Civil Procedure II
GWU School of Law
Professor Schaffner
Spring 2013
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Table of Contents
DISCOVERY ............................................................................................................................. 6
Discovery Devices .................................................................................................................. 8
Initial Disclosures ............................................................................................................... 8
Depositions ....................................................................................................................... 10
Interrogatories .................................................................................................................. 12
Production of Documents and Things............................................................................. 14
Medical Examination ....................................................................................................... 15
Request for Admission ..................................................................................................... 16
Relevance ............................................................................................................................. 17
United Oil v. Parts Assoc., Inc. ........................................................................................ 17
Hill v. Motel ...................................................................................................................... 18
Electronic Materials ............................................................................................................. 19
Zubulake v. UBS Warburg LLC ....................................................................................... 19
Privilege................................................................................................................................ 21
Work Product ....................................................................................................................... 22
Hickman v. Taylor ............................................................................................................ 22
Experts ................................................................................................................................. 23
Ager v. Jane Stormont Hospital ........................................................................................ 25
Timing & Sanctions ............................................................................................................. 26
Washington Physicians v. Fisons Corp ............................................................................ 29
ADJUDICATION ................................................................................................................... 31
Constitutional Right to a Jury .............................................................................................. 31
Chauffeurs Local v. Terry ................................................................................................. 32
Law vs. Equity...................................................................................................................... 33
Ross v. Bernhard............................................................................................................... 33
Dairy Queen v. Wood ....................................................................................................... 34
Herbert Markman Positek, Inc. v. Westview Instruments, Inc. ...................................... 35
Tull v. United States ......................................................................................................... 36
Feltner v. Columbia Pictures Television .......................................................................... 37
Complications of Merger ..................................................................................................... 38
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Beacon Theatres, Inc. v. Westover ................................................................................... 38
Jury Selection & Size ............................................................................................................ 39
J.E.B. v. Alabama.............................................................................................................. 40
Summary Judgment ............................................................................................................. 42
Anderson v. Liberty Lobby ............................................................................................... 44
Coble v. City of White House ........................................................................................... 45
Judgment as a Matter of Law............................................................................................... 45
Lavender v. Kurn .............................................................................................................. 46
New Trial ............................................................................................................................. 47
Dadurian v. Lloyd's of London ........................................................................................ 48
Other Controlling Techniques ............................................................................................. 50
WHAT LAW APPLIES ........................................................................................................... 52
The Erie Doctrine ................................................................................................................ 52
Erie v. Tompkins .............................................................................................................. 55
The Rules Enabling Act Distinguished ............................................................................... 57
Hanna v. Plumer............................................................................................................... 57
Applying the REA and RDA ................................................................................................ 59
Burlington Northern Railroad Co. v. Woods ................................................................... 60
Stewart Organization, Inc. v. Ricoh Corporation ............................................................ 61
Latest Developments ........................................................................................................... 62
Gaspirini v. Center of Humanities ................................................................................... 62
Shady Grove Orthopedic Assocs. v. Allstate Ins. Co........................................................ 63
Determining Content of State Law ...................................................................................... 64
Deweerth v. Baldinger ...................................................................................................... 65
Federal Law .......................................................................................................................... 65
PRECLUSION DOCTRINES................................................................................................ 66
Claim Preclusion .................................................................................................................. 66
Scope ................................................................................................................................. 66
Parties ............................................................................................................................... 68
Valid, Final & On the Merits ............................................................................................ 69
Exceptions ........................................................................................................................ 70
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Issue Preclusion ................................................................................................................... 70
Same, Litigated, Determined ........................................................................................... 71
Essential ........................................................................................................................... 74
Against Whom .................................................................................................................. 76
By Whom .......................................................................................................................... 77
Non-Mutuality .................................................................................................................. 81
Exceptions & Federalism ................................................................................................. 84
APPEAL .................................................................................................................................. 86
Jurisdiction ........................................................................................................................... 87
28 USC §1291 ..................................................................................................................... 87
Collateral Order Rule ........................................................................................................ 87
Exceptions to Final Judgment ............................................................................................. 89
La Buy v. Howes Leather Company ................................................................................ 91
Discovery Orders & Mechanics ........................................................................................... 93
Scope of Review ................................................................................................................... 93
Anderson v. Bessemer ...................................................................................................... 93
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I.
DISCOVERY
o
Introduction and Integration
Definition
 The formal mechanism provided in the rules of civil procedure for parties to
obtain information pertaining to one's case
 Fairly liberal set of rules.
 The quantity and timing of information sought is left almost entirely to the
parties with judicial intervention only when there is a problem
 Purposes of Discovery
 Permit the preservation of evidence that might otherwise be lost before trial
 Provide mechanisms for narrowing the issues in dispute
 Allow the parties to gather information about the other side's case
 Types of information that can be discovered
 Evidence the other side has in support of its claims or defenses
 Eliminates the element of surprise
 Upside: parties can adequately prepare arguments and the case
quits being about who can think on their feet -> more likely to
reach a just result/settle
 Settlements
 In theory each party should be willing to settle for the
expected value of the claim
 Expected value of the claim = (possible value * the
probability of getting the whole value) - the costs of
litigation
 Downside: it’s easier to commit perjury when you know ahead of
time what you need to lie about
 Information that may strengthen one's own case
 Often the strongest evidence of fault is in the hands of the wrongdoer
 Some people believe it is wrong to require persons to supply evidence
that may be used against them, discover "is designed to enable the party
to prove facts they already know, not to find out facts they don't"
 Modern Discovery
 Step 1 – General Discovery
 26(b)(1) – Scope of Discovery
 Parties may obtain discovery regarding any non-privileged matter
this is relevant to any party’s claim or defense—including the
existence….of any documents or other tangible things and that the
identity and location of persons who know of any discoverable
manner. For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence
 Material must be non-privileged
 Also non-testifying expert witnesses (see Experts
below)
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Requested information must be “relevant to party’s claim or
defense” - anything relevant to the issues framed by the
pleadings
 attorneys may be more likely to plead multiple
theories to discover more information
 Includes documents, anything that can be used as
evidence/witnesses
 Discovery doesn’t have to be admissible evidence!
 Hearsay questions are permitted at a deposition as a way to
find out more information
Step 2 –Objections from respondents
 Rule 26(b)(2)(C) LIMITS the scope of discovery
 Court must limit frequency or extent of discovery otherwise allowed
if it determines that:
 (i) Discovery sought is unreasonably cumulative, or can be
obtained from another more convenient, less burdensome, or
less expensive source;
 (ii) Party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
 i.e., party waited until end of discovery period to
request a large amount of information
 (iii) Burden or expense of the proposed discovery outweighs
its likely benefit, considering
 (1) needs of the case,
 (2) amount in controversy,
 (3) parties' resources,
 (4) importance of the issues at stake in the action,
 (5) importance of the discovery in resolving the
issues.
 (b)(3)-(5) – Other reasons for avoiding the discovery process
 Rule 37 – Motion to Compel Discovery when the other party won’t
comply
Step 3 – Protective Orders issued by the court
 (26(c)) Court can structure discovery to protect a party from
having to disclose something
 (1) Party receiving discovery request may seek a protective order
from the court to protect discovery. The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
one or more of the following:
 (a) Forbidding disclosure or discovery
 (b) Specifying terms, including time/place for
disclosure/discovery
 (c) Court may prescribe different discovery methods
 (d) Court may forbid inquiry in certain matters or limit scope
to certain matters
 (e) Designate who may be present when discovery is
conducted
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(f) Require deposition be sealed and opened only upon court
order
 (g) Require trade secret or other confidential information not
be revealed or only revealed in a specific way
 (h) Require parties to simultaneously file info in sealed
envelopes, to be opened as the court directs
 Other options: In camera review, redact files, sequence
discovery (discovery of least controversial stuff first)
(2) If motion for protective order is denied, court may order that
person to permit/provide discovery
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A.
Discovery Devices
1.
Initial Disclosures
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26(a) – Required Disclosures
 Initial Disclosures
 Disclosure of Expert Testimony [Experts]
 Pretrial Disclosures [Managing a District Court Caseload]
 Form of Disclosures [Managing a District Court Caseload]
26(a)(1) – Required Initial Disclosures
 Party must disclose any information that it:
o may use in support of its claims or defenses;
o unless the information would be used solely for
impeachment;
o Also computation of damages;
o Insurance agreement
 Need to use other tools of discovery in order to
obtain information unfavorable to responding party
 (A) Party must, without awaiting discovery request, provide to the
other parties:
o 1. Name, address, phone (if known) of anyone likely to
have discoverable information that disclosing party may
use to support its claims/defenses, unless the use would be
solely for impeachment
o 2. Copy, or description by category and location – of all
documents, ESI, and tangible thinks that disclosing party
has in its possession or control and may use to support its
claims/defenses, unless the use would be solely for
impeachment
o 3. Computation of each category of damages claimed by
the disclosing party – as well as documents on which each
computation is based, unless its privileged or protected from
disclosure
o 4. Insurance agreement under which an insurer may be
liable to satisfy all/part of possible judgment
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Must be given up front because it can’t be asked for
at trial (too prejudicial, grounds for mistrial)
(B) Proceedings exempt from initial disclosure (very specific, i.e.
petition for habeas corpus, forfeiture action in rem arising from
federal statute)
(C) Time for Initial Disclosures – In General
o A party must make the initial disclosures at or within 14
days after the parties Rule 26(f) conference unless court
decides otherwise or a party objects
(D) Time for Initial Disclosure – For Parties Served/Joined Late
o Party joined or served AFTER the 26(f) conference must
make the initial disclosures within 30 days of being served or
joined, unless court rules otherwise
(E) Basis for Initial Disclosure; Unacceptable Excuses
o Party must make its initial disclosures based on information
then reasonable available to it.
Party is not excused from making disclosures because it hasn’t fully
investigated or because it challenges sufficiency/absence of other
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party’s disclosures (just because they didn’t do it doesn’t mean you
can’t!)
2.
Depositions
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Testimony taken under oath in front of a notary (no judge)
 Other side can always be present for cross-examination. They may
also participate through written questions delivered to the noticing
party and asked by an officer (30(c)(3))
Usually the last discovery method used, it’s most expensive
 Previews witness testimony, it’s on the record, lawyer can ask followups
 Can be used in two ways:
o Discovery deposition - open ended questions asked to pin
down as much information as possible from witness that may
be offered at trial)
o Evidence Deposition - if witness is unavailable to testify at
trial, this will be used in place of their testimony
 Who – Anyone with discoverable information can be deposed
(30(a)(1))
o If deponent is party – Counsel initiates deposition by sending
a notice of the deposition to ALL parties in the action, stating
time/place (30(b)(1))
o If deponent is NOT a party – must be subpoenaed under
Rule 45 as well
 If they want non-party deponent to produce
documents, they must serve a notice of that
(subpoena duces tecum) with notice of deposition
o Some depositions require leave of court: If parties have not
stipulated to the deposition AND (i) deposition would result
in more than 10 per side OR (ii) deponent has already been
deposed in this case; OR (iii) party seeks to take deposition
before time specified in Rule 26(d) (unless party certifies that
deponent will be outside US or unavailable after that that
time)
 Or Deponent is in jail
o If a corporation is noticed, the named organization must
designated one or more officers, directors, etc. who can
testify on its behalf
 Recording
o Party who notices the deposition must state in the notice the
method for recording the testimony. Usually audio,
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audiovisual, stenographic. Noticing party bears recording
costs
o Any party can specify another method of recording, with
them bearing the cost
By Whom
o Unless parties stipulate otherwise, a deposition must be
conducted before an officer appointed or designated under
Rule 28.
o Officer must begin with an on the record statement including
his name, business address, date/time/place of deposition,
deponent’s name, administration of oath to deponent,
identify of all people present
Objections
o Noted on the record, but examination still proceeds.
Testimony is taken subject to an objection
 Person may instruct deponent not to answer only
when necessary to preserve a privilege, enforce a
limitation ordered by the court, or to present a
motion under 30(d)(3)
Duration – Deposition limited to 1 day of 7 hours. Court must
allow for additional time if needed
o 30(a)(2)(A)(i) imposes a presumptive limit of 10 per side
but that can be altered
Sanctions
o Court may impose sanctions on any person who impedes,
delays or frustrations the fair examination of a deponent
Motion to Terminate or Limit
o Deponent or party may move to terminate or limit deposition
on ground that it is being conducted in bad faith or manner
that unreasonably annoys/embarrasses/oppresses deponent
or party. Motion may be filed in court where action is
pending/deposition is taking place. If objecting party
demands, deposition may be suspended for time necessary to
obtain order. 30(d)(3)(A)
 Court may order that deposition be terminated or
limit its scope and manner as provided in 26(c)
(protective orders). 30(d)(3)(C).
Failing to Attend or Serve; Expenses
o A party who, expecting a deposition to be taken, attends in
person or by an attorney may recover reasonable expenses for
attending, including attorney’s fees, if noticing party failed to
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3.
Interrogatories
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attend or serve a subpoena on a nonparty deponent who
didn’t attend
31. Deposition by Written Testimony
 Party may serve on the other parties a set of questions that will be
asked to a witness. Court officer then swears in the witness and
asked the questions.
o Advantage- lawyer need not attend
o Disadvantage- witness is likely to know in advance the
questions that will be asked; no opportunity for follow-up
32. Using Depositions in Court Proceedings
 For any purpose if deponent is an adverse party
 Can be used to impeach or contradict testimony given by deponent
as witness
 Used for unavailable witnesses
 Gives rules for waiver of objections [See 32(d)(1)-(4)]
45. Subpoena
 If person to be deposed is NOT a party, she must be subpoenaed by
deposition under Rule 45.
 Can object under 45(c)(2)(B) if want to resist  other side files
motion to compel
 May be held in contempt of court if does not appear. 45(e)
Questions that you may send to other parties in the case (not to non-parties
like depositions) answered in writing and under oath
 This is a reason for making someone a party to a case (i.e., sue both
bus company and bus driver (even though he has no $$), then
dismiss bus driver after discovery)
Typically the first method of discover used because it’s a cheap way of
getting background information from other parties (names/addresses,
location of documents, etc.)
 But counsel is usually stringy in giving answers
Less expensive and more effective than depositions for acquiring detailed,
objective information
 Parties must provide facts that are reasonable available to them, even
if this requires reviewing files of documents
Who 33(b)(1)
 Interrogatories must be answered by the party to whom they are
directed or, if corporation, by an officer or agent
o 33(b)(3) - Each interrogatory must, to the extent it’s not
objected to, by answered separately and fully in writing under
oath
o 33(b)(5) – Person who makes them must sign them
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o Answers are typically drafted by a lawyer and therefore may
not be effective for ascertaining testimony or credibility of
witnesses
When 33(b)(2)
 Within 30 days after being served. Shorter/longer time can be
stipulated by court
Objections 33(b)(4)
 Grounds for objecting to an interrogatory must be stated with
specificity. Any ground not stated is waived unless court excuses it
o 33(b)(5) Attorney who raises them must sign them
Limits 33(a)(1)
 No more than 25 interrogatories, including all discrete subparts.
Leave to serve additional may be granted consistent with 26(b)(2)
Scope 33(a)(2)
 Interrogatory must relate to any matter that may be inquired into
under 26(b). It’s not objectionably merely because it asks for a
contention that relates to fact or application of law to fact, but court
may order that interrogatory need not be answered until designated
discovery is complete, or until a pretrial conference or some other
time
o Therefore, contention interrogatories are permissible but
don’t get you very far.
 Used to force opponent to specify the grounds of the
general claims raised in complaint/answer
 i.e. can ask plaintiff who generally alleged negligence
in what ways the defendant’s conduct was negligent
Option to Produce Business Records 33(d)
 If answer to interrogatory may be determined by looking at a party’s
business records (including ESI), and if the burden of deriving the
answer will be substantially the same for either party, the responding
party may answer by
o Specifying the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and identify
them as readily as the responding party could; and
o Giving the interrogating party a reasonable opportunity to
examine and audit the records and to make copies
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4.
Production of Documents and Things
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Party may serve on any other party a request within the scope of 26(b) to
produce and permit requesting party to inspect, copy, test any writings, ESI,
tangible things, or let them inspect the designated object, etc.
 Basically it authorizes a party to require an opponent to produce
documents/things in their control for inspection/copying
This is typically done early on (after interrogatories) to give you stuff that you
can ask witnesses about during depositions
Parties resist requests for production of documents by construing them
narrowly, so requesting lawyers draft them VERY broadly
Procedure 34(b)(1)
 Request must describe with “reasonable particularity” reach item or
category to be inspected, state a reasonable time/place/manner for
inspection, may specify form in which ESI is to produced
Responses and Objections 34(b)(2)
 Must respond in writing within 30 days – can be amended via Rule
29
 Must respond to each item (allow inspection or state objection)
 As with interrogatories, responding party can simply offer to open
their records as they’re kept in ordinary course of business for
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5.
examination by requesting party 0 this imposes a big burden on
requesting burden to cull through all the records
o At minimum, they should indicate how they’re organized,
which records respond to which requests, and other info
necessary to locate requested items
ESI (34(b)(2)(E)) – See ESI Below
 Party must produce documents as they are kept in the usual course of
business or must organize/label them to correspond to categories in
the request
 If request does not specify form for producing ESI, party must
produce it in form usually maintained
 A party need not produce the same ESI in more than one form
Nonparties (34(c)
 Non-party may be compelled to produce via subpoena (Rule 45)
Medical Examination
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FRCP 35
 Requires Court Order, where party whose mental or physical
condition is in controversy
 Prove two things:
 35(a)(1) Reason for exam is in controversy (relates to issue in
the case)
 Materiality and relevance of the issue – Law, Facts,
Conclusion
 In almost all cases, the fact that a plaintiff is claiming
substantial injuries will justify an order for the exam
 Did the trucker see the red light? Vision of
truck driver is important here
 35(a)(2) Must be for “good cause”
 Weigh need to get information from other
parties/sources against burden on party
(intrusiveness)
 Party who requested the examination must, on request, deliver to the
requester a copy of the examiner’s report which should include the
examiner’s findings, diagnoses, conclusions, test results
 After delivering reports, party who moved for examination
may request from the party against whom the examination
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6.
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order was issued like reports of all earlier or later exams of
the same condition
By requesting and obtaining examiner’s report, or by deposing the
examiner, party examined waives any privilege it may have
concerning testimony about all examinations of the same condition
Request for Admission
Request for Admission isn’t really a discovery device, but a way of narrowing
the scope of trial by eliminating uncontested issues
Scope 36(a)(1)
 Party may serve a written request on another party to admit the truth
of any matters within the scope of 26(b)(1) relating to facts,
application of law to facts and the genuineness of any described
documents
Time to Respond 36(a)(3)
 A matter is admitted, unless within 30 days after being served, party
serves on requesting party a written answer or objection
 Always respond! If you fail to object or deny, they’re
considered admitted
Answer 36(a)(4)

If a matter is not admitted, answer must specifically deny it or state
why they can’t truthfully admit/deny it. They can assert lack of
knowledge as a reason for failing to admit/deny, but only if they’re
made reasonable inquiry and information that it knows/can readily
obtain is insufficient to enable it to deny
 Requests for admissions that are admitted are binding on party at trial
 Vs. interrogatories, which are admissible but NOT binding
Effect of an Admission; Withdrawing or Amending it 36(b)

A matter admitted under this rule is established unless the court
permits the admission to be withdrawn or amended, if it would
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B.
promote the presentation of the merits of the action and the court is
not persuaded that it would prejudice the requesting party
 Admission under this rule can’t be used for any other
purpose or against the party in another proceeding – No
Preclusive Effect on other cases
So they can admit to something, amend it, then if withdrawal is granted, the
opponent has to litigate an issue her opponent and previously withdrawn
from contention
Relevance
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1.
Something is relevant if it has the tendency to make the existence of the fact
more or less probable
 The scope of relevance is relevant to claim or defense of the party
 A party can gain a wider scope to include subject matter of the case but only
if they show good cause
United Oil v. Parts Assoc., Inc.
 Discovery of other litigation is allowed where it involves
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(1) the same/similar claims arising from, or
(2) the same/similar products at issue
FACTS:
o United Oil is suing R&H for indemnity/contribution out of
payment they made for causing someone’s liver damage. R&H
made the dyes that caused the damage – their theory is based on
failure to warn, that R&H knew risk and didn’t warn. R&H
didn’t respond to interrogatories thinking they were broad
ISSUE:
o How broad is discovery? Can United get information on every
claim for every kind of damage to every part of the body?
 United Oil wants to find out about previous lawsuits
involving the dyes (used in any amount) as well as for any
body part (i.e., if it caused heart disease)
HELD:
o The Court grants most of United Oil’s motion to compel answers
to the interrogatories – they can get discovery involving any
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product that contains the chemical, but only related to liver
disease
 Discovery of other litigation is allowed where it involves
(1) the same/similar claims arising from (2) the
same/similar products at issue
 Similar claims (related to liver disease), related to
failure to warn (of the specific dyes)
 The “relevance” for discovery is viewed more
liberally than the “relevance” for evidence
 The burden is on party resisting discovery (R&H) to
explain their objections because of the liberal
construction of the rules
 33(d) Interrogatories may be answered by providing
business records.
 However, Parts cannot answer the interrogatories
by solely providing United with boxes of
documents.
o Fundamental question is whether the
burden is equal on both sides. Here,
the burden was not equal- Parts was more
familiar with documents, much easier for
them to answer the questions themselves.
This was not a proper use of 33(d)
2.
Hill v. Motel
 Discovery will only be broadened [beyond that which focuses on the
actual claims and defenses of any party] when demanded by the
reasonable needs of the action.
 FACTS
 The employee, an area manager, was discharged by his supervisor.
Other corporate officers allegedly participated in the decision. The
employee claimed discriminatory treatment only, and did not claim
discriminatory impact.
 He sought discovery of personnel files of all area managers,
claiming they could contain evidence of a policy or practice of
age discrimination.
ISSUE

 Was the employee's request for discovery overbroad?
 HELD
 The court found the request was overbroad
 Because the evidence of a policy or practice would not support
the employee's claim of discriminatory treatment claim that
involved a discrete dispute over the employers' motives to
discharge that employee in particular.
The
court
granted the employee's motion to compel in part, and denied

it in part. The court ordered discovery of personnel files of certain
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area managers and corporate officers, as well as certain age
discrimination charges against the employer.
 Any area managers in the region are discoverable because it is
relevant to the claim
 Two types of discrimination claims: discriminatory treatment
(motive) vs. discriminatory impact (no motive)
 They filed under discriminatory treatment which is
treated more narrowly by courts
 Need to show good cause to prevent fishing for
evidence that could raise new claims because Rule
26(b)(1) is explicitly designed against this
C.
Electronic Materials
o
o
o
1.
26(A)(1)(A)(ii) – ESI must be disclosed as part of required initial disclosures
Rule 26(b)(2)(B) provides a process for addressing disputes over ESI
 Party from whom discovery is sought must show information is not
reasonably accessible because of undue burden or cost
 court still may order discovery from such sources if requesting party
shows good cause
 Court can also specify conditions (like cost) for the discovery
 Since there’s so much contained on backup tapes and the like, after
producing ESI, the producing party may discover that some privileged
material was released and seek its return
 26(b)(5)(B) – notify party of “inadvertent disclosure”.
 Receiving party must destroy, return, or hold documents
pending adjudication of privilege issue by court
37(e) – Sanctions may NOT be imposed for destruction of ESI through “routine
good faith operation of an electronic information system”
 But it doesn’t apply if party had duty to STOP automatic deletion of ESI
relevant to litigation
 Parties have a duty to ensure preservation (duty to supplement under
26(e))
 Obligation comes into effect when one can reasonable
anticipate that dispute may lead to litigation; attorneys must tell
client to preserve evidence
Zubulake v. UBS Warburg LLC
 A court will weigh the cost of accessing the electronic data using a
comprehensive set of factors, and will determine whether the data should
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be available for discovery, and which party to place the cost of the
discovery.
FACTS
o Suing former employer for gender discrimination. Charges
employer with defoliation- destruction of evidence.
ISSUE
o Sanctions for failure to produce documents in a timely fashion, or
produce them at all?
HELD
o Counsel failed to properly oversee UBS by not communicating
adequately with an employee about archiving – they didn’t make
sure the relevant data was maintained
 Also, UBS didn’t follow the instructions the lawyers did
give
o Sanctions are imposed and adverse inference instruction is given
to the jury
 UBS (1) had an obligation to preserve the records, (2) the
records were destroyed with culpable state of mind and
(3) the destroyed evidence was relevant to the party’s
claim (this is inferred from a willful state of mind)
o In house council should have:
 Issued a litigation hold from outset of litigation,
periodically reissuing it
 Spoken directly with key players
 Instructed all employees to produce electronic copies of
their relevant active files
 Ensured all backup media is identified and stored safely
D.
Privilege
o Rule 26(b)(1) permits discovery of “non-privileged” material
 “privileged”- narrow category of material delineated under the rules of
evidence
 Just because information is personal, confidential, or intended to
be secret doesn’t necessarily make it privileged
o Rule 26(b)(5)
 (A) When party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection as
trial-prep material, party must
 (i) expressly make the claim
 (ii) describe nature of documents/communications/things not
produced so the other party can assess the claim
 (B) If material is inadvertently disclosed (i.e. overlooked, embedded
data), disclosing party may notify the other party of the claim/basis for it.
After notification, other party must: return/destroy information
 Attorney-client privilege: This privilege applies if:
(1) The asserted holder of the privilege is, or sought to become, a client
o Doesn’t mean that the client had to have paid the attorney money
o Cocktail party chatter is not privilege, unless clear that he wants to
become a client
(2) The person to whom the communication was made
a. Is a member of the bar of a court, or his subordinate and
 Can communicate it to a paralegal who will transfer the
information to the lawyer
b. In connection with this communication is acting as a lawyer
 i.e. general counsel of an organization might have two roles,
provide both legal and business/organizational advice; if info
21
was communicated for the purpose of obtaining business
advice, then information is not privileged
(3) The communication relates to a fact of which the attorney was informed
a. By his client
b. Without the presence of strangers
c. For the purpose of securing primarily either
i. An opinion on law or
ii. Legal services
iii. Or assistance in some legal proceeding AND NOT
d. For the purpose of committing a crime or tort, and
 Client cannot find out the best way to rob a bank and get the
least penalty
(4) The privilege has been
a. Claimed, and
b. Not waived, by the client
 Must be asserted by the client. Can be claimed by the
attorney, but it’s the client’s privilege- client is the one who
chooses what is disclosed.
o Scope of attorney-client privilege when client is corporation
 Privilege protects all communications between employees and
lawyer, not just communications between managers and the
lawyer. Upjohn Co. v. United State
E.
Work Product


1.
Rule 26(b)(3)= WORK PRODUCT RULE
o Work Product
 (A) Party cannot discover documents and tangible things
prepared in anticipation of litigation or for trial by another party’s
lawyer. Unless:
 (i) they are otherwise discoverable under Rule 26(b)(1)
 (ii) party shows substantial need for the materials to
prepare their case (relevant to the issue) AND cannot,
without undue hardship, obtain their substantial
equivalent by other means
 (3) Discover always barred for opposing counsel’s thought
process in preparing a case (opinion work product)
NOTE: “in anticipation of legislation”- does not require that legislation has
commenced
Hickman v. Taylor
 The work product of an attorney, particularly opposing counsel's
thoughts and impressions of witnesses or information relating to the
claims, is not discoverable.
 FACTS
 Taylor’s boat sank. They hired Fortenbaugh to represent them. He
interviewed survivors and took statements in preparation for possible
litigation. The one party who didn’t settle filed interrogatories asking
22


F.
whether any statement of the survivors had been taken and for info
from those statements. Fortenbaugh says he took statements but
won’t give what was said, saying it was an indirect way to obtain his
private files
ISSUE
 Can Fortenbaugh's work be accessed by opposing council?
HELD
 Establishes common law rule on work product (before 26(b)(3)). Apply
protection to anything that is prepared in anticipation of litigation or
trail. Can overcome this privilege (qualified) through showing of A)
need/relevance and B) difficult to obtain same information BUT
court will still protect mental impressions/opinions of the lawyer.
 Work product material should be protected because
 If lawyer knew that material would be discoverable, he
would not write anything down
 Fundamentally unfair to reward lawyer free-riding off
opponent’s work
 Want to protect lawyer’s own theory of the case
 Lawyers would become witnesses at trial
 Demoralizing effect
 Inefficiency, unfairness and sharp practices
Experts

Two kinds of experts: consultants who assist in preparation and those who testify
at trial
o Parties must disclose experts to be used, accompanied by written report. Rule
26(a)(2). Once report has been turned over, expert can be deposed. Rule
26(b)(4)(A).
o Rule 26(a)(2) Disclosure of Expert Testimony
 (A) Party must disclose to other parties the identity of witnesses it may
use at trial to present evidence under Fed.R.Evid. 702,703,705
 (B) Written report- Disclosure must be accompanied by written reportprepared and signed by expert witness.
 Report must contain (i)-(vi): complete statement of all opinions
the witness will express and basis for them; data/information
considered by witness in forming opinions; exhibits that will be
used to summarize/support opinions; qualifications and list of
publications authored in previous 10 years; list of all cases in
which, during previous 4 years, witness testified as expert at
trial/depo; statement of compensation to be paid for study and
testimony
 (ii)- “data or other information considered by the
witness in forming the opinions”- does this mean that
if attorney gives testifying expert material that would
23
o
24
otherwise be work-product, the expert must disclose
the previously privileged material?
 Majority of courts hold that all material
reviewed by a testifying expert is discoverablethereby destroying work-product privilege.
 (C) Party must make these disclosures at time ordered by court. In
absence of court order, disclosures must be made 90 days before trial
(or 30 days after other party’s disclosure if expert’s sole use is to
contradict/rebut evidence on the same subject matter identified by the
other party in Rule 26(a)(2)(B))
 (D) Must supplement these disclosures when required to under 26(e)
Rule 26(b)(4) Trial preparation: Experts
 (A) Testifying expert witnesses may be deposed. Deposition must
occur after Rule 26(a)(2)(B) report is provided.
 (B) Expert employed only for trial preparation- not subject to
interrogatories or deposition if retained/employed in anticipation of
litigation or to prepare for trail, but who is not going to be called as
witness at trial. Unless:
 (i) as provided in Rule 35(b)- examiner’s report
 (ii) on showing of exceptional circumstances under which it is
impracticable for a party to obtain facts or opinions on the same
subject by other means
 NOTE: potential for abuse- retain experts who have
controversial evidence because their information is not
discoverable
(C)
Paymentparty seeking discovery must (i) pay expert reasonable

fee for time spent in responding to discovery under (A) or (B) and (ii)
for discovery under (B) also pay the other party a fair portion of the
fees and expenses it incurred in obtaining the expert’s facts and
opinions

NOTE:
o Regarding testifying experts, considerable tension between rules that product
work product and rules that require disclosure of expert’s
work/communication with lawyer.
 Litigants ran into problems because needed/wanted to tell experts
information, but this information would then become discoverable.
o Lawyers came up with idea to hire non-testifying expert who can
communicate with expert and talk about how the testimony should be
prepared
 Non-testifying experts can also educate counsel on procedures, prepare
witnesses to testify, develop theories of recovery, develop exhibits
 These people are not subject to disclosure aside from compelling need.
 Way to get around discovery process, yet complicated result.
o Proposed new rule provides that Rule 26(b)(3) protects drafts of experts
from disclosure.
1.
Ager v. Jane Stormont Hospital
 Under FRCP 26, discovery of experts who were informally consulted
but will not be testifying at trial is not allowed.
 FACTS
 Defendant wants the identity of experts that P consulted who will not
testify at trial
ISSUE

 Whether a party may routinely discover the name of retained or
especially employed consultants who won’t testify at trial, pursuant to
26(b)(4)(D) absent a showing of exceptional circumstances?
 HELD
 1st : Remand to discover if experts were informally consulted, then
discovery is barred.
 2nd: if expert was retained in anticipation of legislation, but not
expected to testify, unless defense can show an extraordinary need,
cannot receive this information. Extraordinary circumstances- must
25
prove that information (i.e. just names and addresses) cannot be
obtained any other way.
 Divides experts into:
 (1) Testifying experts
 (2) Formally contracted but not testifying- can only
get information if examining doctor or showing of
exception circumstances.
 (3) Informally consulted in prep for trial, but not
retained - never can get information about these experts,
not retained for specific case
 No provision in Rule 26(b)(4) deals with these types
of witnesses
 (4) Experts whose information was not acquired in
trial prep. Includes regular employees of a party not
specially employed on the case or experts who were
actors/viewers of occurrences that gave raise to suit.
These people treated like other witnesses, no special
protection.
 Status of each expert must be determined on an ad hoc
basis, looking at:
 (1) Manner in which consultation was initiated
 (2) Nature, type, extent of information provided to
determined by expert
 (3) Duration/intensity of the relationship
 (4) Terms of consultation
G.
Timing & Sanctions
o
o
26
Rule 37 – First Resort; Rule 26 – for Serious Discovery Problems
Rule 37 – Failure to Make Disclosures or to Cooperate; Sanctions
 (a) Motion for an Order Compelling Disclosure or Discovery
 If other party has prior notice, a party may move for an order
compelling disclosure or discovery. It must include that movant
has in good faith conferred/attempted to confer with other
party and it hasn’t worked
 For party – motion in court where action is pending; For
non-party, do it in court will discovery will be taken
 Must ask other party before invoking the court!
 Motions
 To Compel Disclosure – If a party fails to disclosure
under 26(a), any other party may move to compel
disclosure and for appropriate sanctions
 To Compel a Discovery Response – Party seeking
discovery may move for an order compelling answer,
designation, production, inspection if:
 Deponent (or Corporation) fails to answer a question
in a deposition
 Party fails to answer interrogatory
 Party fails to respond that inspection will be
permitted or fails to permit inspection [of
document request under Rule 34]
 When taking an oral deposition party asking a question
may complete or adjourn the examination before moving
for an order
 Note: A motion to compel is NOT a prerequisite for sanctions.
 For purposes of 37(a) Evasive or incomplete
disclosure/answer/response must be treated as failure to
disclose
 After hearing both sides, judge can:
 Require party/deponent, the party or attorney advising
that conduct, or both to pay movant’s reasonable
expenses incurred in making the motion, including
attorney’s fees. But not if:
 Movant filed motion before attempting in good faith
to obtain disclosure without court action, or
 Opposing party’s nondisclosure was substantially
justified, or
 Other Circumstances
 Deny motion and issue protective order, requiring
movant or deponent who raised the issue to pay other
side’s attorney’s fees
 (b) Failure to Comply with Court Order
 If it’s where deposition is taken, failure may be treated as contempt
of court
 If it’s where action is pending, Court may: (i) order the matters to be
treated as admitted; (ii) prohibit the party from supporting or
opposing designated claims or defenses; (iii) strike pleadings, stay or
dismiss the action, or render a default judgment, or (iv) hold the
delinquent party or witness in contempt (contempt may not be used
27
o
28
be Rule 35 – order to submit to physical/mental exam). May also
assess reasonable fees, including attorneys fees.
 (c) Failure to Disclose Supplement
 Sanctions are available for failure to disclosure under Rule 26(a),
supplement under Rule 26(e), failure to admit under Rule 36. Party
who fails to make required disclosures will not be permitted to use
the info withheld as evidence at trial, at hearing, or on a motion,
unless failure was harmless. 37(c).
 (d) Party’s Failure to Attend Its Own Depositions, Serve Answers, Respond
to Request
 If party fails to attend own depositions or fails to answer any
interrogatories, party may move for immediate sanctions (as opposed
to motion to compel). Motion must certify that moving party made
good faith attempt to obtain answer. Court may (i) order the matters
to be treated as admitted; (ii) prohibit the party from supporting or
opposing designated claims or defenses, (iii) strike pleadings, stay or
dismiss the action, or render default judgment.
Rule 26(g) Signing Disclosures and Discovery Requests, Responses, and
Objections
 Discovery analogue of Rule 11 (which doesn’t apply to discovery process)
 All disclosures under Rule 26(a)(1) or (a)(3) and every discovery
request/response/object must be signed by at least one attorney or
unrepresented party. By signed, certifies that to best of that person’s
knowledge, information and belief formed after reasonable inquiry that:
 With respect to disclosure, complete and correct at time it is made
 With respect to discovery requests/responses/objections
o Request is consistent with rules and warranted by good faith
o Not for improper purpose, to cause delay, needless expense,
harass
 Not unreasonable or unduly expensive given the case and
the importance of the issues at stake
o Sanctions can be imposed on lawyer or parties
o Include elimination of claim or defense, pay for attorneys fee
1.
Washington Physicians v. Fisons Corp
 FRCP 26(g) requires attorney signing discovery request to certify
that he's read it and believes:
 (1) its consistent with discovery rules and warranted by law or
a good faith modification for law
 (2) Not interposed for any improper purpose like to
harass/delay
 (3) Not unreasonable or unduly burdensome or expensive,
given needs of case
o FACTS
 Family sued Fisons and Dr. for making/prescribing a medicine that
caused permanent brain damage to their daughter. Dr. cross-claims
against Fisons
 After family settles with Dr., they give him a document dated 4 years
prior indicating Fisons was aware of the life-threatening capability of
the drug (Smoking Gun #1).
 After sanctions were denied and Fisons was told to produce
documents, another smoking gun memo was discovered.
 Both family and Dr. say the documents should have been discovered
through interrogatories and request for production but were not
turned over.
o ISSUE
 Did the trial court err in denying sanctions against drug company for
abuses during discovery
o HELD
 Remand for Sanctions
 Standard of review here is abuse of discretion – the appellate
court must be absolutely certain that the trial court got it wrong
– lots of deference to lower court
 Lower court decided that sanctions were not required
because it used a subjective standard. (i.e. Fisons did not
intentionally misfile documents, definition of “product”
29
was unclear, conduct was consistent with customary and
accepted litigation practices of bar, etc)
 Trial court should have imposed a standard similar to 26(g) – Aimed at
reducing delaying tactics, procedural harassment, and mounting legal
costs. Rule requires attorney signing discovery request to certify that
he’s read it and believes:
 (1) its consistent with discovery rules and warranted by law or a
good faith modification for law
 (2) Not interposed for any improper purpose like to
harass/delay
 (3) Not unreasonable or unduly burdensome or expensive,
given needs of case
 Objective Standard!
 Here, Fisons gave misleading responses. They put the damaging stuff
about the drug in question in another file for a competing drug – but
this was BS
 They didn’t fully answer interrogatory and answer requests for
production
 Lawyer’s duty to place his client’s interest ahead of all others
assumes lawyer will live with rules that govern the system
30
II.
ADJUDICATION
A.
Constitutional Right to a Jury


7th Amendment – “In suits at common law…the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be otherwise reexamined in
any Court, than according to the rules of the common law”
o This has NOT been incorporated to the states
o Two parts:
 Jury Clause – Right of a jury trial is preserved
 Preserved = historical test where court determines if
there was a right to a jury at the time of the 7th
Amendment’s ratification in 1791
 Re-examination Clause – no fact tried before jury shall be
reviewed be a judge
 Would a judge at Common Law have reviewed and
corrected a jury verdict in 1791?
o Rule 38 - Right to a Jury Trial
 (a) includes unnecessary statement that right to jury trial is given
by 7th Amendment
 (b)(1): Must demand jury no later than 14 days after the last
pleading is served
 Demand can be in separate document, but most parties
include it in pleading. Can specify what issues you want
tried by a jury
(c):
Party
mat specify the issues that it wishes to have tried by

jury; otherwise, considered to have demanded jury on all issues at
trial.
 (d): Failure to request jury constitutes a waiver, and case is tried
before judge.
Jury Clause
o The distinction (between jury vs. no jury) boils down to difference
between courts of law and courts of equity
 The two were merged in the US in 1938
 English distinction – Law courts allowed jury, equity courts
did not because it’s the king’s court doing justice
o When law and equity started merging in the US, you started getting
difficulties:
 (1) Congress creates new causes of action all the time. Many
times they’ll specify a jury trial but with Civil Rights Act, it might
not have been a good idea to have a jury trial, so courts had to
determine if new causes of action (that didn’t exist in 1791) had
right to a jury
 (2) What happens when you have mixed claims for law
and equity (damages/injunction)?
31
1.
Chauffeurs Local v. Terry
 The nature of the action and the remedy sought are of the type
traditionally awarded by courts of law, then the 7th Amendment of
the Constitution, entitles the moving party to a jury trial.
o FACTS
 There was a union agreement between McClean Trucking and Terry
(some members of union). When McClean changed their structure so
some respondents were laid off, they field 2 grievances against
McClean but the union declined to help them in one charge. They
sue McLean (eventually dismissed) and that Union violated its duty of
fair representation. They seek injunction and damages.
 It’s a Fair Representation suit – Terry wants jury, Union says no. 4th
Cir. says they get jury trial
o ISSUE
 Whether an employee who seeks back pay for a union’s breach of fair
representation has a right to trial by jury?
o RULE
 Juries for “suits at common law” – where legal (not equitable) rights are
at stake. They can’t bring their action against the employer unless
they show union breached its duty of fair representation, so they have
to prove two claims
 To determine if an action will resolve legal rights:
 (1) Compare statutory action to 18th century actions
brought in English Courts
 (2) Examine the remedy sought and determine whether
it’s legal or equitable in nature
o HELD
 Opinion of the Court, J. Marshall
 Respondents entitled to jury because this is a legal action
 On Prong (1), Fair Representation was unknown in 18th
century England so we have to analogize it.
 Union’s equitable analogy - Trust Beneficiary against a
trustee for breach of fiduciary duty (equity in 1791)
 Terry’s legal analogy – Attorney Malpractice Action
 Duty of fair representation alone is like trust analogy
(equitable), but the cause against employer is a breach of
contract claim (legal), so the first test leaves with nothing
 Prong (2), Remedy Sought
 Request for compensatory damages for back pay/benefits
= traditional legal remedy
 Damages are equitable where they’re restitutionary. Back
pay sought is not money wrongfully held by Union, but
32
wages they would have received from McClean had
Union processed employee’s grievances properly
 Concurrence, J. Brennan
 Look to only the second (remedy sought) prong. Get rid of
comparison prong because the second prong is more
dispositive, it’s not worth judge’s time to compare to 18th
century
 In the remedy test, Courts must still ask which remedies
were traditionally available at law and which in equity
Concurrence,
J. Stevens

 Duty of fair representation action – common-law action against
an attorney for malpractice (legal action)
 He agrees with Terry’s argument on prong 1
 Dissent, J. Kennedy
 When court decided fair representation action was analogous to
trust action (equitable), the inquiry should have ended and they
should have said no jury
 Stick to the historical test
B.
Law vs. Equity


1.
Test for the Right to Jury Trial
o (1) Look for historical analogue (in 1791) that is closely similar to newly
created cause of action. If court finds one, then follow historical analogue
 NOTE – Congress can grant right to jury trial by statue
o (2) Ambiguous – Look to Nature of Remedy
 Money Damages = Court of Law = Jury Trial
 Injunction = Equity = No Jury
Rule 39 – Trial by Jury or by The Court
o Division of authority between judge and jury. Court has judicial
discretion to try issues by jury even if not required by 7th A, including
with consent or use of advisory jury
o Rule 39(a): When jury trial has been demanded, must be a jury trial unless
parties file a stipulation to a jury trial or court, on motion or on its own,
finds that there is no federal right to a jury trial on some or all of the
issues.
Ross v. Bernhard
 Class actions are now recognized due to new procedure and may
have the right to a jury if their claim is traditionally legal. Nothing
33



2.
turns now upon the form of the action or the procedural devices by
which the parties happen to come before the court
FACTS
 Shareholders of a corporation alleged that the defendant breached its
contract with the corporation
ISSUE
 Does the plaintiff have the right to a jury trial?
HELD
 Historically shareholder derivative suits are brought in the court of
equity, nonetheless the court upheld the right to a jury
 Court held that the case had dual aspects (1) the stockholder's
right to sue on behalf of the corporation and (2) the corporations
claim against the third party
 "Under the rules law and equity are procedurally combines;
nothing turns now upon the form of the action or the
procedural devices by which the parties happen to come before
the court"
 Because the court now recognizes the right to sue on behalf of the
company, the 7th amendment question should be decided based on
the underlying claim which was a breach of contract and a legal
issue.
Dairy Queen v. Wood
 Equitable remedies are reserved for situation no adequate legal
remedy
 FACTS
 Trademark-licensing agreement. P brought action for breach of
contract, asking for injunctions and an accounting to determine the
exact amount of money owed.
 The claims were essentially equitable, but they were seeking a legal
remedy
 ISSUE
 Does the plaintiff have the right to a jury trial?
 HELD
1. Claims were essentially equitable, but SCOTUS said that since the
remedy was monetary, there should be a jury
 Equitable remedies are reserved for situation no adequate legal
remedy,
 Therefore the plaintiff must be able to show that the "accounts
between the parties" are of such a complicated nature that only
a court of remedy could unravel them.
 With the appointment of special masters whose job it is
to assist juries in complicated legal issues, the burden is
34
very high to show that a jury would be incapable of
issuing a reasonable ruling.
2. The choice of terms ("accounting" rather than "damages" or "debt")
used in the pleading should not preclude a right to jury.
3.
Herbert Markman Positek, Inc. v. Westview Instruments,
Inc.
 In cases where there is no clear fact/law distinction under the
historical test, the court may "as a matter of the sound
administration of justice "make a decision based on which judicial
actor is in the best position to decide the issue in question."
 FACTS
 Court looked at functional considerations in deciding that
interpretation of a patent is a question for the judge, not the jury
 ISSUE
 Is interpret a patent “claim" a matter of law or fact?
 HELD
 In a case involving the interpretation of patent terms the court held
that in cases where there is no clear fact/law distinction under he
historical test, the court may "as a matter of the sound administration
of justice "make a decision based on which judicial actor is in the best
position to decide the issue in question
 The interpretation of patent terms is too complicated and difficult to
expect juries to handle. It is unlike other areas requiring expert
testimony has shown by the fact that congress created an exclusive
appellate court on the federal circuit for patent cases
 witnesses & “credibility”à experts witnesses and fact witnesses’
credibility determined by juries and court holds fact witnesses
more important
 judges in better position to be interpreting documents-à law is
interpreting documents
 about determining accuracy and who is in a better
position to do that
 Judges are to look at four sources for definitions in
order of priority:
1. The written description accompanying the
patent claims is most relevant;
2. The documentation of the history of the
patent as it went through the application;
3. Standard dictionaries of English;
4. Finally, if all else fails, expert testimony from
experts "skilled in the art" at issue.
 Policy argument: uniformity important specifically to patents,
concern that a zone of uncertainty would prevent people putting
their ideas out there thus the uniformity in law in patent cases
35
important to “promote invention” per the patent clause of the
constitution
4.
Tull v. United States
 A right to a jury does not necessarily include the right to have the
jury determine the amount of civil penalties (punitive damages)
o Facts:
 The United States (P) filed a civil suit against Tull (D) for discharging
fill material into wetlands in violation of the Clean Water Act. P
sought over $22 million and injunctive relief. The district court
denied Tull’s motion for a jury trial and entered judgment for P for
$325,000. The court of appeals affirmed the denial of a jury trial and
the Supreme Court granted cert.
o Issue:
1. What is the test for determining whether the Seventh Amendment
preserves the right to a jury trial on the merits?
2. For cases in which the Seventh Amendment preserves the right to a
trial by jury, does the Seventh Amendment also mandate the right to
a jury trial for the determination of civil penalties?
o HELD
 Opinion of the Court, J. Brennan
1. The Seventh Amendment preserves the right to a jury trial on
the merits in actions that are analogous to suits at common law.
 Under the common law, civil penalties could only be
enforced in courts of law and the party therefore had the
right to a trial by jury.
 The Clear Water Act authorizes financial penalties
for violations and therefore does not merely
provide equitable relief via injunction.
 P’s claims are analogous to common law actions for
public nuisance and actions in debt and are
therefore entitled to trial by jury.
 If an equitable claim is joined with a legal claim, the
right to a jury trial remains. The right to jury trial
was improperly denied
2. No. For cases in which the Seventh Amendment mandates the
right to a trial by jury, the Seventh Amendment does not
mandate the right to a jury trial for the determination of civil
penalties.
 The Seventh Amendment is silent on the issue of whether
a jury must determine both the liability and the amount of
the remedy.
 The jury’s role in the assessment of a remedy is not
necessary to preserve the common law right of a
36
trial by jury as the assessment of the civil penalty is
not a fundamental part of a trial by jury.
 The jury must determine liability and the trial judge
may determine the amount of the penalty.
 Concurring in part and Dissenting in part, J. Scalia
 The amount of penalty is subject to jury determination. There is
no precedent in a civil court for the finding of liability by a jury
and the amount of the remedy by a judge.
5.
Feltner v. Columbia Pictures Television
 “Overwhelming evidence shows the consistent practice at common
law was for juries to award damages," therefore, there is a right to
have juries decide statutory damages
 FACTS
 In 1991, Columbia Pictures Television, Inc., terminated agreements
licensing several television series to three television stations owned
by C. Elvin Feltner after the stations' royalty payments became
delinquent.
 Columbia sued Feltner after his stations continued to broadcast the
programs for copyright infringement. After winning partial
summary judgment as to liability on its copyright infringement
claims, Columbia attempted to recover statutory damages under
section 504(c) of the Copyright Act.
 The District Court denied Feltner's request for a jury trial and
awarded Columbia statutory damages following a bench trial. In
affirming, the Court of Appeals held that neither section 504(c) nor
the Seventh Amendment provides a right to a jury trial on statutory
damages.
 ISSUE
 Does section 504(c) of the Copyright Act or the Seventh
Amendment grant a right to a jury trial when a copyright owner
elects to recover statutory damages?
 HELD
 Opinion of the Court, J. Thomas
 Yes. The Court held that the Seventh Amendment provides
the right to a jury trial, which includes a right to a jury
determination of the amount of statutory damages.
 Applying a historical Seventh Amendment analysis, "there is
clear and direct historical evidence that juries, both as a
general matter and in copyright cases, set the amount of
damages awarded to a successful plaintiff."
 "As a result, if a party so demands, a jury must determine the
actual amount of statutory damages under [section 504(c)] in
37
order 'to preserve the substance of the common-law right of
trial by jury'"
C.
Complications of Merger

In 1791 where you had overlapping case of law and equity, equity court would
handle it
 Even if whole case would have gone to judge in 1791, today, where there are
overlapping issues, we can implement principle of 7th Amendment by giving
all purely legal issues and any overlapping issues to jury first. Then, have
judge decide purely equitable issues (affirmed Beacon Theaters)
1.
Beacon Theatres, Inc. v. Westover
 Under the Federal Rules of Civil Procedure (FRCP), the same court
may try both legal and equitable causes in the same action.
 FACTS
 Fox sought declaratory judgment against Beacon, who was
"threatening" to file an antitrust suit (clearly equity remedies). Beacon
counterclaimed asserting antitrust violation and treble damages
(common law monetary remedies). Beacon demanded a jury trial.
 ISSUE
 When the case involves issues of law and equity, does a plaintiff have
a right to a jury?
 HELD
No test utilizing traditional equity procedure could interfere with the

right to have a jury determine all the factual issues associated with a
legal claim.
 When a trial involves questions that require answers by both
judge and jury, the judge's answers should never include
38


D.
answers that the jury should give. Jury questions should be
decided first if the two collide.
Presumption toward jury trial.
Requires that the right to jury trial be measured in light of
modern procedural developments, especially reforms that make
available a remedy at law that previously did not exist.
Jury Selection & Size
o
o
o
Rule 48 – Number of Jurors; Verdict
 Jury must have 6-12 members initially, and each must participate in verdict
unless excused under 47(c). Verdict must be unanimous and returned by jury
of at least 6 members (unless stipulated otherwise).
The Venire and Voir Dire
 Jurors come from master roll of prospective jurors which come from voter
registration lists, driver’s licenses, taxpayers, etc.
 Jurors summoned are called the venire. Venire is widdled down through
voir dire.
 Purpose – To get information about prospective juror’s knowledge,
bias, or opinions about the case
 Judge usually conducts it. Lawyers give judge questions during the final
pretrial conference and the judge omits jurors for cause
 Based on voir dire, judge may strike juror for cause or lawyer can use a
peremptory challenge
 Cause – When Juror has close connection with parties/witnesses or has
such fixed opinions
 Peremptory challenges allow lawyers to strike jurors usually without
need to state a reason
 Judge has wide discretion as to scope of and questions in voir dire
Peremptory Challenges
 28 USC §1870 – Challenges
 In civil case, each party shall be entitled to three peremptory challenges.
Several defendants or several plaintiffs may be considered as a single
party for the purposes of making challenges, or the court may allow
39
additional peremptory challenges and permit them to be exercised
separately or jointly
1.
J.E.B. v. Alabama
 The Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution prohibits a party to use their peremptory
challenges to remove jurors based on gender.
o FACTS
 State filed complaint for paternity and child support against J.E.B. As it
went to trial, venire has 12 males and 24 females.
 State excused 3 for cause so 10 men were left. State used 9/10
peremptory challenges to remove male jurors; J.E.B. used 9/10
ousting females.
 Jury was all women. J.E.B. objected to state’s peremptory challenges on
ground that they were exercised against men on basis of gender, in
40
o
o
o
violation of Equal Protection, arguing logic of Batson forbids gender
discrimination
ISSUE
 Whether Equal Protection Clause forbids intentional discrimination on
the basis of gender, as it does on race?
 Does gender discrimination in jury selection substantially
further state’s legitimate interest in achieving a fair and
impartial trial
HELD
 Opinion of the Court, J. Blackmun
 Batson does extent to gender. You can’t use gender as a basis for
peremptory challenges
 However, you can strike based on characteristics
disproportionally associated with one gender (i.e., military
service) absent pretext
 Court later applies this to private actors as well because they’re
relying on the power of judge (state power) to remove the juror
Concurrence,
J. O’Connor

 Agrees, but thinks the holding should be limited to
government’s use of gender-based strikes
 Dissent, J. Rehnquist
 There are sufficient differences between race and gender
discrimination such that Batson shouldn’t apply here
 Under Equal Protection jurisprudence, race gets strict
scrutiny; gender is a lower standard as race is a minority,
gender is equal
 Dissent, J. Scalia
 Since all groups are subject to peremptory challenge, it’s hard to
see how any group is denied equal protection
NOTES
 Baton applies to American Indians, Italian Americans, Hispanics
 Refused to cover exclusions based on age, socioeconomic
status, disability, obesity
 Split on religion – religious affiliation is impermissible to strike,
but religious belief/activity is allowable
41
E.
Summary Judgment



42
FRCP 56 o A court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact
 Genuine dispute - If evidence is such that a reasonable jury could
return verdict for non-moving party
 Material Fact - a fact that might affect the verdict in the suit
Motion
o Moving party must show some basis that there is no issue of material fact
through submission of evidence, i.e. affidavits, testimony, interrogatories,
documents properly supported and certified
 Defendant has easier time for summary judgment because only has to
show one element of the claim, whereas plaintiff has to show no
genuine issue of material fact for every single element.
o Moving party must show no genuine issue of material fact; nonmoving party
proves opposite, submit evidence to prove that jury is necessary, conflicting
evidence
o Burden of production v. persuasion
 Burden of Production- which party has duty to supply the evidence?
 Plaintiffs must shoulder this burden as to the elements of a claim
 P must get past burden of production to evade
summary judgment for D
 Defendant has duty to put forward evidence re: defenses, i.e.
contributory negligence
 Burden of Persuasion/Proof – degree of certainty the fact finder must
have before it can find for one side
 In most states- P has this burden
 However, depends on standard of proof. 95% of civil cases,
standard is preponderance of the evidence (50%+1)
 Some cases- certain facts must be shown by higher
standard- clear and convincing evidence (66% likely)
 Criminal cases- highest standard- proof beyond a
reasonable doubt
 Anderson- when burden of persuasion moves to higher
standard, so does burden of production
Steps to handle a summary judgment motion
o Is this a rule 56 movement?
 Most Summary Judgment motions do NOT involve Rule 56 because
they only involve a legal dispute. Therefore first ask if this is a Rule 56
issue or just a legal issue (i.e., claim preclusion); then discuss Rule 56 if
the question is whether there is a genuine issue of material fact
 1. Has moving party established its burden?
 A. Identify material fact
 Materiality is determined by the substantive law –
only disputes over facts that might affect outcome of
the suit
 If moving party wants to win SJ, they have to show
that for every element, there is no genuine issue of
material fact
 If non-moving party wants to win SJ, they only have
to prove one issue of material fact for one element of
a claim
 B. Demonstrate no genuine issue
 If evidence is such that a reasonable jury could return
verdict for non-moving party
 Must do this through admissible evidence – Can use
an affidavit; NO pure hearsay (Rules of Evidence
come into play here)
 2. Responding party
 A. Demonstrate genuine issue OR
 Must do more than just point to complaint
 B. Prove that issue is not material (i.e., they can win even if
they lose on this issue)

Motion
o Moving party must show some basis that there is no issue of material fact
through submission of evidence, i.e. affidavits, testimony, interrogatories,
documents properly supported and certified
 Defendant has easier time for summary judgment because only has to
show one element of the claim, whereas plaintiff has to show no
genuine issue of material fact for every single element.
o Moving party must show no genuine issue of material fact; nonmoving party
proves opposite, submit evidence to prove that jury is necessary, conflicting
evidence
o Burden of production v. persuasion
 Burden of Production- which party has duty to supply the evidence?
 Plaintiffs must shoulder this burden as to the elements of a claim
 P must get past burden of production to evade
summary judgment for D
 Defendant has duty to put forward evidence re: defenses, i.e.
contributory negligence
 Burden of Persuasion/Proof – degree of certainty the fact finder must
have before it can find for one side
 In most states- P has this burden
 However, depends on standard of proof. 95% of civil cases,
standard is preponderance of the evidence (50%+1)
43
Some cases- certain facts must be shown by higher
standard- clear and convincing evidence (66% likely)
 Criminal cases- highest standard- proof beyond a
reasonable doubt
Anderson- when burden of persuasion moves to higher
standard, so does burden of production


1.
Anderson v. Liberty Lobby
 The inquiry involved in ruling on a summary judgment motion,
requires the court to use the substantive standard of proof that would
apply at the trial on its merits
o FACTS
 Anderson published two articles portraying Liberty as neo-Nazi. They
filed a libel action. Standard for libel is from NY Times v. Sullivan in
which for a libel suit by public official, P must show D acted with
actual malice, by clear and convincing evidence. Anderson movers
for SJ saying Liberty are public figures and must prove their case by
clear/convincing evidence
o FACTS
 Whether clear/convincing evidence requirement must be considered by
a court ruling on a SJ motion?
o RULE
 “Materiality” is determined by substantive law – only disputes over
facts that might affect outcome
 “Genuine” – If evidence is such that a reasonable jury could return
verdict for nonmoving party
o HELD
 Opinion of the Court, J. White
 During summary judgment, court must use standard of
persuasion applicable at trial.
 Judge is not making judgment herself: simply asking
whether a reasonable jury, based on evidence, could find
for the non-moving party.
 Assuming that jury finds all credibility issues for nonmoving party.
 Clear/convincing standard of proof should be taken into
account in ruling on SJ motions, but credibility
determinations, weighting of evidence, drawing inferences
are jury functions
 The standard mirrors the standard for directed verdict – if
reasonable minds could differ as to evidence, a verdict should
44
not be directed. SJ and DV are substantially the same, just
procedurally different
 Dissent, J. Brennan
 How do your determine SJ on clear/convincing standard f the
judge is not weighing the evidence
 At SJ all we should be worried about is if there is conflicting
evidence
2.
Coble v. City of White House
 There is a genuine issue of material fact if evidence can be
interpreted multiple ways and there are possible intervening factors.
The court cannot dismiss a case if there is a genuine issue of
material fact.
o
o
o
F.
FACTS
 Coble was pulled over for drunk driving, he was obstinate and fought the officers
until he was finally handcuffed.
 Coble claims that after being handcuffed the officers walked him 7 or 8 steps on
a broken leg and dropped him face first on the concrete, while he was
screaming the whole time
 The officer claims that he walked him 3 or 4 steps, then Coble said his leg was
broken, and the officers sat him on the ground
 The recording of the incident upholds the officer's account
 City of white house moved for summary judgment
ISSUE
 Is there a genuine issue of material fact? (all legal issues are reviewed de novo,
meaning the appellate court doesn't have to defer to the lower court at all)
HELD
 The recording could have been interpreted multiple ways and there may be
intervening factors that effect the recording.
 Therefore the court can not dismiss the case because there is a genuine issue of
material fact
Judgment as a Matter of Law

Rule 50
o Judge must always consider the evidence in favor of the nonmoving party
o Judgment as a Matter of Law
 (a) Judgment as a Matter of Law (DV)
 If a party has been fully heard on an issue during jury trial and
court finds that a reasonably jury would not have a legally
45
o
sufficient evidentiary basis to find for the party on that issue,
court may:
 Resolve the issue against the party; and
 Grant a motion for JMOL against the party on a claim or
defense
 A party may motion for JMOL after the other party has
presented their case and before the case is submitted to the jury.
 Motion must specify judgment sought and the law/facts
that entitle movant to judgment
 Appellate standard of review is de novo
 Note:
 Courts do not like to grant JMOL because it undermines
the strength of the judgment to take the decision away from
the jury
 Judges frequently just allow the decision to go to the
jury in the hope hat the jury will get it right
Renewed Judgment as a Matter of Law (Judgment Notwithstanding
the Verdict)
 A JNOV is also known as a renewed motion for judgment as a matter
of law
 A JMOL is a request that the judge reverse the jury verdict
because the verdict was clearly erroneous or against the
clear weight of the evidence


1.
A party can only file for a JNOV if they previously filed for
a judgment as a matter of law the close of all the evidence as required
under Rule 50(b).
Typically a defendant will move for a new trial and a JMOL
because the new trial motion has an easier standard
Lavender v. Kurn
 An appellate court may not overturn a jury's finding of fact cannot be
overturned if there is ANY evidentiary basis for a verdict
o FACTS
 Lavender (P) sued on behalf of Haney, who had died from head
injuries suffered while working as a switch tender for the St LouisSan Francisco Railway and the Illinois Central Railroad, which was
represented by Kurn (D). At trial, Lavender tried to prove that the
cause of death was a protruding mail hook on a train that struck
Haney on the head as the train passed. Haney would have had to
have been standing in a particular place and the hook would have hit
Haney 63.5 inches above the ground.
 The defendant claimed that Haney had been murdered. Haney had
been working at night and had opened the switch as the train
approached but had not closed it after it passed. Haney was found
46
o
o
dead face down near the track. He had been killed by a fast moving
round small object. His personal belongings had not been taken.
 The jury returned a verdict in favor of Lavender. The Missouri
Supreme Court reversed on the grounds that it was mere speculation
that Haney had been hit by the mail hook and the plaintiff appealed
to the Supreme Court.
ISSUE
 What showing is required in order to overturn a jury verdict?
HELD
 Opinion of the Court, J. Murphy
 A jury verdict may only be overturned if there is a complete
absence of probative facts to support the verdict.
 The court held that if there is any evidentiary basis for
a verdict, an appellate court may not overturn a jury
verdict. A jury can disregard or disbelieve facts that may

G.
be inconsistent with its conclusion and it may speculate
and make conjecture to reach a verdict if the facts are
disputed. This evidence demonstrates that there was
evidence from which it might be inferred that the end of
the mail hook struck Haney in the back of the head.
The court held that the jury had made its inference and
the respondents were not free to relitigate the factual
dispute on appeal.
New Trial

Rule 59
o If there is sufficient evidence that JMOL is inappropriate but the judge
disagreed with the jury’s verdict, Rule 59 gives the judge the power to
intervene by declaring a new trial
 In doing so, the judge doesn’t substitute his view of the evidence; it will
be left to a new jury
o Standard - If the verdict is against the great weight of the evidence, remedy is
a new trial, not JMOL
 In ruling on the new trial motion, the judge may consider the credibility
of the witnesses
 Unlike JMOL, where judge assumes truth of evidence for nonmoving party
 Rule 61 – Harmless Error
o A new trial may not be granted except for errors in the trial which
are serious enough that they affect the substantial rights of the
parties. Unless the trial judge believes that the error might have
47
o
o
o
1.
made the case come out differently, she cannot grant a new trial
motion
Timing (59(b))– Motion for new trial must be filed no later than 28 days
after the entry of judgment
 Same time limit as for JMOL
 Unlike JMOL, Judge CAN grant New Trial motion sua sponte (59(d))
Two grounds for new trial:
 Errors in the trial process – improper admission/exclusion of
evidence, jury instruction, etc.
 Appellate Court reviews de novo
 Verdict is against the great weight of the evidence
 Appellate Court reviews abuse of discretion standard
 Very rarely does an appellate court overrule a trial judge
when he denies New Trial motion because they weren’t there
to hear the evidence
Conditional New Trial Motions
 Judge can grant partial new trials in appropriate cases, like if damages
are too excessive (contrary to weight of evidence)
 The test is whether the size of the verdict “shocks the
conscience”
 Remittur – Amount of verdict is excessive. The District Court can
offer P the option of accepting a lesser award or a new trial
Dadurian v. Lloyd's of London
 If the jury's verdict is against weight of the evidence, then the case
should be remanded for new trial.
o FACTS
 Dadurian had some jewelry insured by Lloyd's. He filed a claim that the
jewelry had been stolen, but Lloyd's refused to pay.
 Lloyd's argued that the claim was fraudulent and that Dadurian
was lying.
 Dadurian claimed he'd bought the very expensive jewelry
in cash and had no receipts. The person he'd bought the
48
o
o
jewelry from (Howe) could not show evidence that he'd
ever had that jewelry in his inventory.
 Dadurian only had $3k per year in income, so it was quite
suspicious that he owned $267k worth of jewelry.
 The jury in the Trial Court found for Dadurian and ordered Lloyd's to
pay $267k.
 Lloyd's made a motion for a judgment notwithstanding the verdict (JNOV).
The Trial Court denied the motion. Lloyd's appealed.
ISSUE
 Should the trial court have issued a judgment notwithstanding the
verdict?
HELD
 The Federal Appellate Court vacated the verdict and remanded the case
for a new trial.
 Purchase of the jewelry
 There was enough evidence that a reasonable jury could
have found that Dadurian purchased the jewelry.
 Lots of witness testimony - the court should give
deference to the jury when the pertinent issue is the
credibility of witness testimony
 The jury's decision on the purchase is not enough to
allow a new trial
 Source of funds
 There was enough objective evidence and witness
testimony that the verdict was clearly erroneous
The
Court
felt
that they were not in a position to completely overturn

the verdict and find for Lloyd's, but that they could remand for an
entirely new trial.
 The court didn't feel that it could issue a verdict in favor of the
party having the burden of proof
 Also that the new trial should include a perjury charge against
Dadurian
49
H.
Other Controlling Techniques





50
Admissibility of Evidence
 Rules allow judge to exclude evidence “where its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury
Jury Instructions
 Errors in jury instruction are common basis for appeal
 Rule 51 governs instructions – can be given before or after final arguments
 Before – Lawyers can argue based on the instructions
 Mostly its given after though because judge wants last say
51(a)(1)
– Each side must give proposed instructions to the judge

 Judge decides it based on his own reading of the law. If you disagree with the
judge’s decision, you must object BEFORE the instructions are given to
preserve it on appeal
 50(c) Must object before instruction goes to the jury or it’s waived
Verdict Forms
 3 types of verdicts
Rule 49 General Verdict- find for P for X amount of money
 Most common
 49(a) Special interrogatories- based on the answers to these questions,
judge will find result and issue verdict. 49(a)
 Court asks jury to decide factual questions, but it is not
asked to decide who wins or loses
 Way to control juries, preferred by those who are skeptical
of jury system
 49(b) Compromise between the two: Special interrogatories with
general verdict. 49(b)
 What happens if they don’t match? 3 options. 49(b)(3)
 Use special interrogatories (preference for these)
 Send it back to the jury for reconsideration
 Order a new trial
 CANNOT take a general verdict over
Judge Trials - Rule 52
 Different, especially with respect to rulings on evidence (more lenient)
 More restrictions regarding verdicts that juries
 Must write down their findings of fact and conclusions of law
 Often ask litigants to write proposed findings and
conclusions
 Less deference given if judge uses litigants’ findings for his
opinion (can tell this from looking at the record)
 No special interrogatories for judges
Juror Misconduct
Common law rule was that affidavits of jurors could NOT be used to
impeach their verdict
 Insulate review because of (1) need for stability of verdicts; (2) need to
protect jurors from fraud/harassment by litigants; (3) prevent
prolonged litigation; (4) prevent verdicts from being set aside because
of subsequent doubts of juror; (5) concept of sanctity of jury room
 Modified Iowa Rule
 Let in extrinsic evidence that can be objectively corroborated or
disproved
 Juror conducted investigation outside of courtroom, illegal
method of reaching verdict, etc.
 Keep out intrinsic evidence that cannot be corroborated or disproved
 Things known only to an individual juror like his thought
processes, motives, etc.
 Tanner v. US (1987) – Evidence that jurors were high/drunk is NOT
admissible because it’s the same outside influence as if they had a food
virus
 But Florida Sup. Ct. said evidence that juror was racist
WAS admissible because they violate guarantees of
fair/impartial jury and equal protection
 McDonough Power (1984) – Incorrect voir dire answers provide a basis
for a new trial in limited circumstances
 To obtain a new trial, party must first demonstrate that
juror failed to answer honestly a material question on voir
dire, then further show that a correct response would have
provided a valid basis for a challenge for cause
Motion to Set Aside Judgment – Rule 60(b)
 A party failing to make a timely motion for JMOL or new trial will raise this
motion
 IT’s NOT an appeal, it’s made to trial court
 Granted EXTREMELY rarely


51
III. WHAT LAW APPLIES
A.
The Erie Doctrine
o
o
52
The constitutional basis for the Erie problem
 Article I, gives congress certain specific enumerated powers and the ability to
do what is neccesary and proper to exercise these delgated powers
 Amendment X says all other remaining powers are reserved to the states
 Article III permits the creation of federal courts and defines their jurisdiction
1. Courts can hear all cases arising under the federal laws (that congress
can pass under its enumerated powers.) - Subject Matter Jurisdiction
2. Courts can hear cases that do not involve federal law at all, but deal
with a dispute between citizens of different states (if the dispute is over
a certain amount of money)
Here is the big freaking problem
 When federal courts hear cases of diversity jurisdiction, they have the
constitutionally established judicial power to hear the case, but there is
no federal legistlative power to create the governing law.
 So what the fuck do we do now?
 Attempt to fix the problem #1 - Rules of Decision Act (1789)
 "The laws of the several states, except where the constitution, treaties
or statutes of the United States shall otherwise require or provide, shall
be regarded as rules of decision in trials at common law in the courts
on the United Stated, in cases where they apply"
 We could have avoided the entire Erie debacle all together, if it weren't
for J. Story in Swift v. Tyson.
 Unfortunately, J. Story interpreted the RDA as giving federal courts the
power to examine all the common law authorities - including cases
form the state in which it sat, from other states, from federal courts,
English courts and the views of respected commentators - in order to
ascertain the proper rule.
 Which makes no fucking sense
 Attempt to fix the problem #2 - Erie v. Thompkins
 Left with the ridiculous decision in Swift, which seemed to have done
everything except logically interpret the text of the RDA, SCOTUS
attempted some major backtracking in Erie.
 J. Brandeis was the man who sounded the death knell for swift in the
opinion of the court in Erie. Here is what he said about Swift
a. During the 140+ years since its enactment, Swift had failed to
achieve its main goal of establishing a "general common law"
created by eminent federal judges that state judges would except
due to its "rightness." (turns out state judges also consider
themselves capable of interpreting the law, the little shits). This
resulted in multiple contradicting doctrines in the same physical
jurisdiction
b. The practice of creating federal common law resulted in forum
shopping and the inequitable administration of justice. Out-ofstate plaintiffs were unfairly benefitted because they could choose


a different substantive law by filing in federal court. It is
inequitable for the law to be substantively different for citizens of
different states.
c. It was unconstitutional for the federal judged to make law in
areas in which the federal government had no delegated
legislative powers.
 Here is the upshot:
 The RDA requires federal courts to follow both state
statutory law and state common law on issues upon which
there is no federal lawmaking power.
 Seems easy enough right? Wrong! So fucking wrong...
The next big freaking problem: What about laws governing judicial
procedure??
 Let's start with a little history, because this shit doesn't make sense without it.
 Congress passed the Rules Enabling Act in 1934, 100 years after Swift was
decided.
 The act itself did not established the Federal Rules of Civil
Procedure, instead it delegated the ability to create the rules to the
judicial branch.
 In Hannah the court upheld the constitutionality of the REA citing
the necessary proper clause and Article III with gives congress the
power to ordain and establish federal courts.
 After the REA was passed the Judiciary got together with the consent of the
Supreme Court and wrote the Federal Rules of Civil Procedure. The rules
had both constitutional and statutory authorization, and, because they were
written by the court, it was highly unlikely that the court was going to strike
them down.
 However the REA did contain one caveat. The second subsection said the
rules shall not abridge, enlarge or modify any substantive rights.
So how does all this shit actually play out? Here is the result.
i. There are 4 possibilities for conflicts in an Erie/Hanna question
1. Conflicts between a Federal Constitutional Provision and State Law
 The Constitution always rules.
 No "ifs," "ands," or "buts" about it.
2. Conflicts between a Federal Statute and State Law
 Federal Statutes apply if they are valid.
 Federal statutes are constitutional under Hannah, if they
are clearly procedural or "while falling in the uncertain
53
area between substance and procedure, they are rationally
capable of classification as either".
3. Conflicts between a Federal Rule and State Law
 Federal Rules apply if they are valid.
 Rules are constitutional under the REA if they are
procedural.
 Rules are not considered constitutional under the REA if
they abridge, enlarge or modify any substantive right.
 In order for a rule to be stuck down this way, it
needs to have a substantial impact on state policy
unrelated to litigation.
 Rules that "incidentally" affect states rights are
permissible - Burlington Northern R.R. Co. v.
Woods
 Due to preemption any procedural rule under the FRCP
will trump state law.
 Almost all of the FRCP's are going to be considered
procedural, because the courts themselves made the
rules with full knowledge of the limitations of the
REA.
4. Conflicts between a Federal Judicial Practice and State Law
 State law should generally be applied if using the federal
practice could become outcome determinative under the
twin aims of Erie.
 If it isn't outcome determinative, meaning its not going to
change the behavior of any current or future parties, and
it will not lead to the law being unequally administered,
then no one really cares if the judge follows his own
procedure instead of the states. It makes no difference.
 If the federal law is outcome determinative, it could
possibly still be used if it falls into the exception. But this
is a LONG SHOT.
 In Byrd, J. Brennan wrote that the Erie policy of
maximizing uniformity could be trumped by an
important countervailing federal policy that arises
from the federal court's status as an independent
judicial system.
 In Gaspirini, the court reemphasizes the importance of
considering federal interest as a factor in choosing
law.
 Therefore, the court MIGHT, though it never
has before, uphold a federal rule, statute or
policy on the grounds that there is a
countervailing federal policy of judicial
administration that is such an essential
54

1.
characteristic of the federal court system that it
may not be ignored.
And no, we have absolutely no examples of this.
Erie v. Tompkins
 Except in matters governed by the United States Constitution or Act
of Congress, the law that is to be applied in any case is the law of the
state.
 FACTS
 Tompkins (P) sustained personal injuries when he was struck by an
Erie Railroad Company (D) freight train in Pennsylvania while
walking on a footpath adjacent to the tracks. Tompkins was a citizen
of Pennsylvania and Erie Railroad Company was incorporated in
New York.
 Tompkins brought this personal injury lawsuit in diversity in federal
district court in New York, asserting that he was lawfully on the
property as a licensee, and that the accident occurred as a result of
Erie Railroad’s negligence in the operation or maintenance of the
train. Erie Railroad Company denied liability and wanted
Pennsylvania common law to apply: persons using pathways
adjacent to railways were deemed trespassers and the railroad
would not liable for injuries unless its actions were wanton or
willful.
 PA law - willful/wanton
 Tompkins thought the railroad’s duty and liability should be
determined according to the rule established in federal court in
light of Swift v. Tyson. Under federal common law Tompkins
would be regarded as a licensee. Railroads owed a duty of ordinary
care to pedestrians and would be liable upon a showing of ordinary
negligence.
 "Federal General" Law - standard negligence
 At trial, the jury returned a verdict in favor of Tompkins for $30,000.
The Circuit Court of Appeals affirmed, holding that in regards to
questions of general law that are not covered by state statute, federal
courts are free to exercise their judgment as to what the law is. The
Circuit Court of Appeals held that railroads owe a duty of ordinary
care to those who use permissive pathways adjacent to railroad
55


56
tracks. The defendant appealed and the Supreme Court granted
certiorari.
ISSUE
 In actions in diversity, except in matters governed by the
Constitution or acts of Congress, must federal courts apply state
common law in addition to statutory law?
 Requiring an interpretation of section 34 of the Federal
Judiciary Act:
 "The laws of the several States, except where the
Constitution, treaties, or statutes of the United States
otherwise require or provide, shall be regarded as rules of
decision in trials at common law, in the courts of the
United States, in cases where they apply."
HELD
 Opinion of the Court, J. Brandeis
 Yes. In actions in diversity, except in matters governed by the
Constitution or acts of Congress, federal courts must apply state
common law in addition to statutory law.
 RULE
 In diversity cases:
 federal courts must apply state law as declared by the
highest state court in addition to state statutory law.
 There is no federal general common law.
 Congress has no power to declare substantive rules of
common law applicable in a State and the


B.
Constitution does not confer such a power upon
the federal courts.
Section 34 of the Federal Judiciary Act of 1789 is constitutional
Swift v. Tyson is overruled because:
 Wrong interpretation of the Federal Judiciary Act.
 The term "laws of the several states" was intended to
include state statutory law and state common law.
 There is new evidence - a new draft of the law
was found that included statutory and
common law in the text.
 Therefore, under the statute the court does not have
the power to create federal common law.
 Bad Policy resulted from Swift
 Prevented Uniformity
 There needs to be vertical uniformity,
meaning that all courts within the state
(federal or state) need to apply the state law
 Because diversity jurisdiction is intended
to give someone an unbiased forum, not
a different form of law
 Encouraged Forum Shopping
 Citizens of one state could move to another
state to create diversity and bring suit in
federal court to take advantage of a more
favorable choice of law.
 Such a defect is substantial and provides no
benefit.
3. An unconstitutional assumption of powers by the
Courts of the United States.
 Federal courts do not have the power to create
federal common law as this gives federal courts
powers not granted in the Constitution. Congress
has no power to declare the substantive rules of
common law in state actions.
The Rules Enabling Act Distinguished
1.
Hanna v. Plumer
 In civil cases in which diversity is the basis of Federal Court
jurisdiction, where a situation is governed by a federal rule, it's the
federal rule, not the state rule, which the court must apply
 FACTS
 Plaintiff served process on defendant, the executor of a MA estate, in
accordance with FRCP 4(d)(1). But a MA statute required in-hand
57


58
service upon the executor. If service was valid, case would go
forward, if not, it would have to be dismissed.
ISSUE
 Was federal court required to apply MA rule or FRCP for service?
HELD
 FRCP 4(d)(1) neither exceeded the Congressional mandate in the Rules
Enabling Act nor transgressed Constitutional bounds. The FRCP
should have been applied by district court
 Opinion of the Court, J. Warren
 D’s Argument – York says use state law if doing so will affect
the outcome, and here is clearly will
 Part 1 (Rules of Decision Act Prong) – Conflict between two
service rules under a modified outcome-determinative test
 Whether a federal procedure is outcome determinative
must be viewed in light of the twin aims of Erie:
 (1) Prevent Forum Shopping
 (2) Prevent Inequitable Administration of the Laws
If
the federal rule is predictably outcome determinative at

the beginning of the suit so as to cause forum shopping,
then it’s substantive and court should use State law
 Here, it’s doubtful that a plaintiff would choose federal
curt over state court simply to avoid serving the
defendant in person, since the effort required to do so is
only marginally greater than required to serve under
federal rule.
 Part 2 (Rules Enabling Act Prong) – When an enacted
Federal Law (FRCP) conflicts with state law
 Rules Enabling Act (28 USC §2071-72) authorizes
SCOTUS to “prescribe general rules of practice and
procedure for federal courts”
 Advisory Committee appointed by SCOTUS drafts
rules, promulgates the to SCOTUS, submits to
Congress for 6 month review before taking effect
This
plus
Constitutional authority suggests that Congress

and the Court have broad constitutional authority to
promulgate any rule that is “arguably procedural”
 But for FRCP, Rules Enabling Act says “such rules shall
not abridge, enlarge, or modify any substantive right”
 Concurrence, J. Harlan
 The test for deciding whether the Erie doctrine applies to a rule
of procedure should be a determination of whether the choice
of rule would "substantially affect those primary decisions
respecting human conduct" which our constitutional system
leaves to state regulation. If so, Erie and the Constitution
require that the state rule prevail, even in the face of a
conflicting federal rule. Erie wanted to ensure that there were
not two conflicting systems of law and the creation of
substantive state law by federal courts should be avoided if that
creation extends beyond constitutional limits.
C.
Applying the REA and RDA
TEST - Does federal or state law apply?
o Is there a federal rule or statute designed to serve the same purpose as
the state law? Do the two laws directly conflict? -> If YES go to REA, if
no go to RDA
1. REA - the REA gives authority to create rules that are procedural in
nature, rules that are not procedural are not constitutional
 Is the rule or statute constitutional?
 Did congress pass this law under one of its enumerated
powers? (Congress can set the regulations for the procedures
of the federal courts, but has limited power to establish the
substantive law for the cases that come before the courts)
 Is it arguably procedural?
 The judicial process for enforcing the rights and duties
recognized by substantive law and for justly administering
remedy and redress for disregard or infraction of them
 Does it serve a procedural goal of accuracy, fairness
or efficiency?
 Does it prescribe general rules of practice and
procedure?
 Any area of law that is largely judge made will most
likely not be procedural – contracts, torts, probate,
property
 If NO then apply state law (this will not happen)
 If YES and it’s a STATUTE - analysis is done, federal law
applies due to preemption
 If YES and it’s a RULE - continue analysis
 If the rule is arguably procedural, does the rule fall outside the
scope of the REA?
 Does it modify, abridge, or enlarge substantive state right?
 Does the rule substantially affect those primary
decisions respecting human conduct at the time the
incident arose which our constitutional system leaves
to state regulation?
 Does the rule involve lawmaking choices that
necessarily and obviously require consideration of
policies extrinsic to the business of the courts?
 What was the state intending to do with the
law? Were they establishing a protection for
59


their citizens or granting their citizens a new
right?
 Would applying the FRCP have a substantial
impact on a state policy unrelated to
litigation?
 Rules that "incidentally" affect states
rights are permissible - Burlington
Northern R.R. Co. v. Woods
If YES then it is substantive and outside the scope of the
REA, state law governs
If NO then apply federal law
2. RDA
 Use the outcome determinative test in light of the twin aims of Erie.
1. Does a federal rule or statute encourage forum shopping?
 What is the issue and how important is it to the party?
 How significant is the difference in law?
 Does it substantially effect the character of the
litigation?
 Would the federal forum lead to an advantage to the
party either procedurally or substantively?
2. Does the federal rule or statute lead to inequitable
administration of the law?
 Apply the outcome determinative test
3. Does this fall into the exception:
 Are there affirmative countervailing considerations of
federal judicial administration present?
 Such as essential characteristics of our federal
court system
 If NO to 1 and 2 then federal law applies
 If YES to 1 and/or 2 and NO to 3 then state law applies
 If YES to 1 and/or 2 and YES to 3 then federal law applies
1.
Burlington Northern Railroad Co. v. Woods
 Under the Rules Enabling Act the federal rule is applicable and not
the AL law
o FACTS
 P filed case, won; D appealed; judgment affirmed. Alabama statute that
if P wins below, D appeals, and judgment affirmed, then D must pay
10% “bonus” and costs to P. Ct says it conflicts w/ Fed. Rule of
Appellate Procedure 38, which says damages and costs go to P if D’s
60
o
o
2.
appeal is frivolous. P says ct. could first apply the AL statute (which
applies to all appeals, not just frivolous ones), then apply Rule 38.
ISSUE
 Should the court apply federal or state law?
HELD
 1. Is the rule constitutional?
o Rule 38 is procedural, and is therefore constitutional
 2. Does the rule conflict with the state statute?
o Ct. reads that Rule as saying, not only that frivolous appeals
must be penalized, but that when appeal is not frivolous,
there can be no penalty
o Thus, Rule 38 applies to all appeals, making it impossible to
follow both laws at the same time = conflict
 Constitutional + conflict = federal law prevails due to the supremacy
clause
Stewart Organization, Inc. v. Ricoh Corporation
 If a congress has the power to enact arguably procedural statutes,
and those statutes apply in federal court even if the state court would
apply a different rule
o FACTS
 Local franchisee in AL sues national organization for breach of
contract in AL Fed. Dist. Ct. D has a forum selection clause stating
litigation must be held in NY. AL state courts had refused to enforce
forum selection clauses. Fed. Statute § 1404 says court can change
venue for the convenience of the parties (but doesn’t say forum
selection clauses must be honored).
o ISSUE
 Should the ct. follow state common law or the federal statute?
o HELD
 Ct. says § 1404 applies if there’s proper venue, but you can go
elsewhere. For state to bar transfer of venue would not allow the ct.
to use § 1404 at all. Ct. will take state’s preferences into account as one
factor.
 There is state common law – protect the locals of Alabama by
preventing shifting to out of state venue.
 Federal rule §1404 – says that you can transfer – Alabama says you
can’t.
 §1404 is a statute – unless unconstitutional it is Supreme.
 In deciding how to apply §1404, the courts were free to take into
account the state’s antipathy to forum selection clauses – but only as
one factor, and perhaps not a dispositive one. `
 Factor analysis of §1404 would include consideration of state
policy on forum selection clause.
 State’s preference can be a factor.
 Give effect to state rule because it is a considered factor
in federal independent process
61
D.
Latest Developments
1.
Gaspirini v. Center of Humanities
 In a federal district court sitting under diversity jurisdiction, the
standard the judge uses to determine whether a jury's itemized
verdict is excessive is that of state law, and is only subject to
appellate review for "abuse of discretion."
 FACTS
 Gasperini (P), a journalist, loaned 300 slide transparencies of conflicts
in Central America to the Center for Humanities for use in the
creation of an educational video. The Center for Humanities lost the
slides and Gasperini brought this lawsuit in diversity in federal district
court.
 An expert witness for Gasperini testified that according to the
photography “industry standard”, the accepted compensation for a
lost slide transparency was $1,500. Although Gasperini testified that
he had only earned $10,000 through photography work from 1984 to
1993, the jury applied the industry standard of compensation and
awarded him $450,000.
 The Center for Humanities moved for a new trial on the grounds that
the award was excessive. It argued that the review of jury awards was
substantive and that New York state law should apply. Gasperini
contended that federal law should apply and that the jury award could
only be amended if it shocked the conscience of the court. He argued
that it would be a violation of the Reexamination Clause for the
federal court to apply the New York standard.
 The Court of Appeals for the Second Circuit found that New York
law applied and held that the verdict deviated from what is
reasonable compensation. The Court ordered a new trial unless
Gasperini agreed to a reduced award of $100,000 (remittitur).
Gasperini appealed and the Supreme Court granted certiorari.
 ISSUE
 Does the Seventh Amendment preclude the application of a state law
standard of review of jury awards in diversity actions, if that standard
of review is lower than the standard that would apply under federal
law?
 HELD
 Opinion of the Court, J. Ginsburg
 No. The lower state law standard of review of jury awards
may be applied by federal courts consistent with the Seventh
Amendment if the standard is applied by the federal trial
62

2.
court judge, and the standard of review by the federal
appellate court shall be “abuse of discretion”.
 Under Hanna v. Plumer, the application of the
outcome determinative test must be guided by the
twin aims of Erie - to discourage forum shopping and
to avoid the inequitable administration of the law.
 The review of jury awards is a matter of substantive
law. If federal courts apply the more stringent “shock
the conscience” test under federal law in reviewing
jury awards for claims governed by New York law,
there will be substantial variations in money
judgments depending on whether they are brought in
New York state courts or federal courts in diversity.
 Although the New York law is phrased as a direction
to New York appellate courts, in practice the
“deviates materially” also applies to state trial courts.
The trial court must therefore apply the standard
under state law, and the standard of review in federal
court shall be “abuse of discretion”.
Dissent, J. Scalia
 Apply Rule 59 (new trial), which prevailed over state law and
controlled power of fed. dist. judge to review jury verdicts.
7th Amend. prohibits all review.
Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.
 If an FRCP answers the question in dispute, it governs, unless it
exceeds its statutory authorization or Congress' rulemaking power.
 FACTS
o Shady Grove Orthopedics Associates (Shady Grove), on behalf of a
class of plaintiffs, sued Allstate Insurance Company (Allstate) in part
for Allstate's alleged failure to pay interest penalties on overdue
insurance payments as prescribed by New York statute.
o Allstate moved to dismiss relying on New York's rules of civil
procedure which instruct that class action lawsuits are inappropriate
unless specifically prescribed by statute.
 The U.S. District Court for the Eastern District of New York
agreed that Shady Grove's class action claim was not authorized
and thus dismissed its claim.
o On appeal, Shady Grove argued that the New York rules of civil
procedure conflict with Rule 23 of the Federal Rules of Civil
Procedure and thus were not applicable. The U.S. Court of Appeals
for the Second Circuit disagreed with Shady Grove and affirmed the
district court. The Second Circuit, reasoning from the Supreme
Court's decision in Erie Railroad Co. v. Tomkins, stated that the New
63


E.
Determining Content of State Law
□
□
64
York rules of civil procedure did not conflict with Rule 23 and thus
Rule 23 did not control.
ISSUES
o 1) Can a state legislature prohibit federal courts from using a federal
class action rule for a state law claim?
o 2) Can a state legislature dictate civil procedure in federal courts?
HELD
o Opinion of the Court, J. Scalia
 No. No. The Supreme Court held that §901(b) of the New
York rules of civil procedure does not preclude a federal court
sitting in diversity from entertaining a class action under Rule
23 of the federal rules of civil procedure.
 If Rule 23 answers the question in dispute, it governs, unless it
exceeds its statutory authorization or Congress' rulemaking
power.
 Here, the Court reasoned that Rule 23 answers the
question in dispute – whether Shady Grove's suit may
proceed as a class action – and is therefore controlling.
 The Rules Enabling Act, not Erie controls the validity of a
federal rule of civil procedure, even if that results in opening
the federal courts to class actions that cannot proceed in state
court.
o Concurrence, J. Stevens
 Rule 23 applies in this case, but in some cases, federal courts
should apply state procedural rules in diversity cases because
they function as part of the state's definition of substantive
rights and remedies.
o Dissent, J. Ginsburg
 Criticized the majority opinion for using Rule 23 to override
New York's statutory restriction on the availability of damages
and consequently turning a $500 case into a $5,000,000 one.
 She cautioned that it is important to interpret the federal rules
with sensitivity to state regulatory policies.
Which state’s law applies?
What is the law of the state?
o Traditiuonally federal judges were required to apply state common law strictly
without taking creative license
o HOWEVER, after Richardson v. Commissioner, the courthas given federal judges
more freedom to interpret state law
o Judges should give proper regard to decisions of trial and intermediate appellate
courts, but their job is to apple the law as announced, or as it would be
announced, by the state’s highest court.
 The federal judge is not permitted to make up state law, be he is
permitted to make an educated guess about how the law would be
applied to day instead of simply parroting the law from its last
application a
 Judges should look at all available data, including
o Decisions from the lower courts
o Developing trends in the area of law that might
weaken or reaffirm the existing precedents
1.
Deweerth v. Baldinger
 A subsequent change in state law does not provide grounds for relief
under Rule 60(b)(6), requiring "extraordinary circumstances" to
throw out a judgment
o FACTS
 In a previous case, P sued D after D had a painting taken from P’s
family in WW2. Trial court found for P but appellate court
reversed, saying NY limitations law required “reasonable diligence”
in locating stolen property, and P didn’t show that. Years later, in a
different case, the NY Court of Appeals said the relevant NY
limitations law did NOT require a showing of reasonable diligence,
specifically citing the 2d Cir. as being wrong
o ISSUE
 Can the decision of a federal court assuming the role of the state
supreme court be reversed after the state supreme court later
clarifies the issue?
o HELD
 Nothing in Erie suggests that consistency must be achieved at the
expense of finality. The second case can’t proceed and D wins
 Erie does not stand for proposition that P is entitled to reopen a
case that has been closed for years, in order to gain the benefit of a
newly announced state court decision
 P specifically decided NOT to bring her case in state court
originally
 A subsequent change in state law does not provide grounds
for relief under Rule 60(b)(6), requiring “extraordinary
circumstances” to throw out a judgment
 Principle also applies in federal cases where
SCOTUS has changed law
F.
Federal Law
65
IV. PRECLUSION DOCTRINES
A.
Claim Preclusion
o
o
o
No person shall be vexed by the same claim twice. In the interest of the state,
there is an end to every piece of litigation
Rule for Claim Preclusion
 (1) Same parties (& same claimant)
 (2) Same Claim
 Restatement (same transaction or occurrence) Test
 Primary Rights Test
 Single Wrongful Act
 (3) Quality of Judgment
 (a) Final
 (b) Valid
 (c) On the Merits
Most courts believe claim preclusion to be a waivable defense. D must raise it or
its gone
1.
Scope

66
Three tests:
□ Restatement of Judgments (Federal Courts) – A party who has
asserted a right of relief arising out of a particular transaction or
occurrence, must join all claims she has arising from it, or the
omitted claims will be barred
 If it makes sense from the perspective of judicial economy
to try the claims together, then they arise from the same
transaction/occurrence
 The same transaction/occurrence test does NOT depend
on the legal theory of the case
 Reasoning – Efficiency!
 MAJORITY RULE, it’s the legal realist approach
□ Primary Rights – A single tort resulting in property and personal
damage gives rise to two causes of action, so recovery in one is
NOT a bar to the other
 Reasoning – Rights are more important than efficiency
 Formalistic approach
 The negligent act of defendant in itself constitutes no cause
of action, it becomes an actionable wrong only out of
damage it causes
 Reilly (N.Y. 1902) – Injury to person and property were two
claims because there are different statute of limitations
applied to both and P cannot assign a right of action to
personal injury but can for property damage
 The rule avoids hardship in cases involving insurance
coverage. If you get in a car accident and insurer pays you
for property damage (subrogate claim) and then you
recover against D for personal injuries, restatement test
would preclude the insurer from suing
 But jurisdictions just make an exception for
subrogation
□ Single Wrongful Act – As defendant’s wrongful act was single, the
cause of action must be single.
 Different injuries occasioned by it are items of damages
proceeding from the same wrong
□ NOTES
 If two people were injured in the same occurrence, each
claim is personal to each person harmed
 Not all jurisdictions have one rule for all kinds of cases
 In Contracts cases, claim involves all amounts owed at the
time of filing suit
 See Carter v. Hinkle
a)
Carter v. Hinkle
 The Primary Rights test (minority test) holds a single tort
resulting in property and personal damage gives rise to two
causes of action, so recovery in one is NOT a bar to the other.
The second claim was not precluded.
 FACTS
 Hinkle, plaintiff, was driving his taxi when he got into a
collission with a vehicle being operated by Carter, defendant.
Hinkle sued Carter and the owner of the vehicle that Carter
was operating for damages to his taxi and prevailed. Later,
Hinkle brought a second lawsuit against Carter and the owner
of the vehicle for personal injuries. The defendants moved to
dismiss by arguing that the first lawsuit filed by Hinkle
precluded him from filing a second lawsuit
ISSUE

 Can Hinkle bring two separate lawsuits for damages suffered
from the same incident -- one lawsuit to recover for property
damages and the second one to recover for personal injuries?
 HELD
 Two conflicting rules have been developed by the courts over
the years.
 Majority Rule
 the injured party must bring one lawsuit for all
damages suffered from one incident. The
reasoning behind this rule is that it prevents
courts from being overcrowded with multiple
67
lawsuits by the same plaintiff for damages caused
by the same incident.
Minority Rule
 physical injuries and property damages are distinct
causes of actions that can be brought in separate
lawsuits.
Here, the Court followed the minority view.


2.
Parties
o
o
o
o
68
Parties to the two suits must be the same or in privity with one
another
 The notion is from Due Process that everyone is entitled to their day in
court
Categories of Privity Relationships
 (a) Nonparty may be bound by judgment if he was represented by a
party to another case
 Beneficiary represented by a trustee
 Guardian representing beneficiaries in his representative
capacity
 (b) Substantive legal relationship between litigant and non-party
 Successive owners of property
 Someone who assigns contract rights
Both cases must be brought by the same claimant against the same
defendant
 A can sue B, but if B has a claim against A, he is not bound by claim
preclusion to state it
 He is, however, bound by the compulsory counterclaim rule 13(a) if B’s
claim arises out of the same transaction or occurrence as A’s claim
 Does not apply for permissive counterclaims
 A sues B (breach of K); then A sues B (negligence)
 Under Rule 18, this is a permissive claim that doesn’t have to
be joined
 But under claim preclusion, you have to join these claims or
they’re merged (under Restatement test)
 Anomaly comes from D’s counterclaim
 Claim Preclusion doesn’t require him to state the claim because
it’s a different claimant
 But the rules (13(a)) state that it is compulsory because it’s same
transaction/occurrence
Example:
 If A gets into a car accident with B & C, Rule 20(a)(1) says A may
decide to sue B & C together but he doesn’t have to. If A sues B, he
is NOT claim precluded from then suing C because it’s different
parties
 Also if he had to sue C with B, then it would turn permissive
joinder in 20(a)(1) to compulsory joinder
 BUT, this does NOT prevent the judgment in A’s suit against B
from having some preclusive effect – ISSUE PRECLUSION
3.
Valid, Final & On the Merits


(a) Valid
o Court must have had SMJ and PJ. A judgment by a court having both
forms of jurisdiction is valid, even if the court was wrong on the
merits
 Default Example - In order to challenge PJ, D can default and
wait for P to sue somewhere else. If D wins PJ issue, he wins. If
D loses, cannot litigate on the merits (due to claim preclusion)
(b) Final
o Final judgment by the trial court
 Individual (non-final) ruling during the litigation don’t get
preclusive effect because they may be revisited by the judge
before the decision on the case
 If a final judgment is appealed, federal courts hold that
the trial court’s judgment in the interim (before the appeal
69

4.
Exceptions

B.
Exception to res judicata – Moser
o A sues B in state court under a state unfair competition statute. A
might also recover against B for patent infringement, a federal
claim where federal courts have exclusive jurisdiction
 A could not have included his federal theory in the first
state court action because the federal courts have exclusive
jurisdiction over the claim.
 Thus, he will usually NOT be barred from asserting the pat
Issue Preclusion
o
70
is decided) is entitled to claim preclusion. State courts
differ
o If two cases go to trial at the same time, one that enters judgment
first is given full faith and credit
(c) On the Merits
o A trial is NOT required, Summary Judgment and JMOL
constitute a decision on the merits
o Any judgment in favor of the claimant is on the merits because it
establishes the validity of the claim (merger)
o The more difficult situation is where claimant loses (12(b)(6),
discover sanction, etc.)
 Any judgment against claimant, except one for lack of
jurisdiction, improper venue, or for nonjoinder/misjoinder is accorded preclusive effect
 12(b)(6) dismissal is on the merits, unless it’s entered without
prejudice
 Dismissal with prejudice is on the merits
SJ
motions are usually with prejudice and therefore on the

merits
 If a party files suit but doesn’t pursue the case, dismissal is on
the merits because plaintiff had a full opportunity to litigate the
merits
 Same is true for a defendant who defaults
Different claim, but arguably has an issue that was adjudicated between the same
parties in a prior claim, or at least against the party against whom the preclusion is
asserted
If A, B, C has been established in first case and in the second you need A, X, Y
– A has already been established . You can preclude the re-litigation of that
issue
Narrower than res judicata in that it does not preclude all possible issues that might
have been raised in a prior action, but only those actually decided in that action
But broader in that it can foreclose litigation of a particular issue in an entirely new
context
Rule for Issue Preclusion
 (1) Same Issue
 Same Facts
 Same Law
 (2) Actually Litigated
 (3) Necessary to the Result
 (4) Targets of Preclusion - Party against whom it is asserted was present in case
1 with a full & fair opportunity to litigate
 (5) Quality of Judgment
 For offensive non-mutual issue preclusion (different plaintiffs, same
defendant) - Parklane factors:
 Did P avoid case 1 for tactical reasons? – If no, issue preclusion
probable
 Did D have an incentive to litigate case 1? If yes, issue preclusion
probable
 Does case 2 give D procedural opportunities unavailable in case 1? If
no, issue preclusion probable
 Are there prior inconsistent judgments? If no, issue preclusion
probable

o
o
o
1.
Same, Litigated, Determined

Same Issue
o Same Law and Same Facts
 Same substantive law
 Same standard of proof
 Law interpreted the same way
o Look to differences in law (federal vs. state), as well as how the
standard is interpreted in the different jurisdictions
 If body of law being used is different, must ask whether
the standard is different. On exam, recognize that there
may be a difference and say that research must be done to
71

72
determine if different systems/contexts use the word the
same way.
o Case 1 – State bar against lawyer for malpractice; Case 2- Client
against lawyer for malpractice
 “Negligence” can mean tow different thigs in these contexts –
if different law applies it’s NOT the same issue
o Case 1 – State Government v. Acme on whether Acme committed
fraud (preponderance of evidence standard); Case 2 – Person vs.
Acme in Federal Court (clear and convincing standard)
 Same facts, but different evidence standard – clear/convincing
is more stringent than preponderance.
 A jury in case 2 may not find liability even though
jury in case 1 might – NOT same issue
 If case 1 was clear/convincing and case 2 was preponderance
of evidence
 If they met the higher standard in case 1, we assume
they would have met the lower standard in case 2
o Case 1 – Worker with asbestos exposure from 1970-75 vs.
corporation (duty to warn issue); Case 2 – Worker 1965-70 vs. Corp
 Different worker
 Even though it’s the same issue on the surface, it can be
different depending on the substance of the law
 Negligence is one issue, regardless of the theory
 Contract invalidity can be a number of different
issues
 Research the substantive law to see how finely
sliced the issue is
Issue Actually Litigated
o Requirement is not satisfied when a party failed to raise an issue in a
previous action, but an issue might not have been actually litigated
even if it was raised in prior action
o Reasons why a party may choose not to raise an issue:
 Action may involve so small an amount that the litigation of the
issue could cost more than the judgment
 Forum may be inconvenient
o For claim preclusion, it doesn’t matter if it was actually litigated, as
long as you had the chance to litigate it. For Issue preclusion, it
DOES matter if it was litigated
o If preclusive effect were given to issues not litigated, the result might
serve to discourage compromise, decrease likelihood that issues in an
action would be narrowed by stipulation, and thus intensify litigation
 Don’t force someone to think about issues in all cases down
the line – only about the one case pending
o When discussing same issue, don’t confuse it with “actually litigated”
 If case 1 is a default case, the issue may be available in case 1 but
it might not be actually litigated (see 2b hypo, below)
In Baldwin, D directly attacks PJ which court rejects. When P seeks to
enforce the judgment in another court, D attacks PJ collaterally – this
was issue precluded
Quality of Judgment
 Same as Claim Preclusion, but applied in a different way
 (a) Validity – Notice, PJ, SMJ (same as Claim Preclusion)
 (b) Final Judgment – Doesn’t have to be a final judgment of the whole
case, just on that issue
 (c) On the Merits – If issue has been finally adjudicated, adequate
basis for on the merits
 As opposed to Claim Preclusion, where claim can be
dismissed for issues not regarding the merits
o

a)
Cromwell v. County of Sac
 Where a second action between the same parties is based
upon a different claim or demand, the judgment in the prior
action operates as an estoppel only as to those matters in
issue upon which the verdict or judgment was rendered.
o FACTS
 Case 1 – 4 Coupons on municipal bond. The county wouldn’t
pay on the coupons and Cromwell sues. County thinks the
bonds are fraudulent and invalid. Court said bonds are invalid
because of fraud
 Case 2 – Cromwell v. County on 4 different coupons. County
said bonds are invalid! Cromwell said he’s a holder in due
course (received bonds for value without notice of its
73
o
o
2.
fraudulent issue). County said he could have raised this in
Case 1 so he’s issue precluded
ISSUE
 Is the issue in case 2 precluded?
HELD
 The rule makers decided that you shouldn’t have to litigate all
issues in a claim that might not be as relevant in this claim as
it might be in a future claim
 Thus, no issue preclusion and Cromwell can litigate the
holder in due course doctrine
 NOT a case of claim preclusion because it’s a different claim
on 4 different coupons
 The coupons in case 2 were due and payable after the
first suit – they’re separate contracts not claim
precluded
 If they had been the same bonds, then it would have
been claim precluded because the holder in due course
defense was available to him originally
Essential



Did the finding impact the judgment?
Could the new plaintiffs had appealed the judgment?
If a court finds for a litigant on two independent, sufficient grounds, the
Restatement would deny issue preclusion to either decision since it is
impossible to tell which decision was necessary to the judgment
a)
Rios v. Davis
 It is the judgment and not the conclusions of fact filed by a
trial court that constitutes estoppel. A finding of fact by a jury
or court, which does not become the basis or one of the
grounds of the final judgment, is not conclusive against either
party to the suit.
o FACTS
 Case 1 – Popular Dry Goods sued Davis to recover damages
collision; Davis brings in Rios as a third party defendant –
74
o
o
ALL were contributorily negligent so Popular didn’t recover
against Davis and Davis didn’t recover against Rios
 Case 2 – Rios sued Davis. Davis answered saying Rios was
guilty of contributory negligence and urged claim/issue
preclusion
ISSUE
 Should the issue in case 2 be precluded?
HELD
 Same issue – Same facts, same law (negligence in TX)
 Actually Litigated – Davis said Rios was negligent. The jury
rendered a verdict on whether Rios was negligent
 Necessary to the Result – The sole basis for the first decision
was the findings concerning the negligence of Davis. The
finding that Rios was negligent was NOT essential/material
to the judgment
 The finding of Rios’ liability has NO impact on the
judgment in Case 1
 If Rios wanted his negligence reversed for insurance
reasons after the first case, he wouldn’t be allowed to
appeal because the case’s judgment wasn’t about him.
75
He doesn’t really want the judgment in case 1 changed
because he won! He didn’t have to pay Davis!
o
3.
Against Whom

76
NOTES
 Rios could use issue preclusion against Davis in this case
because Davis’ negligence was determined in case 1
 It’s the same issue, actually litigated, necessary to the
final judgment vis a vis Rios in Case 1 (Davis lost case 1
against Rios because he was negligent)
 Davis could have appealed case 1, Rios could not
have
 Had this case been filed in FEDERAL court, Rios would have
been barred under 13(a) because this case arises from same
transaction/occurrence – compulsory counterclaim
 What if case 1 was Popular vs. Rios and Davis?
 Normally, courts say that for co-defendants, you’re not
bound by the result because the two defendants didn’t
litigate against each other
Party against whom it is asserted was present in case 1 with a full &
fair opportunity to litigate
o Claim preclusion could only be asserted against parties to prior
litigation or nonparties in privity with litigant
o Same requirement for issue preclusion
o This section deals with issues of privity
o It’s all about Due Process - has the party whom issue
preclusion is being asserted against had his or her day in court
o Privity is appropriate for commercial and legal relationships (Hardy)
o Courts struggle with extent to which virtual representation is
proper
o Taylor v. Blakey (D.C. Cir.) – Virtual representation requires: (1)
Identity of interests; (2) adequacy of representation; (3) one other
factor like (a) close relationship, (b) substantial participation in case 1,
(c) tactical maneuvering by present party to avoid preclusion
a)
Hardy v. Johns-Mansville
 Collateral estoppel is inappropriate when the prior judgment
is ambivalent
o FACTS
 Case 1 – Borel – Plaintiffs won a judgment against 6 asbestos
manufacturers.
 Case 2 – Different plaintiffs sued the 6 defendants who lost in
Borel and thirteen additional manufacturers
o ISSUE
 Whether issue preclusion can be used against those
manufacturers NOT a party in Borel?
o HELD
 In this case, the 13 other manufacturers didn’t even know the
issue was being litigated in Borel. The hadn’t had their day in
court and thus cannot be precluded
Ruling also applies to defendants who were parties to Borel
but settled before trial. But if they settled just to avoid issue
preclusion, that might preclude re-litigation
 District court said issue preclusion against all defendants
because the defendants have an “identity of interests”
sufficient for preclusion
 Same product, same interests, same business and
therefore they were represented by someone else on
their behalf – big extension of privity!
 Identity of interests alone is not sufficient for privity
 Types of relationships that are in privity and justify
preclusion:
 (1) Based on commercial relationships – successor in
interest in property or in a claim
 Assigning right to sue based on someone else. If
they’ve sued, person who acquired the claim is in
privity
 (2) Legal relationships
 Trustees/executors/administrators
 Someone who had a right to control litigation
(insurance policy with a right to defend)
4.
By Whom

Who can assert issue preclusion?
o Due process requires that issue preclusion be asserted only against one
who was a party to the first case
o This is about by whom can issue preclusion be asserted
o Traditional Rule – Mutuality – Preclusion can be used only by
someone who was a party to the first case
77
Fairness rationale – someone who cannot be hurt by a prior
judgment shouldn’t be entitled to take advantage of it
But the rule eroded because of two exceptions in vicarious liability
cases:
o Patron sues Employee, Employee wins. Now Patron sues
employer because of vicarious liability
o Because first case said Employee hadn’t committed a
tort, employer wants to use issue preclusion but can’t
because they weren’t a party to the first case
o If the patron wins vs. employer, the employer would
then sue the employee for indemnification. If
employer wins that, what good was employee’s
victory in case 1?
o Court recognizes this – narrow exception to
mutuality
o Patron v. Employer, Employer won. Then Patron sues
Employee. Employee can’t use issue preclusion because of
mutuality doctrine. The narrow exception doesn’t apply
because if employee loses the case, he has no right to
indemnification from the employer
o Some courts still permit employee to assert
nonmutual issue preclusion – broad exception
These exceptions paved the way towards most courts abandoning
mutuality towards non-mutual issue preclusion
o
o
o
a)
Bernhard v. Bank of America Nat. Trust & Sav. Ass'n
 There is no requirement that the party asserting the plea of
res judicata must have been a party, or in privity with a party,
to an earlier litigation so long as the party against whom res
judicata was asserted was a party in privity to a party in that
litigation.
 FACTS
o The Plaintiff, Bernhard (Plaintiff), brought an action as new
administratix of an estate to hold the Defendant, Bank of
78


b)
America Nat. Trust & Sav. Ass’n (Defendant), liable for
recovery of bank withdrawals not approved by decedent.
ISSUE
o Whether the Plaintiff in the present action was a party to or
in privity to the earlier proceeding.
HELD
o In determining the validity of a plea of res judicata, three
questions are pertinent:
1. Was the issue decided in the prior adjudication
identical with the one presented in the action in
question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a
party or in privity with a party to the prior
adjudication?
o The issues as to identical action and final judgment were
answered in the affirmative. The Plaintiff in this suit brought
the present action in the capacity of administratrix of the
estate. In this capacity she represents the very same persons
and interests that were represented in the account hearing.
Blonder Tongue Labs v. Univ. of Illinois Foundation
 The relitigation of the same issue, even among separate
parties, is not permitted as long as the party against whom
79
o
o
o
80
preclusion is being asserted had a full/fair chance to litigate
the issue
FACTS
 (1) Patent Holder v. Infringer #1 – Infringer wins (patent
invalid)
 (2) Patent Holder v. Infringer #2
ISSUE
 Can Infringer #2 assert issue preclusion?
HELD
 Infringer #2 can raise defensive non-mutual issue
preclusion
 Policy reasons – This limits the relitigating of issues without
compromising fairness. It gives P an incentive to join both
Ds in one case
 Efficient to allow defensive non-mutual issue
preclusion because it encourages goal of preclusion
doctrine by forcing P to join as many Ds as possible in
one case
 Fair to the person precluded because person precluded
has control over venue and is likely to know how many
Ds are out there and what’s at stake in the case
 The requirement is whether the party against whom preclusion
is being asserted had a full/fair chance to litigate the issue.
Here they do because it’s brought against plaintiff who had
the chance in case 1
5.
Non-Mutuality


DEFENSIVE Non-Mutual Issue Preclusion
o Used by defendant in case 2 in a claim to stop plaintiff from
relitigating an issue that the plaintiff already litigated in another case
an lost
 It is being used by somebody who is not a party in case 1 and
that party is a defendant in case 2
 It is allowed if the person against whom the party is attempting
to use issue preclusion had a full chance to litigate the issue in
case 1
 Example
 A loans car to B, B gets in a care accident with C
 C sues B, B wins
 C sues A
 A tries to use Issue preclusion
 Issue preclusion is permitted because C had a full
chance to litigate in case 1
OFFENSIVE Non-Mutual Issue Preclusion
o Used by a plaintiff in case 2 who was not present in case 1 to prevent
a defendant who was present in case 1 from litigating an issue that the
defendant already lost in case 1
 Same issue, actually litigated, necessary to result, party whom
it’s used against had full/fair opportunity
o General rule non-mutual offensive issue preclusion is permitted
if it is fair – Parklane factors:
 Did P avoid case 1 for tactical reasons? – If yes, issue
preclusion isn't possible
 Did D have an incentive to litigate case 1? – If yes, issue
preclusion is possible
 Does case 2 give D procedural opportunities unavailable in case
1? – If no, issue preclusion is possible
 Are there prior inconsistent judgments? If no, issue preclusion
is possible
 Example
 A loans car to B, B gets in a care accident with C
 C sues B, B wins
 A sues C
 A tries to use Issue preclusion to show that C is
responsible for damage to A's car
o NOTES
 Non-mutual Offensive Issue Preclusion has given rise to
plaintiff shopping. Lawyers of many Ps will find the P with
81
the strongest case and let them go forward, then the rest of the
Ps will follow suit
 But defendants may engage in their own plaintiff
shopping – settle claims with the Ps with good cases and
then try the case against the crappy plaintiffs
 But many plaintiffs don’t try to take advantage of
offensive non-mutual issue preclusion because
they’ll want the jury to hear their own parade of
horribles (if they have one)
a)
Parklane v. Shore
 A plaintiff should be allowed to employ offensive collateral
estoppel unless it would have been easy for the plaintiff to
have joined in the earlier action, or collateral estoppel would
be unfair given the circumstances.
o FACTS
 (1) SEC v. Parklane – Parklane’s stock statements were
false/misleading, SEC wins
 (2) Shore v. Parklane – Shore wants to issue preclude Parklane
that proxy statements were fraudulent
 Same issue, actually litigated, necessary to result, against
party who had full/fair opportunity
o ISSUE
 Whether a litigant who was NOT a party to a prior judgment
may nevertheless use that judgment “offensively” to prevent
a defendant from relitigating issues resolved in an earlier case
o HELD
 Shore couldn’t have joined case 1, D had incentive to litigate
case 1, procedural opportunities are the same, and there are
no prior inconsistent judgments. Offensive non-mutual issue
82
preclusion is OK, Parklane can’t litigate the issue of their
fraudulent statements
 Court said offensive non-mutual issue preclusion is OK, but it’s
up to the district court’s discretion based on:
 (1) Did P avoid case 1 for tactical reasons (trying to get
the benefit of P’s victory without the risk of loss)?
o If case 1 was filed in CA and P2 wants to file
in NJ, that might not be tactical avoidance
o Shore couldn’t have joined here because the
SEC brought the case as an enforcement
action
 (2) Unfairness – D must have an incentive to litigate
case 1 (stricter standard than issue preclusion)
o If case 1 is for small damages, D may have
little incentive to litigate, especially if future
suits are not foreseeable
o Here, the future suit was absolutely
foreseeable, and there’s a strong incentive to
litigate in case 1 anyway
 (3) Insufficient procedural opportunities in case 1
o Where the second case gives D procedural
opportunities unavailable in the first action
that could cause a different result here, it may
be unfair to bind him
o If case 1 is in an inconvenient forum
and D couldn’t engage in full-scale
discovery
o Courts are unclear on how important a jury
trial in case 2, unavailable in case 1 is
 (4) Prior Inconsistent Judgments
o If D wins first 10 cases then loses the 11th, 11
seems like an anomaly and it may be unfair to
bind D to that anomalous judgment
o Where there are multiple potential plaintiffs
(i.e., airline crash where 300 people die), most
83
commentators say let 5-10 cases go through
before precluding the D
6.
Exceptions & Federalism





84
There was no ability to appeal
The issue is one of law and
o Actions involve unrelated claims OR
o Law has changed between cases
Jurisdictional/procedural differences between courts warrant new
determination
Burden of proof has shifted against party asserting
Clear and convincing need for new determination because:
o Potential adverse impact on public interest OR
o It wasn’t sufficiently foreseeable that issue would arise in new context
OR
o Because of conduct of adversary or special circumstances, party in
first case didn’t have adequate opportunity for full and fair
adjudication
85
V.
APPEAL





86
Mechanisms by which judgments are examined
There’s no federal constitutional right to an appeal, but federal and state courts
have mechanisms for it
Justifications:
 Appellate courts provide a means of insuring the law is interpreted
correctly/uniformly
 Provide means for ongoing development and evolution of law in common
law tradition
 Heighten legitimacy and acceptability of judicial decisions
 Provide means for the institutional sharing of judicial responsibilities for
decisions
 Fundamental element of procedural fairness
Timing
 Notice of appeal must be filed with district court within 30 days after entry
of judgment or order from which the appeal is taken. Limit is 60 days when
the US is a party
 The district court determining and assessing costs does NOT extend
the time
 It runs from the date judgment was entered
 Time requirement is jurisdictional and CANNOT be waived
 Filing an appeal does not suspend the effect of the judgment –
sometimes you need to post a bond guaranteeing that the judgment will
be paid if you lose the appeal
Standard of Review on Appeal
 How much deference is given to trial court
 Issues of Law
 De Novo – No deference to trial court
 Example – JMOL
 Procedural Issues
 Abuse of Discretion – most deferential standard
 Appellate court could completely disagree with the trial court,
but will not reverse as long as trial would was within a
reasonable range
 Example - New Trial, motions to transfer, discovery rulings,
scheduling
 Factual Issues decided by the judge
 Clearly Erroneous (Rule 52)
 Appellate Court, after reviewing evidence, is left with a
definite and firm conviction that a mistake has been
committed
 More deferential than most rulings, but less deferential than
abuse of discretion
 Factual Issues decided by a jury
 These are NOT directly appealable, but instead are
appealed through judge’s denial of either JMOL or New
Trial motions. Not appealing verdict per se, just judge’s
denial of motions
 JMOL – De Novo (is evidence legally sufficient?)
 New Trial – Abuse of Discretion
A.
Jurisdiction
1.
28 USC §1291
o
2.
Standard rule – No appeal until a final judgment
 28 USC §1291 – Appeals court has jurisdiction from all
FINAL decisions of district courts
 But many decisions made in course of litigation are
“interlocutory” - before the end of case
 A motion to dismiss or for Summary Judgment (if granted) is
FINAL it’s appealable
Collateral Order Rule


Court-made Doctrine - Three prong test from Cunningham:
 (1) Important Issue
 (2) Separate from the merits of the case
 (3) Effectively unreviewable on appeal
 Cohen v Beneficial Loan – Did the NJ requirement in
shareholder derivative suit apply in Federal Court?
 Trial court said no
 Important issue
o Whether NJ or Federal rule applies is a big
issue that has an impact on other
shareholder derivative suits
 Separate from the merits
o Issue of whether you had to file a bond
was unrelated to merits of whether there
was a cause of action for the shareholders
 Decision unreviewable on appeal
o If this matter can only be appealed after
final judgment, the case has been heard
without the posting of a bond (this would
defeat the purpose of the bond
requirement, which is to show that party
bringing suit is willing to put bond up
front). Therefore, making the argument
on appeal is not good enough.
Examples:
 Immediately Appealable
 Denial of a government immunity suit under 11th
Amendment IS immediately appealable because the
87

a)
whole purpose of the amendment is to protect state
from cost/burden of trial
 Order staying a federal court action pending resolution of
a parallel state case IS immediately appealable because the
state judgment would be binding on the federal court
Not Immediately Appealable
 Orders granting/denying motions to disqualify counsel
are NOT immediately appealable
 Denial of a government immunity suit under 11th
Amendment IS immediately appealable because the
whole purpose of the amendment is to protect state
from cost/burden of trial
 Decision to decertify a class action is NOT immediately
appealable even if it may be a “death knell” to plaintiffs
because then it would turn on a case-by-case inquiry and
court doesn’t like that
 Denial of dismissal for lack of PJ is NOT
immediately appealable because it’s a right to not
have judgment entered against you in the wrong
forum, not the right to defend the case
Cunningham v. Hamilton County
 §1291 says appeals only of final judgments. It will also permit
jurisdiction over appeals from a small category of orders that
do not terminate litigation. Decisions that are: (1) Conclusive,
(2) Resolve important questions separate from the merits,
AND (3) Effectively unreviewable on appeal from the final
judgment in the underlying action
o FACTS
 Attorney violated discovery orders, got sanctions, and couldn’t
work on the case anymore. He appeals the sanctions
immediately, trying to use the collateral order rule
o ISSUE
 Whether an order imposing sanctions on an attorney is a final
decision
o HELD
 Sanctions order is NOT a final decision under §1291 and is
NOT immediately appealable
 §1291 says appeals only of final judgments. It will permit
jurisdiction over appeals from a small category of orders that
do not terminate litigation. Decisions that are:
 (1) Conclusive
 Sanctions order was conclusive, OK
 (2) Resolve important questions separate form the
merits
 Sanctions order is NOT separate from the merits,
it’s “inextricably intertwined” with the merits
because evaluation of the appropriateness of
88
sanctions requires appellate court to inquire into
importance of information sought and honesty of
response
 To appeal you’ve have to look to the merits
of the case
 (3) Effectively unreviewable on appeal from the final
judgment in the underlying action
 It is reviewable on appeal from final judgment
because unlike witnesses, there’s an “identity of
interest” between lawyer and client;
 It’s not a contempt order, which is automatically
appealable because the non-party (lawyer’s) injury
may be impossible to repair otherwise
 Policy reasons - this can prolong litigation
 Also, to permit an immediate appeal from a sanctions
order would undermine the purpose of the sanctions
rule (37(a)) which was designed to protect courts and
opposing parties from delaying/harassing tactics during
the discovery process
B.
Exceptions to Final Judgment

Rule 54(b) – If some claims (or all claims for some parties) have been resolved,
but there are still some pending claims such that the suit as a whole is still going
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(no “final” judgment), you can sometimes get an appeal on the things already
decided, IF:
o Multiple claims/parties involved
o Final judgment on less than all claims/parties has been entered
o No just reason for delay (according to district court)
 As in, hardship would result from delay
 Your argument is better here if a party could be done with the case
entirely right now, if the appeal is allowed
o Express entry of judgment on those claims
 What is a “claim” here? Not well-defined, apparently.
o It is possible that something that would be one claim under a “same
transaction or occurrence” analysis would be multiple claims for Rule 54(b)
purposes.
o For example, of P sues D for breach of contract, and D countersues with an
antitrust action, that probably is not a “same claim” for Rule 54, even if it
does arise out of same transaction
 Petrohunt factors for same claim in this context:
 Degree of factual overlap
 Whether separate causes of action depend upon proof of
different facts or have different burdens of proof
 Whether the application of res judicata considerations suggest
that the claims are linked
 Whether the multiple relief is for the same injury
 §1292(a) – Injunctions
o Decisions granting, modifying, or denying injunctions are exception to
final judgment rule because it’s extraordinary equitable relief. A party will
be irreparably harmed without equitable relief
 §1292(b) – Discretionary Appeals
o If a judge entered an order, otherwise unappealable (i.e., denial of a
motion to dismiss) and there’s certification by trial judge that the issue is
a controlling question of law with a substantial ground for
difference of opinion, and will encourage rapid disposition of the
case, then the Court of Appeals has discretion to take the case
 Safety valve to quickly resolve recent issues, but requires
discretion of trial judge and appellate court
 Example – Title 7 of Civil Rights Act of 1964 –
 Controlling Question of Law
o Did it apply to disparate payment of jobs?
 Substantial ground for difference of opinion
o Something debated in courts
 Materially advance the ultimate termination of litigation
o Argument is that this will resolve the case quicker
– saves effort of conducting full trial, proving
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women nurses were highly trained, paid less, etc.,
only to find out that T7 doesn’t apply
Appellate court has discretion to accept or reject appeal
o
o
o
1.

Mandamus
 Common law writ, been available for a while as an appellate
mechanism
 Remedy of last resort – VERY rare!
 Unavailable on issues for which trial judge has discretion; only
where trial judge has no discretion
§1291(e) (§2072(c) of Rules Enabling Act)
 Allows SCOTUS to create exceptions to the final judgment rule
NOTES
 Discovery orders ordinarily are NOT final decisions for the
purposes of §1291. Difficult to show they’re interlocutory appeals
under §1291(b)
 The most effective way to appeal a discovery order is to defy it
and be held in contempt, as in Hickman v. Taylor, but this is
obviously risky!
La Buy v. Howes Leather Company
 Common-law writs of mandamus, like equitable remedies, may be
granted or withheld in the sound discretion of the court.
 FACTS
o The Petitioner, a United States District Judge asserted that the two
cases had been burdensome, in that many hearings were conducted
on preliminary pleas and motions.
o The Petitioner asserted that it had taken a long time for the case to
get to trial and asked the litigants if they could agree to have a Master
hear the case.
o In chambers the next day, the District Judge made the decision
himself that the case would be referred to a Master. The orders
declared that the court had a heavily congested calendar and that
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exceptional circumstances existed to warrant the references to the
Master.
 The Master was to take the evidence and report it to the Court
along with his findings of fact and conclusions of law.
o When the Petitioner refused to vacate the references, the mandamus
actions were filed in the Court of Appeals seeking issuance of the
writs ordering the Petitioner to vacate.
o The Court of Appeals held that the judge refused to try the cases in
due course and that the orders were beyond the court’s authority
under 28 U.S.C. Section: 1651(a).
ISSUE
o Whether the Court of Appeals has the power to issue writs of
mandamus to compel a district Judge to vacate his orders entered
under Federal Rule of Procedure (FRCP) Rule 53(b), which refer
antitrust cases for trial before a Master.
HELD
o Opinion of the Court, J. Clark
 Writs of mandamus should be resorted to only in extreme
cases. In this case, the District Judge was well informed to the
nature of antitrust litigation – his excuse of court docket
congestion in itself was not an exceptional circumstance to
warrant reference to a Master. Common-law writs, like
equitable remedies, may be granted or withheld in the sound
discretion of the court. Affirmed.
o Dissent, J. Brennan
 The Court seriously undermined the long-standing statutory
policy against piecemeal appeals. The All Writs Act does not
confer an independent appellate power in the Courts of
Appeals to review interlocutory orders.
C.
D.
Discovery Orders & Mechanics
Scope of Review
o
o
1.
The Appellate process isn’t designed to remedy all mistakes at trial court level.
Purpose is to ensure the results below (judgment entered) is correct
4 General Rules
 (1) Error must be on the record in order to appeal (because that’s what
appellate court evaluates)
 (2) You must object to an error on the record in order to preserve the
appeal
 Give trial judge/parties time to correct their alleged mistake
 (3) May not raise issues for the first time on appeal – if it’s not raised
it’s waived
 (4) You may NOT appeal harmless error
 Even where there is error, appellate court won’t reverse unless error
materially affected the outcome
 Test for determining whether an error is harmless
o If the court had decided the issue the other way,
would it have effected the decision.
o If NO, then it is a harmless error that cannot be
repealed.
o If YES, then it can be repealed because it materially
effected the outcome
 The winning party may not appeal
Anderson v. Bessemer
 Findings of fact shall not be set aside unless clearly erroneous and
due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses, such that when there are two
permissible views of the evidence, the fact finder’s choice between
them cannot be clearly erroneous.
 FACTS
o The Respondent sought a new Recreation Director. The Petitioner
was the only woman to apply for the job. A five-member committee
interviewed the eight applicants and chose a male. The Plaintiff sued
under Title VII of the Civil Rights Act of 1964 (the Act) alleging
discriminatory intent.
o After a 2-day trial, during which the court heard testimony from the
Petitioner, Mr. Kincaid, the successful applicant and the five
members of the selection committee, the court issued a brief
memorandum of decision setting forth its finding that Petitioner had
been denied the position on account of her sex.
o The Court of Appeals for The Fourth Circuit reversed, holding that
the district court’s crucial findings were clearly erroneous. The
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Supreme Court of the United States (Supreme Court) granted
certiorari.
ISSUE
o What is the appropriate standard of review of a trial court’s findings
of facts?
HELD
o The Supreme Court reversed because it was convinced that the
Fourth Circuit misapprehended and misapplied the clearly erroneous
standard.
o A district court’s finding of discriminatory intent in an action brought
under the Act may be overturned on appeal only if it is clearly
erroneous.
 Because a finding of intentional discrimination is a finding of
fact, the standard governing appellate review is that set forth in
52(a),
 Findings of fact shall not be set aside unless clearly
erroneous
 Due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.
 A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with the
definite and firm conviction that a mistake has been
committed.”
 When there are two permissible views of the evidence, the
fact finder’s choice between them cannot be clearly
erroneous. This is so even when the district court’s findings do
not rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other
facts.