Civil Procedure – Green
Rule
7(a)
“Buzz Words”
Only these pleadings allowed:
1) Complaint
2) Answers to complaint, counterclaim and crossclaim
3) 3rd party complaint
4) Answer to 3rd party complaint
5) Reply to answer if court orders one
(a) Signature of attorney of record or unrepresented party
(b) Representations to the Court
- Certifies to the best of knowledge, information or
belief after a reasonable inquiry that:
o Proper basis to file  GF
o Claim is of existing law OR non-frivolous
argument for extending existing law
o Factual contentions have evidentiary support
o Denials of allegations warranted on evidence
11
(c) Sanctions
- If court determines (b) has been violated, MAY
impose sanctions
- Motion for Sanctions:
o Separate motion that describes specific
conduct that violates (b)
o Served to opposing party, but not filed
unless the challenged paper has not been
corrected within 21 days after service
 “safe harbor provision” required!
Rationale/Purpose/Objective
NC Distinction
Reasonable Inquiry
- Objectively reasonable
evidentiary basis for claim
- Curb abuse of the pleading
rules and impose affirmative
duty on attorneys
Verified: based on own knowledge
Required to bring adverse decisions
to the court’s attention
Federal v. State:
- Imposition of sanctions
o Federal – MAY
o State – SHALL
- Safe Harbor Provision
o Fed. – Moving party
required to give
other side notice
and chance to fix
o NC – no notice or
safe harbor req’d
Attorney must engage in:
- Investigation of case
- Diligence in pleading
Atty entitled to rely on objectively
reasonable representations of client,
as long as engage in a reasonable
inquiry under the circumstances to
ensure that the factual contentions
have evidentiary support
The Court SHALL impose
sanctions if violate Rule 11!
- State court does not have
the discretion that Federal
court has
Applies to EVERY pleading!
Courts have inherent power to
sanction parties and attorneys – not
limited to pleadings (must first issue
a show cause order)
* Does NOT apply to discovery! *
No “safe harbor” provision!
- No notice or waiting time is
required!
Civil Procedure – Green
8(a)
Pleading
Standard
10(c)
12(d)
10(b)
8(d)
9
Pleading
Special
Matters
9(g)
Special
Damages
- INITIAL PLEADINGS A pleading that states a claim for relief must contain a
Make sure that the opposing party has NOTICE of the claims, and that
short and plain statement of the claim showing that the
there is sufficient detail so they have a basis to respond
pleader is entitled to relief
Must allege facts in the initial pleading stage to support each PF element
of each CoA to survive a 12(b)(6) motion!!
Courts will take these facts as true
Must allege more than just a legal conclusion
Twombly Standard – All Federal Courts
Conley Standard – NC State Cts
P must allege sufficient facts in the complaint such that the
A complaint should NOT be
claim is plausible on its face
dismissed for failure to state a
- Context-specific
claim unless it appears that P can
- Draw on judicial experience and common sense
prove no set of facts in support of
his claim
A copy of a written instrument that is an exhibit to a
The court will NOT dismiss as a 12(b)(6) if have to look outside the
pleading is a part of the pleading for all purposes
complaint to resolve the issue!
If matters outside pleading are presented, the motion must
To resolve a 12(b)(6) Motion, the court will only look at Complaint
be treated as one for summary judgment under Rule 56
Party must state claims/defenses in numbered paragraphs –
each limited to a single set of circumstances. Each claim
found on a separate transaction or occurrence must be
stated in a separate count or defense
Each allegation must be simple, concise and direct. May
set out 2 or more statements alternatively or hypothetically.
If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient
Courts make a policy decision – to attack someone’s reputation must have
sufficient facts to support the allegation
In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of
a person’s mind may be alleged generally.
If special damage is claimed, it must be specifically stated
Requirements met if there is sufficient identification of the circumstances
constituting fraud so that the D can prepare an adequate answer to the
allegations
The court will look to injuries alleged in complaint to determine if it is
necessary or inevitable result of injury  FIRST identify the injury to
determine if the damages are general or special
Civil Procedure – Green
Rule: “it has been held by our supreme court that a specific
personal injury which is not the necessary or inevitable
result of an injury alleged in the petition constitutes an
element of “special damages” which must be specifically
pleaded before evidence thereof is admissible”
GR: If fail to plead, barred from proving at trial
54(c)
Demand for
Relief;
Default
Judgment
8(a)(3)
Demand for
Relief
8(b)(3)
General and
Specific
Denials
A default judgment must not differ or exceed in amount
what is demanded in the pleadings
Every other final judgment should grant the relief to
which each party is entitled, even if the party has not
demanded that relief in its pleadings.
A demand for relief sought, which may include relief in the
alternative or different types of relief
General damages can be alleged without particularity – those that
are expected given the injury
Ex: negligent car crash  Broken arm and tell during trail that it hurts = general
(because this is foreseeable, inevitable from a broken arm)
Negligent infliction of Emotional Distress = special
Rationale: GIVE NOTICE – have to give notice of the claims and extent of
damages Affects all stages of pre-trial strategy and to make sure there is no
unfair surprise
The court wants to resolve issues on the MERITS of the case – if P presents
sufficient evidence to show entitled to relief, should get it
RESPONDING TO THE COMPLAINT
Short and plain statement of defense to each claim
Run a risk with general denials – if it does not fairly respond to the substance
General Denial – deny all allegations of a pleading (GF)
of the allegation, or if the D knew or should have known – court may deem
Specific Denial – must specifically deny allegations, or
that D admitted the allegation
generally deny all except those specifically admitted
In determining a 12(b)(6) Motion – the court will take all the allegations
in the complaint as true
Ex: SOL – court does not have to look outside complaint to determine,
Failure to state a claim upon which relief can be granted
and can dismiss as 12(b)(6)
Absolute privilege – can resolve by only looking at complaint;
Conditional privilege – have to look outside the complaint
12(b)(6)
If the court grants a 12(b)(6) motion, it is usually considered a final
adjudication of the matter! (will sometimes give P chance to amend)
Δ must respond within 21 days after being served with the
summons and complaint; OR
12(a)
Δ must
answer
If it has timely waived service under rule 4(d) within 60
days after the request for a waiver was sent, or within 90
days after it was sent to the Δ outside any judicial district in
the US
Civil Procedure – Green
8(b)(5) Lack
Knowledge /
Information
12(e) Motion
More Definite
Statement
12(f)
Motion to
Strike
12(c)
Motion for
judgment on
the pleadings
8(c)
Affirmative
Defenses
13(a)
Compulsory
Counterclaim
A party that lacks knowledge or information sufficient to
form a belief about the truth of an allegation must so state,
and the statement has the effect of a denial
Party may move for more definite statement if so vague or
ambiguous that party cannot reasonably prepare response.
Motion must be made before responsive pleading is filed
The court may strike any redundant, immaterial,
impertinent, or scandalous matter. May act on its own or
on motion made by a party either before responding, or if
response not allowed, within 21 days after being served.
After the pleadings are closed – but early enough not to
delay trial – a party may move for judgment on the
pleadings
In responding to a pleading a party MUST state any
avoidance or affirmative defense, including (18):
- Accord and satisfaction
- Release
- Arbitration and award
- Res Judicata
- Assumption of risk
- SOL
- Contributory negligence
- SOF
- Duress
- Waiver
- Estoppel
- Payment
- Failure of consideration
- License
- Fraud
- Laches
- Injury by fellow servant
- Illegality
Pleading MUST state as counterclaim any claim that at the
time of service pleader has against any opposing party if:
- Arises out of the same transaction or occurrence
that is the subject matter of the opposing party’s
claim AND does not require adding a party over
whom the court does not have jurisdiction
Exceptions:
- Claim was subject of another pending action
Limits to using this – If there are circumstances within D’s control, or
presumptively w/in D’s knowledge – cannot use this denial!
Very rare! – courts disfavor and infrequently grant
If have an affirmative defense – has to be raised or it is WAIVABLE
(Rule 15 – can amend at any time in litigation process)
Objective/Rationale – put P on NOTICE so not prejudiced
Know that a party is prejudiced by the impact it will have on
preparation for trial
Court can sua sponte consider a defense D failed to affirmatively plead,
but have to give P a chance to respond
More likely to do this with a pro se litigant
Can allow an affirmative defense to be asserted through 12b6 motion
when the validity of that defense is apparent from the face of the pleading
Must be raised or WAIVED
To determine same transaction or occurrence:
- Significant logical relationship
Can be construed
Consider:
- Same type of claims
broadly or narrowly
- Same Subject Matter
 argue BOTH!!
- Same proof of evidence
- Same issues of law and fact
- Res judicata bar later claim?
Civil Procedure – Green
-
13(b)
Permissive
Counterclaim
13(g)
Crossclaim
against a
Coparty
15(a)
Amendments
Before Trial
15(b)
Amendments
During and
After Trial
Sued on claim by attachment, etc. that didn’t est. PJ
Federal statute requires claims to be brought in
separate districts
Ex: D sued in 1 capacity as administrator of estate and has a
counterclaim in another capacity as beneficiary in wrongful death, but
arise out of same transaction/occurrence  NOT compulsory! Not
same party
If D has a compulsory cc that would be barred by SOL if asserted as independent
action – Jurisdictional split! (argue both)
- Purpose of SOL = put on notice – if P initiated action arising out of same
transaction/occurrence already on notice, so should be
- ve
- BUT – compulsory cc is its own independent claim – D could have
brought it independently, and if didn’t should be barred by SOL
A pleading MAY state as a counterclaim against an
opposing party any claim that is not compulsory
If claims are permissive, and in federal court on 32 – must have an
independent basis for jurisdiction!!
A pleading MAY state as a crossclaim any claim by one
A coparty is one on the same side of the v  parties having like status –
party against a coparty if the claim arises out of the same not parties who oppose each other
Does NOT allow P to circumvent complete diversity requirement – does
transaction or occurrence that is the SM of the original
not allow P to state cx-claim against co-P
action or of a counterclaim
AMENDMENTS
A party may amend its pleading ONCE as a matter of
BoP is on opposing party to show
course: within 21 days after serving it, or 21 days after
why should not be included: unfair A party may amend his pleading
service of a responsive pleading or 12(b), (e), or (f) motion. surprise, prejudice (not alone), BF, ONCE as a matter of course at
In all other cases, a party may amend only with the
untimely, delay (not alone), added
any time before a responsive
opposing party’s written consent or the court’s leave.
costs, insufficient time to respond
pleading is served or, if the
pleading is one to which no
Courts should freely give leave when justice so requires
responsive pleading permitted and
Unless the court orders otherwise, any required response to
action not placed on trial calendar,
an amended pleading must be made within the time
may amend at any time within 30
remaining to respond to the or
days after it is served.
Court’s preference is to allow
Objection at Trial: If at trial a party objects that evidence
amendments and resolve on merits Otherwise, a party may amend his
pleading only by leave of court or
not w/in the issues raised in the pleadings, the court MAY
Implied Consent – determined by
permit pleadings to be amended. Court should freely
searching record for indications that by written consent of the adverse
party. leave shall be freely given
permit amendment when doing so will aid in presenting
contesting party received actual
when justice so requires
the merits and opposing party fails to satisfy the court that notice and had an adequate
the evidence would prejudice that party
opportunity to litigate such matters
2 competing risks:
**ONLY allows the addition of
Issues Tried by Consent: When an issue not raised by the
1. Object – keep evidence out, but
CLAIMS – NOT parties!!!**
pleadings is tried by parties’ express or implied consent
ct may allow amend, and maybe (allows name change only if there
add issue unaware of
is a misnomer – no direct conflict)
Civil Procedure – Green
, must be treated as if raised in the pleadings. Party may
2. Don’t object – run risk implied
move at any time, even after judgment to amend
consent and treated as if raised in
pleadings to conform to evidence & to raise unpleaded issue
pleadings, or allow amendment
- Clearest indication of a parties consent to try an
to conform to pleadings
issue are the failure to object
An amendment relates back to date of original pleading if:
The law that provides the applicable SOL allows, or
This rule is ONLY relevant if the
Claim – arose out of the conduct, transaction or
SOL has run and failure to relate
occurrence set out in the original pleading
back bars the claim!
Party – changes the party or the naming of the party
whom the claim is asserted when:
Party  did they really know about
15(c) Relation
- Same transaction & occurrence
the litigation?
Allows to change if there is a
Back of
- it has not exceeded (90 Days) since the original
misnomer (spell name wrong, etc)
Amendments
serving of the summons & complaint on the
FILE A MOTION TO AMEND
mistaken party
THE COMPLAINT
- Party to be served
o Received notice (won’t prejudice) AND
Other party would then file an
o Knew or should have known that the action opposition saying that ***
would be brought against but for a mistake
doesn’t arise out same
concerning party’s proper identity
transaction or occurrence
On motion and reasonable notice, the court MAY, on just
15(d)
terms permit a party to serve a supplemental pleading
Supplemental
setting out any transaction, occurrence, or event that
Pleadings
happened after the date of the pleading to be supplemented
JOINDER
Who can sue: The real party in interest
Executor, administrator, guardian, bailee, trustee of express Real Party in Interest v. Capacity to Sue
trust, party named in K for benefit of others, party
- Real party in Interest requirements = duty of those who file claims (P)
17
authorized by statute
- Capacity = ability of BOTH P and D to participate in suit, even if D
Plaintiff and
Capacity to Sue or be Sued:
has not filed counterclaim or crossclaim
Defendant;
Individual  by the law of their domicile
Capacity;
Corporation  by the law under which it was organized
Purpose is to avoid prejudice and possibility of multiple lawsuits
Public
All other parties  by the law of state where court located
Officers
Joinder of the Real Party in Interest:
The court may not dismiss an action for failure to prosecute
in the name of the real party in interest until, after an
Civil Procedure – Green
18
Joinder of
Claims
objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the
action
Minor or Incompetent: Who can sue on behalf of minor or
incompetent:
General guardian, committee, conservator, like fiduciary,
next friend, GAL
A party asserting a claim, counterclaim, crossclaim or 3rd
party claim MAY join, as independent or alternative
claims, as many claims as it has against opposing party
Can join claims even if contingent on disposition of other
Consolidation – if actions before the court involve common
questions of law or fact, the court MAY: join for hearing/
42
trial any or all matters; consolidate the actions; or issue any
Consolidation, other orders to avoid unnecessary cost/delay
Separate
Separate Trials – for convenience, to avoid prejudice, or
Trials
to expedite and economize, the court MAY order a
separate trial of one or more separate issues, claims,
crossclaims, counterclaims, or 3rd party claims.
20
Persons MAY be joined as plaintiffs or defendants IF:
- The claims arise out of the same transaction or
Permissive
Joinder of
occurrence; AND
Parties
- They share common questions of law and fact
Permissive, not compulsory!
If joining the claims would lead to potential jury confusion – Rule 42 
this is NOT a reason to not bring claims together!
 Preference is to hear all related claims together
Civil Procedure – Green
When Feasible: One who is subject to service of process
and whose joinder will NOT deprive the court of SMJ
MUST be joined as a party IF:
- In their absence, the court cannot accord COMPLETE
RELIEF among the existing parties; OR
19
Required
Joinder of
Parties
21
Misjoinder &
Nonjoinder of
Parties
- Claim an interest relating to the SM of the action and
disposing of action in their absence may:
o As a practical matter impair or impede their
ability to protect the interest; or
o Leave an existing party subject to substantial risk
of incurring double, multiple or otherwise
inconsistent obligations (look at tort or contract
claims, would an existing party be subject to another
tort or contract action????)
When joinder is NOT feasible: The COURT must
determine whether, in equity and good conscience, the
action should proceed among the existing parties or should
be dismissed.
The FACTORS for the court to consider:
1. Extent to which a judgment rendered in person’s
absence might prejudice that person or existing
parties
2. Extent which prejudice could be lessened/avoided by:
a. Protective provisions in the judgment
b. Shaping relief; or
c. Other measures
3. Whether judgment rendered in person’s absence
would be adequate AND
4. Whether the plaintiff would have an adequate
remedy if the action were dismissed for non-joinder
Misjoinder of parties is not grounds for dismissing an
action. On motion or on its own, the court may at any time,
on just grounds, add or drop a party. The court may also
sever any claim against a party
Impair/Impede – will adjudication
affect their interest?
Rationale:
- Efficiency – resolve disputes w/
all necessary parties at same time
- Expedite final determination of
disputes – avoid multiple suits
- Protect due process rights of
both present and absent parties
Interests:
- P wants issues resolved
- D wants to avoid multiple suits
- Absent party wants to protect
ability for relief/re-litigate
- Court and public want complete,
consistent and efficient relief
Rule 12(b)(7) – the issue can be
raised at any time in the litigation
process (even on appeal / sua
sponte), and CANNOT be waived!
If not feasible –a given that there
will be some prejudice to the absent
party – court needs to weigh that
prejudice against benefits of
joinder to determine whether in
equity and good conscience the case
should go forward or be dismissed
Just FACTORS – TC has wide
discretion in making decision!
Those who are united in interest
MUST be joined as plaintiffs or
defendants…
Those who are NOT united in
interest – the court may
determine any claim before it
when it can do so without
prejudice to the rights of any party
or to the rights of others not
before the court
(When not united in interest – it is
more important that the absent
party be considered because their
interests are not being protected)
Civil Procedure – Green
14
Impleader
(Third Party
Practice)
A defending party MAY as a 3rd party P serve a summons
and complaint on a non-party who is or MAY BE liable to
it for all or part of the claim against it. But the third
party P MUST, by motion, obtain the court’s leave if it
files the 3rd party complaint MORE THAN 14 days after
serving its original answer
- In deciding a motion to allow 3rd party, ct will look at:
o Timeliness – whether the movant deliberately
delayed or was derelict in filing motion
o Delay – would impleading unduly delay or
complicate the trial
o Whether impleading would prejudice 3rd party D
o Whether 3rd party complaint states a claim upon
which relief can be granted (survive 12b6)
Purpose of the Rule  provide a way that the rights of all parties may be
determined in ONE proceeding
Relationship between 3rd party P (original D) and 3rd party D is SAME as
relationship btwn original P and D – all rules re: pleadings, etc are same!
It can be a potential CoA!  Sufficient if the 3rd party D is potentially
liable for some of the wrong! (e.g. indemnification, contribution, etc)
If in federal court based on 1332 –Joinder cannot break diversity!
Undue Delay or Complicate Trial:
- If they were they already part of the trial as a material witness, not
much delay/complication vs if they had no role in the litigation
- Is it late in the process?
o Would it lengthen discovery or delay the start of the trial?
Prejudice
- Would they need to get counsel?
- Are they already part of the litigation in some way?
The 3rd party D:
- MUST assert Rule 12 defense against 3rd party P claim
- MUST comply with Rule 13 – compulsory v.
permissive cc & crossclaim against another 3rd party D
- MAY assert against original P any defense that 3rd party
P has to P’s claim
The court must BALANCE the benefits of settling related matters in one
- MAY also assert against original P any claim arising out
suit against the potential prejudice to P and 3rd party D
of the same transaction/occurrence that is SM of P’s
claim against 3rd party P
Original P can bring in 3rd party if rule would allow D to
3rd party D can also bring in another 3rd party
22
Interpleader
Any party can move to strike/sever/try separately
By a Plaintiff
Persons with claims that MAY expose a P to double or
multiple liability MAY be joined as Ds and required to
interplead. Joinder for interpleader is proper even though
- Claims lack a common origin or are adverse and
independent; or
- P denies liability in whole or in party to claimants
Allows a stakeholder to join multiple, mutually inconsistent claims of
various parties, to determine rights in asset in single proceeding
Doesn’t need to be identical or common origin competing claims,
and claims don’t need to be totally incompatible with each other
*A party can have an interest and still have an interpleader.
*No requirement for liquidation.
Civil Procedure – Green
By Defendant
A defendant exposed to similar liability may seek
interpleader through a crossclaim or counterclaim
28 USC 1335
28 USC 1397
28 USC 2361
District Courts shall have original jurisdiction of any civil
action of interpleader with a money value of $500 or more
if TWO OR MORE adverse claimants, of diverse
citizenship are claiming to be entitled to such money or
property
Any civil action of interpleader…may be brought in the
judicial district in which one or more claimants reside
A district court may issue its process for all claimants and
enter its order restraining them from instituting or
prosecuting any proceeding in state or US court affecting
the property, instrument or obligation involved in the
interpleader action until further order of the court
“On timely motion the court (must/may permit) ….”
24
Intervention
Intervention as a RIGHT (MUST)
3 requirements:
- Claims an interest relating to the
property/transaction that is the SM of the action
o “Interest” is interpreted BROADLY and will
usually say have an interest and look to other 2
factors for determinative resolution
o Look at the objectives of the parties, rather
than their motives
- Disposing of the action may as a practical matter
impair/impede movant’s ability to protect
interest
- No existing parties adequately represents interest
Permissive Intervention (MAY)
Plaintiff is typically an insurance company or bank – someone holding
money in trust (interested or disinterested) – files interpleader action to
protect self from multiple suits/obligations
Danger of multiple suits does not need to be immediate – any
possibility of having to pay more than is justly due, no matter how
improbable or remote, will suffice
Only need minimum diversity! And lowered the required AIC!!
Districts courts MAY issue process for all claimants where they may be
found (Can be served anywhere basically)
No PJ restriction for where property is located.
All clamiants must come into 1 lawsuit.
Pending state litigation – make sure don’t interfere with state’s substantive
rights (ERIE)
2 potentially conflicting goals: judicial economy by resolving all related
issues in single lawsuit, and prevent the single lawsuit from becoming
fruitlessly complex or unending
Cannot break diversity!
If have ability to intervene but don’t – not barred from bringing a
separate action
Intervention as a Right  made a party for all purposes of litigation
Permissive Intervention  court has the right to dictate what role the
party has in the litigation – can be as narrow as the court decides
Much of the analysis and arguments will be the same as with Rule 19 –
but the difference is here NOT required to be part of the litigation, but
want to be!
Civil Procedure – Green
-
1 Requirement:
Asserts a claim or defense that shares w the main
action a common question of law or fact
* DISCOVERY *
Discovery rules are applied LIBERALLY!  Discovery is broader than what is included in the pleadings
Objectives of
Discovery
26(f)
Conference of
the Parties;
Planning for
Discovery
26(b)(1):
Scope of
Discovery in
General
Still cannot seek privileged information (more on this below):
- Confidential information
- Spousal communication
- Attorney/client privilege
- Trade Secrets
- Doctor/patient privilege
- Work Product
- Religious conversations
Parties are anticipating summary judgment and want to get sufficient information to survive or prevail on SJ
Twombly suggests that the cost of discovery is a factor to consider in deciding a 12(b)(6)
The parties MUST confer as soon as practicable – at least
- Attorneys from both sides develop a plan for discovery
21 days before a scheduling conference
- Policy – Courts want to stay out of the discovery process, and
The parties must: plan discovery, make arrangements for
expect attorneys to be professional and follow the rules
disclosures, discuss issues about preserving discoverable
o Purpose is to counter procrastination and delay
information, and develop a proposed discovery plan in GF,
- Consider the possibility of promptly settling and resolving the case
and submit written report to the court within 14 days after
The court plays a VERY limited role in discovery
the conference
Scope of Discovery
Parties may obtain discovery regarding any non-privileged * The scope of relevancy during discovery may be broader than the scope
matter that is relevant to another party’s claim or defense, of relevancy during trial *
 Broad and Liberal use of discovery
and proportional to the needs of the case, considering the:
Discovery proper if designed to seek information pertinent to the action
 importance of the issues at stake in the action
 the amount in controversy,
Reasonably calculated to lead to discovery of admissible evidence:
- Hearsay information is allowed during discovery
 the parties' relative access to relevant information,
- Discovery rules will be applied LIBERALLY
 the parties' resources,
- Courts want lawsuits to be resolved on the merits of the case!
 the importance of the discovery in resolving the
issues,
 and whether the burden or expense of the proposed Not obligated to do independent research – only have to respond as to
your personal knowledge – don’t have to hire an independent consultant,
discovery outweighs its likely benefit.
 Information within this scope of discovery need not etc. (even with interrogatories that are directed towards multiple people,
still only the information in personal knowledge/supporting documents)
be admissible in evidence to be discoverable.
Civil Procedure – Green
26(a)(1)
Required
Initial
Disclosures
26(d):
Timing and
Sequence of
Discovery
A corporate/government party has a DUTY to investigate or ascertain
Relevant information need not be admissible at trial if
and disclose information that is not within its personal knowledge, but
the discovery appears REASONABLY CALCULATED
that is reasonably within its power to obtain
to lead to the discovery of admissible evidence
Initial Disclosures
A party MUST, without awaiting a discovery request,
The parties must automatically disclose certain information at 3 points:
provide to the other parties:
1. Broad initial disclosures at the time of the 26(f) discovery meeting
- Contact information of individuals likely to have
2. Disclosures about expert testimony 90 days before trial
discoverable information and the subjects of that
3. Pretrial disclosures 30 days before trial
information that the disclosing party may use to
support its claims or defenses, unless opposing party
Disclosure of Documents:
wants the information solely for impeachment
- Use a description by category/location for documents that are
- A copy, or a description by category and location, of
particularly large or voluminous
all documents, electronically stored or tangible things
- MUST provide or describe all discoverable documents in possession,
that the disclosing party has in its possession, and may
control or custody
use to support its claims or defense unless the
- If ESI is very costly/burdensome to disclose  26(b)(2) below
opposing party wants it solely for impeachment
- Damages computation and all non-privileged
ONLY need to = initial disclosure of information that will support claims
documents that support the computations
and defenses  Do NOT need to = initial disclosure of information used
- Insurance policies that may provide coverage for any
solely for impeachment
judgment rendered
Time for Disclosures: At or within 14 days after 26(f)
MUST disclose information planning to use during trial
conference, unless different time set by consent/court
To avoid undue surprise and promote judicial economy
order or a party objects
If don’t plan to use at trial, still must turn over the information if
Parties served/joined after 26(f) conference must make
specifically asked for it!
initial disclosures within 30 days of being served/joined.
A party must make initial disclosures based on
information then reasonably available to it, and is NOT
excused from disclosing because not fully investigated or
challenges sufficiency of another party’s disclosures, or
because another party has not made disclosures
A party may not seek discovery before 26(f) meeting,
unless stipulation or court order
Methods of discovery can be used in any sequence
Discovery by one party does not require any other party to
delay its discovery
Civil Procedure – Green
A party who has made a disclosure MUST supplement or
correct its disclosure or response:
26(e):
- In a timely manner if the party learns that in some
Supplementing
material respect it is incomplete or incorrect, and if
Disclosures
the additional/corrective information has not
and Responses
otherwise been made known during discovery, or
- By order of the court
Also see 26(e)(2) below for Expert Witness , and below for 37 sanctions
Every disclosure and discovery request must be signed by
attorney of record or if unrepresented, by party personally.
By signing – certifies that to the best of the person’s
knowledge, information and belief formed after a
reasonable inquiry
Rule 37 – If fail to provide information or identify a witness as required
by 26(a) or 26(e) – party NOT allowed to use that information or witness
to supply evidence on a motion, at hearing, or at trial, unless the failure
was substantially justified or is harmless
In sanction for failing to supplement, the court should consider:
- The explanation for the failure
- Importance of the testimony of the witness
- Need for time to prepare to meet the newly disclosed evidence
- Possibility of a continuance
- Pattern of misconduct by attorney
26(g):
Sanctions
27:
Depositions to
Perpetuate
Testimony
Other parties have not duty to act on unsigned disclosure,
request, response or objection until it is signed
Have a continuing obligation to supplement and amend docs if a party
learns they should be changed AND if the updated information has not
otherwise been made known to the parties – failure to do so could lead to
not being able to use it at trial, or possibly sanctions
Court has wide discretion in determining sanctions
If a certification violates this rule without substantial
justification, the court on motion or sua sponte MUST
impose an appropriate sanction – may include an order to
pay the reasonable expenses (incl atty fees) caused by the
violation
- Tools for Discovery **Extraordinary request – NOT in the ordinary course!**
Asks the court for permission to take someone’s deposition Litigation process: BEFORE filing a complaint (file a petition)
BEFORE a complaint is even filed in court
Only when P is concerned that the evidence will not be available:
- Person will not be available at trial
File a petition
- Person is imminently dying/gravely ill
- Person is about to leave the country
Rule statement: A party may file a petition to perpetuate
testimony if the testifying party would be unable to provide Rule 27 is NOT used as a basis to comply with Rule 11 and determine
the sought information at trial because of anticipated death, who to sue – MUST establish that its crucial evidence at risk of being lost
flight, or other unavailability.
(Not for the purpose of uncovering evidence – must show that evidence is
at risk of being lost)
Civil Procedure – Green
Perpetuating testimony is a means for preserving the
testimony that might not be available at trial
that the petitioner expects to be a party to an action
cognizable in a United States court but cannot presently
bring it or cause it to be brought
Ex: young man with AIDS who is suicidal tells therapist that he is gay, and
therapist tells him that it is his fault that he has AIDS and he deserves to die.
Man is about to die – that is an appropriate time to get a Rule 27 Depo
Party: To compel party, file a NOTICE, can include RPD
Non-Party: In order to compel a non-party – must file a
subpoena, and can include RPD – don’t need a subpoena,
but they are not compelled to attend otherwise
Notice/Subpoena to an Organization: May depo a public/
private organization and MUST describe with reasonable
30:
particularity the matters for exam. Organization must then
Depositions by designate one or more officers to testify on its behalf
Oral
Objections: Objections can be made and must be noted on
Examination the record, but the exam proceeds. Preserve for trial
May instruct not to answer ONLY when necessary to
preserve a privilege, enforce a limitation ordered by
the court, or present a motion under 30(d)(3) to
terminate/limit oppressive or BF examination
Imposition of costs and atty’s fees to sanction anyone who
impedes/delays/frustrates fair examination of deponent
A subpoena may be served:
- within 100 miles of where the person resides, is
employed, or regularly transacts business in person
- within the state where the person resides, is
employed, or regularly transacts business in person,
45(b)(2):
if the person
Subpoena
 is a party or a party's officer; or
 is commanded to attend a trial and would
not incur substantial expense.
Quashing/Modifying Subpoena:
Can ONLY object if:
- Calls for privileged information, or
- Have the intention to seek a protective order – but must actually
seek the order or could = sanctions
If the organization deliberately sends someone without sufficient
knowledge to respond – will be treated as if failed to appear
If the subject of the depo is privileged information – that is NOT an
excuse to not appear – must appear at the depo and assert the privilege
NEED TO LOOK AT ACTUAL OUTLINE FOR THIS ONE!!!!!!!!!!
If the deponent is outside the 100 miles, go to that court and get a
subpoena from a court with general jurisdiction, and take the deposition
where that person lives
Allows attorneys to issue a subpoena commanding any person to give
testimony, produce/permit inspection, etc.
Requesting party usually has to pay
Courts will protect non-parties more than parties to an action – parties
expect to be burdened, but non-parties do not
Civil Procedure – Green
-
32:
Using
Depositions
in Court
Proceedings
Federal Rules
of Evidence
804(b)(1)
Cannot require a person who is not a party to travel
> 100 miles from where reside/work/regularly
transacts business in person
- Must allow reasonable time to comply with request
At hearing or trial – all or part of depo may be used if:
- Party present/represented at the depo or had notice
- Used to extent admissible under FRE
- Used to contradict/impeach testimony
 Any party may use a deposition to
contradict or impeach the testimony given
by the deponent as a witness
Unavailable Witness: A party may use for any purpose
the depo of a witness, a party or not, IF:
- Witness is dead
- Witness is more than 100 miles from the place of
hearing or trial or outside USA, unless absence was
procured by the party offering the depo
- The witness cannot attend and testify because of
age, illness, infirmity or imprisonment
- Could not procure by subpoena
- Exceptional circumstances – in the interest of
justice and with due regard to importance of live
testimony in open court
Limitations: A depo MUST NOT be used against a party
who, having received less than 14 days’ notice, promptly
moved for a protective order requesting it not be taken
Objections: An objection may be made at hearing/trial to
admission of any depo testimony that would be
inadmissible if the witness was present and testifying
NEED TO LOOK AT ACTUAL OULTINE FOR QUASHING
Hearsay Exceptions: Not excluded by the rule against
hearsay if the person is unavailable as a witness
- Former Testimony: Testimony that:
Did the attorney have an opportunity to cross-examine the witness, or
were they just trying to develop facts?
Use of Discovery During Trial:
- Impeach a witness (to discredit)
- Substantive evidence in lieu of testimony
- Refresh a witness’s recollection
- Can potentially be a party admission – an exception to hearsay rule
Discovery Depo v. Trial Depo
- In a trial depo, MUST raise any objections that would raise at trial
- Different kinds of questions asked
o Discovery depos = more open-ended questions
o Trial depos = ask as if in trial
- When typically see Trial Depos:
o Expert witness
o Testimony at risk of being lost
o Overseas witness
o Deponent is POTUS, etc
o High profile / high cost, inconvenient, etc.
Doesn’t have to be an identical motive – but has to be a similar motive
Civil Procedure – Green
o Was given as a witness at a trial, hearing or
- Did you have an adversarial motive, and know to ask certain
depo whether during the current proceeding
questions to protect the client’s interest
or a different one; and
o Always know that there is a possibility that a discovery
o Now being offered AGAINST a party who
depo will be used as a trial depo
had, or whose predecessor in interest had,
an opportunity and SIMILAR MOTIVE
to develop by direct/cross/redirect exam.
Numbers: a party may serve on any other party NO
Problems with Interrogatories:
MORE than 25 written interrogatories
- Most abused method of discovery
Scope: Any matter that may be inquired about under
o Can be vague and ambiguous with answers and fabricate issues
26(b). an Interrogatory is NOT objectionable because it
- Party MUST respond with information in own knowledge and
asks for an opinion or contention that relates to application
information within its control or otherwise obtainable!
of law to fact – court may order that need not be answered
Contention Interrogatory – Any question that asks another party to
until designated discovery is complete, or until pretrial
indicate what it contends
conference or some other time.
- In litigation process – we are after 26(f) meeting and before trial
- Parties thinking about burden of production and SJ
Time to Respond: within 30 days after being served with
o One reason for a contention interrogatory is to determine if
the interrogatories
there is a basis for summary judgment
- In deciding whether must respond, court will consider where are in
Interrogs MUST be answered – grounds for objection must
the discovery process
33:
be stated with specificity
o Concerned about quality of info available at this stage
Interrogatories
o Concerned about discovery abuse
to Parties
Produce Records: If answer may be determined by
o It makes sense to save contention Interrogs for the end
examining business records, and if the burden of analysis
o Answering too early will box party in and limit positions
will be substantially the same for either party, responding
party may answer by:
Interrogatories are inappropriate if they call for a legal conclusion or
- Specifying records that must be reviewed in
analysis – Discovery is only used to discover FACTS!
sufficient detail to enable requesting party to locate
- CAN’T ask, “Do you contend that…”
as easily as responding party could, and
- CAN ask, “What facts support the contention that…”
- Give requesting party reasonable opportunity to
Interrogatories v. Depositions
examine, make copies, etc
Interrogs require multiple people to assist with answering questions, and
required to use all resources in your control
Depositions are just based on personal knowledge
Often use depos to determine the relevant documents, then follow up
with Interrogs and RPD
Civil Procedure – Green
Party: May serve request and must comply
Non-Party: Must serve a SUBPOENA to compel
compliance
Usually an RPD will be served along with Interrogatories – documents in
support of all responses to Interrogs
Challenges with RPD
- Don’t always know exactly what you need, and need to request with
reasonable particularity
- Limited to the parties
- Civil Rights – Title 7 Lawsuits
o Can be drowned in documents
Electronic Data
o Employment Discrimination at a big company – don’t know
- Must produce documents as kept in the usual
what to ask for – need an insider
course of business or must organize to correspond
o Producing party may request on basis that:
to request
 Don’t have the document in possession/control
- If form not specified, may produce in usual form
 Information is confidential/privileged
or in a reasonably usable form
Challenges with ESI
- Need not produce same ESI in more than 1 form
- Volume of information
- Format stored – can be difficult to find and expensive to access
- Lengthy conversations over email (discoverable)
- Likely benefit of the information can be unknown
Rule 37 (re: ESI) – absent exceptional circumstances,
- Resources of the parties
court may NOT impose sanctions on party for failing to Court’s Considerations re: ESI (see more below)
provide ESI lost as a result of routine, GF operation of
- Documents must be in a useable form so that accessible to parties
an electronic information system
- Is production unduly burdensome or expensive
o Based primarily on whether in an accessible format
- Active online information – easier to access
o Producing party is REQUIRED to disclose at own expense
- Will consider Cost-shifting (see ESI below)
o If the information is extremely burdensome/expensive
- Spoliation (see below)
Rule statement: Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as
evidence in pending or reasonably foreseeable litigation
The request MUST describe with reasonable
particularity each item or category of item to be
inspected, and may specific the form in which ESI is to
be produced
34:
Producing
Documents,
ESI, etc.
Spoliation
o The destruction or significant alteration of evidence relevant can support an inference that the evidence would have been
unfavorable to the party responsible for its destruction “called an adverse inference instruction”
Civil Procedure – Green

This instruction is given to the jury saying that they can infer that the party who destroyed potentially
relevant evidence did so out of a realization that the evidence was unfavorable is an extreme sanction and
should not be given lightly
o In order to get a judge to instruct an adverse inference instruction, 3 elements must be met:
 That the party having control over the evidence had an obligation to preserve it at the time
it was destroyed
 That the records were destroyed with a “culpable state of mind”
 When evidence is destroyed in bad faith (i.e. intentionally or willfully), that fact
alone is sufficient to demonstrate relevance to support sanctions for spoliation of
evidence; by contrast, when the destruction is negligent, relevance must be proven
by the party seeking the sanctions
 That the destroyed evidence was “relevant” to the parties claim or defense such that a
reasonable trier of fact could find that it would support that claim or defense
o Only be sanctioned if had a duty to preserve the evidence accused of destroying
 “Duty to preserve”
 The obligation to preserve evidence arises when the party has notice that the evidence is relevant to
litigation or when a party should have known that the evidence may be relevant to future litigation
 “merely because one or two employees contemplate the possibility that a fellow
employee might sue does not generally impose a firm-wide duty to preserve”
 “While a litigant is under no duty to keep, or retain every document in its
possession … it is under a duty to preserve what it knows, or reasonably should
know, is relevant in the action, is reasonably calculated to lead to the discovery of
admissible evidence, is reasonably likely to be requested during discovery and/or is
the subject of a pending discovery request”
o Identifying the boundaries of the duty to preserve involves two related inquiries
 When does the duty to preserve attach?
 What evidence must be preserved
 What must be retained??
o A party or anticipated party must retain all relevant documents (but not multiple copies) in
existence at the time the duty to preserve attaches, and any relevant documents created thereafter
 Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction
policy and put in place a “litigation hold” to ensure the preservation of relevant documents
Civil Procedure – Green
This is different from other means of discovery – MUST file a motion and get
a court order!!
 protection of PRIVACY
Good Cause
- Involves weighing the pain, danger, and intrusiveness of the exam
Requesting party must file a motion for GOOD
against the need for and usefulness of info to be gained
CAUSE
- Requires an AFFIRMATIVE showing that each condition as to which
Examiner’s Report
examination is sought is really and genuinely in controversy and that
- The moving party MUST on request deliver a copy
good cause exists for each exam
of the examiner’s report
o Not met by mere conclusory allegations or mere relevance to
- The request may be made by the party against whom
the case
the examination order was issued or by the person
Applies to the action – not just the original claim – can be a co-P or co-D
examined
A P who seeks redress for injuries waives his right to claim the inviolability of
- Report MUST be in writing and set out findings in
his person
detail, incl diagnoses, conclusions and test results
- A party can REFUSE to comply with order if they withdraw their
claim that relates to the medical treatment issue
(see below for Examiner v. Expert Report)
Usually directed to a P – but if D’s condition is in controversy the court can
allow, but will look more closely at the request
Waiving Privilege
- By requesting and obtaining the examiner's
report, or by deposing the examiner, the party
examined waives any privilege it may have--in
that action or any other action involving the
same controversy--concerning testimony about
all examinations of the same condition.
The court MAY order a party whose mental or
physical condition is IN CONTROVERSY to submit
to a physical or mental exam.
35:
Physical and
Mental
Examination
36:
Request for
Admissions
Rule 37 – if fail to comply with 35(a) order, court may
issue any orders below, unless party shows cannot
produce the other person
Scope: A party may serve on any other party a
written request to admit the truth of any matters
within scope of 26(b)(1) relating to:
- Facts, the application of law to fact, or opinions
- Genuineness of any described documents
Time to Respond; Effect of Not Responding
Used to narrow the issues – take information already known and form
statements that will help expedite the trial
Considered less effective and rarely used because have to know what to ask,
and it looks similar to an Answer – responding to allegations – parties are not
usually very precise in responding, need to know what to ask for
Will use either at very beginning or very end of discovery
Responses are considered conclusive evidence and unless withdrawn, cannot
be contradicted at trial
Civil Procedure – Green
-
A matter is admitted unless, within 30 days
after being served, the party to whom the
request is directed serves on the requesting
party a written answer or objection addressed to
the matter and signed by the party or its
attorney.
o Summed up, NOT ANSWERING =
DEEMED ADMITTED
Answer
If the matter is not admitted, must specifically deny or
state in detail why the answering party cannot
truthfully admit or deny it. Denial must fairly respond
to substance of the matter. When GF requires, specify
the part admitted and qualify/deny the rest.
37:
Failure to
Make
Disclosures or
to Cooperate
in Discovery;
Sanctions
May assert lack of knowledge/info as a reason for
failing to admit/deny only if the party states it has made
reasonable inquiry and the information it knows or can
readily obtain is insufficient to enable it to admit/deny
Objection:
- Party may not object solely on the grounds that
the request presents a genuine issue for trial
On NOTICE, a party may move for an order
compelling disclosure or discover. Must certify that in
GF tried to confer with party failing to make disclosure
Motion to Compel Disclosure – if party fails to make
disclosure required by 26(a)
Motion to Compel a Discovery Response – if:
- Fails to answer a Q under 30 or 31
- Corporation/other entity fails to make designation
- Party fails to answer an interrogatory
- Fails to respond that inspection permitted
Evasive/incomplete disclosure treated as failure to
respond
If do not respond – deemed to be admitted
In determining withdrawal/modification – court will look at the degree of
prejudice the requesting party will suffer because of reliance on admission
Rule 37 – If fail to admit and requesting party later proves the matter to be
true, requesting party may move that pay reasonable expenses incl. attys fees,
and the court MUST order, unless:
- Request was objectionable under 36(a)
- Admission was of no substantial importance
- Failing party had reasonable ground to believe might prevail on matter
- Other good reason for failure to admit
This rule governs discovery sanctions – NOT Rule 11
Court has Broad Discretion to = appropriate sanctions for discovery abuse!
Dismissal can be an appropriate sanction – TC has wide discretion to dismiss
(or default judgment) when there has been gross negligence in discovery
Preference is to resolve on the MERITS! – will rarely dismiss! – this is
the most severe sanction!
Civil Procedure – Green
If motion granted, the court must order the noncomplying party to pay attys’ fees, unless:
- Movant filed before trying in GF to get info
- Reason for nondisclosure substantially justified
- Other circumstances make it unjust
Failure to disclose or supplement
- If a party fails to provide information or
identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that
information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.
A motion for sanctions for failing to answer or respond
must include a certification that the movant has in
good faith conferred or attempted to confer with the
party failing to act in an effort to obtain the answer or
response without court action!!!!!!!!!
If court orders discovery and fail to comply, court can:
- The matters in the order be taken as established
- Prohibit from supporting/opposing claims/defenses
- Strike pleadings in whole or in part
- Stay further proceedings until order obeyed
- Dismiss the action in whole or in part
- Render a default judgment against disobedient
- Treat as contempt of court
26(a)(2)
Expert
Testimony
Expert Testimony
Written Report: MUST provide report signed and
If expert is to testify solely on facts – NO report needed
prepared by the witness if witness is specifically
If expert is going to give opinion testimony – Report required
retained to provide expert testimony. The report must
Ex: If the expert has never met the plaintiff – purely giving opinion
contain:
testimony and need a report
- All opinions and basis/reasons for them
Civil Procedure – Green
-
Facts or data considered
Exhibits
Witness’s qualifications
List of other cases testified as expert in last 4
years
- Statement of the compensation to be paid for
testimony in this case
No Written Report: If no report is required, the
disclosure must state:
- Subject matter that witness will present
evidence under FRE 702, 703 or 205, and
- Summary of the facts and opinions on which
expected to testify
Ex: If the expert is the treating physician and is testifying about facts
re: treatment and not opinions, no report needed – but if testifying
beyond the scope of treatment, may need a report
If the attorney referred the client to the physician, the
physician will most likely be treated as a specially retained
expert and a report will be required
Examiner v. Expert Report
- Exam Report – the party must immediately turn it over
- Expert Report – only need to turn over the part that will use
Timing: at least 90 days before trial, or if evidence is
solely to contradict/rebut evidence identified by
another party, within 30 days after other party’s
disclosure
For an expert whose report MUST be disclosed, the
26(e)(2):
party’s duty to supplement extends BOTH to
See initial disclosures above for supplementing in general
Supplementing information included in the report and to information
Expert
given during the depo.
Witness
Any additions or changes must be disclosed by the time
of pretrial disclosures under 26(a)(3) are due
26(b)(4)
Trial
Preparation:
Experts
Depositions of an Expert who May Testify: A party
may depose any person who has been identified as an
expert whose opinions may be presented at trial. If a
report is required, the deposition may be conducted
only after the report is provided
Protected Information (also see 26(b)(3) below):
- Drafts of any report or disclosure, regardless of the Expert’s DRAFTS are deemed to be work product (see below) and do not
form of the draft
need to be turned over!!
- Communications between party’s attorney and any
witness required to provide a report, regardless of
Civil Procedure – Green
26(b)(2):
Required
Limitations
on Discovery
the form of the communication, EXCEPT to the
extent the communications:
o Relate to compensation for expert
o Identify facts or data that attorney
provided that the expert considered in
These 3 things to the left are not protected by Work Product!!!!!
forming opinions
o Identify assumptions that the attorney
provided and that the expert relied on in
forming opinions
Expert Employed only for Trial Preparation: GR – A
party may NOT, by interrogs or depo, discover facts or
opinions of an expert who has been retained or
Distinction when do NOT plan to use them as a witness!
specially employed by another party in anticipation of
litigation or to prepare for trial and who is NOT
expected to be called as a witness at trial, unless
- Provided by Rule 35(b) below, or
- On showing of exceptional circumstances
under which it is impractical for the party to
obtain facts or opinions on the same subject by
other means
Payment: Unless manifest injustice would result, the
court MUST require that the party SEEKING
discovery:
- Pay the expert a reasonable fee for time spent
responding to discovery, and
- Also pay the party a fair portion of the fees and
expenses it reasonably incurred in obtaining the
expert’s facts and opinions
Limitations on Discovery & Protective Orders
On motion or on its own, the court MUST limit the
frequency or extent of discovery if:
The courts concerns during discovery:
- Unreasonably cumulative or duplicative, or can
- ABUSE of discovery
be obtained from some other source that is more
- Expenses to the parties
convenient, less burdensome or less expensive
- Overuse of discovery
- Party seeking discovery had ample opportunity
to obtain info by discovery in the action, or
Civil Procedure – Green
-
The burden or expense outweighs the likely
benefit (balancing test) – court will consider:
o The needs of the case
o The amount in controversy
o The parties’ resources
o Importance of issues at stake in the action
o Import. of discovery in resolving issues
A party need not provide discovery of ESI from
sources that he identifies as not reasonably accessible
because of undue burden or cost.
26(b)(2)(B): On motion to compel or for a protective order, the nonLimitations on requesting party MUST show that the information is
not reasonably accessible because of undue burden
ESI
or cost. If that showing is made, the court may still
order the discovery if requesting party can show good
cause, or may specify conditions for the discovery
26(c):
Protective
Orders
The court can:
- Limit the time period of discovery
- Limit the information obtained
- Make sure not asking unnecessary questions or forcing unnecessary
expenses
In making a determination on a motion to compel/protective order re:
information not reasonably accessible, the court will consider:
- The accessibility of the information
- Importance/usefulness of the requested information
- If there is another less costly means of getting the information
- Might SHIFT the cost to the requesting party! – 7 factors:
o Extent specifically tailored to discover relevant information
o Availability from other sources
o Total cost of production v. AIC
o Total cost of production v. resources of the parties
o Relative ability and incentive of each party to control costs
o Importance of issues at stake in litigation
o Relative benefits to parties of obtaining information
A party, or any person, may move for a protective order This issue comes before the court in 2 ways:
in the court where the action is pending
1. Motion to Compel (by requesting party)
The motion MUST incl. certification that movant has,
2. Motion for a Protective Order (by non-requesting party)
in good faith, tried to resolve the dispute w/o the court In determining, the court must BALANCE the harm v. need/burden
The court MAY, for GOOD CAUSE, issue an order to
TC has complete discretion in determining
protect a party or person from:
The preference is to allow a free exchange of information in discovery,
- Annoyance
but will consider nature of the hardship and its magnitude
- Embarrassment
- Give > weight to interests w/ social value than purely private interests
- Oppression
- Will look at whether information can be obtained from somewhere
- Undue burden
else, and its value to the case (is it needed to est. a PF element, or just
- Expense
to impeach testimony?)
The court can issue an order including one or more (8):
- Are there other options of where to get the information? (see below)
- Forbid the disclosure/discovery
Effect of having the Burden of Production
Ex: If D has not filed affirmative defense and doesn’t have the burden, need will
- Specific terms (time/place) for disclosure/discovery
most likely be less than if was required to establish a PF element of the case 
Civil Procedure – Green
Possible
Solutions for
Discovery
Problems
- Prescribe a different discovery method
- Forbid inquiry into certain matters or limit scope of
disclosure/discovery to certain matters
- Designate persons who may be present while
discovery conducted
- Require depo be sealed and opened only by ct order
- Require a trade secret or other confidential info not
be revealed or only be revealed in a certain way
- Require parties simultaneously file specified docs/
info in sealed envelopes opened as court directs
- In camera review –judge will look over docs in
chambers and decide if it should be turned over
- Redact names – leave in the comments but take
out the names (if concern is to protect identity)
- Require parties to only use for litigation – if
atts violate such an order, could be disbarred
o
Examples of
When to
Grant
Protective
Orders:
o
o
o
Work Product
v.
AttorneyClient
Privilege
-
does NOT mean that it will be automatically denied, but is a factor for the court to
consider if the harm is great
Good Cause
- Generally require the moving party to demonstrate that the disclosure will
have a clearly defined and very serious injury
o Must make showing by specific examples or articulated reasoning,
and cannot simply rely on stereotyped and conclusory statements
Reasons for Protective Orders: To protect confidential information
Ex: parties may have concerns that members will not be candid in the future if they know their
deliberations will be discoverable
These can be options to protect both interests (also see list of 8 above)
The potential problem with a modified protective order is that it can be
particularly harmful if the purpose of the litigation is to expose corruption or
fraud, or if someone wants to write a “tell-all” book
TC has full discretion – NOT subject to an interlocutory appeal!
P insurance company v. widow of insured – asked for declaration that insured’s death by carbon monoxide had not been accidental and not
covered by policy – sought to discover corpse which would require disinterment  Court denied
Med.mal. re: abortion, P sought to discover names of women who previously had abortions to gather evidence to impeach testimony
expected to be given by Dr  Court Denied
People who claimed to have received HIV-positive blood transfusions sought from blood bank identity of blood donor
o Harm is great and need is great – will look to see if the information can come from somewhere else
Parents sued hospital re: daughter sexually abused while pt. D sought to depose minor  Ct Granted Motion – P brought the suit, can’t deny
D access to necessary info
Work Product & Attorney-Client Privilege
Work Product
Attorney-Client Privilege
Attorney is interacting with a NON-CLIENT
- Attorney is interacting with a CLIENT
A QUALIFIED privilege
- An ABSOLUTE privilege
o Privilege can be overcome by a showing
o Can almost never be broken!!
of substantial need & undue hardship
 Exceptions – when it can be broken:
 Showing that inconvenient,
 Future crime (going to kill someone)
travel far, expensive is NOT
 If the attorney-client relationship is at issue (if
enough to = undue hardship!
put the communication at issue lose privilege)
Notes taken by an attorney about the facts a
o Advice of counsel defense
witness (etc) said are protected by qualified
o Suit between attorney and client
privilege that can be overcome
 Client tells attorney will commit perjury
 When client speaks to someone else about it
Civil Procedure – Green

o Ex: if a crucial witness died, could maybe
show substantial need for attorney’s notes
on the facts relayed from the witness – also
have to show undue hardship
 Dangers of inaccuracy and
untrustworthiness of information
Work Product from a Previous Suit – still protected?
- Once use the information, no longer privileged
- If don’t use the info – STILL PROTECTED
-
-
not intended to be private
o Does NOT apply to strangers!
A privilege gives a person the right to refuse to disclose information
that they would otherwise be required to provide
o A counter-weight to the general power of courts to compel
Attorney’s Mental Impressions are protected by absolute privilege!
o The privilege only protects disclosure of communications –
it does NOT protect disclosure of underlying facts by those
who communicated with the attorney!
Elements of Attorney-Client Privilege
Identify Work Product
- The asserted holder of the privilege is or sought to be a client
- More specific than general advice to a client
- The person to whom the communication was made is:
- Prepared in anticipation of litigation (see below)
o A member of the bar of the court, or his subordinate, AND
o In connection with the communication is acting as a lawyer
- The communication relates to a fact of which attorney was informed
o By his client
o Without the presence of strangers
o For the purpose of securing primarily either:
 An opinion on law or
 Legal services or
 Assistance in some legal proceeding
- And NOT for purpose of committing some crime/tort
- The privilege has been Claimed and Not waived
AttorneyClient
Privilege:
Corporate v.
Individual
Client
START analysis with looking at the purpose and scope of the privilege:
1. For the purpose of seeking legal advice
2. For frank and candid communication
3. Communication designed to be made in confidence – must be able to predict whether discussion will be protected
The attorney for a corporation does not represent and individual – represents the corporation – does it protect communication made to
lower-level employees?
Concerns with limiting the privilege to agents and officers:
- Low-level employees will not be as frank and candid
- Low-level employees often have most of the important/damaging information – could leave co. in a dangerous situation
Civil Procedure – Green
-
The interests of low-level employees may be adverse to those of the company, and attorney will have certain obligations
o Always go back to the purpose of the privilege – is that purpose being protected?
Attorney Client Privilege and Corporations
 can ask about underlying facts
 cannot say what did you tell your attorney
 in determining whether employee’s communications are privileged in a corporation factors to look for
 the communications concerned matters within the scope of the employee’s corporate duties, and
 the employees themselves were sufficiently aware that they were being questioned in order that the corporation could
obtain legal advice
The communication is PROTECTED if (Upjohn case):
1. Communication would not have been made but for contemplation of legal services
2. Content of communication must relate to the legal services being rendered
3. Information-giver must be an employee, agent or independent contractor with a significant relationship to the corporation and the
corporation’s involvement in the transaction that is the subject of the legal services
4. Communication must be made in confidence
5. The privilege may be asserted either by the corporation or by the information-giver
 No Bright Line Test!! - Evaluate on case-by-case basis!!
26(b)(3):
Trial
Preparation
Materials
Former Employees – if can overcome the work-product privilege (substantial need + undue hardship)
Documents and Tangible Things: A party may NOT
See Expert Witness – 26(b)(4) above
discover documents and tangible things that are
- Protects drafts of any expert witness report or disclosure
- Protects communications between attorney and expert witness…
prepared in ANTICIPATION OF LITIGATION or
for trial by or for another party or its representative.
But, MAY be discovered if:
GR: Work product / Material prepared in anticipation of litigation are NOT
discoverable
 Otherwise discoverable under 26(b)(1) above,
Exceptions:
and
- Information is otherwise discoverable, AND
 Party knows it has substantial need for the
- Party shows substantial need for materials to prepare case, AND
materials to prepare its case and cannot, without
- Party cannot obtain a substantial equivalent w/o undue hardship
undue hardship, obtain their substantial
equivalent by other means
Anticipation of Litigation
Protection Against Disclosure: If the court orders
Ask – Was the hiring of the attorney done because of the possibility of
discovery of those materials, it MUST protect against
litigation, or in anticipation of litigation?
disclosure of the mental impressions, conclusions,
Was it something they would have done anyway? Done in the ordinary
opinions or legal theories of the party’s attorney
course of business on a routine basis? – if so, NOT in AoL!
concerning the litigation
Civil Procedure – Green

26(b)(5):
Claiming
Privilege or
Protecting
Trial-Prep.
Materials
NEVER DISCOVERABLE BECAUSE
THEY ARE ABSOLUTELY PRIVILEGED
Previous Statement: Any person may, on request and
without the required showing, obtain the person’s
OWN previous statement about the action or its
subject matter. If request refused, may move for a
court order, and 37(a)(5) applies to award of expenses.
A previous statement is either:
 A written statement the person has signed, etc
 A contemporaneous recording/transcription that
recites substantially verbatim the oral statement
When a party withholds otherwise discoverable info
by claiming that information is privileged or subject to
protection as trial-preparation material, party MUST:
- Expressly make the claim, and
- Describe nature of info not produced in
manner that, without revealing the info itself,
will enable other parties to assess the claim
Information Produced: If information produced is
subject to a claim of privilege, etc – the party making
the claim may notify the receiving party and basis of
claim. After being notified, a party MUST promptly
return, sequester, or destroy the information and any
copies, MUST NOT use or disclose until claim
resolved, MUST take reasonable steps to retrieve if
already disclosed, and MAY promptly present to the
court for a determination of the claim.
Drafts are deemed to be work product, and do not need to be disclosed (Rule
26b4 above)
Court’s Treatment of Attorney-Client Privilege
Tend to construe narrowly and to resolve doubtful cases against a finding of
privilege – because privilege results in the suppression of relevant facts!!
(AKA “the claw-back principle”)
Possible Discovery Issues
How can attorneys use the discovery devices at trial?
If a witness is not available at trial – what can a party do?
- As admissions of an adversary or witness  can use a response to an
- If witness / expert witness not available at trial  can use depositions BEFORE
admission AND
using testimony:
- To refresh a witness’ recollection
- Opposing party MUST have had the chance to cross-examine that same witness on
- For cross-examination or impeachment
issues that will be raised at trial
o Can use depositions (NOT interrogatories) to impeach
Policy  courts want to make sure that both parties had the opportunity to fully litigate,
 Depositions – information from one person
cross-examine and investigate
 Interrogatories – information made by multiple people
Civil Procedure – Green
Use of depositions at trial (see above as well)
- Know there is ALWAYS possibility that depos will be used at trial
- Courts will only allow parties to use depositions at trial if both parties had a fair opportunity to cross-examine the SAME ISSUES that will come up at trial
o The party using the deposition must have had the opportunity to cross-examine on issues coming up at trial
o If hearsay is part of deposition, will NOT be allowed at trial
 Hearsay is allowed during discovery, but not at trial
o Lawyers must raise objections early in the process
Summary
Judgment
Rule 56:
Summary
Judgment
ADJUDICATION WITHOUT TRIAL
Rationale: Reduce cost and avoid delay
The court CANNOT interfere with the role of the jury! - The judge cannot resolve factual disputes!
**The court will view the facts in the light most favorable to the NON-MOVING party!! **
NB: If the information presented entitles one to a DIRECTED VERDICT, than summary judgment is appropriate!
The court will take the STANDARD OF PROOF into consideration in deciding a SJ Motion (clear and convincing, preponderance, etc)
A party may move for SJ, identifying each claim/
Initial Burden for Moving Party – show no genuine issue of material fact
defense on which SJ sought. The court SHALL grant
SJ if the movant shows that there is no genuine
Material Fact – One which would affect the outcome of the case! It raises a
dispute as to any material fact and movant entitled as genuine issue if reasonable jury could reach different conclusions re: that fact
a matter of law.
May file any time (even as responsive pleading) until
The evidence considered by the court MUST be ADMISSIBLE!! – has to be
30 days after discovery completed
able to affect the jury’s determination, and jury only sees admissible evidence
Supporting Factual Positions – A party asserting fact
not in genuine dispute MUST support by:
Interested v. Disinterested Party
- Citing particular parts of materials in the record
Interested  court is more likely to deny SJ and allow a jury to decide
(incl. depos, affidavits, Interrogs, etc); or
whether or not to believe testimony
- Show materials cited don’t est. absence or presence
Biased parties have an incentive to give certain testimony – should be
of genuine dispute, or that adverse party cannot
heard and evaluated by a jury
Ex: attach affidavit of a party to the action, one who has a stake in the
produce admissible evidence to support that fact
action. Can be impeached at trial, and is a basis for jury decision! Not
Failure to Support – if party fails to properly support an
determinative that opposing party did not cross-examine during depo!
assertion of fact, or fails to properly address another’s
Dos not preclude from doing so during trial
assertion, the court may:
Disinterested
 Court is more likely to grant SJ because has NOT incentive
- Give opportunity to properly support/address fact
to lie in court, evidence is more reliable and trustworthy
- Consider fact undisputed for purposes of motion
No motive one way or the other, and therefore difficult to impeach, and
- Grant SJ if motion and supporting materials show
little value to cross-examine
that movant entitled; or
- Any other appropriate order
Always pay attention to what is the BASIS OF THE MOTION and who has
Judgment Independent of Motion – after giving notice
the BURDEN AT TRIAL!!
and reasonable time to respond, the court may:
Civil Procedure – Green
- Grant summary judgment for non-movant
- Grant motion on grounds not raised by party, or
- Consider SJ on its own after identifying material
facts that may not be genuinely in dispute
Partial Summary Judgment: If the court does not grant
all relief requested by the motion – may enter an order
stating any material fact that is not genuinely in
dispute, and treat the fact as established in the case
12(b)(6)
v.
Summary
Judgment
-
12(b)(6)
Court will ONLY consider matters in complaint
Court will treat all facts in complaint as TRUE
Case can be dismissed with or without prejudice
Consider the standard of proof in making a determination
-
Moving Party has Burden of Persuasion at Trial
BURDENS
with
Summary
Judgment
Process for
Deciding a
Motion for
Summary
Judgment
Examples:
- Negligence case against government, defendant is
the moving party and the basis of D’s SJ motion is
an affirmative defense of governmental immunity
- Breach of K case – P is moving party and basis of
SJ motion is D failed to comply with terms of the K
Summary Judgment
The court will consider ALL the relevant evidence (including pleadings
and discovery materials)
o Look to information outside the pleadings (depositions, etc) to
determine if there are material facts in dispute
Always dismissed WITH prejudice – final adjudication on the merits!!
Non-Moving Party has Burden of Persuasion at Trial
Examples:
- Breach of K case – D is moving party and basis of motion is D complied w/
K. D may submit affirmative evidence that demonstrates K terms satisfied
- Employment Discrimination case – D is moving party, basis of motion is P
failed to submit evidence that P was victim of discrimination in violation of
Title VII. D may demonstrate by reviewing the court record to establish
that no evidence in record to support a judgment for the nonmoving party
Look at the BASIS of the motion and determine who will have the Burden of Persuasion on THAT ISSUE
 Burden of establishing nonexistence of a genuine material fact is on the MOVING party – burden has 2 components:
o Initial burden of production (shifts to non-moving party if satisfied); and
o Ultimate burden of persuasion (always remains on moving party)
 Court doesn’t determine whether moving party has met ultimate burden unless/until discharged initial burden
The way to discharge burden depends on which party has burden of persuasion on challenged claim at trial
 If MOVING party has the Burden of Persuasion:
o Support motion with affirmative and credible evidence
 Such an affirmative showing shifts the burden of production to the opposing party, and requires that party to either
produce evidentiary materials that demonstrate existence of genuine issue of material fact (or request more time)
 If NON-MOVING party has the Burden of Persuasion:
o The MOVING party can satisfy in 2 ways (see above)
 Submit affirmative evidence that negates an essential element of nonmoving party’s claim, or
Civil Procedure – Green
 Point to the record and demonstrate that evidence is insufficient to establish essential element of claim
 If the moving party does NOT meet initial burden – the motion will be DENIED, and the litigation will move forward – no need
for the court to determine whether met ultimate burden of persuasion
o If the moving party meets initial burden, the burden of production shifts to the non-moving party to demonstrate that there
still exists a genuine issue for trial
If the court determines that there are NO material facts in dispute – the court will rule on the motion and determine if the party with the
ultimate burden at persuasion at trial has met that burden
 Just because a court grants a motion for summary judgment does NOT mean that the moving party wins!
o The court can rule for either the moving or non-moving party!
Rule 41(a):
Voluntary
Dismissal
of Actions
Without Court Order – The P may dismiss an action
without a court order by filing:
- Notice of dismissal before the opposing party
serves either an answer or motion for SJ; OR
- Stipulation of dismissal signed by all parties
who have appeared
Unless notice/stipulation states otherwise, will be
dismissed without prejudice.
BUT if P previously dismissed any federal or state
court action based on or including the same claim, a
notice of dismissal = adjudication on the MERITS!!
With Court Order – Except above, an action may be
dismissed at P’s request only by court order. If D =
counterclaim before dismissal, action may be dismissed
over D’s objection only if cc can remain pending for
independent adjudication.
Rule 41(b):
Involuntary
Dismissal
of Actions
If the P fails to prosecute or to comply with rules or a
court order, a Defendant may move to dismiss the
action or any claims against it.
Unless order states otherwise, dismissal will be WITH
prejudice = adjudication on the merits
Where VD WITH Prejudice:
- If P has VD more than once, second
time is with prejudice (NC & Fed)
o The second time, court might
require P pay costs
NC v. Fed
Time in which to file VD
NC  without order, ANY TIME
before P rests his case
Fed  without order, P must file
before opposing = Answer or MSJ
(can still seek leave after this time)
In court’s discretion to determine whether Timing to Re-Filing Claim
to allow VD if D would = prejudice
NC  If P = VD, P can re-file
claim within 1 year after
dismissal, as long as the original
action was filed within the
relevant SOL/SOR
Fed  does NOT allow for this!
Must re-file w/in relevant SOL
See Rule 37 (failure to comply with Discovery)
Failure to Prosecute – Requirement that when file a complaint, have to
proceed with diligence. Includes:
- Failure to produce initial disclosures w/in 14 days
- Failure to serve
Civil Procedure – Green
Usually dismissed with prejudice – but doesn’t have to be!! Preference is
always to decide a case on the merits!
Rule 55:
Default
Judgments
Rule 60:
Grounds for
Relief from a
Final
Judgment or
Order
When a party against whom a judgment is sought fails
to plead or OTHERWISE DEFEND, the clerk
MUST enter the party’s default, then
Party must apply to court for a Default Judgment
Court can enter default against minor/incompetent
only if represented by guardian/fiduciary
Setting Aside a Default or Default Judgment – the court
MAY set aside an entry of default for good cause, and
it may set aside a default judgment under Rule 60(b)
On motion and just terms, court may relieve a party
from a final judgment for the following reasons:
1. Mistake, inadvertence, surprise, excusable neglect
2. Newly discovered evidence that, w/ reasonable
diligence, could not have been discovered in time
to move for a new trial within 28 days of final
judgment
3. Fraud, misrepresentation or misconduct by an
opposing party
4. The judgment is void
5. Judgment: satisfied, released or discharged; based
on earlier judgment that’s reversed/vacated;
applying prospectively no longer equitable; or
6. Any other reason that justifies relief
Timing
If for reasons #1-3, no more than 1 YEAR after entry
of judgment
If for reasons #4-6, Must be filed w/in a reasonable
time after the entry of the judgment or the date of the
proceeding
The motion does not affect the judgment’s finality or
suspend its operation
Once an answer on the merits is filed and the case is at issue, a default
judgment NOT proper – if D fails to appear at the trial, a judgment on the
merits may be entered against him upon proper proof!
Pro Se Litigant – court will be more lenient in deciding ‘otherwise defend’
(e.g. if they send a letter to judge but don’t file formal pleading, etc)
Courts disfavor, prefer to resolve on the merits
Applies to ALL final judgments!!
How to vacate a judgment
Due Process concerns – all parties must have a FULL and FAIR opportunity to
litigate the matter
Resolving on MERITS – is it a final judgment on the merits of the case?
When does this come up:
- Losing Party learns of new/different information after trial that would
have changed the way the party LITIGATED the trial
- Court may vacate judgment if #1 - #3
- Clerical errors
Civil Procedure – Green
Judgment as a Matter of Law – If a party has been
The first time this matter will come up is after the plaintiff rests his case, at
fully heard on an issue during a jury trial and the court that point D can move for a directed verdict
finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on
The judge CANNOT resolve material disputes
that issue, the court MAY:
Rule 50(a):
- Resolve the issue against the party; and
The court will use the SAME STANDARD as with Summary Judgment!! – in
Judgment as a
- Grant a motion for judgment as a matter of law
the light most favorable to the non-moving party, and if there is no
Matter of Law
against party on a claim or defense that can be
material fact in dispute will grant the motion!
maintained only w/ a favorable finding that issue
The court will review all the evidence in the record, and will draw all
Motion may be made at ANY TIME before the case is
reasonable inferences in favor of the nonmoving party, and it may NOT
submitted to the jury! Motion must specify the law
make credibility determinations or weigh the evidence!!
and facts that entitle movant to the judgment
If the court does NOT grant the motion for judgment
as matter of law, the court is considered to have
Motion for (RMJOL) – The question is: was there sufficient evidence to
submitted to the jury subject to the court’s later
support the PF elements of the claim? Did the facts support the jury’s
Rule 50(b):
deciding the legal questions raised by the motion.
verdict?
No later than 28 days after entry of judgment the
The judge is NOT the fact-finder – just determining, as a matter of law,
Renewing
movant may file a RENEWED motion for judgment as
whether the evidence supported the jury’s verdict
the Motion
a matter of law. In ruling on renewed motion, ct may: Judge will want to do this because if goes to appeal, appeals court can just
after Trial
- Allow judgment on verdict
change the verdict. But if goes to appeal without jury verdict, the whole trial
- Order a new trial
will have to be re-litigated.
- Direct entry of judgment as matter of law
Similarities
Differences
Directed
- Standard of Review is the SAME
Verdict
TIME in the litigation process!!
o Look at the evidence in the light most
v.
- SJ  AFTER discovery, BEFORE trial!
favorable to the non-moving party
Summary
- DV  DURING trial (can happen multiple times at trial)
o ONLY dismiss based on questions of law (not
Judgment
factual disputes)
****AT TRIAL/JURY ISSUES****
38; Right to a -A demand for a jury trial may be included in a pleading, and must be served and filed no later than 14 days after service of the last
jury trial
pleading on the issue.
39; Trial by
-Court may sua sponte on motion, order a jury trial on any issue for which a jury might have been demanded.
Jury or by the - This is extremely rare though!
Court
Civil Procedure – Green
47; Selecting
Jurors
48; Number of
jurors
-Jury selection is a two-stage process
-In civil cases, each party shall be entitled to 3 peremptory challenges
 This requires no reason or statement at all of why
 However, you must have a race and gender neutral reason for using a peremptory challenge only if sensing a pattern of using
strikes solely for race or gender
-During trial or deliberation, the court may excuse a juror for good cause.
 This may be done when partiality can be shown
 Allowed an unlimited amount of challenges for cause
- “In federal court, a verdict returned by a jury which included one juror who was not excused but who refused to participate in the
verdict will always be improper”
-A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused for
good cause
-Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.
-After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors
individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may
direct the jury to deliberate further or may order a new trial.
CLAIM PRECLUSION (Res Judicata) &
ISSUE PRECLUSION (Collateral Estoppel)
ALWAYS dealing with multiple litigations!!
1st – determine what happened in first suit to determine what is precluded in second suit!
Ask  Did each party have an opportunity to actually and fully litigate the merits?
Did each part have the opportunity to defend the issue?
The benefits of preclusion can be WAIVED if a party fails to raise it as an affirmative defense in the 2nd suit!!
Rationale &
Analysis
Rationale:
- Finality of litigation when a decision has been reached on the merits
- Relieve parties of multiple litigation
- Judicial economy: conserve resources and prevent inconsistent litigation
Principles
- Only get one chance to litigate a claim
- Only get one chance to litigate a factual or legal issue
- One full and fair chance to litigate
3 Questions to ask:
Civil Procedure – Green
1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2. Was there a final adjudication 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?
Claim
Preclusion
v.
Issue
Preclusion
Final
Adjudication
on the
MERITS
BOTH require a FINAL ADJUDICATION on the MERITS!
Claim Preclusion
Issue Preclusion
- Same PARTIES (or parties in privity)
- Issue decided before identical with the one presented now??
- Same CLAIMS that were already
 Issues that were ACTUALLY litigated
LITIGATED
 Issues that were NECESSARILY litigated
- Final, Valid, Adjudication on the Merits
 Was the issue necessary or crucially essential in
 Only need to discuss “valid” claim if
resolving the dispute?
dealing with a non-judicial tribunal such
 General or Special verdict?
as an administrative court
- Final, Valid, Adjudication on the Merits
 Only need to discuss “valid” claim if dealing with a nonEffect:
judicial tribunal such as an administrative court
- A final adjudication of a claim precludes a 2nd
- Party or party in privity involved?
action on that claim, or any part of it
Effect:
- Finality as to the claim or demand in
- Issues of fact or law actually litigated and resolved by a valid and final
controversy which concludes parties and those
judgment, binds the parties in a subsequent action, whether on the
in privity with them
same of different claim
o Issue is narrower than a claim – can have multiple issues within
1 claim
Applies ONLY to matters argued and decided in prior suit!  Did each party
have same opportunity to fully litigate and defend the issue?
Dismissals that ARE final judgments on the merits and are preclusive under issue and claim preclusion:
- 12(b)(6)
- Rule 50 – Judgments as a matter of Law (Directed Verdict)
- Rule 56 – Summary Judgment
- Rule 55 – Default Judgment
o Claim preclusion is for those matters that were litigated or should have been litigated
o Issue preclusion – determine if it was actually and necessarily litigated
- Rule 41 – Involuntary Dismissal
- Consent Judgments with Prejudice (unless a party reserves the right to raise the claim)
Dismissals that are NOT final judgments on the merits and are NOT preclusive under issue or claim preclusion:
- 12(b)(1) – Lack of SMJ
Civil Procedure – Green
-
12(b)(2) – Lack of PJ
12(b)(3) – Improper Venue
12(b)(4)&(5) – Improper Service of Process
12(b)(7) – Failure to join a necessary party
Rule 41 – Voluntary Dismissal (unless it is the 2nd VD)
Where prior judgments NOT given preclusive effect:
- Fraud – courts will usually not consider binding (see Rule 60 above)
o Fraud is a basis to VACATE the judgment – if vacated, as if it never happened, and no basis for preclusion
- Clear and fundamental jurisdictional defect that should have prevented 1st court from hearing the suit
GR: A party is not bound to a judgment who has not had a full and fair opportunity to litigate the claims and issues settled in the suit
Parties
Benefitted &
Bound by
Preclusion
Exceptions (when a nonparty is bound by a judgment):
1. By Contract – a nonparty can agree to be bound by a judgment
2. Certain substantive relationships (privity)
3. Nonparty’s interests are adequately represented by a party to the suit
o Class Actions (see CA for adequate representation requirements); trustees/guardians
4. A nonparty who has assumed control over a lawsuit
a. If the party financed and controlled the 1st suit – judgment binding on party and barred to re-litigate the issue
5. A nonparty who colluded to avoid the preclusive effect of a judgment by litigating through a proxy
6. Special statutory schemes
a. e.g.: Bankruptcy and Probate
b. other suits brought only on behalf of the public at large
A party is NOT obligated to intervene!! – He MUST be JOINED!!
(Rule 19!)
CLAIM PRECLUSION
How it Arises:
By Plaintiff (Claim Preclusion):
- P wins 1st action  P may not bring 2nd independent action for additional relief & D cannot avoid judgment by offering new defenses
- D wins 1st action  P’s claims barred by judgment re: evidence, theories, arguments and remedies not advanced in 1st litigation
By Defendant (Defense Preclusion):
- D brings claim against original P involving matters NOT advanced in 1st action
- D brings claim against original P involving matters what WERE advanced in 1st action but not foreclosed by issue preclusion
- P brings 2nd action where D seeks to raise defenses that were equally available in 1st action, but were NOT advanced there
Civil Procedure – Green
Courts will be cognizant of pro se
Elements (3):
litigants, but NOT dispositive – will
1. Same CLAIM
still require an end to the litigation!
2. Same PARTIES
3. FINAL and VALID JUDGMENT on the MERITS
“Claim” – A group of facts limited to a single occurrence or transaction, without particular reference to the resulting legal rights.
The FACTS surrounding the occurrence make up the claim, not the legal theory!
Look to all the FACTS that arise – not the CoAs that could have been brought!
To determine if same transaction – look to whether the facts are related in time, space, origin or motivation
All claims that WERE or SHOULD HAVE BEEN litigated!!
Same CLAIM
Contract Claims  Determine is it DIVISIBLE? Look to the language of the K to determine the INTENT of the parties!
- If it is indivisible – a breach is a single CoA that cannot be split into separate actions
o Identify the FACTS necessary to maintain the action – if the same evidence will support both actions, only 1 CoA
- If it is divisible – gives rise to more than one CoA that can be brought in separate suits
Installment Contracts
- Acceleration Clause in a K that makes installment due on a note at the time of breach, the party must collect on the full K
or risk preclusion to the rest of the K if only sue for some of the installments due! – waive all other claims!
o Can draft around this by including a provision that allows party to sue for installments without risking preclusion
for failure to sue on the whole K
- Rental Contract – does the language of the lease allow the LL to retain the right?
Nuisance Suits – is there an injunction? Temporary or Permanent?
- Permanent Injunction = full preclusive effect
- Temporary Injunction = possible 2nd CoA (each continuing act of nuisance is a separate action)
BOTH parties in the 2nd must be IDENTICAL to those in the 1st, or the parties must be in PRIVITY
Same PARTIES
Privity
- Do the parties play the same function and roles
- Do they have the same objectives?
- Examples:
o Respondeat Superior  if employee is not liable, employer is not liable!
o Vertical privity when dealing with real covenants
Civil Procedure – Green
Final Judgment on the merits of the claims that were or should have been litigated!
Judgments NOT preclusive to permissive claims and defenses
- Permissive Counterclaims – do NOT have to be brought in a 1st action –will NOT be precluded (including
FINAL and VALID
intervention)
Judgment on the
- Compulsory Counterclaims and Affirmative Defenses MUST be brought in 1st action or they will be precluded
MERITS
 If don’t raise, then WAIVED! Precluded from bringing in a second suit
 This will turn on how broadly or narrowly the court interprets “transaction”
o A counterclaim is BARRED if its prosecution would nullify the rights established by the prior action
- Tort Action – P won 1st suit for property damage and tried to bring 2nd suit for personal injury – court said the person
injuries were “merged” (i.e. extinguished) in the 1st suit
- P lost 1st suit and brought 2nd suit with same underlying facts – court said barred by earlier judgment
- 1st suit: Divorce judgment, 2nd suit: spousal abuse
o Same Parties. Same Claim? Ask – did the court have to decide the FACTS giving rise to the claim? Was it an
uncontested divorce judgment? Did they have to decide the issue of abuse?
Examples
- 7 Ps in 1st suit lost. 5 Ps appealed and 2 Ps re-filed in state court. Ps who appealed won, and decision reversed.
o Court will not give them benefit of that decision – should have fully exhausted claim in 1st suit!
 Public policy: there has to be an END to the litigation!
- Promissory Note – 1st suit: judgment on note as to validity and amount due
o Subsequent suit alleging forgery, no consideration and payment (defenses) barred!
 Should have raised in 1st action! Precluded!
ISSUE PRECLUSION
Did the party have a full and fair opportunity to litigate his claim in the 1st action?
Elements:
1. The Party suing was a party to the previous litigation or is in PRIVITY with a party of the previous litigation
2. Same ISSUE
a. Was the issue necessary or crucially essential in resolving the dispute
3. Adjudication on the MERITS:
a. Actually, Litigated and Decided
b. Necessarily Decided
- General or Special verdict? (general, we don’t particularly know what issues were fully litigated)
Offensive
Defensive
Civil Procedure – Green
OFFENSIVE v.
DEFENSIVE
Parties
Same ISSUE
ACTUALLY
LITIGATED
SAME defendant, but DIFFERENT plaintiffs
SAME plaintiff, but DIFFERENT defendants
Pa v. Db
Pa v. Db
Pc v. Db
Pa v. Dc
How it comes up:
How it comes up:
1. P in the 2nd action brings suit against a D trying to use
1. P has already litigated the suit and D in 2nd suit seeks to
the favorable judgment of a previous action against D
preclude re-litigation of an issue that was decided in D’s
2. D uses to prevent the 2nd P from re-litigating an issue
favor in 1st suit
previously decided
Courts DISFAVOR! – Court has discretion in deciding whether -As long as the parties had an opportunity to fully litigate – the
to grant offensive issue preclusion.
court will allow defensive issue preclusion with no limitations!
- Encourages a different P to wait and seek the outcome
-Precludes a P from re-litigation identical issues by merely
of a first suit where they will be bound by the judgment switching adversaries
before suing the same D (this is because if first π was
-Gives π a strong incentive to join all potential Δ’s in the first
successful they think they will be as well)
action if possible
Will NOT allow if:
-Promotes judicial economy
- 2nd P could have INTERVENED
- Multiple litigations with inconsistent judgments in
favor / against the same D
- There was no incentive to litigate in 1st suit
o Small/nominal damages (nuisance suit)
- Inconvenient forum
o Unable to engage in full scale discovery, call
witnesses, etc (small claims court, etc)
o No right to a jury trial?  RMD!
Can have the same parties but different claims – but does not HAVE to be same parties!
Major distinction between issue and claim preclusion!
Co-Parties
Typically, a judgment does NOT act as issue preclusion between co-parties unless they are adversaries – they are considered
adversaries only if there is a claim for relief by one co-party against the other (inconsistent decisions)
Look at the nature of the 1st action and the treatment of that issue in the action
The matter raised in the 2nd suit must be identical in all respects with that decided in the 1st proceeding, and where the controlling
facts and applicable legal rules remain unchanged
Where the 2nd action between the same parties is upon a different claim or demand, the judgment in the prior action the judgment
in the prior matter acts as an estoppel ONLY as to those matters in issue or points controverted, upon the determination of
which the finding or verdict was rendered
Always ask – what was actually litigated and determined in the original action! NOT what might have been litigated!
Civil Procedure – Green
NOT actually litigated if a party failed to raise the issue in a previous action – but even if issue was raised, it might not have been
actually litigated in the 1st action
Issues:
- No incentive to litigate
o If the action involved so small an amount that no incentive to litigate, then preclusion does NOT apply
 The BoP is on the precluded party to show why preclusion does NOT apply!
- Inconvenient forum to produce the necessary evidence or litigate at all
- Motivated to fully litigate the issue?
o If win at the lower level, no motivation to appeal and fully litigate the matter
 If no evidence that it was actually litigated in the 1st suit, will be able to move forward with the claim
Court will look to materiality of the issue to the judgment!  Was the issue necessary or essential in resolving the dispute?
General v. Specific Verdicts – to determine what issues were decided
- General Verdict – don’t know what was actually and necessarily litigated!
o Need to know what was decided to know if issue preclusion applies!
 When there are doubts, resolve against the party seeking to assert preclusion!
 If it is not clear WHAT the jury used to resolve the issue – then it won’t have a preclusive effect!!
o Where uncertainty exists as to whether an issue was decided, it is NOT precluded unless
shown through extrinsic evidence that the precise issue was decided
o Ex: Torts in a modified comparative fault jx – if the jury says that D wins, don’t know if D fell below the SoC, so if another passenger
wants to sue D, not clear if the issue is precluded
NECESSARILY
DECIDED
Mixed Questions of Law and Fact
- If the law has changed – CAN re-litigate!
- Facts determined by the jury in a previous trial are BINDING – can never be re-litigated!
Need the SAME facts & Law for preclusion!!
(Especially for tax issues – each tax year is a separate claim! If the facts and the law are the same – cant re-litigate, but if
the law has changed – potential estoppel issues)
It must be matters raised in the 2nd suit that are identical in all respects with that decided in the 1st proceeding, and where the
controlling facts and applicable law remains unchanged
Strictly Essential
If a finding is not strictly essential to the final judgment in the prior action, it may be relied upon if it is CLEAR that the issues
underlying them were treated as essential to the prior case by the court and the party to be bound
Quality of the
Judgment
Must be a FINAL ADJUDICATION ON THE MERITS!!
Consent Judgments – what is the preclusive effect?
Civil Procedure – Green
-
Consent Judgment are an agreement between the parties settling the underlying dispute short of litigation
Function as both a contract between the parties resolving the issues, and a judgment by the court – have the same binding
effect as any other judgment on the aspects/claims that the parties agreed upon!!
Must be signed by the Judge and has effect of adjudication on the merits in which the judge can enforce the agreement
because court retains jurisdiction
Consent judgments have not been “ACTUALLY LITIGATED” so no issue preclusion
2 components to a consent judgment
 An agreement
 Impact the entry of a judgment of a legal matter
o Consent Judgment as CONTRACT theory
 The court will look to the terms of the K to determine the INTENT of the parties
 Attorneys make sure to clearly state specifically what is being resolved by the parties
o Consent Judgment as FINAL JUDGMENT theory
 The court will not look as much to the intent of the parties
 Rationale: make sure the issues are resolved and don’t have to re-litigate the matter
- In order to be preclusive (2 requirements):
- The reservation must be incorporated into the offer of judgment; and
- It must be an inherent part of the original complaint
Settlement Agreements
- Usually NOT issue preclusion unless it is clear that the parties intend their agreement to have such effect
o Ordinarily intended to preclude any further litigation on the claim presented, but are not intended to preclude
further litigation on any of the issues presented
- Usually support claim preclusion, but not issue preclusion
- If a judgment is entered by confession, consent or default, usually none of the issues is actually litigated!
Criminal Proceedings
- There is a different evidentiary standard for crim proceedings (BRD)
Administrative Proceedings
- An administrative decision has preclusive effect ONLY if it resulted from a procedure that was an ADEQUATE
SUBSITUTE FOR A JUDICIAL PROCEEDING!!
o To answer this – are the same safeguards in place as with a traditional trial?
 Ability to introduce evidence
 Ability to cross-examine and challenge witnesses
 Ability for full discovery
 Ability to compel evidence (subpoena power, etc)
 Ability to appeal the decision
Civil Procedure – Green
-
 If the Rules of Evidence apply!
 Ability to exclude hearsay
Governmental Agencies
o There is privity between different agencies of the same government unless there are important differences in the
authority of the respective agencies
Just another form of JOINDER – all
other tools still apply (Rule 42, etc)
Process to
Litigate,
Analysis
*CLASS ACTIONS*
Rationale:
- Judicial efficiency (another example of Joinder)
- No incentive to individually litigate
- Deter wrongdoing of larger entitles
Process:
1. File a complaint, just like any other lawsuit (service of process – Rule 4), D must respond just like any other suit
2. Certification Process, after initiate suit
a. 1st – Define the class
i. All prerequisites below – the P bringing the CA has the burden to meet each of these!
b. At an early practicable time after claim filed, the court MUST determine by order whether to certify the action as a class
i. In determining whether to certify a class, a court must look outside the pleadings to understand the claims,
defenses, relevant facts and applicable substantive law
c. Order that certifies CA must define class and claims, issues or defenses, and MUST appoint class counsel! 23(g) below
d. The order certifying the class can be altered or amended before final judgment (can de-certify)
3. Judgment
a. Whether grants or denies, must:
i. For class certified under 1 and 2, include and describe those whom court finds to be class members
ii. For class certified under 3, include and specify those whom notice was directed, who haven’t requested exclusion,
and whom the court finds to be members
b. When appropriate, can be split into sub-classes
4. Interlocutory Appeal
a. Allowed for an order granting or denying a CA certification IF a petition for permission is filed within 14 days after the
order is entered.
i. Appeal does NOT stay proceedings unless judge so orders
Attorney’s Role and Responsibilities:
- NO soliciting face-to-case!! – cannot directly contact an individual
Civil Procedure – Green
o CAN try to address public harms v. private harms (e.g. civil rights violations) – this protected by 1st amendment
- No duty of loyalty to individuals! – duty of loyalty is to the class as a WHOLE
o Attorney makes all of the decisions
Court’s Role in Protecting Interests:
- Appointing counsel (see below)
- Court will determine notice and make sure it is sufficiently clear and the best practicable
- Approve all settlements – if would bind parties, may approve only after hearing and finding that fair, reasonable and adequate
o Make sure absent parties’ rights are protected!
23(a):
Prerequisites
1. DEFINE the Class
a. The definition must be precise, objective and presently ascertainable – cannot depend on subjective criteria or the merits
of the case, or require extensive factual inquiry to determine who is a class member
i. The definition must include the HARM (so D is on notice)
1. Must be specific enough to know what interest being adjudicated!
b. Fail if:
i. Too broad (Ex: all learning disabled children in the state of TX)
ii. Too specific (Ex: all w/ Spanish surnames having Spanish, Mexican, or Indian ancestry who spoke Spanish as primary/secondary)
iii. Too vague (Ex: all users of drug X who suffered medical problems)
iv. Too amorphous (Ex: all recipients of unsolicited SPAM messages)
2. Representative must be a MEMBER of the Class
a. Must possess the same interest and suffer the same injury as the rest of the class members
i. Lawyers will want to pick a representative who is a good presentation of the case
3. Class is so NUMEROUS that Joinder Impracticable
a. If more than 40 numerosity usually met, if less than 25 usually not
i. Between 25-40 – depends on variables such as: geographic dispersion of members and size of individual claims
4. COMMON Questions of LAW and FACT
a. Are there differences in the factual background of each claim that will affect the outcome of the legal issue?
i. Will the same law be applied to all members of the class? Are the rights of any members different?
5. Claims or Defenses of Representative Parties are TYPICAL of the Class
a. Typicality usually found when each class member’s claim arises from the SAME COURSE OF EVENTS and each class
member makes SIMILAR LEGAL ARGUMENTS to provide the D’s liability
i. Goal: ensure the named P’s claim and the class claims are so interrelated that the interests of the class members
will be fairly and adequately protected in their absence
b. Need to have specific presentation identifying the Qs of law/fact that were common to the claims of representative and
class members seek to represent
Civil Procedure – Green
23(b):
Types of
Class Actions
i. Court cannot presume that claim is typical of other claims
6. The Representative Parties will FAIRLY and ADEQUATELY REPRESENT the Class
a. The interests of named parties and the class CANNOT BE IN CONFLICT!!
i. Adequacy cannot be determined by only assessing the named party’s financial stake in the litigation
b. 2 concerns:
i. Due process – Class judgment shouldn’t bind parties who haven’t = chance to litigate and interests not protected
ii. Collateral Attack – Absent party whose interests not adequately represented NOT bound by judgment and can
collaterally attack the judgment
c. Challenged at 3 times:
i. By the court certifying the class
ii. By appellate court (interlocutory appeal)
iii. Ct called on to evaluate binding effect of the class action on a class member who seeks to litigate in later action
MANDATORY Class Action!  Cannot opt-out!! Notice NOT Required!
23(b)(1): Prejudice CA
Prosecuting separate actions by or against individual
Ask – whether individual actions might = prejudice that can be avoided by CA
class members would create a risk of:
- Prejudice to DEFENANT
- Inconsistent or varying adjudications re:
o When different results in individual actions would place nonindividual class members that would establish
class party in position of total uncertainty
incompatible standards of conduct for the
 Possibility of inconsistent obligations
opposing party; or
 Whatever standard is established will apply to all,
- Adjudications re: individual class members that
whether a member or not
would be dispositive of the interests of the
 Ex: Employment Discrimination – whatever is decided will need to be
other members not parties to the individual
consistent and apply to all – decisions that affect status
adjudications or would substantially impair or
- Prejudice to CLASS MEMBERS
impede ability to protect their interest
o Ex: limited pot of money and if not part of class money gone
 If allowed to proceed individually, risk that those who
Notice – MAY, not required!
sue first will deplete the fund and leave nothing for
latecomers – so latter group would be prejudiced by
individual actions as a practical matter
MANDATORY Class Action  Cannot opt-out!! Notice NOT required!
23(b)(2): Injunctive/Declaratory CA
The party opposing the class has acted or refused to act
No requirement that the conduct be damaging or offensive to every member –
on grounds that apply generally to the class, so that
not an individualized judgment, will apply to all
final injunctive relief or corresponding declaratory
Make sure when defining the class that it is not too broad!! –
relief is appropriate re: class as a whole
Ultimately the D must know what actions enjoined from doing!
Notice – MAY, not required!
Make sure that there are common questions of law and fact!! Will it affect
parts of the class differently than others?
Civil Procedure – Green
23(b)(3): Damages CA: The court finds that common
questions of law and fact PREDOMINATE over any
questions affecting only individual members, and that a
class action is SUPERIOR to other available methods
of fairly and efficiently adjudicating the controversy.
Matters pertinent to these findings include:
1. Members’ interests in individually controlling
prosecution or defense of separate actions
2. Extent and nature of any litigation re:
controversy already begun by/against members
3. Desirability/undesirability of concentrating the
litigation of claims in the particular forum; and
4. Likely difficulties in managing a class action
Notice: The court MUST direct to class members the
BEST NOTICE that is PRACTICABLE under the
circumstances, including individual notice to all
members who can be indentified through reasonable
effort. The notice must clearly and concisely state in
plain, easily understood language:
1. Nature of action
2. Definition of class certified
3. Class claims, issues or defenses
4. That a class member may enter an appearance
through an attorney if so desire
5. That the court will exclude any member who
requests exclusion
a. That they can opt-out!
6. Time and manner for requesting exclusion
7. Binding effect of a class judgment on members
-
Damages and Injunctive
When the members claim to have been injured in the same way by the D
2 special prerequisites (fact-dependent):
1. Common Qs of Law and Fact must PREDOMINATE
a. Judge can count the issues and see if a majority are common, or
evaluate the issues and see if the most important are common
2. A class action must be SUPERIOR to other available methods
a. Whether the efficiency and economy of common adjudication
can outweigh the interest each class member may have in an
individual adjudication
b. Requires court to compare CA with other possibilities, incl:
i. Leaving the disputants to individual actions
ii. Administrative proceedings / ADR
iii. An agreement to be bound by result in a single test case
iv. Availability for consolidation of multidistrict cases
Manageability of a CA: Consider things like:
- Size or contentiousness of the class
- Number of class members who seek to intervene and participate
- Difficulty of the notice requirements
Challenges with a case of 1st Impression:
- Predominance and superiority – how determine if common Qs of law
and fact if courts have not resolved these issues before
- If class members from different states – the supreme court of each state
may need to certify the CoA – NOT judicially efficient!
MUST give NOTICE!!
- A party must receive notice and be afforded an opportunity to be heard
before rights are extinguished
o If don’t receive adequate notice, NOT BOUND by judgment
- The standard for notice is HIGHER than regular DP – has to be the
best practicable notice!
- Can opt-out!!  notice must make them understand this right
o If receive notice and fail to opt-out – rights extinguished and
can’t bring another suit!
- COST of notice – Usually paid for by the party seeking certification
Hybrid Class Actions
Civil Procedure – Green
-
23(g):
Appointing
Class Counsel
-
o Notice may be mandatory if absent class members are to be bound!
 Where individual monetary claims are at stake, the balance is in favor of provision of some kind of notice! Not
always necessary for notice to comply with above requirements
o Before an absent class member may be forever barred from pursuing individual claim for damages DP requires that
receive some form of notice that class action pending and damage claim may be adjudicated as part of it
Prejudice and Injunctive
o When only equitable relief is sought in action involving cohesive group (ex: AA employees at assembly plant) DP
interests of absent members usually safeguarded by adequate representation alone
 To degree that cohesiveness/unity in the class and effective representation – need for notice is minimum
The Court must consider:
o Work counsel has done in identifying potential claims
o Experience handling complex litigation and types of claims asserted in action
o Knowledge of applicable law
o Resources council will commit to representing class
May order potential counsel to provide information on any subject, and to propose terms for attorney’s fees
May include in appointing order provisions about attorney’s fees