidence would have been
unfavorable to UBS”
 Counsel’s Obligations – Locate, retain, produce
o Litigation hold
o Communicate directly with key players (or relevant players)
 Preservation duty and periodically remind
o Instruct all employees to produce electronic copies of relevant active files & ensure that all backup media
is identified & safely stored
o Overseeing that this continues to be done during course of litigation
 Rule 26(b)(2)(b) – now specifically refers to electronic information
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Rule 26(b)(1) – General Scope of Discovery
1. For good cause, court may order relevant to subject matter (Not much on this)
2. Relevant to a party’s claim or defenses
 Not a fishing expedition to find whatever you want but does NOT need to be admissible at trial (can be limited by
rules of evidence) but Reasonably calculated to lead to admissible evidence of discovery.
 Information that can be gained during discovery is broader then what can be brought in at trial.
United Oil Co. v. Parts Associates, Inc., pp. 368, D. Md. 2005
o π made Rule 37 – Motion to compel answer to interrogatories by ∆.
 Before this motion is made you have to confer with the other side to work out the issue.
o ∆ argues that the discovery requests are
 Irrelevant + Overly Burdensome
o How do you define RELEVANCE?
 Evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would without the
evidence. “Does the item of evidence tend to prove the matter sought to be proved?”
o ∆ says there should be 4 limits on requests:
 Claims should only be Failure to Warn claims
 Not necessary to have only failure to warn claims – other types of cases could have given
the ∆ warning that the product was dangerous.
 Only products in this case = Fleet-fill Brake Cleaner
 Court decision on all products that contain any chemicals in controversy (even small
amounts)- it may not be admissible but it can lead to admissible evidence – burden is on π
at trial to show how those products are similar.
 Liver damage
 Yes, the claims have to be limited to liver damage. If they have notice of heart problems,
that’s not relevant to the π’s liver damage.
 10 years back  from the filing of the discovery
 The claims disclosed should be only cases that came up before the π’s injury
 Claims after the injury are relevant to causation but not relevant to knowledge
o A Failure to warn claim requires:
 Knowledge or good reason to know that the chattel is likely to be dangerous for the use for which
it is supplied + Proximate Causation
o Contention interrogatory – If you contend you did not cause these injuries, tell us the basis for these
contentions. Court says that contention interrogatories are allowed.
o ∆’s motion to compel – π asked United Oil some questions and United Oil gave a bunch of documents
over per Rule 33(d) BUT court says no, cant produce business records in this case b/c
 United Oil is more familiar with these documents + has greater resources + π says some of the
answers aren’t in there
3. Non-privileged
 General elements:
o Confidential communication, between individuals in a “protected relationship”
 Spousal
 Attorney-client**
 Doctor-patient
 Communication itself must be for purpose relating to relationship
 Attorney-client Privilege
o Confidential (no 3rd party) communication
o Between client and his or her attorney, acting in the capacity of the attorney
o Relating to legal advice
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For attorney-client, anything you say that relates to getting legal advice is privileged, not just
anything you say (ex: if client saw attorney at dinner and spoke about politics, that is not
privileged)
o You must ASSERT the privilege
o Documents are the other critical components (documents labeled “confidential” are covered by attorneyclient privilege). Completely confidential.
Who is the client in Corporations when asserting the privilege?
o At one extreme, only the CEO/top managers (Court rejects in Upjohn), other extreme, everybody including
janitor
o Need to have in mind the purpose behind the privilege in order to determine who the privilege should
extend to:
 Person needs to have been engaged in work related to the company & have/had information
that was legally relevant to the legal advice that was being sought
 Person needs to be an agent of the company
 Court looks in terms of where is the need
Rule 26(b)(5)  Claiming Privilege or Protecting Trial-Preparation Materials
o A: information withheld; lists what you need to do if you are asserting privilege/trial prep
 Must assert expressly in response to discovery
 Must describe in general terms what you are withholding (a/c priv. or trial prep mat.) so that the
court/other side may know that it is a legitimate assertion of privilege
o B: information produced; if subject to claim of attorney-client privilege/trial prep
 Can notify the other side that something was turned over that was privileged
 After notification, other side must return, sequester or destroy the document
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Rule 26(b) – Limits on Discovery
Limits Rule 26(b)(2)(C): Court must limit discovery if burden will outweigh benefits considering needs of case, AIC,
party’s resources, importance of issues, importance of discovery in resolving issue.
 Not overly burdensome
 Not “cumulative”
 Not more easily obtained from other source
OTHER Limits on Discovery
i.
Trade Secrets: Non-Privileged Information that will Hurt the Interests of the Disclosing Party
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ii.
Coca-Cola case  does Coca-Cola need to hand over the trade secret?
 Procedurally, if you don’t want to produce the trade secret, what should you do?
 Want to file a motion for a protective order (Rule 26(c)) to not have to turn over the trade
secret; need a good reason and the court may issue this order for annoyance, embarrassment,
oppression, or undue burden or expense including requiring a trade secret be revealed  Asking
the court for a way to evade the rules and keep your trade secret a secret
Judges balance both sides and see how important the trade secret is to proving the requesting party’s
case and, on the other side, how costly/problematic is it to the disclosing part.
Work Product: Trial Prep Materials (Rule 26(b)(3))
Hickman v. Taylor – Tugboat accident and attorney spoke with various witnesses + statements
 Can discovery be used to inquire into materials collected by an adverse party’s counsel in the course of
preparation for possible litigation?
o No attorney-client privilege under Rule 26(b)(1) because they were conversations between attorney
and third party
o Is definitely relevant to the claim – Witnesses who saw boat sink
 Attorney’s work product: Primary Question
o Timing of when it was created (when was document prepared)
o Motivation (for what purpose was it created)
 Rule 26(b)(3)- 3 Elements
o Party may NOT discover documents and tangible things that are prepared in anticipation of
litigation for the trial by or for another party or its representative
o Discoverable ONLY if:
 Otherwise discoverable under Rule 26(b)(1)
 Requesting 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
 E.g. evidence no longer exists (if witnesses died) BUT make sure other party didn’t have an
opportunity and miss it – no freeloading.
 Oral statements— can basically NEVER get that **Not privileged but heightened standard
 Also protects mental impressions, conclusions, opinions or legal theories
United States v. Adlman (1998) - Document prepared by accountant/attorney and was asked by client’s attorney to
assess the likely results of expected litigation if they engaged in consolidation of 2 firms
 Does they study attorney asked for count as trial prep b/c it was virtually certain IRS would sue?
 Problem: Document was created primarily in order to make a business decision but also could be used with
potential impending litigation
 Timing
o This study was drafted before business transaction occurred that would give rise to litigation.
o Court says that— May be prepared in anticipation for litigation
o Also substantially certain knowledge that litigation was going to ensue
 Motivation
o 2 definitions that the circuits had used to describe “motivation” in the past:
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Primarily to assist in litigation
 Court says that nowhere in Rule 26(b)(3) does it state that a document must have been
prepared to aid in the conduct of litigation and definitely doesn’t say primarily or
exclusively to aid in litigation; thus, in anticipation of litigation is sufficient and dual
purpose (business decision) does not mean not in scope.
 Disincentives writing things down.
 Because of litigation  Court chose this
 IRS previously argued for this definition in another case & court holds this to them
 Need to ask would you have created this document even if there were no potential
litigation
o Not clear how to prove but maybe look at ordinary court of business if you
always prepare something then clearly not b/c of litigation
Exceptions: IRS tries to assert “substantial need and unavailability” Says need to see motivation of
company in making the transaction, if it was for tax avoidance
 Court says no – the accountant drafted the memo rather than the client so you can’t glean what
the client thought
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iii.
Experts (Rule 26(b)(4))
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2 characteristics of the experts themselves to ask what discovery you can get:
o Is expert testifying or not?
o Is expert retained or specially employed in anticipation for litigation or informally consulted?
Specialist in their field with knowledge that till assist the trier of fact to understand the evidence
Can give opinions about things based on the standard—typically whether ∆ complied with the standard.
Testifying
Not Testifying
Retained
If they are testifying, a lot of discovery is
allowed under Rule 26(a)(2), including
names, addresses, reports.
Also under Rule 26(b)(4)(A) – Can be
deposed, send interrogatories etc.
26(b)(4)(D)(ii) – Names in
exceptional circumstances
Consulted
Nothing
Nothing
Ager v. Jane, 10th Cir. 1980
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Identifies four categories of experts:
o Experts a party expects to use at trial
o Experts retained but not testifying
o Experts informally consulted but not retained
o Fact witness in the case who happens to also be an expert but whose services as an expert are not used as
an expert.
Court comes up with ad hoc determination for who is “Retained.” 4 Factors:
o The manner in which the consultation was initiated
o The nature type and extent of information or material provided to, or determined by, the expert in
connection with this review
o The duration and intensity of the consultative relationship
o The terms of the consultation if any
Pros: Most fair, most accurate. Cons: efficiency problem; highly discretionary and difficult to determine at the
outset could result in multiple hearings about who is an expert and who isn’t
If retained but not testifying, names & opinions held can be discovered ONLY if exceptional circumstance:
o Only 1 expert (nature of the specialty or location limits the group of experts available and thus can’t get
opinion/testimony another way)
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o If what the expert has to look and or review, if that material is no longer available
Rule 26(a)(2)  Have to disclose all testifying experts & provide reports for testifying and specially retained
expert → Can then also depose testifying expert Rule 26(b)(4)(A)
Non-testifying experts: can send interrogatories or depose ONLY IF specially retained AND ONLY IF can show
exceptional circumstances and would be impracticable to obtain information by any other means.
If have non-testifying, informally consulted, get nothing
Enforcement and Sanctions for Discovery - Rules 26(g) and 37
Rule 26(g) Same as Rule 11 for discovery
 Requirements
o Perform reasonable inquiry under the circumstances and request or response is consistent with rules
or warranted by the rules.
o For a proper purpose not to harass, cause unnecessary delay, or increase the cost of litigation.
o Not unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior
discovery in the case, the amount in controversy, and importance of the issues at stake
 If violated court MUST impost “appropriate” sanctions, unless party has substantial justification for violating the
rule.
 Sanctions can be against the attorney or the party (not the firm)
Washington State Physicians Insurance Exchange & Association v. Fisons Corp. (1993) – Case against drug company from
doctor and family for failure to warn and product liability, 2 documents that clearly fell within document requests and
interrogatories were never produced.
 What portions of Rule 26(g) did the ∆s violate in terms of their answers to these requests?
o 26(g)(1)(B)(ii) – didn’t provide copies of letters to companies to physicians regarding toxicity to
children. They offered generic objections like it was reasonably burdensome but did not provide
exactly why they were objection. Intent to be misleading, cause delay and does not comply with the
spirit of the law.
o Also mentions Rule 33 and 34 that you must object specifically – that would have allowed the π to see
what the problem was and maybe make the interrogatory broader to include the generic drug.
 ∆’s objection – Attorney’s claim they were vigorously defending their clients – Just doing their job.
o Vigorous representation does not mean hiding documents. You do have a vigorous representation
requirement but within the rules.
 What sanctions should be imposed on the attorneys or the client?
o Sanctions are mandatory
o Enough to deter, punish, compensate, educate
o Least severe, adequate to serve – Intent Relevant
 If there was intent to deceive the sanction should go up.
Rule 37— Failure to make disclosures or to cooperate in Discovery
 Motion to compel information from responding party
o Can only file motion to compel after have conferred in good with the other side (United Oil)
o If court grants motion and responding party fails to comply with order Sanctions
o Court has discretion for “just sanctions”
 Two ways this happens procedurally:
o Motion to Compel  Requesting party files
o Responding party brings a protective order motion
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II. ADJUDICATION
Right to a Jury
7th Amendment: Right to jury trial in a civil case → In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
What are they referring to when saying “suits at common law”?
 Reserved in the Courts of Law in England rather than in the Courts of Equity
 Called suits of common law because you got juries in the courts of law but only had a chancellor (judge) in the
courts of equity
 Generally would go to a court of law unless you could demonstrate that there was an inadequate remedy at
law in which case you would go to the Court of Equity
o Only had monetary relief in court of law and all other forms of relief in equity, namely injunctions
 Also go to court of equity if bringing an equitable claim rather than a legal claim
o Maybe law court didn’t recognize the claim but the equity court did
 Procedural device (standing issue) issue in law court but can raise things in equity court
 More difficult now because:
o Now have joinder with multiple claims and remedies
o More claims today that exist that did not exist in 1791
 Claims from statutes
 Eg. In which situations is there a Seventh Amendment Right to a jury?
o Patty and David sign a K. Patty files suit for breach of contract seeking money damages.
 Yes – claim of K goes to court law and remedy is money, which was available in court of law
o Same as above except Patty seeks only specific performance
 No – specific performance would have been a remedy under equity
o Patty seeks an injunction preventing Company from dumping construction scraps on her property
 No – remedy of injunction is equity
What do we do with “new claims & new procedures” that didn’t exist in 18th Century England?
 Look at claim and remedy
 If claim was CL claim, went to court of law UNLESS remedy only in court of equity
 Most of time remedy determines which direction you go (right to jury or not)
New claims
Chauffeurs Local 391 v. Terry (1990)
 New claim = statutory claim → look to statute and see if provides right to jury explicitly or implicitly in language
of statute, look to description of remedy that is provided
o If it refers to legal or equitable relief
o If statute not clear then get to 7A analysis:
 TWO STEP TEST TO DETERMINE IF ENTITLED TO A JURY TRIAL
1. See if, through historical test, the issue was one that would have been tried in a common court of law in
18th century England  Analogs
2. Look to the type of remedy to see whether it is legal or equitable in nature
 Step 1: Historical test regarding the nature of the issue → CLAIM: Breach of Fiduciary Duty of Union
o Arguments of similarities to claims in past (3 analogs):
 Analogous to vacating an arbitration award (equitable) → court says no because arbitration
action couldn’t resolve claim here; no decision by grievance committee
 Breach of fiduciary duty by a trustee → court says good because union was exclusive
representative of workers like trustee is exclusive representative to beneficiary.
 Attorney malpractice → don’t like this one as much as breach of fiduciary duty to trustee
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Determined based on relationship between union and members as compared to trustee
and beneficiaries; argued relationships between those 2 groups is more analogous than
union and member and attorney and client → EQUITABLE
o Court ruled that the claim itself was equitable so would expect them to end analysis but say that there
was actually a blend of equity and legal → also consider claim against McLean (trucking company)
which was a breach of contract, which is an issue of law.
Step 2: Remedy (What they will use to decide)
o Look to nature of the remedy
 REMEDY: seeking back-pay ($$) and generally dollars are legal but restitution is equitable
o Legal Remedies: Monetary damages that are compensatory or punitive
o Equitable Remedies: Injunction, Restitution
Can’t rely only on nature of claim because this is a two part test and you can’t just looking at the first part; remedy
is more important step of the test, so can’t just judge based off of what type of issue
o Brennan says historical test is stupid and we should just look to remedy
Whole thing turns on remedy because:
o If claim legal and remedy equitable  no jury
o If claim equitable and remedy equitable  no jury
o If claim equitable and remedy legal  jury
o If claim legal and remedy legal  jury
New Procedures – Expand Right to Jury
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Test is still inadequate remedy at law?
o Previously would get equitable remedy but now are CL so get a jury
Ross v. Bernhard, SCOTUS 1970, pp. 451, note
 The first part was the stockholder’s right to sue on behalf of the corporation, historically equitable
 The second, the claim of the corporation against directors or third parties on which, if the corporation had sued
and the claim presented legal issues.
o New Procedure: Both were legal and you get a right to a jury because now there is an adequate remedy
at law since we have now eliminated the standing issue.
Dairy Queen v. Wood, SCOTUS 1962, pp. 452
 In 1791, if you had a claim for an accounting you had to go to a court of equity b/c they didn’t think juries were
smart enough.
o New Procedure: Even though it’s a complicated issue they’d rather help a jury decide the case than just
take away the right to a jury trial.
Beacon Theatre
 If even one of your claims has a right to a jury, then your legal issues that go to a legal remedy or claim have to
be decided by a jury first, and then your equitable claims are decided by judge—protects right to jury as
issues that are tried once are decided and the judge accepts those decisions on the issues.
THEME: FRCP and merger have removed many reasons why in 1791 we had claims that had to go to equity. Have to
prove an inadequate remedy at law to go to equity but there are fewer inadequate remedies at law today b/c of these
changes.
Functional Considerations
Markman v. Westview (1996)
 Deals with notion of whether we should look or use some sort of functional approach to determine when a judge
or jury should decide a case
 Court here uses a functional approach
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Court acknowledges constitutional right to jury in patent infringement cases
Here though dealing with claim construction → is there a right to a jury here
Juries are fact finders whereas judges decide questions of law
Steps court took to decide who is better suited:
o Looked at history → here no historical standard
o Not clearly fact or law so look to Functional Considerations: Judge is Better For
 More expertise in documents/written instruments (Judges often do this)
 Credibility judgments are jury → here not super important
 Can judge credibility of expert based on testimony as it relates to the document itself which is the
whole expertise that judges have (credibility of actual expert is less important)
Juries Better For (not in this case):
o Evaluate demeanor (credibility component)
o Sense the mainsprings of human conduct
o Reflect community standards**
Uniformity important (policy consideration) → judge
Tull v. United States, SCOTUS 1987, pp. 455
 How did they interpret this remedy – whether it was legal or equitable?
o This remedy was not to “restore the status quo” (Restitutionary) which are equitable, instead they were
punitive and compensatory damages so legal remedy therefore have right to a jury.
 BUT THEN question comes up who is going to decide the amount of the actual remedy (i.e. amount of civil
penalties) & court decides the judge will determine the amount because the civil penalties are “discretionary.”
Feltner v. Columbia Pictures Television → Copyright issue
 Question: who decides amount of damages when seeking statutory damages under Copyright Act
o Court holds right to jury decide what the statutory damages are → statutory damages are less
discretionary (sum between $500-$20K total)
 Also because in lieu of actual damages, jury can take into account π’s harm and figure out how much were they
injured by the infringement (more like compensatory).
Pros and Cons for Demanding a Jury:
 PROS
o If you are a π and have a sympathetic case, jury will award more damages than a judge
o Usually π against a corporation wants a jury
o Jury more in touch with community thoughts and values
o Multiple jury members so have a collective judgment
o Credibility of the system → being judged by your peers so gives greater credence to the process itself
o Keeps people civically involved (education)
 CONS
o Efficiency argument → time of jury selection & deliberation is very long, also jury trials last longer than
judge trials
Jury Selection and Size
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The voir dire is when people are selected from random group and go into the courtroom and are asked questions
2 basis which you can excuse jurors:
o For cause  Biased, unable to set aside those prejudices in order to view evidence and make an impartial
determination
o Peremptory Challenge  Don’t need to give any reason but can’t exclude if it will violate the equal
protection clause (see J.E.B. v. Alabama— no preemptory challenges based on race/gender)
 Get 3 in every civil case
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Summary Judgment – Rule 56
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The ∆ is almost always the one who moves for SJ
Evidence to support the SJ motion MUST be admissible at trial
o 56(a)  SJ should be granted if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law
o 56(b)  May be filed at any time until 30 days after the close of all discovery
o 56(d)  If the non-moving party cannot get essential facts to support his side, the court may defer
considering the motion or allow time to take discovery
2 types:
1. Facts are not in dispute so just need to make a determination as a matter of law
 From SJ perspective, pretty easy because just a matter of applying the facts to what the law is;
more of a substantive problem
2. When the parties think that the facts are in dispute but the evidence is so one sided that no
reasonable jury could find for the non-moving party
 Question is how to make this determination of when there is sufficient facts with respect to the
nonmoving party’s case to go forth to trial  highly discretionary standard for the court
Can have partial summary judgment on only some issues.
If we say that the π has all this opportunity to get discovery before we allow the ∆ to get to summary judgment,
can cause ∆ to be harassed by discovery over a non-meritorious claim
o Under 56(d) court can cabin discovery to make it smaller; just focus in the specific issue
Burden of Proof
 Composed of 2 separate burdens: burden of production and burden of persuasion
o Production [SHIFTS]  Burden to produce evidence; Burden on the party to first come over with
evidence that supports their claim of the events
 Once that evidence is produced to present a prima facie case, the burden of production shifts to
the other party.
o Persuasion  remains on the same party; standard of what you need to demonstrate to persuade the
fact-finder that your version of the facts are what they actually are [for SJ remains on the moving party]
 Usually preponderance of the evidence for civil cases
o Also have clear and convincing evidence standard
Evidence—3 KEY RULES
 First look at admissibility (this point forward, needs to be admissible evidence)
o Needs to be admissible because testing what a trial would look like to a jury and a jury would only be able
to look at admissible evidence
 Nature of the evidence itself:
o Direct
o Circumstantial  Need to make an inference
 Judge must draw all reasonable inferences in favor of the nonmoving party BUT can’t be sheer speculation
 Credibility: usually decided by the jury
o Judge cannot Make any credibility determination and is supposed to believe any statements that are
made and any credibility assessments at play mean they have to deny SJ
 Weighing: Judge cannot Weigh the evidence
o If there is direct evidence on both sides, there is an issue to be decided and SJ must be denied
Anderson v. Liberty Lobby, Inc. (1986)
 There has to be a genuine dispute as to a material fact.
 Genuine dispute: Sufficient evidence, taking into account burden of persuasion at trial, for jury to decide for
either party
o Burden of Persuasion  remains on the same party; standard of what you need to demonstrate to
persuade the fact-finder that your version of the facts are what they actually are [for SJ remains on the
moving party]
12

Material fact: If established, would effect outcome of the case
Celotex Case
 Question: is it sufficient for ∆ to say that π doesn’t have anything as their basis for moving to an SJ motion?
 Rule 56(c)(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
o (A) citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
o (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.
 Rule now expressly allows for moving parties to just point to the record and say that nothing is there, especially
after asking to see what evidence the other party has and them saying they have no evidence
 What is the material fact? Exposure to asbestos, and no genuine dispute because no proof.
o They were able to do this because they were the defense and the π has the burden of persuasion and the
burden of production.
o ∆ never has burden of persuasion and never the burden of proof in the beginning.
o ∆ never has to disprove the claim – can just sit there and say that π never presented evidence.
Coble v. City of White House
 Question: are there sufficient facts to go to a jury where a reasonable jury could find that the officer used
excessive force
 Evidence for excessive force:
o Audio tape Tended to support officer’s testimony here, so DC judge grants SJ for officer
 In Scott v. Harris they had a videotape contradicting the evidence. Videotape is objective evidence.
 Why does court say that a audio tape is not conclusive evidence?
o It’s not clear that if it did happen it would have been caught on the audiotape.
o While it is more consistent with the officer’s testimony it did not affirmatively disprove the π’s
testimony.
De Novo – look at it anew. All matters of LAW are reviewed De Novo by the appellate court.
 It is a matter of law as to whether SJ was appropriate
SECTION 3.1 – SUMMARY JUDGMENT
-
In most cases, the plaintiff’s complaint does state a claim for which relief can be granted.
It is one thing to allege the required elements and quite another to prove that they are true.
Rule 56 permits a moving party to challenge the opposing party’s ability to prove all of the elements of his
complaint before trial. This is called a motion for summary judgment.
The standard for summary judgment is that there is no genuine dispute as to any material fact and that, viewing
the evidence in the light most favorable to the non-moving party, there is no way that the non-moving party could
prevail at trial. For a summary of the standard, please see page 18.
o First, the moving party must move for summary judgment, stating that there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law.
 Thus, the burden of production rests on the moving party.
 If you look at the evidence of the moving party, is it clear that only the movant can win if this was
the only evidence in the case? If yes, then the burden of production switches to the non-moving
party.
o Next, the non-moving party must respond by demonstrating that there is a genuine dispute as to a
material fact and support the response with admissible evidence.
o After receiving all of the evidence, the judge must view the evidence in the light most favorable to the
non-moving party. If, even viewing all of the evidence in such a favorable light, the judge cannot see how a
13
-
-
-
-
reasonable jury would find in favor of the non-moving party, summary judgment should be granted.
This is called the “reasonable jury” standard.
A genuine issue as to a material fact means that there is a conflict, not a gap, in the evidence.
If the non-moving party does not present any evidence in opposition to show that there is a genuine dispute as to
a material fact, the judge should only grant summary judgment if the moving party’s supporting materials suffice
to establish his claim or defense.
Material facts can be either subjective or objective. For example, in a car accident, a material fact is whether the
light that the defendant went through was green or red. In other cases, a party’s intent or feelings may be the
subject of dispute.
o Summary judgment is inappropriate where inferences that parties seek to have drawn deal with
questions of motive, intent, or subjective feelings and reactions, such as why a party traveled to Europe.
o It is important to consider whether the testifying witness has motive to lie.
The party must include admissible evidence to support the motion:
o Affidavits are helpful, but not necessary.
o The party cannot rely on the pleadings, generally, because those are not admissible as evidence.
o Depositions
o Answers to interrogatories
o Answers to requests to admit
It is also important to consider the standard of proof in the case when ruling on summary judgment (i.e.
preponderance of the evidence, beyond a reasonable doubt, etc.)
See next page for an explanation of the burdens of proof and production.
A plaintiff can move for summary judgment any time after twenty days into the commencement of the action, or
after the service of a motion for summary judgment by an adverse party.
A defendant can move for summary judgment at any time.
Rule 56 Motion: Summary Judgment
14
Who is the moving party?
The party without the burden of
proof at trial on the issue.
The party with the burden of
proof at trial on the issue.
Moving party can satisfy the
initial burden of production
by either…
Initial burden of production: Did the moving
party produce evidence to show that there is no
genuine dispute as to any material fact?
Yes.
No.
The burden of production
shifts to the non-moving party
to produce evidence to show
that there is a genuine dispute
as to a material fact.
The non-moving
party satisfies the
burden of
production.
Motion is
denied.
The non-moving
party does not
satisfy the burden
of production.
…Producing evidence
that there is no genuine
issue as to a material
fact.
…Showing that the nonmoving party cannot
prove an essential element
of the claim.
Motion is
denied. Cross.
The moving
party does not
satisfy the
burden of
production.
The moving
party satisfies
the burden of
production.
Motion is
denied. Adickes.
The moving party
satisfies the
burden of
production.
Celotex.
The burden of production
shifts to the non-moving party
to produce evidence to show
that there is a genuine dispute
as to a material fact.
The moving
party does not
satisfy the
burden of
production.
Motion is
denied.
Motion is granted.
Lundeen.
The non-moving party satisfies the
burden of production.
Motion is denied.
The non-moving party does not satisfy
the burden of production.
Motion is granted.
15
Judgment as a Matter of Law (JMOL) – Rule 50
Discovery
Voir Dire
π’s Case
∆’s Case
Jury Inst.
Appeal
|-----------------|-------------------------|-----------------|------------------|------------------|--------------------|----------|-------------|
Filing
Answer
Trial
Jury Verdict
Complaint
Deliberations





Identical standard as SJ. What is the difference is the timing of the motion.
JMOL motions can be presented
o At the end of the π’s case
o At the end of the ∆’s case
o OR after the verdictRenewed JMOL after the verdict.
Standard for entry of JMOL (Rule 50(a)(1)) → reasonable jury would not have a legally sufficient
evidentiary basis to find for the non-moving party on that issue
o Focus of terminology is now on the jury rather than SJ because don’t have a jury there
o Factors judge must look at:
 Judge Credibility
 Nature of the evidence (direct/circumstantial)
 Draw REASONABLE inferences favor of nonmoving party
 No weighing of evidence
 All evidence must be admissible
Renewed JMOL after Jury Verdict: if no one files until after verdict → can’t do this because can’t renew a JMOL
that never existed in the first place
o Gets around 7th Am. right to a jury because all these motions can infringe on that right with SJ
o From efficiency standpoint, many judges wait and let the jury decide before granting a renewed
JMOL because if they grant the JMOL before the jury verdict and that gets appealed and the appeals court
reverses, have to start whole trial over
 On the other hand, if renewed JMOL granted and appealed and the appellate court overturns, just
stick to the jury verdict
Standard of appellate review for JMOL – De Novo.
Lavender v. Kurn, SCOTUS 1946, pp. 510
 A jury verdict may only be overturned if there is a complete absence of probative facts to support the verdict.
o The court held that if there is any evidentiary basis for a verdict, an appellate court may not overturn a
jury verdict.
o A jury can disregard or disbelieve facts that may be inconsistent with its conclusion and it may
speculate and make conjecture to reach a verdict if the facts are disputed.
 Here there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of
the head.
o The court held that the jury had made its inference and the respondents were not free to re-litigate the
factual dispute on appeal.
HYPOS: Is JMOL proper in any of the following situations:
 Π presents overwhelming evidence in her favor. At the close of presentation of her evidence, π moves for JMOL
o No – need to wait for ∆ to present evidence because ∆ needs to be fully heard since π is the one moving for JMOL
o ∆ could have moved for JMOL at this point
 Π and ∆ both present their evidence. Neither side moves for JMOL. After case submitted to jury but before verdict, ∆ moves for
JMOL
o No; Rule 50(a)(2) says must be before case is submitted to the jury
 At close of all evidence, ∆ moves for JMOL stating that π hasn’t proved her case. Motion denied. Following verdict for π, ∆
again moves for JMOL
o No – 50(a)(2) requires specification of the law and facts that entitle movant to the judgment [notice issue]
o Want to inform non-moving party what is the failure of their evidence; if mistake, judge can allow non-moving party
to submit more evidence
16
 Both sides present evidence and neither moves for JMOL. Following JV for π, judge concludes insufficient evidence. Can
judge enter JMOL?
o No – no timely motion filed, judge can never sua sponte bring a JMOL
 ∆ moves for JMOL at the close of all evidence. Court denies motion. After JV for π, court without motion grants JMOL
o No – judge can ever raise JMOL sue sponte
 ∆ moves for JMOL after all evidence; after JV for π, court enters judgment and ∆ immediately makes oral JMOL but doesn’t file
written JMOL until 30 days later
o 50(b) must be filed within 28 days after decided BUT here, there was an oral motion unclear whether this is
allowed or not
o Just in case, file timely in writing
New Trial – Rule 59






2 basis for a New Trial
o Flawed verdict  Verdict “against clear weight of evidence” or is “seriously erroneous” (Lower standard
than JMOL)
 Now judge may consider character of evidence, weigh evidence, judge credibility, may look at
evidence in same way as jury
 If finds that verdict against clear weight of evidence can grant new trial
 Can also bring it up sua sponte
o Flawed procedures – Evidentiary rules, improper jury conduct, misconduct
o Juror misconduct
 Extrinsic (overt acts which may be objectively corroborated or disproved) (Yes, NT) vs. Intrinsic
influences (No, NT)
 In federal court, use rule 606(b) from FRE:
 Whether extraneous prejudicial information was improperly brought to jury’s attention
 Whether any outside influence was improperly brought to bear upon any juror
 Whether there was a mistake in entering the verdict on the verdict form
Remittur – If liability not challenged but amount of judgment is (excessive) and “shocks conscience,” court may
grant new trial OR remittur
o Either accept lower verdict [highest amount that reasonable jury would give]
o OR new trial  conditional
Denial of new trial can be appealed – SOR— abuse of discretion
For JMOL and New Trial:
o Must move for both motions at the same time
o Trial judge must decide both motions at same time
o Efficiency purpose
Rule 50(c) Conditional granting of new trial motion If court grants JMOL may also grant new trial motion
conditional on whether appellate court agrees with JMOL
o Does not affect the judgment’s finality Means that you can still appeal, because need a final judgment to
appeal, so without this, you would need to wait until the new trial is finished (because grant of new trial
is not final [unlike grant of JMOL])
Additurs are unconstitutional must have a new trial.
Jury Trial ---------------------------------Trial -----------------------------------Appeal Court
JMOL
No legally significant evidentiary basis
(Can never raise sua sponte)
De Novo
Conditional NT
(Damages)
Shocks the Conscience
(Only Remittur)
Abuse of Discretion
New Trial
Seriously erroneous
Abuse of Discretion
17
III. ERIE DOCTRINE– WHAT LAW APPLIES?
Fed Rule or Statute “on Point”?
Yes
No (RDA test)
Constitutional Test
 Arguably procedural? Does Congress
have the power to pass?
o Answer always yes but still go
through reasoning.
 If it’s a Statute- that’s it! It is
constitutional and no REA Analysis.
REA Test
 Arguably Procedural? (Same as above)
 + Does not “Modify” a Substantive
Right
Yes
Apply Federal
1. Outcome Determinative Outcome will be really different
depending on whether state or fed. law is used.
 Promote Forum Shopping?
 Inequitable Administration of the Courts?
Yes
Use State Law
No
Apply State
No
Use Federal Law
2. BUT – ask if State Rule Bound up with
Rights? → Will it infringe upon state
created rights and obligations?
Yes
No
Use State Law
3. BUT – ask Countervailing Federal
Interest Going to Essential
Characteristic of the Court?
Yes
Use Federal
No
Use State
Go down both sides of the flow chart based on the first question.
 Is the case in federal court on diversity?
 Is there a federal rule or statute that governs or controls the state law issue?
o Function of defining the issue— what is the state law and purpose behind it?
o Also function of how narrowly or broadly you interpret Federal law
LEFT SIDE
Step 1: Constitutional analysis—Congress gave Courts the power to create Rules of Procedure:
 Is a rule governing how to serve people a procedural rule? What is the purpose behind the rule? To give notice.
This is one of the fundamental purposes behind procedure is adequate notice. So this is definitely notice.
 It is hard to make the argument that it is not const.—every rule in FRCP is somewhat procedural.
 The court says the rules falling within the uncertain area between substance and procedure—are rationally
capable of classification as having some procedural component—it’s going to be constitutional.
Step 2: Rules Enabling Act
 Part A: Courts may Enact Rules of Procedure
o Same analysis as Step 1.
 Part B: Does it modify any Substantive State Right?
18
Since the state has a rule about the same thing that is in opposition to the federal rule does it have a
“substantive interest” in that rule?
o Does the Federal Rule have only an “Incidental Effect” on the substantive right of the states?
 If yes, then apply the federal rule.
o In Hanna v. Plumer case FRCP says you can hand it to somebody in his house, vs. just giving it to him. He’s
just going to have to look in two places—and he’s not saying that he never got notice. Rule 4 and the state
rule are designed to achieve the same purpose—actual notice to the ∆. The difference between the two
rules is so minor that it does not modify any substantive right.
 Is the right to notice a substantive right even? Or is it a procedural right? Either way—it does not
modify that right.
What is a rule of procedure?  The test must be whether a rule really regulates procedure—The judicial
process for enforcing rights and duties recognized by substantive law and for justly administering remedy and
redress for disregard or infraction of them.
o Is there any argument to say that Rule 4 didn’t contemplate the issue at hand here? Yes, because
executors of estate may have very different notice problems than in the regular case.
o

RIGHT SIDE
RDA Analysis to this case:
 What was Erie really worried about?
 The Twin Aims of Erie [Both these issues are prongs of the Outcome Determinative Test]
o Forum shopping
o Equitable administration of the courts—We would be treating in-staters and out-of-staters differently
depending on the forum. Discrimination?
 Forum Shopping:
o Every thing that comes before the court is outcome determinative—if it was not then we would not be
litigating it.
 There isn’t that big of a difference between the two ways of notice that a person may try to pick
state/federal over the other to achieve the outcome as a tactical/procedural matter.
 Equitable Administration of the Courts:
o Basically the same analysis in this case.
o What is the inequity? Is the ∆ going to get notice?
 The inequity would be if under one rule they were much less likely to get notice.
o There is not much discrimination here in terms of the ∆ getting notice.
o In terms of Outcome does it have any effect on the OUTCOME on the merits? No, not at all.
Determining the Content of State Law


Federal judge, if they are going to apply state law, has to make a determination of what the state law actually is
o Look to state judicial decisions as precedent
o Act as if they are a judge in the state applying state law because federal judges can’t override state law
o Sometimes, no recent opinions on the state law so the federal judge has to sit as if they were the state
supreme court and decide as if the state’s highest court would decide
Sometimes get it “wrong” → may not know for a long time, but at some future point in time, the state court gets
the same issue presented and they rule the opposite as the federal court.
DeWeerth v. Baldinger (1994)
 Issue: statute of limitations; whether rule in NY would require that the stolen property owner diligently search
for the stolen property in order to prevent the statute of limitations from running.
 No NY court addressed the issue to date
 Court found that yes, this diligence was required and that the π didn’t conduct this search
 Several years later, the NY Court of Appeals (highest court) ruled on this issue and came out the other way;
that is, came out saying no diligence required
19



Does it violate Erie because you get different outcomes in state and federal court?
o Second Circuit says no – once you choose a forum and the case is decided, whether the federal court
gets it right or wrong is just something you deal with (happens all the time)
Interest in finality in this kind of circumstance is more important than going back years later and correcting a
decision because you chose federal court over state court
o Court mentions “assumption of the risk” by going to federal court
Certification One way around this particular problem is the use of certification
o Some states allow federal courts to certify certain issues with the state court
IV. PRECLUSION
The inequity would be if under one rule they were much less likely to get notice.
There is not much discrimination here in terms of the ∆ getting notice.
In terms of Outcome does it have any effect on the OUTCOME on the merits? No, not at all.
Res judicata stands for the idea that one judgment will have a binding effect on another. Sometimes it is used to refer to
claim preclusion; other times it is used to refer to preclusion in general.
Claim preclusion (res judicata)
 Forbids a party from re-litigating a claim that had been raised in former litigation
 How we define the scope of that claim is very important → use claim broadly here
 Aims: efficiency, fairness, consistency, finality, repose
Issue preclusion (collateral estoppel)
 Forbids a party from re-litigating an issue decided in a prior case
 Is narrower than claim preclusion → claim embodies many issues
o Have several elements for each claim and each of those elements is a separate issue
Full faith and credit Clause: Tells you what law governs → when have case 2, look to case 1 and you have to apply law
that would govern in case 1 to see if preclusion applies. (If state court, state law of Case 1 state. If fed court under
diversity, state law of state court sits; if Fed question, use fed common law).
Claim Preclusion
How to Raise CP? Procedurally?
 SJ is best mechanism because probably need to bring in materials from outside just the pleadings to show the
court that the three elements have been met.
 Can put in your pleading/ answer as an affirmative defense (Rule 8(c)(1) – res judicata)
Need to prove THREE ELEMENTS:
1. “Same claim” [means need to have 2 lawsuits; one that is over and one currently in progress
Carter v. Hinkle (1949): Defining “Same Claim”
 Background: cab driver and ∆ get into an accident, so the cab driver sues for property damage and loss of use of
the cab. Π wins. Then turn around and sue ∆ for personal injuries from the same accident.
 Issue: whether the second claim would be precluded. Does this constitute “same claim”?
 ∆ Argues Same Claim Same T&O
o Claims came from the same wrongful act and just 2 different ways to seek damages but arose from the
same instance. Same claim = same wrongful act (negligent driving of car)
o Argument that this claim is MERGED into the first judgment (π won the first case, so this claim should
be merged into that case)
o As opposed to BARRED → if π lost the first case, they are barred from filing a new case
20



Π’s argument: Primary Rights Test
o Right to property is not the same as the right to personal integrity so they are two separate claims
o Primary rights test  2 claims involved because two different rights
 Property/ interest or rights in property is completely separate from bodily integrity rights
(physical person)
 Court here justifies primary rights basis because: Subrogation of claims to the insurance
company – may have 2 different parties that will be suing (insurance company and the π himself)
o Different legal aspects of both claims.
 Different periods of limitation
 Π cannot assign injury to person but can assign injury to property
 Action for injury to person would be lost by death but would not for injury to property
 If you have different rights that have been violated, by definition those involve different evidence
Same wrongful Act test may be less bright line rule and so less easy to determine each time
o Less claims than primary rights but more than same T&O.
Final questions: Federal court/Federal common law (this is VA)
o Federal court test → Same t & o
o Rule 18 + claim preclusion, is the same thing as rule 13 for the ∆
o Basically means you have to file all claims from same t & o or else you lose it
2. Parties to the two suits must be identical or in privity
Privity for same parties (very limited):
 Representational Relationship → Example: between trustee and beneficiary or guardian and ward or class
action situations
o Example: Case 1: π is trustee and case 2 π is beneficiary bringing same claim against same ∆, would
qualify as same party & thus claim would be precluded
 Substantive (legal) Relationship → Function of substantive law; those arriving out of property interests
(successive interests in property – note 1, p. 624)
 For same parties, once you have a final judgment and no other opportunity for appeal, can’t challenge first action
other than lack of PJ and SMJ if you are in privity (once first case is final)
 Basic rule: Way to correct an error in a case is NOT collaterally attacking judgment in a case; can’t really do that
unless the court lacked jurisdiction in the first case (this is why there are appeals)
Examples:
 Case 1: π [claimant] sues ∆ (car accident) for negligence.
o Case 2: ∆ sues π (car accident) also for negligence.
o Is ∆ claim precluded from filing case 2?
 No because ∆ was not a claimant in case 1, so can’t be precluded from case 2 using claim
preclusion
o Rule 18: basic claimant joinder rule  Π may file any claims against ∆ but is not required to
o BUT ∆ would be required by rule 13(a) as a compulsory counterclaim Rule 13: ∆ claim joinder rule
 ∆ must file claims that arise out of same t & o as the π
 ∆ may file any/all other claims
o If ∆ decides to bring a counterclaim in case 1, can’t bring any other claims in a second case because once
you bring a counterclaim, you become a claimant and therefore must file any claims because of claim
preclusion
21
3. First case must have ended in a valid final judgment on the merits (valid, final, on merits)




Valid  only look to whether court had PJ & SMJ
Final  Case 1 on appeal; during this time can case 2 be brought?
o Yes – most states say even if on appeal, is final and will preclude case 2 from proceeding
o Don’t really care what happens on appeal  still preclusive (bar vs. merge)
On the merits – Rule 41(b):
o On the merits really means if π had an OPPORTUNITY to get to the merits or got to them and lost.
o Possible ways where π can lose case:
 Full jury trial  Yes
 JMOL before goes to jury  Yes
 SJ  Yes
 12(b)(6)  With vs. without prejudice; if court says nothing, assumed with prejudice and is
assumed on the merits
 BUT depends on what is wrong with the claim so often the court does dismiss without
prejudice (not on the Merits) and allow amendment
 Rule 37 (discovery sanction)/ Rule 26(g)  Practically not on merits but legally yes on merits
 Failure to prosecute  Yes on legal merits
 Default judgments unless court says not on merits, even default judgment is deemed to be on
the merits
o Only dismissals where π basically never had the chance to get in the door are NOT on the merits lack of
PJ, SMJ, venue – can’t join party you need.
Virtually any judgment for the π is deemed to be a judgment on the merits
Exceptions to Operation of Claim Preclusion:
 Agreement or Contract:
o Parties have agreed in terms or in effect that the π may split his claim or if the ∆ has acquiesced therein
 Court in the first action has expressly reserved the π’s right to maintain the second action
 Π was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first
action due to limitations hypo about Muni Court below.
 Judgment in the first action was plainly inconsistent with the fair and equitable implementation of a
statutory or constitutional scheme, or scheme said π should be able to split claim
 Substantive policy reasons
o If clearly and convincingly shown that the policies favoring preclusion of a second action are overcome
for an extraordinary reason  Did not know about the claim.
 **Always asserted by the ∆ as a defense
Hypothetical
 π involved in car accident and suffered personal injuries and property damage. Filed for prop damage and won
$10k in muni court (which is the limit in that court) for damages to the cab and wins $5k.
 In state court, tries to get personal injury damage of $100K.
o ∆ asserts preclusion of second claim.
o But they weren’t able to bring a claim of over $10K there b/c the court would have no SMJ.
o This is an exception b/c the claimant was UNABLE to raise the claim before.
 BUT she also chose to bring it there.
 **SPLIT OPINION HERE
 What if she filed before she knew about personal injuries.
o Would this fall under an exception? Have to bring what you have at the time, but she didn’t know about it
yet. Extraordinary circumstances?
22
Issue Preclusion


Narrower than claim preclusion in the sense that a claim is made up of multiple issues
FIVE ELEMENTS:
1. Same issue that was
2. Litigated and decided
3. Was essential to the judgment
4. Judgment: valid, final, on merits
5. Parties: by whom vs. against whom
 Defensive issue preclusion (∆ in case 2 raising preclusion) vs.
 Offensive issue preclusion (π in case 2 raising preclusion)  Who is the party in case 2 that is asserting
issue preclusion

“Scope of the issue”  defined slightly differently if against π vs. against ∆
o Example for if π raises:
 Finding in Case 1 that ∆ was NOT negligent because texting (didn’t breach duty)
 Case 2: ∆ suing π under claim of Negligence (no compulsory counterclaim rule)
 Π wants to assert Negligence for driving too fast against ∆ as a defense BUT issue preclusion
would say no because finding in case 1 was that ∆ was not negligent
o Example for if ∆ raises:
 Issue that was decided in case 1 is not that the contract was unenforceable as a general matter, but
was that SoF didn’t apply. So left open ∆ to re-litigate separate theory for a defense in case 2
 Rationale: ∆ being hailed into court and forced to defend, so are slightly more lenient with ∆
SAME ISSUE that was LITIGATED AND DECIDED
Cromwell v. County of Sac (1877)
 Background:
o Case 1: Smith v. County on bond and certain bond coupons  judgment for count
o Case 2: Cromwell v. County on same bound and different coupons
 Issue preclusion: what is the issue (need to define the factual issue – look to factual findings in case 1 to
determine)?
o Case 1: Found bounds were illegal based on fraud
o Case 2: Whether bonafide purchaser who gained value for the bond never put evidence in so this was
never adjudicated.
 Since not actually raised in case 1, in case 2 Cromwell does have the opportunity to litigate this issue
and present that issue that he was in fact a bonafide purchaser
 Key: Need to look at what was actually litigated/expressly decided in case 1 before limiting or precluding
a party in case 2 from being able to litigate that same issue
 Other considerations may govern:
o Smallness of the amount or value of property in controversy
o Difficulty of obtaining necessary evidence
o Expense of litigation
o Party’s situation at the time
 For EXAM mode: 2 different concepts
o Is it the same issue
o Was it litigated/decided (assuming it was the same issue)
 To determine this, need to go back to the record in case 1
Sally and Joe Hypos - Is Sally negligent or is Joe negligent?
 Case 1: Verdict for Sally when Sally trying to prove Joe negligent and Joe trying to prove Sally negligent?
o Because verdict for Sally, conclude that Sally not negligent & Joe was negligent, so those 2 issues were
clearly decided
 Case 1: Verdict for Joe
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Don’t know what they decided; just know that Joe won and there are tons of varying findings so this
general verdict would tell nothing about what specifically was decided
Case 1: Verdict for Joe, special verdict saying Sally was negligent
o Joe’s negligence not decided
Case 1: Verdict for Sally; special verdict saying Sally is not negligent and Joe is negligent
o Same as case A, just with a special verdict pointing it out.
Case1: Verdict for Joe; special verdict say Sally is negligent and Joe is negligent
o **Issue litigated/decided needs to be necessary & essential to the judgment not here.
Case 1: Verdict for Joe; Sally negligent, Joe not negligent
o Keep Joe not negligent and change Sally from being negligent to not negligent
 Nothing changes, so Sally’s negligent is non-essential
o Change Joe to negligent and leave Sally as negligent
 Nothing changes, so Joe’s negligence is non-essential
o Neither gets preclusive effect unless appealed and affirmed
o




ESSENTIAL TO THE JUDGMENT
Rios v. Davis (1963)
 Case 1: Popular v. Davis for negligence & Davis brings contributory negligent defense & impleads Rios saying it
was his negligence that would offset Davis’s negligence
o TC finds everyone to be negligent (Judgment for Rios)  Popular, Davis & Rios all negligent
 Case 2: Rios v. Davis, claiming negligence & Davis asserts contributory negligence back
o Assuming no compulsory counterclaim
o Since judgment for Rios and Rios negligent Rios couldn’t appeal because he won case 1.
o So now cannot use against Rios that he was negligent. Not essential.
 To determine if something is essential, try to turn that judgment around and see if the verdict remains the same
o Ex: take case 1 with Rios not being negligent. Wouldn’t change the outcome that the verdict was for Rios,
therefore not an essential issue
o CONTRAST: take case 1 and change to Davis not being negligent.
AGAINST WHOM CAN ISSUE PRECLUSION BE ASSERTED?  Must be party in Case one or in Privity
Hardy v. Johns-Manville Sales Corp. (1982)
 Case 1: Borel v. 6 manufacturers of asbestos
o Issue A in favor of π
 Case 2: Different πs v. 6 manufacturers above + different manufacturers
 Question: whether π could preclude all ∆s from re-litigating issue A
o In terms of same ∆s (6 manufacturers), no problem with binding the same ∆ (6 from case 1)
o In terms of the new ∆s, can the πs bind the case 2 ∆s to the case 1 judgment?
 No – would rob them of their day in court (violate right to due process)
 Outcome: general rule is that people who were NOT parties in case 1 can NOT be bound by the judgment
from case 1 in case 2
o Were not participants, didn’t defend themselves  idea is that everyone gets their day in court
 What was the argument that this case may be different [virtual representation]?
o Need to ask if the ∆ in case 1 represents the same interest as the 2nd ∆ & case 1 ∆s adequately
represented case 2 ∆s
6 Forms of Privity Recognized by SCOTUS (ONLY nonparties that can be bound)
1. Person who agrees to be bound by determination of issues in action between others is bound in accordance
with the terms of his agreement
2. Nonparty preclusion may be justified based on variety of pre-existing substantive legal relationship
(preceding and succeeding owners of property, bailee and bailor, assignee and assignor)
3. Someone that was adequately represented by someone with the same interests who was party to the suit
4. Nonparty that assumed control over the litigation because they had the opportunity to present proofs and
argument (already had day in court although not formal litigant)
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5. Party bound by judgment may NOT avoid if trying to re-litigate through a proxy
6. Certain circumstances in a special statutory scheme, if it is consistent with due process (bankruptcy, probate)
WHO CAN RAISE ISSUE PRECLUSION?  Non-party can raise Issue Preclusion Based on Case 1
Defensive
 C#1: A v. B (B wins issue.)
 C#2: A v. C – (Can C assert issue against A?)
o The mutuality issue would have meant that since if A had won it couldn’t have asserted against C (no due
process), C can’t assert against A.
o FLAW: But A had its day in court and C did not have their day in court.
 Blonder-Tongue Case, SCOTUS 1971, pp. 652, is where SCOTUS rejected mutuality.
o Under the new system without mutuality—the P now has incentive to join all the D’s together... and not
hold back cards and take one D at a time.
o This strategy leads to more efficiency & uniformity among decisions also gives motivation for π to join
all alleged infringers
Offensive
Parklane Hosiery Co.  Differentiating Defensive and Offensive Non-Mutual Issue Preclusion

4 Basic Exceptions to allowing Offensive Non-Mutual Issue Preclusion:
o
o
o
HYPO 1: husband and wife are in a car and are in an accident with driver of other car; h & w injured.
 Case 1: W v. Driver ($10K damages)  determined Driver drove negligently (finding for W)
 Case 2: H v. Driver ($10M damages)  wants to use IP to show Driver drove negligently
 Here, one issue with using preclusion is that given the amount from the first case, ∆ decides not worth
his time and money to vigorously defend case 1 BUT then husband shows up for hugely large sum so ∆
may have wanted to litigate much more vigorously if would have known that he was going to be sued
for additional $10M
 Rule: if ∆ in case 1 was not incentivized to vigorously defend case (check if case 2 foreseeable),
then should not be able to use offensive issue preclusion [fairness issue]
 The issue in hypo 1 doesn’t apply to this case because Parklane would have a lot of incentive to
defend against the SEC & also had notice because were already litigating against shareholders
HYPO 2: same as hypo 1 but damages for same amount
 Husband easily could have joined in the wife’s claim (same t & o, etc.)
 Court says unfair for husband to not join because he is gaming the system because if wife wins, he
benefits from judgment AND if wife loses, he gets another crack at the ∆
 Rule: if could have easily joined, no issue preclusion [“wait and see π” doesn’t get joinder]
 Incentivizes easy joinder without precluding additional πs from bringing new case, just
doesn’t allow them to benefit from the first judgment (defensive issue preclusion naturally
encourages joinder)
 Doesn’t apply here because stockholder πs could never have joined with SEC
HYPO 3: Airplane goes down and 200 people are injured/killed
 Case 1: π1 v. Airline  π1 wins (Airline negligent)
 Cases 2-200: π2 (or π3…π200) v. Airline  would be fine for preclusion BUT
 What if π1 loses so no pilot negligence; therefore πs 2-200 don’t want to use preclusion & ∆
can’t use defensive preclusion because πs 2-200 weren’t parties in case 1
 What about if had πs 1 & 2 losing BUT π3 wins and establishes error. What happens with π4200? Can they use offensive issue preclusion?
 Rule: no offensive preclusion if there are inconsistent prior judgments
 Accuracy issue because who knows which of the judgments were right
 Doesn’t apply to this case because had only 1 prior judgment of a win
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o
HYPO 4: using this case, SEC case was conducted as a bench trial with no jury; however, the stockholder
case would have had a jury
 Parklane was arguing that shouldn’t be allowed to assert issue preclusion because of this procedural
difference of who was deciding the case (judge v. jury)
 Rule: no preclusion if the second action affords the ∆ procedural opportunities unavailable in
the first action that could cause a different result
 Examples: inconvenient forum, unable to complete adequate discovery
 Maybe should have applied to this case, but court didn’t find this persuasive enough to refuse
preclusion (said judge vs. jury is not a big enough deal)
Exceptions to Operation of Issue Preclusion:
(1) Party against whom preclusion is sough could not, as a matter of law, have obtained review of the judgment in the
initial action  won the case couldn’t appeal.
(2) Issue is one of law and
 Two actions involve claims that are substantially unrelated, or
 A new determination is warranted in order to take account of an intervening change in the legal
context or otherwise to avoid inequitable administration of the law
(3) New determination of the issue is warranted by differences in the quality or extensiveness of the procedures
followed in the two courts or by factors relating to the allocation of jurisdiction between them
(4) Party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to issue in
initial action than in subsequent action, burden has shifted, or adversary has significantly heavier burden than he
had in the first action
(5) Clear and convincing need for new determination because
 Potential adverse impact of determination on public interest; or
 Not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a
subsequent action; or
 Party sought to be precluded did not have an adequate opportunity or incentive to obtain a full and fair
adjudication in the initial action
HYPO: Case 1 = US v. ∆ (IRS agent stealing money), criminal prosecution where ∆ wins, issue is did he take the money.
Case 2 = US v. ∆ (IRS agent stealing money), civil action, issue is did he take the money
 Can ∆ assert issue preclusion back against the government between case 2 and case 1
 CANNOT use issue preclusion because 2 different burdens of persuasion; on the other hand, if the
government had won case 1, then they COULD use preclusion because criminal is a harsher standard for
the government.
 Sunnen case: if there is a change in law between case 1 and case 2, often you might not want to bind either
party to a legal/mixed question determined under old law once the law has changed
V. APPEALS
§ 1291
 Court of appeals has jurisdiction of appeals from all FINAL DECISIONS of US district courts
o Have jurisdiction over all final decisions – ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment
 Examples of final decisions: lower court grants 12(b)(6) motion, denial of new trial motion and
entering judgment for one party
 Advantages of a final decision rule:
o If every time court decided something, would run up to the appellate court, trial would take much longer
o Also, if we wait until we get to the end, many intermediate decisions won’t matter any longer.
 Exceptions:
o Writ of mandamus
o 1292(a) and (b)
o 54(b)
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
Collateral Order Doctrine  Practical finality
o Judicial interpretation of 1291 (word final); is a practical interpretation of “final”
o Created through the courts for finding certain orders that the court issues that they are going to deem
“practically final” for purposes of 1291 even though they don’t end the case on the merits and don’t leave
only entering judgment
o Requires 3 elements:
 Conclusive decision by the trial judge
 Important issue “collateral” to merits  Separate from the merits of the case
 Effectively unreviewable at “end” of the case (Nothing left but to execute judgment)
 Court has interpreted this extremely narrowly; hardest element to meet
o If all 3 elements are met, at that point the appellate court will grant appeal under 1291
Cohen Case
 Background: π filing suit in federal court; ∆ said state law requires bond to be posted and π says in federal court
so shouldn’t have to post the bond
o Issue: should they have to post the bond or not (Erie question)
o District Court refused to apply state law [no bond posting]; ∆ immediately appealed
o Not final because case was proceeding, yet the appellate court allowed the appeal to the question of
whether or not π had to post bond
 Paradigmatic example of what each of the three elements should look at
o Conclusive decision: yes – whether bond posted now or later is a decision you make at the beginning
based on the information; also nothing will change Erie question either; the decision is the decision,
nothing will change during the course of litigation that will alter court’s perspective
o Important issue collateral to merits: yes – question of posting bond was not a function of the merits
 Never had to look to the facts of the case; just what was the purpose behind the state enacting
statute requiring bond be posted related to the federal interest
 Had nothing to do with the facts of the case
o Effectively unreviewable if wait until the “end”
 Posting a bond at the end makes no sense; is kind of silly and doesn’t really follow
Cunningham v. Hamilton County (1999)
 Background: attorney sanctioned but never found in contempt by magistrate judge, which was then confirmed by
DC judge; wanted to then appeal the monetary sanction – issue was whether the sanction was an appeal?
o During this, other party also moved to remove her as the attorney she tried to argue that despite the
case proceeding, she was kicked out and that was a “final” decision
 Conclusive decision: Yes – conceded that it was conclusive
o Often easiest element to meet
o No factual information that would make the decision change  purely legal question
 Important issue collateral to merits: No – court says discovery sanction is not collateral to the merits because
sanctions based on the fact that only partial responses to discovery and would need to go into the facts/merits of
the case to determine how partial the responses are
o Merits/facts inform the discovery sanction as well so here, definitely not collateral
 Effectively Unreviewable: not a finding of contempt, just a sanction so can review this at any point and just
reverse the sanctions; doesn’t really matter
FOUR Exceptions to Final Rule Judgment
1. § 1292
 § 1292(a)(1)
o Any decision regarding an injunction granting, continuing, modifying or dissolving injunction or refusing
to dissolve or modify an existing injunction is an appeal available for immediate appeal.
o This is because in order to get an injunction, need to show that irreparable harm would occur without
(or with) an injunction; Lack of/giving an IJ is what is causing the direct harm [within court system] so
give the right to appeal so that to the extent that there is harm, it can be as short-lived as possible
 Don’t want court system to impose “irreparable” harm to either of the parties
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
§ 1292(b)
o Discretionary interlocutory appeal  discretionary because:
 Has to be certified by District court
 Appellate court has own discretion to decide whether to accept appeal
o 4 elements:
 Order from court
 Controlling question of law: materially affect issues remaining to be decided in the trial court.
 Rather than fact because would give all deference to trial judge for fact; Appellate courts
don’t decide factual issues
 Substantial grounds for difference of opinion (e.g. Circuit Splits)
 Assumption is that trial judges are usually right but here court is saying that he is likely
not to be right because others have disagreed over this in the past.
 Likely judge will get it wrong, so makes sense to just address it now
 Immediate appeal from the order may materially advance ultimate termination of litigation
 Efficiency standpoint
Petro-Hunt v. United States (2010)
 Clearly have court order dismissal of the takings claims
 “Controlling” question of law: materially affect issues remaining to be decided in the trial court
o Need to look to what is ongoing at the trial level and whether this particular issue will affect those
ongoing decisions that will be decided at a later point says no controlling question of law because
doesn’t have any effect on the remaining claims being litigated and, after litigating remaining claims,
may not care about these issues anyway
 Substantial ground for difference of opinion: has to be two different, but plausible interpretations of a line of
cases (example: circuit splits)
o Here, not the case; no room for debate in terms of applying the law to the facts
 Materially advance termination of the case
o Here, this doesn’t seem to help that at all; Court says if anything, will create even more problems or
extend the trial even more indefinitely
HYPOS (p.807)
o
o
o
o
A. π files suit under ADA. Right to recover depends on difficult and unsettled question of statutory
interpretation. Can district court certify this interpretive question?
 NO – no order [probably meets controlling question of law (depends on statutory
interpretation) and substantial ground for difference of opinion (unsettled question)]
B. Court orders π to provide English translations of certain documents produced under Rule 34.
Translations will be quite expensive to procure.
 No – not controlling question of law (not even a controlling question, just a discovery request)
& probably won’t advance termination of litigation
C. ∆ moves to dismiss a case for lack of PJ. Court expresses uncertainty as to whether ∆ has sufficient
contacts, but denies motion to dismiss.
 No – mixed question of law and fact (not just controlling legal question – application of
contacts to long arm or constitutional question)
D. DC concludes that it would be more convenient for the litigation to proceed in a different district and
orders the case transferred under § 1404(a).
 No – no controlling legal question
2. Rule 23(f)
 Allows interlocutory review of class certification decisions (allows immediate appeal).
3. Rule 54(b)
 Require separate claims
o No formal test; looks to factors:
 Extent of factual overlap [more overlap, less likely to allow appeal]
 Whether separate causes of action depend on different facts or different burdens of proof
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Whether application of res judicata considerations suggest linked claims (does claim
preclusion apply? Look to same t & o?)
 If multiple relief is for same injury [same injury is probably just different legal theories, not
different claims]
Final judgment as to some (at least one) claims
No just reason for delay of the appeal [more discretionary]
o Must be danger and hardship through the delay that would be alleviated if an immediate delay was
granted
Relates back to judicial efficiency/economy




54(b) HYPOS:
 π brings suit for breach of K and seeks damages. Court grants π’s motion for partial SJ and holds ∆ did breach K,
but court has not yet determined amount of damages. Is ruling on partial SJ immediately appealable under
54(b)?
o No – here, only have 1 claim NOT multiple claims (just breach of K) so no basis for 54(b) to kick in
 In response to π’s breach of K complaint, ∆ files compulsory counterclaim alleging K in question violates antitrust
laws. Court grants π’s motion for SJ on antitrust counterclaim. Is this granted immediately appealable?
o Yes -- have separate claims (b/c different claimants)
o What if they denied SJ motion? No – no final judgment
 Two πs sue 1 ∆. Court dismisses the claim of the one the πs but not the other. Is this dismissal immediately
appealable?
o Yes – multiple parties, one has final judgment (since dismissal) only question and maybe don’t know
enough is if there is a just reason for delay.
 You have a claim for fraud that seeks compensatory and punitive damages. Court enters SJ dismissing claim for
punitive damages. Would that qualify?
o No – just have 1 claim with multiple forms of relief but still only have 1 claim so no 54(b)
4. Writ of Mandamus Statute (28 USC 1651)
 Technically not an appeal  basically filing suit for an injunction against a trial judge telling them to change their
decision [extraordinary remedy]
 Pursuant to this, courts of appeals can issue writs of mandamus: order a DC to take certain actions
 Should only turn to using if no other adequate means to attain the relief that you desire
o If any other option for attaining an appeal through a different statutory method, you would use those
first Writ of mandamus is the last resort
La Buy v. Howes Leather Co. (1957)
 La Buy = District court judge
 Here, the trial judge after having the case for quite some time, with lost of πs and ∆s involved, and after hearing
several motions but then when getting ready for trial, the trial judge wanted a master to hear the case because his
docket was congested and he recognized that the case would be lengthy
 Question becomes that this is clearly not a final judgment – just told master to try the case – so really no other
basis to appeal (1292b or collateral order) so only potential to get review now is through a writ of mandamus
 Is this an appropriate instance for the court to hear the writ of mandamus and then issue an order?
o Used in clear abuse of discretion or abuse of judge’s power (either usurping power or abdicating
power)
o In this case, the judge clearly is abdicating his power  it is his job to try these cases and can only pawn
off to master under “exceptional conditions” court says congested calendar is NOT an exceptional
condition
 DISSENT: This is an example of appellate court going well beyond their powers judge merely misapplied the
definition of “exceptional” from the rule.
o Said if used writs of mandamus every time a judge misinterpreted a rule, would have them constantly,
which is not the point of them  dissent says that the majority’s reading is way to broad
 Other instances when writ of mandamus may be appropriate: PJ, Transfer outside circuit, Sua sponte new trial.
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Appealability Discovery Orders
 Very unusual Know these orders are NOT final decisions, not collateral, won’t lead to termination.
 Occasionally reviewed by writ of mandamus BUT very rare – must be an exceptional case
o Example: Schlagenhauf case which looked to rule 35 (does this violate privacy interests of litigants by
forcing someone to undergo examination)
 If you have a discovery order that you don’t want to do, just defy the order and the judge will hold you in
contempt and then can appeal because contempt judgments tend to be final judgments.
Other Mechanics & Timing of Filing
 TIMING: Have to file within 30 days of the entry of a final judgment/ order
o VERY strict on the 30 days  is jurisdictional and CANNOT be waived
o 60 days when USA is a party
 When you do appeal, does NOT stay the judgment itself
o Example: π wins and judgment is against ∆ and ∆ supposed to pay judgment. ∆ is supposed to pay
judgment even if they appeal; if ∆ wins appeal, then π will return the money.
o If you want to stay the enforcement of the judgment, you must post a bond [this would guarantee that
judgment will be paid and that ∆ isn’t trying to evade/delay payment]
 WHO: Only a party with an adverse judgment can file an appeal (winning party cannot file appeal)
o Would apply to whether you get additional damages or not BUT does NOT apply to if you just lost one
issue but won the case overall.
 With respect to actually the grounds for the appeal, must raise through the course of litigation
o Must be raised at the trial level and
o Appear on the record
o Error must not be harmless  non-harmless error is a error that materially effects the outcome of the
case
Scope of Review
 Issues of law = de novo standard
o Appellate court gives no deference to trial judge’s decision
 Issues of pure fact = clearly erroneous standard [extremely deferential standard]
o Appellate court should only overturn a factual determination by the court if the trial judge’s decision was
clearly erroneous
o How do you define clearly erroneous?
 Although there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed
 If lower court’s determination is plausible, the appellate court may NOT be overturned
 Where there are two permissible views of the evidence, the fact-finder's choice between
them cannot be clearly erroneous
o Anderson v. Bessemer City  trial court as fact finder made 3 findings of facts; appellate court (4th Cir.)
then reversed but then SCOTUS said that 4th Circuit was using incorrect standard and should have been
using clearly erroneous, so reversed and reinstituted trial courts’ findings
 Courts typically find that clearly erroneous & abuse of discretion are the same thing
o Abuse of discretion = used with trial court’s discretionary functions (ex: sanctions)
 Issues of mixed law and fact
o Need to think and see if more factual or more legal in nature
 More fact like, more likely to be clearly erroneous
 More legal, more likely to review de novo