1
CIV PRO OUTLINE
1) Discovery
a) Tools:
i) Depos.
ii) Interrogatories
iii) Requests for Production
iv) Requests for admission
v) Requests for phys & mental exams.
vi) 3-STEP PROCESS WILL INFO. WILL BE DISCOVERABLE? – Applies to ALL
disc. tools – depos, interrogatories, requests for admission, requests for production
(1) Does it meet general disc. standard of 26(b)(1)? –LIBERAL- Parties may obtain
disc. regarding any nonprivileged matter that is
(a) Relevant to any party’s claim OR defense
(b) Including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the ID and location
of persons who know of any discoverable materials. (“use disc. to get
more disc.”)
(c) For good cause, the ct. may order disc. of any matter relevant to the
subject matter involved in the action.
(d) Relevant info. need not be admissible at trial if the disc. appears
reasonably calculated to lead to the discovery of admissible evidence (Ex.
hearsay allowed in disc.  very liberal)
(e) All disc. is subject to the limitations imposed by R26(b)(2)(C)….
(2) Even if it does, is there reason for limiting disc. under 26(b)(2)(C)?
On motion OR on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines
that:
(i) the discovery sought is unreasonably cumulative or duplicative, OR can be
obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; OR
(iii)the burden or expense of the proposed discovery outweighs its likely
benefit, considering
[1] the needs of the case,
[2] the amount in controversy,
 [The more $ is at stake (AiC), then the more /broader disc. jd. will
allow]
[3] the parties’ resources,
[4] the importance of the issues at stake in the action, and
=merits of the case
[5] the importance of the discovery in resolving the issues.
[(3) contd. below – Protective Orders]
2
(3) Ct.’s Power to Shape Disc. Through Protective Orders Under 26(c)
 Purpose: Allows any person from whom discovery is sought (party,
private person subpoenaed) to ask the court to issue a protective order
(limit disc.)
 26(c)(1) Court has huge discretion
 (A)-(H)- Court can forbid the disclosure or discovery, specify
terms (time and place) for disclosure or discovery, prescribed a
discovery method other than the one selected, limit the
scope/forbid inquiry into certain matters, designate the people who
may be present while discovery is conduct, require sealed
deposition opened on court order, require trade secrets or
confidential research/information not be revealed
 Other options: in camera review (in chambers) by judge, redact files,
sequence discovery- discovery of least controversial stuff first
 26(c)(2)- If motion for protective order is denied, court may order that
person to permit/provide discovery
 26(c)(3)- Awarding expenses Rule 37(a)(5)
 Marresse v. American Academy of Orthopedic Surgeons- Academy
refused to admit surgeons, asked to disclose all information
regarding who they admitting to the Academy. Thought that this
was extremely intrusive on their ability to control their
membership. Even though discovery was relevant, subject to
protective order.
o Majority thinks that this was predatory discovery- plaintiff
was trying to force defendants into settlement by asking
them to reveal sensitive/private information. Therefore,
issues protective order.
(b) Required Disclosures – R26(a)(1-3): Initial
i. Required Initial Disclosures- R26(a)(1)
 R26(a)(1)(A) Except as exempted by Rule 26(a)(1)(B) [scope of disc.] or as
otherwise stipulated or ordered by the court, a party must, without awaiting a
discovery request, provide to the other parties:
o i.
 [1] the name and, if known, the address and telephone number of
each individual likely to have discoverable information—along
with the subjects of that information—(“use disc. to get disc.”)
 [2] that the disclosing party may use to support its claims or
defenses,
 [3] unless the use would be solely for impeachment*
 *solely to cast doubt on other side’s witnesses’ credibility,
as opp. to building requesting party’s own case;
o ii. a copy—or a description by category and location—of all [1]
documents, [2] ESI, and [3] tangible things that the disclosing party has in
3


its possession, custody, or control and may use to support its claims or
defenses, [4] unless the use would be solely for impeachment;
o iii. [1] a computation of each category of damages claimed by the
disclosing party [in P’s complaint OR D’s counterclaim]—[2] who must
also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, [3] unless privileged or protected
from disclosure, on which each computation is based, including materials
bearing on the nature and extent of injuries suffered; and
o iv. [Liability ins.] - for inspection and copying as under Rule 34, any
insurance agreement under which an insurance business may be liable to
satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
 Rationale: facilitates poss. early settlement – judicial economy
 Cannot ask for info about other side’s liability ins. at trial- too
prejudicial, grounds for immediate mistrial
When must required initial disclosures happen? R26(a)(1)(C)
o [1] A party must make the initial disclosures at or within 14 days after the
parties’ Rule 26(f) conference
o [2] unless a different time is set by stipulation or court order, or
o [3] unless a party objects during the conference that initial disclosures are
not appropriate in this action and states the objection in the proposed
discovery plan.
o [4] In ruling on the objection, the court must determine what disclosures,
if any, are to be made and must set the time for disclosure.
R26(a)(1)(D) Time for Initial Disclosures For Parties Served or Joined Later.
A party that is first served or otherwise joined after the Rule 26(f) conference
must make the initial disclosures within 30 days after being served or joined,
unless a different time is set by stipulation or court order.
ii. [Required] Disclosure of Expert Testimony – R26(a)(2) – See below under
“Experts & Overseas Testimony.”
iii. [Required] Pretrial Disclosures – R26(a)(3)
 (A) In General. In addition to the disclosures required by Rule 26(a)(1) and
(2), a party must provide to the other parties and promptly file the following
information about the evidence that it may present at trial other than solely
for impeachment:
o (i) the name and, if not previously provided, the address and telephone
number of each witness—separately identifying those the party
expects to present and those it may call if the need arises;
o (ii) the designation of those witnesses whose testimony the party
expects to present by deposition and, if not taken stenographically, a
transcript of the pertinent parts of the deposition; and
o (iii) [Evidence] an identification of each document or other exhibit,
including summaries of other evidence—separately identifying those
4
items the party expects to offer and those it may offer if the need
arises.

(B) Time for Pretrial Disclosures; Objections.
o [1] Pretrial Disclosure Timing - Unless the court orders otherwise,
these disclosures must be made at least 30 days before trial.
o [2] Objections - Within 14 days after they are made, unless the court
sets a different time, a party may serve and promptly file a list of the
following objections:
 [a] any objections to the use under Rule 32(a) of a deposition
designated by another party under Rule 26(a)(3)(A)(ii); and
 [b] any objection, together with the grounds for it, that may be
made to the admissibility of materials identified under Rule
26(a)(3)(A)(iii).
 Objection waiver - An objection not so made—except for one
under Federal Rule of Evidence 402 or 403—is waived unless
excused by the court for good cause.
iv. Supplementing Required R26(a)(1-3) Disclosures and Responses : R26(e)(1).
(1) If party has made a [a] [required] disclosure under Rule 26(a)- or [b]
responded to interrogatory, [c] request for product, or [d] request for admissionhe must supplement or correct disclosure/response:
(A) in timely manner if party learns that in some material respect the
disclosure/response is incomplete/incorrect, and if the
additional/corrective info has not otherwise been made known to the
other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Supp. of exert info. - For expert whose report must be disclosed under Rule
26(a)(2)(B), must also supplement information in their report or deposition. Any
additions/changes must be disclosed by the time pretrial disclosures under Rule
26(a)(3) are due.


Required Disclosure of Expert Info.- see below under - Experts & Overseas Disc.
section
Party must make initial disclosure based on information reasonably available to
them.
o Unacceptable excuses:
 Has not fully investigated the case
 Challenges sufficiency of other party’s disclosures
 Another party has not made their disclosures
5
vii) Tools of Disc.
(1) Depositions – hearings w/o judge to extract witness’ statements under oath.–
R28, 30-32
(a) Conditions of using depos. at hearings or trial against parties:
1. (A) the party was present or rreprseetned at the depo. or had
reasonable notice of it;
2. (B) it is used to the extent it would be admissible under the FRE if the
deponent were present and testifying; and
3. (C) the use is allowed under R32(a)(2) through (8)
(b) Who can be deposed? Counsel has right to x-examine other side’s
witnesses; anyone w/ discoverable info. – 30(a)(1)
(c) Depos. Can be used as witness impeachment tools- – R32(a)(2)
(d) What if deposing party doesn’t know in other side’s org. can testify
a/b given issue ? - Deposing atty. can specify in subpoena nature of info.
he’s seeking and ask other side to ID exactly what witness should testify
about -R30(b)(6)
(e) Deposing 3d parties- R45 subpoena
 Coaching witness (“don’t answer”) – forbidden under FRCP except to
protect privilege OR assert defense in which you will then immediately
make motion (i.e. if deposition = abusive;
(f) Objections during depo.- R30(c)(2): […] 
 [1] An objection at the time of the examination—whether to
evidence, to a party's conduct, to the officer's qualifications, to the
manner of taking the deposition, or to any other aspect of the
deposition
o (a) must be noted on the record,
o (b) but the examination still proceeds; the testimony is
taken subject to any objection.
 [2] An objection must be stated concisely in a nonargumentative
and nonsuggestive manner.
 [3] A person may instruct a deponent not to answer only when
necessary to
o [a] preserve a privilege,
o [b] to enforce a limitation ordered by the court, or
o [c] to present a motion under R30(d)(3)- Motion to
Terminate or Limit Depo.
o R30(d)(3)(A): :
o [1] “At any time during a depo.., the deponent or a party
may move to terminate or limit it on the ground that it is
being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the
deponent or party.
6
o [2] The motion may be filed in the court where the action is
pending or the deposition is being taken.
o [3] If the objecting deponent or party so demands, the
deposition must be suspended for the time necessary to
obtain an order.”
 Sanctions - If lawyer violates R30(d)(3), poss. sanction under
R30(d)(2) at ct.’s discretion–“The court may impose an
appropriate sanction—including the reasonable expenses and
attorney's fees incurred by any party—on a person who impedes,
delays, or frustrates the fair examination of the deponent.”
o (g) Depo. # Limits:
 Presumptive limit of 10 per side, 30(a)(2)(A)(i),
 limited to one day of seven hours, 30(d)(1).
 Limits may be altered by stipulation of parties or court order
o (h) Deposition by Written Testimony- R31
 Party may serve on the other parties a set of questions that will be asked to
a witness. Court officer then swears in the witness and asked the
questions.
 Advantage- lawyer need not attend; Con: witness will know in advance Qs
that will be asked; no opportunity for follow-up
(2) Interrogatories to Parties*- written Qs for other side –R 33
 Directed to whom?
 *Answer drafted by lawyers, but requesting party must direct
interrogatories to parties – so requesting party can’t use
interrogatories to glean info. from other side’s atty.
 Written & signed by other side under oath
 Can be directed to parties or employees of parties
 Those directed to 3d parties require subpoena – R45
 How are they used? - Answers drafted as narrowly as possible by attys.,
so best for gleaning objective background info. about case –names,
addresses of poss. witnesses, etc.]
 What kind allowed?
 Contention interrogatories:
o Can request opposing side’s contentions
 [1] a/b facts, OR [2] law applied to the facts,
 [3] but not JUST law
o (Ex. D-to-P: “State every way you contend I was
negligent.” P’s proper answer, applying law to facts: “You
were negl. in operating your vehicle, which lead to the
collision, that injured me.”
o Used to force opponent to specify the grounds of the
general claims raised in complaint/answer
o Party not prevented from answering b/c info. was acquired
as part of w/p-protected investigation
7
o Policy: prioritizes justice of knowing all relevant evidence
of other side needed to fully develop claim/defense >
opposing side’s trial strategy, gamesmanship, surprise




Interrog. Timing and # Limits:
 #: Presumptive limit of 25 interrogatories, including subparts,
33(a)(1),
 Timing: Must serve answers/objections within 30 days of being
served, 33(b)(3)
 Both limits may be modified by court order or stipulation
Objections- grounds for objection must be stated with specificity. Any
ground not stated in timely objection is waived unless excused for good
cause by court. 33(b)(4)
Answers that Can be Found in Business Records: 33(d)
 (1) If requesting party can get answer by
examining/summarizing/auditing other party’s business records,
and (2) if the burden of deriving the answer will be substantially
the same for either party, the responding party may :
o [a] specify the records to be reviewed and requesting party
them sufficient detail to identify them readily or
o [b] give interrogating party reasonable opportunity to
examine/audit records and make
copies/compilations/summaries. )
 Ex. United Oil Co.
o Held: Parts, responding party, improperly answered
interrogatories by solely providing requesting party w/
boxes of docs. about relevant chems.
o Issue: Is burden of deriving the interog. Answer equal on
both sides as required by 33(d) to respond to interrogatory
this way?
o Concl: No. Improper use of 33(d).
o App: Here, the burden was not equal- Parts (responding
party) was more familiar with documents, so it was much
easier for them to answer the questions themselves rather
than just giving requesting party boxes of unfamiliarly
organized docs.
No Binding Effect – answers admissible at trial, but not binding (contrast
w/ admissions – see below)
(3) Request for production of docs. –R 34
(a) How to use? 1st disc. tool used to get docs. to tie down witnesses in
deposition; to get admissions on thing other side would not readily give
admission on in depos.
(b) Requesting production from 3d parties -subpoena – R45
(c) Refers to more than just documents:
8
1. Must produce or allow other requesting party to
inspect/sample/copy/test, (A) documents/graphs/photographs/sound
recordings/etc or (B) tangible things; 34(a)(1)
2. May be used to enter land to inspect/photograph/test/survey, etc.
34(a)(2)
(d) Limits on formulating request: must describe items
1. with particularity,
2. specific reasonable time/place/manner for inspection and
3. specific form in which e-stored info is to be produced. 34(b)(1)(A)(C)
(e) Limits on responding party:
1. Timing for Response: Must respond in writing within 30 days and state
whether party will permit or object to the request. 34(b)(2)(A)-(C)
2. At a minimum, should indicate how requested records are organized,
which records respond to which request, and other information
necessary to locate requested items. 34(b)(2)(E)
(f) Option for requesting party to sift through other party’s business
records: Responding parties may simply offer to open their records for
examination as they are kept in ordinary course of business (as with
interrogatories – see restrictions above under Interrogatories, “Answers
that Can be Found in Business Records”)
(4) Requests for phys. or mental exams – R35
(a) requires:
1. Issue for which you are seeking phys. or med. exam must be in
controversy
a. Exam must be relevant and material to issues in caseb. i.e. Did trucker in accident see the red light? Vision of truck driver
is important here for determining trucker’s negligence
2. Party seeking phys. or mental exam must have good cause for
obtaining it
a. weighs need & ability of one side to get same info. from other side.
vs. burden against receiving party (intrusiveness)
b. Usually requesting party can find info. from other sources
(b) require judic. approval
(c) very intrusive
(d) Only applies to “PART[IES]”
(5) Requests for admissions – R36
 (a)(1) Scope. A party may serve on any other party a written request to
admit, for purposes of the pending action only, the truth of any matters
within the scope of Rule 26(b)(1) relating to:
 (A)[1] facts, [2] the application of law to fact, or [2] opinions
about either; and
 (B) the genuineness of any described documents.
9


Failing to object to request –
 If you fail to object to request in your answer, then answers to Qs
considered admitted
 Timing: Receiving party must respond within 30 days- written
answer or objection signed by party or attorney. 36(a)(3)
 Non-admission:
o If matter not admitted, answer must specifically deny
it/state in detail why answering party cannot truthfully
admit or deny it/qualify the answer/deny part of answer.
36(a)(4)
o May assert lack of knowledge as reason to failing to admit
or deny if states that it has made reasonable inquiry and
information that it knows or can readily obtain is
insufficient to enable it to deny. 36(a)(4)

Binding effect of admissions
 binding on party who makes admission in this particular case , if
admitted at trial
 not binding outside this particular case – do not have issuepreclusive effect in subseq. case – R36(b)

Objections- must state grounds for objection. Cannot object solely
because request presents genuine issue at trial. 36(a)(5)

Motions re: sufficiency of an answer or objection. 36(a)(6).

Purpose: helps narrow issues at trial, est. uncontested issues
6. Subpoenas – Required for 3d parties – R45
o
o
o
o
Required to get disc. from 3d parties (non-parties) – applies to all disc. rules – depos.,
interrogatories, production requests, inspection requests admission requests, etc.
Avoiding Undue Burden or Expense; Sanctions. R45(c)(1)  A party or attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena.
 The issuing court must enforce this duty and impose an appropriate
sanction—which may include lost earnings and reasonable attorney's fees—
on a party or attorney who fails to comply.
Contempt- R45(e)- The issuing court may hold in contempt a person who, having
been served, fails without adequate excuse to obey the subpoena.
Can use 3d party impleader (joinder rules), to make the person a party, to avoid
burdensome R45 subpoena proced.
b) E-Disc.  “electronically stored info.” (ESI) – included in disc. rules term “docs.”
 Subject to R26(A) initial disclosures, other disc. rules – interrogatories, privilege
issues, judge’s scheduling order & disc. management
10

Doc. Spoliation & Imp. of Litig. Holds - Zubulake
 Spoliation elements that trigger permissible inference for fact-finder that
evidence would have been disfavorable to spoliating party
o party having control over evidence had obligation to preserve it at
time it was destroyed destruc. of evidence you know or reasonably
should know for a case you know or should reasonably know will be
filed
o records were destroyed w/ “culp. State of mmind”; AND
 incl. ordinary negl.; OR
 Bad faith = intentionally or willfully ; If this really bad state of
mind found, element (c) implied
 destroyed evidence was relevant to the party’s claim or defense
such that a reasonable trier of fact could find that it would support
that claim or defense – (would destroyed evidence have been
favorable to the movant?)
 Sanction for spoliation?
o Trial judge’s discretion
o SoR: very deferential to trial judge, so almost never overturned on
appeal
 Counsel’s duty to monitor compliance
o Once party reasonably anticipates litig. , counsel must place “litig.
hold” – ensures client’s preservation of relevant docs.- suspend
destruction of docs., ESI and phys.
 Counsel must conduct broad search for client’s docs, incl. head of
org. (ex. even pres.’s personal calendar); must track down all of
his communications /meetings w/ other people involved w/ the
disputed event - Counsel must explain to client why such broad search necessary,
how it can lead to other discoverable info., etc.
o Oversee compliance w/ litig. hold - client must terminate destruction
of docs., incl. ESI, in antncipation of litig.
 Counsel’s Duty to Locate Relevant Info.
o Must get familiar w/ client’s doc. retention (/destruction) policies
 Speak to co.’s IT personnel who can explain system-wide backup
procedures & firm’s recycling policy
 Get familiar w/ “client’s data retention architechture”
o Must communicate w/ “key players” in litig. – incl. follow-up
throughout litig. to ensure compliance w/ litig. hold
o System-wide keyword search
 Broad list of search termssegregate responsive docs.
 Counsel’s Continuing Duty to Ensure Doc. Preservation
o Once all potentially relevant info located, counsel has duty to retain
that info.
o make sure client keeps them safely
o requires reissuing litig. hold instructions throughout litig., not just beg.
11
o Counsel must continually supplement disc. responses, to replace info.
that you know to be incomplete OR even if true when made, are no
longer true as new relevant info. becomes available- INCLUDING ESI
– (weighty burden) - R26(e)(2)
i) “Safety valves” to protect against disc. errors R26(b)(5)(B) – allows for some retention of info. that’s accidentally disclosed in
production…then judge rules as to whether there was waiver of privilege:
 (B) Information Produced.- If information produced in discovery is
subject to a claim of privilege or of protection as trial-preparation
material, the party making the claim may notify any party that received
the information of the claim and the basis for it.
o After being notified, a party must:
 [1] promptly return, sequester, or destroy the specified
information and any copies it has;
 [2] must not use or disclose the information until the
claim is resolved;
 [3] must take reasonable steps to retrieve the
information if the party disclosed it before being
notified; and
 [3] may promptly present the information to the court
under seal for a determination of the claim.
o The producing party must preserve the information until the
claim is resolved.

Defense against R37 disc. abuse sanctions for failure to provide ESI - R37
(e)- “wiggle room” for ct. to judge whether loss of ESI in “good faith” - LAST
RESORT!
o “Absent exceptional circumstances, a court may not impose
sanctions* under these rules on a party for failing to provide [ESI] as
a result of the routine, good-faith operation of an electronic
information system.
c) Qualified and Absolute Privilege
i) Asserting Privilege: R26(b)(5)
 (A) Information Withheld. When a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection as
trial-preparation material, the party must:
o (i) expressly make the claim; and
o (ii) [a] describe the nature of the documents, communications, or tangible
things not produced or disclosed—[b] and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties
to assess the claim.
 Purpose: Gives other party chance to dispute claim of privilege.
12
ii) Atty- Client Privilege
(1) ** This privilege ONLY APPLIES IF: **
(a) The asserted holder of the privilege is, or sought to become, a client;
(b) The person to whom the communication was made(client atty)
1. Is a member of the bar of a court, or his subordinate and
2. In connection w/ this communication is acting as a lawyer;
(c) The communication relates to a fact of which the atty. was informed
1. By his client;
2. W/o the presence of strangers;
3. For the purpose of securing primarily either:
a. An opinion on law; OR
b. Legal services; OR
c. Assistance in some legal proceeding, and NOT
4. For the purpose of committing a crime or tort; AND
(d) The privilege has been
1. Claimed; and
2. Not waived, by the client.
(2) Principals
 What is privileged is the doc./communication itself, NOT the facts
contained in the communication.
 Absolute despite showing of need (UNLIKE w/p privilege)
 Applies to both crim & civil context, and in both litig. and transaction
context – anytime person consults w/ lawyer for purpose of seeking legal
advice
 In corp. or org. context, employee considered (agent of ) “ the corp.” for
purposes of communicating to org.’s general counsel.
 Caveat - It is corp.’s privilege to either assert or waive the
privilege , so if you’re corp. employee, & corp. execs. want to
assert or waive your privilege, then you need to seek independent
counsel b/c of conflict of interest
(3) Purpose of atty-client privilege – Encourages client to tell atty. everything, which
allows counsel to litig. case on the merits to fullest extent poss., adequately
represent client
13
iii) Work Product Privilege - R26(b)(3) – only apps. to “docs. and tangible things” NOT oral test or unrecorded mental impressions.
o [1] Is it w/p?
 (A) “…[A] party may not discover documents and tangible things
that are prepared in anticipation of [a] litigation OR [b] for trial** by
OR for another party OR its representative* (including the other
party's attorney, consultant, surety, indemnitor, insurer, or agent).”


[*its representative incl. party’s ins. agent ]
**Doesn’t count as “doc. prepared in antcip. of litig…” if
it’s just record of routine investigation, i.e. ins. agent 1 just
initially making routine claim investigation, even if that
investing. might give rise to litig. later (as opp. to ins. agent
2, who comes out to specially investigate arson)
o [2] Exception – Necessity - “…But, subject to Rule 26(b)(4), those
materials may be discovered if: [exception to [1] ]
 (i) they are otherwise discoverable under Rule 26(b)(1); and
 (ii) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.”
 [Ex. – key witness died & other side can’t interview him; thus
transcript of interview discoverable under necessity exception, though
it’s w/p]
o [3] Qualification of Necessity exception - Would disc. of materials
invade receiving atty’s internal mental impressions/litig. strategies? ->
If so, even if they otherwise should be disclosed under “necessity”
exception, protected.
 “(B) Protection Against Disclosure. If the court orders discovery
of [work product] materials [pursuant to necessity exception], it
must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party's attorney or
other representative concerning the litigation.
 Hickman –disc. memos atty. prepared from his own recollection of
oral interviews w/ witnesses protected.

Purpose of W/P Privilege
 1. Encourage counsel to do thorough personal investigation- case research,
witness interviewing, etc. – w/ comfort that other side can’t just “free
14


load” off of his work/strategy by just requesting disc. of this info.;
avoiding “disc. chicken”
2. Encourage attys. to document their research in anticip. Of litig., w/
comfort of knowing other side can’t discover records of that
info.Otherwise, lawyers could get deposed, would essentially become
witnesses at trial
 If witness testimony at trial contradicts lawyer’s dep., atty. would
have to test. as witness in their own client’s case  conflict of
interest
CONTRAST w/ atty-client privilege – w/p privilege is QUALIFIED
(mental impressions & necessity limitations), whereas A-C privilege is
ABSOLUTE.
d) Experts & Disc. Overseas
i) Required Initial Disclosure of Expert Test. - R26(a)(2) (s- for experts a party
expects to use at trial)
o What must be disclosed to other side in mandatory initial disclosures?
 1. Name of all experts to testify at trial
 2. Written report signed by expert & prepared by him; must contain: 26(a)(2)(B)
 A. Complete statement of all opinions witness will express…and
 B. Basis of those opinions.
 3. Data or other info. considered by expert in forming opinions
 4. Exhibits to be used by the witness
 5. Qualifications of expert, incl. all publications authored in past 10 yrs.
 6. List of all other cases in past 4 yrs. in which expert testified at trial OR
in depos.
 7. Compensation to be paid for expert’s testimony
o Purpose of mandatory initial disclosures of trial expert info.
 2. Expert’s report- Use opinions of other side’s expert to prepare my own
expert to cast doubt on other side’s experts
 3. Expert’s data Enables me to attack premises of expert’s opinion on the facts of
this case. Expert’s opinion based on abstract, hypo premises; If
those premises do not align w/ facts of this particular case, then
this also undermines expert opinion (concls.) based on those faulty
premises
 Why atty. can ask other side’s expert hypos
 4. Exhibits, etc.
 My job to attack accuracy of exhibits expert relies on to form
opinions; so I’ll use my fact witnesses & my own expert to consult
on whether those exhibits true & accurate OR they mislead jury
 Avoid other side’s visual reps. burning other side’s case into
jury’s minds; jury can use them in their deliberations/physically
take them
15




5. Publications  Reveals inconsistencies in expert’s views over the yrs.
 attack expert’s publication in junk science – if expert’s paper
refuted, in non-peer-reviewed journal
 make sure my own expert credible / qualified
o step 1 – I look at my own expert’s publications
o step 2- hire expert to advise me about my own expert
6. Expert’s testifying or depo. hist. - if other side has hired “flexible
expert,” look to times expert testified inconsistently w/ what he says in
this case
7. Payment Disclosure
 How do you extract from your own witness at trial whether he is
being compensated?
o Look at industry custom
o Extract my own witness’s payment in terms of his time
away from his other work – makes it seem like expert being
paid to do his normal job of analyzing these types of
accidents/issues, NOT that he’s being motivated to testify
for my side just for $$
Disclosure of non-trial expert info.o Types of Experts:
 1. Experts party expects to use at trial – names definitely must be
disclosed- 26(a) mandatory initial disclosures (see above) – R26(b)(4)
 2. Experts retained (specially employed) in anticip. of litig. OR trial
prep but not expected to be used at trial
 Their info. NOT discoverable b/c:
o Otherwise would discourage experts from consulting w/
parties on cases – esp. experts for Ps in malpractice cases
(since they’re usually reluctant to testify against other drs.)
o Sometimes atty. consults w/ expert whose view departs
from that atty’s side/ case theory
 If these witnesses’ IDs were discoverable, then side
retaining that expert would be doing all the work for
the other side, since they’d infer that if I’m not
using this expert at trial, just for consultation, then
this witness undermines my case  helps their case
 If these witnesses’ IDs were discoverable, then
would incentivize attys. to “expert shop” - seek out
experts who are not doing honest analysis of the
case, but rather only those who are slanted in their
sides’ favor
o Otherwise would encourage attys. to only “informally”
seek out experts under cat. 3 (see below)–only talk about
case in the abstract / play games to get expert to say what
16
favors his side/ find loophole / to avoid expert being
classified as retained/non-trial cat. 2 expert
 Undermines goal of litigating case on the merits to
fullest extent
 “ cases based on sound facts & opinions


3. Experts informally consulted in prep. for trial but not retained – no
disc. may be had of these experts’ names / views
 Ex. If counsel informally consults expert (ex. happens to run into
him at cocktail party), --not discoverable
4. Experts whose info. was NOT acquired in prep. for trial- incl.
 a. regular employees of party not specially employed in case; and
 b. experts who were actors or viewers of the occurrences that gave
rise to suit
 *No expert witness protections apply to them – they’re just regular
lay witnesses; facts & opinions they have freely discoverable as w/
other lay witnesses
o How to disting. between categories 2 and 3 for disclosure purposes? Ager
 1. Manner in which atty. initiated consultation
 2. Nature, type, extent of info. or material provided to, or determined by,
the expert in connection w/ his review;
 3. Duration & intensity of consultative relationship; and
 4. Terms of consultation (payment, confidentiality of data/opinions for
testimony)
ii) FRE & Expert Test. – Overview
 FRE 701 – no opinions may be offered by witnesses except those
o A) rationally based on wit. Perception; OR
o B) helpful to a clear understanding of his testimony or fact at issue
 FRE 702 - To testify as to opinions, you must be an expert.
o 1. Atty. presenting expert must lay foundation that person qualified by
edu. or experience to expert in partic. field
o 2. Other side then can perform voir dire of expert- x- exam to challenge
his credentials
o Daubert test- sets limits to expert testimony admission – Must be
 Relevant; and
 Reliable
iii.)
Work Product & Expert Disclosure Issue – **If my litig. doc.is w/p (would
ordinarily be protected, non-discoverable), but my expert needs to analyze that
doc. form his opinions on the case, then w/p protection invalidated. 
discoverable under 26(a)(2)(b) to enable opp. counsel to attack facts (premises) on
which my expert basing his opinion (conclusions)
17
“Trial-Preparation Protection for Draft Reports or Disclosures.” - 26(b)(4)(B)Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required
under Rule 26(a)(2) [“Disclosure of E.T.”] regardless of the form in which the
draft is recorded.”
a. Rationale: we don’t want opp. side to use my expert’s undeveloped, prelim.
analyses to impeach my expert’s credibility at trial
b. Otherwise this would discourage experts from recording their developing
opinions, in conducting very complex analyses
c. Would lead to poor trial prep. if parties could only discuss such complex
matters w/ their experts by phone for fear of draft expert opinions being
discoverable
d. (context- Kodak/ ethics issues – see below)
iv.)
e) Sanctions
i) What if other side gives inadequate interrogatory answers OR fails to disclose OR
discloses evasively under 26(a) mandatory initial disclosures?
o Step 1 – R37(a)(1): Consult w/ other side FIRST & try to iron out differences
before going to the judge (judges hate disc. disputes)
 [a] “On notice to other parties and all affected persons, a party may move
for an order compelling [1] disclosure or [2] discovery.
 [b] The motion must include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.”

Step 2- File R37(a)(3) motion to compel disclosure (a)(3)(A) or discovery
[response] (a)(3)(B)
 1. Motions
 A. To Compel R26(a) Disclosure: If party fails to make
mandatory initial disclosure under R26(a), other party may move
to compel disclosure AND for sanctions. 37(a)(3)(B)
 B. To Compel Discover Response: May be made if
o (1) deponent fails to answer question asked under Rules
30/31,
o (2) corp. fails to designate an officer to appear at deposition
under Rule 30(b)(6) or 31(a)(4),
o (3) if party fails to answer interrogatory under Rule 33,
o (4)if party fails to permit inspection under Rule 34.
37(a)(3)(B)
 2. After hearing both sides on motion, judge can:
 A.
Order receiving party to comply w/ disc. request and
pay reasonable expenses, inc. attorney’s fees (unless movant did
not first attempt in good faith to obtain information the
nondisclosure/ response/ objection was substantially justified, or
awarding expenses is unjust). 37(a)(5)
18

B.
Deny the motion and issue a protective order under
R26(c), and order moving party to pay attorney’s fees to opposing
side. 37(a)(5)

3. If order to compel disclosure/discovery violated, then…
 Other side can be cited for contempt of ct., as w/ any failure of ct.
order – R37(b)(1)
 Disobedient party’s defense or claim may stricken, or certain
evidence precluded from being presented at trial –
R37(b)(2)(A)(ii)
 Atty.’s fees”must” go to winner of motion R37(b)(2)(C)

4. Purpose of Motions: to get opp. side to answer disc. request that
requesting party knows the other side has/knows
o Step 3- Sanctions –

A. [FIRST RESORT]
R37 – Sanctions for Disc. Abuses - Failure
to Disclose, to Supplement and Earlier Response, or to Admit –
Reasonable Expenses, incl. atty’s fees
 1. Failure to Make R26(a) mandatory initial disclosures R37(a)(3)(A)

2. AUTOMATIC sanction for failure to disclose under R26(a) or
supplement under R26(e)
o “…[T] he [disobedient] 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.” R37(c)(1)

3. Failure to admit pursuant to R36- R37(c)(2 )
o [1] If a party fails to admit what is requested under Rule 36
and if the requesting party later proves a document to be
genuine or the matter true, the requesting party may move
that the party who failed to admit pay the reasonable
expenses, including attorney's fees, incurred in making
that proof. The court must so order unless:
 (A) the request was held objectionable under
R36(a);
 (B) the admission sought was of no substantial
importance;
 (C) the party failing to admit had a reasonable
ground to believe that it might prevail on the matter;
or
 (D) there was other good reason for the failure to
admit.
19


4. - Party's (or Party’s Agent’s) Failure to Attend Its Own
Deposition, Serve Answers to Interrogatories, or Respond to a
Request for Inspection. R 37(d)
o Unacceptable excuses for failure to act- Failure to
respond to interrogatories, request for inspection, or appear
at deposition will not be excused on ground that discovery
was objectionable, unless party failing to act has pending
motion for protective order under Rule 26(c). 37(d)(2)
o Types of Sanctions – R37(d)(3) :
 [1] “Sanctions may include any of the orders listed
in Rule 37(b)(2)(A)(i)–“(vi)
 (i) directing that the matters embraced in the
order or other designated facts be taken as
established for purposes of the action, as the
prevailing party claims;
 (ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated
matters in evidence;
 (iii) striking pleadings in whole or in part;
 (iv) staying further proceedings until the
order is obeyed;
 (v) dismissing the action or proceeding in
whole or in part;
 (vi) rendering a default judgment against the
disobedient party; or
 [2] “Instead of or in addition to these sanctions, the
court must require the party failing to act, the
attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was
substantially justified or other circumstances make
an award of expenses unjust.”
5. Failure to Participate in Framing a Disc. Plan Pursuant to R26(f)
- R37(f)
o [1] Expenses (incl. attys. fess)- “…[T]he court may. . .
equire that party OR attorney to pay to any other party the
reasonable expenses, including attorney's fees, caused by
the failure.”
o [2] Other Sanction Types: In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard:
 (A) may order payment of the reasonable expenses,
including attorney's fees, caused by the failure;
20



(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)–(vi).[…]
 (i) directing that the matters embraced in the
order or other designated facts be taken as
established for purposes of the action, as the
prevailing party claims;
 (ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated
matters in evidence;
 (iii) striking pleadings in whole or in part;
 (iv) staying further proceedings until the
order is obeyed;
B. [LAST RESORT- FOR BIG DISC. PROBLEMS] R26(g) - Can ask
for sanctions immed., incl. award of expenses, incl. attys. fees
 Every disclosure under Rule 26(a)(1) or (a)(3) and every
discovery request/response/object must be signed by at least one
attorney or unrepresented party. Signing, certifies that to best of
that person’s knowledge, information and belief formed after
reasonable inquiry that: [ R26(g)(1) ]
o (A) With respect to a disclosure, complete and correct at
time it is made


o (B) With respect to a disc. requests/responses/objections, it
is:
 1. Consistent w/ FRCP rules, & warranted by
existing law or good faith attempt to extend the law
 2. Not used to cause needless delay, harassment,
needless expense- [NO PREDATORY DISC. ];
AND
 3. Not unreasonable/unduly expensive given needs
of case, prior disc. in the case, amt. in controversy,
importance of issues at stake [Subjective, case-by
case]
On whom R26(g) sanctions be imposed? - lawyer OR party
Types of Sanctions- R26(g)(3) incl. include elimination of claim
or defense, paying attorneys fee
o Fisons Corp.
 1. Obj. standard for sanctions-what a “reasonable lawyer would do
under same/sim. circumsts.”
 Subj. intent need not be shown before sanctions are mandated
21






2. Sanctions do not require requesting party to move to compel. If party
already had obligation to properly comply w/ disc. request, then that party
still eligible for sanctions under 26(g).
3. FRCP trumps local rules – so party evading discover can’t defend by
arguing, “But this is local custom.” Doesn’t matter if it violates FRCP.
4. Receiving party defending its alleged disc. abuses won’t win on
technical, legalistic arg. , since it was party’s oblig. to produce the docs.
(Ex. “When requesting parties asked for docs. relevant to theo. chem (key
ingred. in somophyllin)., we didn’t think that also included all
somophyllin files))
5. Receiving party must go thru legitimate FRCP process, incl. arguing
grounds for privilege, to try to get protective order, to avoid disc., even if
it’s unlikely that ct. will grant that request (as opp. to unilaterally
withholding docs. /not complying w/ disc. requests beyond knowledge of
requesting side & judge )
6. **Always err on side of full disclosure for mandatory initial
disclosures.
7. Fed. cts. have inherent, broad sanctioning discretion
f) Judicial Management- R16- maximizes judges’ discretion over pre-trial litigation
o R16(a) Purposes of a Pretrial Conference. In any action, the court may order the
attorneys and any unrepresented parties to appear for one or more pretrial conferences
for such purposes as:
 (1) expediting disposition of the action;
 (2) establishing early and continuing control so that the case will not be
protracted because of lack of management;
 (3) discouraging wasteful pretrial activities;
 (4) improving the quality of the trial through more thorough preparation; and
 (5) facilitating settlement.***
o R16(b) Scheduling
 (1) Scheduling order- must be issued by district judge or magistrate either
after
 (A) after receiving parties’ report under Rule 26(f) or
 (B) after scheduling conference
 (2) The judge must issue the scheduling order as soon as practicable, but in
any event within the earlier of 120 days after any defendant has been served
with the complaint or 90 days after any defendant has appeared.
 (3) Lists subjects that can be considered at this meeting
 (A) Required contents: must establish time limits for (1) joinder, (2)
amendments, (4) motions and (5) discovery
 (B) Permitted contents: the scheduling order may:
o (i) modify the timing of disclosures under Rules 26(a) and
26(e)(1);
o modify the extent of discovery;
22
o (iii) provide for disclosure or discovery of electronically stored
information;
o (iv) include any agreements the parties reach for asserting
claims of privilege or of protection as trial-preparation material
after information is produced;
o (v) set dates for pretrial conferences and for trial; and
o (vi) include other appropriate matters.

Sched. Order Summary:
o Scheduling order purpose: blueprint for the pretrial
litigation
o Rocket docket scheduling orders - strict, tight disc. timeline
 Which party benefits from “rocket docket?” Party
w/ more lawyers – usually big businesses, Ds
 D can throw proced. roadblocks in P’s way,
inhibiting P’s ability to gather evidence in
this narrow time frame
 P needs to find the most evidence to fulfill
burden to est. every element of prima facie
case, enough info. to prove by
preponderance of the evidence – hard in
tight timeframe
 Rocket Docket” Problems
 Prevents somecases from getting tried on
the merits

3. Rigid Pre-Trial Timing
o A. Rule 26(f) discovery plan conference between the parties
 Can be as late as 99 days after service
 Must submit written report of this conference within 14 days
o B. Required Initial disclosures required by Rule 26(a)(1) must be produced
within 14 after Rule 26(f) conference
o C. Required y Pretrial disclosures under Rule 26(a)(3)
 Timing - must be made 30 days before trial
 Purposes –
 Pre-trial order to est. issues (& non-issues) of law & fact



ID of potential remedies
All docs. must be authenticated – will save time at trial
ID evidentiary motions in advance in anticipation of problems
o motions in limine (motions to excl. evidence pre-trial)
o Purpose of doing it pre-trial: judges don’t want these
objections at trial, esp. w/ difficult evidentiary Qs; puts
judge on the spot at trial; takes up time
o D. Pretrial scheduling conference
23
o Judicial Management Summary: New Realities for Litigators
o Judges’ new active role in regulating pre-trial stage requires litigating case on
the merits persuasively to judge before it even goes to trial
o Few checks on Art. III Judges in Discovery b/c trad. checks (binding force of
precedent, appellate review/potential for remand, jury) based on assumption
that most cases go to jury trial- but no longer true
o Since most cases settle in disc. today, governed by fed. judges’ judic.
management – Encourages dictatorial practices by fed. judges during disc.
g) Ethics in Discovery
i) Kodak
 Shows importance of erring on the side of disclosure, as litig. can make atty.
susceptible to distorted, advocacy-centric thinking at expense of following disc.
rules
 Here, attys. who violated the rules could only see disclosure issues from POV of
whether it will hurt client’s meticulously-developed case s/he built, not judge’s
 Model Rules of Professional Responsibility:
o R8.3 . – requires atty. to report to state bar any violation of rules of which
you become aware
 In reality, at very least, must report ethics violation to sr. (ethics)
partners at firm
o R3.4: “Lawyer shall not unlawfully obstruct another party’s access to
evidence….A lawyer shall not counsel or assist another person to do any
such act”
2) Adjudication With & Without Trial
a) Trial by Jury: 7th Amd.
i) 7th Amendment
 Applies only to fed. ct.
 Jury clause: “right to trial by jury shall be preserved. . .”
 R38: same lang. as 7th Amd. (reemphasis)
o Whether or not trial by jury “preserved” analyzed as it meant in 1791
(when BoR passed); depended on whether or not you were in ct. of law or
equity in 1791
 Equity:
 No right to jury
 Considerations of just result important
 Unique Remedies: injunctions, spec. performance,
restitution, rescission (of K)
 Can only get relief in equity if relief at law
inadequate/impracticable/doesn’t make you whole
 Clean hands doctrine
 Law:
24



Right to jury
can only recover damages
Reexamination cl.: “jury cl. shall not be reexamined other
than at C.L.”
TEST: Is there constitutional right to jury trial for statutory actions that didn’t
exist in 1791? - Terry
o 1. Is nature of this issue, as analogized to actions that existed in 1791, one
that would have been brought at law or as bill of equity in 1791?
 a) . Is there clear, direct C.L.-1791 analog to present cause of
action / claim?
o 1) If yes…..
 i. If 1791 hist. analog is clearly legal jury.
 ii. if analog is clearly equitable  no right to jury
 STOP. No need to proceed to remedy analysis. [Exam: Still do
nature of remedy analysis under 2. in the alternative – “Even if
I’m wrong about nature of the issue…]
o 2) If it’s unclear what 1791 hist. analog is b/c there’s no
directly on point case from that time … proceed to remedy
analysis below
o 2. Was nature of requested relief legal or equitable remedy?
 a) Damages- legal  Jury
 b) Injunction or restitution – equitable  No jury
iii.) What if relief sought is mixed legal and equitable?
o Context of modern-day merging of law & equity systems
o Dairy Queen (notes)–
 Even if equitable issues outweigh legal issues or equitable & legal
issues overlap, as long as there are legal issues, jury can 1st decide
mixed legal-equitable issues AND purely leg. issues ( this makes
those findings of fact binding on judge’s subseq. purely equitable
issues)
 Next, judge will decide purely equit. issues
 Rational
 Preference for interpreting 7th Amd. as basic principle, which
favors right to jury trial whenever you could bring those issues
to jury in 1791 - Maximizes right to jury trial whenever one
could get one at C.L.
 Contrast w/ alt., less favored, formalistic rule interp. of 7th
Amd)
o Principles
 BOTH parties get to exercise /arg. for right to jury
 Downside of interpreting 7th Amd. as basic principle - presumption in
favor of jury right = barrier to efficiency, judicial economy
25

Litigants’ considerations in preferring bench vs. jury trial
o Judge better positioned to make nuanced decisions in highly technical case
 Receives written memos. from parties w/ nuanced arguments
 Judges better-educated than most jurors
o If law favorable to my case, judge more inclined to hold in my favor, given legal
training
o Research based on particular proclivities of the judge – you must know the
judge’s bg.
o Location, geography, local culture, sympathies , politics (Do juries in that
jurisdiction tend to be pro-P or pro-D?)
b) Selection and Size of Jury

1) Jury Selection in context of trial order
o 1. Voir dire –
 Overview
 Chance for litigators to interact w/ jurors --to essentially
present the case to the jurors, test it out on them to screen for
sympathetic jurors
 Judge can overrule Qs it deems inappropriate in final pre-trial
conf.

 lawyers & judge can ask Qs to filter jurors…
 A. for cause , OR
o “cause”- witness clearly prejudiced by close connection
with any of the parties or witnesses or fixed opinions
o Con to atty.: More intrusive, time-consuming process
than peremptories (requires drawn out voir dires)
o Maplethorn- shows that challenge for cause system
doesn’t always work because judges may keep jurors in
spite of clear biases; good arg. for preemptory strike
system

B. attys . exercise peremptory challenges
o each side gets 3 (not much)
o Pro. To atty: doesn’t have to justify it
o Justifications:
 Legitimize verdicts by giving parties some
power in the selection of the jury- (even if
verdict is against a party, he had say in
strategically rejecting jurors – so it was fair)
 Supplements challenges for cause in voir dire
stage by allowing attys to strike jurors whom
they believe to be biased, w/o having to ask
26
time-consuming and intrusive voir dire Qs that
are necc. to est. challenge for cause
o J.E.B. –
 Principle: qualifies traditional rule that attys.
used to be able to exercise peremptory
challenges for any/no reason w/o explanation
 Issue:
 Is it const. for litigants to discriminate
solely based on gender (as proxy for
other reasons why juror may be
unfavorable to client) in peremptories,
and for state (thru trial ct. upholding
peremptories) to endorse that?
 (*Is such discrim. an “exceedingly
compelling” justification for stateendorsed discrim. pursuant to Equal
Protection Cl. of 14th Amd. via 5th
amendment?)
 Concl: No. It’s unconstitutional under E.P. Cl.
to discrim. in peremptories solely based on
gender, as proxy for juror bias, just as you can’t
discrim. in peremptories based on race
(precedent)
 RE:
 14th Amd. EP Cl. - “no person shall be
deprived of e.p. under the law”
o Need state action for 14th Amd.
claim – doesn’t apply to private
actors
o State must have “exceedingly
persuasive justification for
distinction based on gender”
 Analogy: peremptory challenges that
discriminate solely based on race
prohibited;
 Maj Analysis:
 By upholding lawyers’ peremptory
challenges, trial ct. effectively
conducting “state action” -making 14th
Amd. claims apply
 Fairness
o It’s degrading to jurors
o Unfair to exclude prospective
jurors from public process on
basis of gender
o It’s unfair to parties at trial
27




In context of corrosive history of gender
& racial discrimination in the country in
U.S. society, litigants must have better
justification for excluding jurors w/
peremptories than pointing to gender as
stereotypical proxy for how jurors will
find
 Peremptories are all inherently based on
stereotypes ; but maj. draws line here to
stress that there are certain stereotypes,
like gender & race, that are so uniquely
socially corrosive, against our nat’l
values, that the courts must not endorse
them as sole basis for peremptories.
O’Connor Concurrence
 Peremptories are central to the system;
 However, concerned about maj.’s
potential slippery slope- privileging
discrim. based on race & gender? What
else is privileged?
Scalia dissent - Places trust in skilled,
experienced litigants to select juries w/
peremptories, key litigation tool
2) Jury Selection & FRCP
o R38- “7th amd. – right to jury trial shall be preserved”
 Reemphasis of 7th amd. – same lang.
 Time limits & waiver

Party must assert right to jury trial no later than 14 days after
last pleading directed at issue for which you demand jury
trial……
 OR ELSE YOU WAIVE IT!
 Policy- efficiency, judic. economy
o R39 – balances jury-judge respective roles; Judic. discretion if jury not
required by 7th Amd. (a) When a Demand Is Made. When a jury trial has been demanded
under Rule 38, the action must be designated on the docket as a jury
action. The trial on all issues so demanded must be by jury unless:
 (1) the parties or their attorneys file a stipulation to a nonjury
trial or so stipulate on the record; or
 (2) the court, on motion or on its own, finds that on some or all
of those issues there is no federal right to a jury trial.
 (b) When No Demand Is Made.
 Issues on which a jury trial is not properly demanded are to be
tried by the court.
28

But the court may, on motion, order a jury trial on any issue for
which a jury might have been demanded.
o R47 – voir dire; Juror challenges; Statutory # peremptories
 (a) Examining Jurors.
 The court may permit the parties or their attorneys to examine
prospective jurors or may itself do so.
 If the court examines the jurors, it must permit the parties or
their attorneys to make any further inquiry it considers proper,
OR must itself ask any of their additional questions it considers
proper.
 (b) [Number of] Peremptory Challenges. The court must allow the
number of peremptory challenges provided by 28 U.S.C. §1870.*
 [1] * “In civil cases, each party shall be entitled to three
peremptory challenges.
 [2 ] Several defendants or several plaintiffs may be considered
as a single party for the purposes of making challenges, OR
 [3] the court may allow additional peremptory challenges and
permit them to be exercised separately or jointly.
 [4] All challenges for cause or favor, whether to the array or
panel or to individual jurors, shall be determined by the court.
 See J.E.B. analysis below – no peremptories solely based on
gender as proxy for juror bias
o # of JURORS –
 (a) Number of Jurors.
 A jury must begin with at least 6 and no more than 12
members, and
 each juror must participate in the verdict unless excused under
Rule 47(c).[ “for good cause” – R47(c)]
 (b) Unless the parties stipulate otherwise, the verdict must be
unanimous
c) MSJ - R56
 Timeline:
o 1. 12(b)(6) – pleadings
o 2. **MSJ - (post/pleadings, pre-trial) –at any time until 30 days after disc.
ends
o [Trial]
o 3. JMOL (MDV)
o [Verdict]
o 4. Renewed JMOL (JNOV) & Motion for New Trial
 Big Picture Q- Do we need to go to a jury?
o Is there no dispute about the facts, so that the only issue is legal, & moving
party is entitled to judgment as matter of law?
29
o If motion granted, judgment entered for moving party w/o benefit of trial (or
jury).

When Does it Apply?
1) 1) parties agree on all the facts and their dispute may be entirely of law;
moving party is entitled to judgment as matter of law ; OR
o Ex. D argues that P’s claim is barred by res judicata and moves for
SJ. Purely legal issue, NOT R 56 “no g.i.m.f.” issue
o
2) parties disagree about facts, but there’s no “genuine issue of material fact
(one side has so little evidence that no reasonable jury could find for that
side)- ONLY R56 “no g.i.m.f.” ISSUE
o 3) Partial MSJ – ct. grants SJ on some, but not all, issues of case
 Can arise in issue preclusion context- issue precluded, so there’s no
g.i.m.f. with respect to that specific issue  partial MSJ as to that
issue

Process
o Timing, R56(b) - at any time until 30 days after the close of all discovery.
o Rule 56(c)- Motion must be served at least 10 days before hearing.
o Rule 56(d)- Court can enter partial summary judgment disposing on some, but
not all of the issues

MSJ TEST: Is moving party entitled to Summary Judgment?
o Step 1: Did moving party [usually D] meet burden of production by
showing there is NO genuine issue of material fact?

(a) Is there support (ONLY WRITTEN - depos., interrog. answers,
admissions, affidavits- but NOT mere complaint. ) that there is NO
genuine issue of material fact?
o I. For P to win MSJ – (HARDER) – must
affirmatively prove every element of claim
 P must affirmatively produce evidence that
shows there is no g.i.m.f. for every element of
the claim. (difficult) ;
 P CAN’T just defensively attack credibility of
D’s witnesses, b/c P has BoProof for claim
elements and BoPersuasion at trial
o II. For D to win MSJ, (EASIER) – just needs to
disprove 1 element of the claim.
 a) D only needs to produce evidence showing
there is no g.i.m.f. for at least 1 element of P’s
claim; OR
30


b) D can defensively show non-moving party
doesn’t have enough evidence to carry its
BoPersuasion at trial by, after suitable disc.,
pointing to absence of evidence for that element
in the record
 Ex. asking P’s witness in interrog. or
depo. whether P has any evidence on
given element, then showing that P says
nothing in response (Celotex Corp.)
 D CAN just defensively attack
credibility of P’s witnesses, even w/o
introducing any affirm. evidence for his
own defense a, (But D can’t just say
“I’ll x-exam. P’s witnesses to show their
incredibility at trial”)
 ** But no mere concls. that nonmoving
party has no evidence on element
Can’t just point to the complaint
(b) Is support moving party produced admissible evidence under
applicable standard of proof at trial **(OR if affidavit, then would it
be admiss. testimony at trial, i.e. no hearsay) ?
 Complaint is NOT admissible at trial/mere conclusion, doesn’t
stand in place of evidence.
o Even if answer to Step 1 is “no” – proceed & analyze in the alternative
under Step 2.
o Step 2: If answer to Step 1 is “yes”/even if I’m wrong that answer to Step 1 is
no….. Did non-moving party [usually P] meet [shifted] burden of
production showing YES, there IS genuine issue of material fact?
 If so, moving party NOT entitled to MSJ, case proceeds to trial..

(a) Is there support -depos., interrog answers., admissions,
affidavits, not mere concls.- showing there IS g.i.m.f. ?
o If moving party (usually D) attacks element by
defensively arguing non-moving party P won’t be able
to fulfill BoPersuasion at trial, P can defeat D’s MSJ by
pointing to evidence in record that supports element,
that moving party overlooked/ignored

(b) Is that support admissible evidence under applicable
standard of proof at trial ** ( OR if affidavit, then if it would
be presented as testimony at trial, would it be admissible? i.e.
no hearsay)
31
o **If elevated clear & convincing SoP applies, then P
must produce evidence that would permit a
reasonable jury to find for the plaintiff on that
element by clear and convincing evidence?

Burden of persuasion/standards of proof
o Preponderance of evidence-  “more likely than not” (50.0001%)
 [most civil]
o Clear & Convincing evidence
imposes higher burden of proof on P than PoE (66.66%)
 Ex. P’s burden in fraud claim, certain libel claims
o [ Beyond a reasonable doubt – ] govt.’s BoProof in crim. casesStrictest standard
d) Judgment as a Matter of Law (“JMOL”)
 Overview
o JMOL = effectively a deferred MSJ made post-presentation of evidence at
trial
 Pre-verdict: formerly Directed verdict (MDV)
 Post-verdict: formerly judgment notwithstanding the verdict
(JNOV)
o Judge assesses, “If jury believes all of non-movant’s [usually P’s] evidence
and disbelieved all of movant’s [usually D’s], then could non-movant have
won?”
o Usually D moves when P, party w/ burden of proof and persuasion, has not
presented enough evidence at trial to satisfied BoPersuasion’
o Timeline:
 1. 12(b)(6) – pleadings
 2. **MSJ - Post-pleadings , during or up to 30-days post discovery;
pre-trial
 [Trial]
 3. JMOL (MDV)
 [Verdict]
 4. Renewed JMOL (JNOV) & Motion for New Trial

JMOL - R50
o (a) Judgment as a Matter of Law. [Pre-verdict]
 (1) In General. If a party has
 [1] been fully heard on an issue during a jury trial and
 [2] the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on
that issue, the court may:
o (A) resolve the issue against the party; and
o (B) grant a motion for JMOL against the party on a
claim or defense that, under the controlling law, can be
32
maintained or defeated only with a favorable finding on
that issue.


(2) Motion.
 A motion for JMOL may be made at any time before the case
is submitted to the jury.
 The motion must specify the judgment sought and the law and
facts that entitle the movant to the judgment.
JMOL Limits
 Trial Order Context:
o 1. P’s case
o [D can move for JMOL]
o 2. D’s case
o [P can move for JMOL]
o Verdict
o [Renewed motion for JMOL and/or New Trial]
 Timingo P has to wait until D makes his case before moving for
JMOL
o However, D can move for JMOL after P presents his
case and before D presents his case, if P does not
sufficiently prove his case
 By motion only - TECHNICALLY judge can’t make pre- (or
post-) verdict JMOL sua sponte; only can respond to party’s
motion [but in practice may prompt party]
o (b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
[Post-Verdict]
 If the court does not grant a motion for [JMOL] made under Rule
50(a) [at trial/pre-verdict JMOL], the court is considered to have
submitted the action to the jury subject to the court's later deciding the
legal questions raised by the motion.
 Renewed JMOL - No later than 28 days AFTER the entry of
judgment—or if the motion addresses a jury issue not decided by a
verdict, no later than 28 days after the jury was discharged—the
movant may file [implies written motion in some cirs, but others allow
oral] a renewed motion for judgment as a matter of law and….
 …may include an alternative or joint request for a new trial under
Rule 59.
 In ruling on the renewed motion, the court may:
 (1) allow judgment on the verdict, if the jury returned a verdict;
 (2) order a new trial; or
 (3) direct the entry of judgment as a matter of law.
 [TECHNICALLY Judge can’t make renewed JMOL sua sponte; only
can respond to party’s motion – but may prompt party]
33
o [ R50(a) and (b) timing key - You must file R50(a) pre-verdict motion for
JMOL to later qualify for filing R50(b) post-judgment motion for JMOL….So
if you try to move for JMOL post-verdict but didn’t before pre-verdict,
MALPRACTICE!]
o (d) Time for a Losing Party's New-Trial Motion. Any motion for a new trial
under Rule 59 by a party against whom judgment as a matter of law is
rendered must be filed no later than 28 days after the entry of the judgment.
o (e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal.
 If the court denies the motion for judgment as a matter of law, the
prevailing party may, as appellee, assert grounds entitling it to a new
trial should the appellate court conclude that the trial court erred in
denying the motion.
 If the appellate court reverses the judgment, it may
 [1] order a new trial,
 [2] direct the trial court to determine whether a new trial should
be granted, or
 [3] direct the entry of judgment.

Principles: JMOL & Appeals
 Filing JMOL (or for new trial) preserves issue for appeal otherwise you can’t appeal trial judge’s rulings


Effect of reversal on appeal for pre- and post-verdict granted
JMOL
 If judge grants JMOL pre-verdict, and ct. above reverses, then
there must be completely new trial – b/c we don’t know what
verdict would have been, nor what amount of damages &
recovery would have been sans verdict;
 Whereas if JMOL granted post-verdict, and then appellate ct.
reverses, it just reinstates jury verdict
Is JMOL warranted if both sides presented theories at trial that were equally plausible
such that jury could go either way- 50/50? – Lavender
o Concl: No.
o Reasoning
 As long as P has evidence for every element of claim, then app. ct.
must NOT overturn jury verdict by granting JMOL
 It’s not app. ct.’s job to decide, by granting JMOL, how 50/50
evidence weighs out; it’s a jury Q to make such factual determinations,
credibility assessments….Even if there’s “battle of the experts” issue
 “Only when there is a complete absence of probative facts to support
the concl. reached does a reversible error appear such that app. ct.
should reverse.”
34

“ Where there’s an evidentiary basis for the jury’s verdic [even if it’s
50/50] , the jury is free to discard or disbelieve whatever facts are
inconsistent with its conclusion.”
e) Motions for New Trials – R59
 Overview:
o RARELY granted in EXTREME circumts.
o If granted, new trial w/ new jury.
o Applies when there’s suffic. evidence so JMOL inappropriate; but ct. strongly
disagrees w/ jury’s verdict and thinks it was against the “heavy weight of the
evidence”
o Either trial judge grants it immediately post-trial ( efficient), or appellate ct.
reverses the pre-verdict JMOL & remands w/ order for new trial (ineffic.)
o Judge can order for “all or some” of the issues – R59(a)

New Trial Motion Timing (R59(b)) - A motion for a new trial must be filed no later
than 28 days after the entry of judgment.

Can be ordered sua sponte for any reasons that would justify motion – R59(d)

New Trial Motion- Contrast w/ JMOL –
o A. Can judge weigh evidence?
 JMOL -Judge CANNOT weigh the evidence; ltd. to assessing
whether reasonable jury could have made verdict they did, assuming
nonmoving party’s evidence is true
 New Trial - Judge CAN weigh witness credibility, other factual
determinations just for jury
o B. Appeal
 If judge grants JMOL, judgment entered for movant. Case over. This
is final judgment for purposes of appeal;
 Whereas if judge grants motion for new trial, then there’s new
trial….meaning it’s NOT final judgment for purposes of appeal/final
judgment rule
o C. Motion or sua sponte? Unlike JMOL
 JMOL: motion only
 New trial can be granted by motion OR sua sponte – for some OR all
issues
o D. SoR for reviews of trial ct.’s rulings on motions:
o JMOL - legal issue- so de novo (almost no deference to trial ct.)
o Motion for new trial – abuse of discretion (great deference to trial ct.)

Grounds for New Trial - Due Process or Result Defectso Judge –
35

A. Did judge admit evidence he shouldn’t have by incorrectly
overruling objection to admission? OR
 B. Did he refuse to admit evidence that he thought was inadmissible
but really was admissible? OR
 C. Did judge give incorrect jury instruction?
o Lawyers Did lawyer mis-assess other party’s liab. insurance?
 Inapprop. Interactions w/ jurors?
o Jury error
 Quotient verdicts: # damages award based on jury ugesses
 Was verdict amount against great weight of the evidence?

Summary -how to challenge jury verdicts, JMOL & M. for New Trial
o (Assuming you moved for JMOL pre-verdict as required)
 Post-verdict, file renewed motion for JMOL arguing that no reasonably
jury could’ve found for wining party; AND/OR:
 Trial judge rules on it, w/o weighing evidence – “if jury believed all of
non-movant’s [usually P’s] evidence and disbelieved all of movant’s
[usually D’s], then could non-movant have won?”
 If judge denies motion for JMOL…. On appeal, challenge denial.
o B. Argue jury’s verdict is against “great weight of the evidence” and move for
a new trial
 Motion for new trial can be filed jointly or alternatively at same time
w/ JMOL motion – R50(b)
 Judge is entitled to weigh evidence but w/o substituting own judgment
for jury’s …UNLESS jury really got it wrong
 If trial judge denies motion for new trial….then appeal denial. (VERY
RARE for app. ct. to reverse trial ct.’s denial of new trial motion)

Conditional New Trial Motions  NOT sua sponte
o When losing (or sometimes winning) party feels amount of verdict was against
great weight of evidence
o Party can compare amt. of verdict to those in other similar cases
o Judge can grant new trial conditionally:
 1. Remittitor:
 A. D moves for new trial b/c verdict amt. too large
 B. Judge says to P, “I will grant new trial, unless P chooses to
accept less “
 2. Additor:
 A. P moves for new trial b/c verdict too low
 B. Judge says to D: “I’ll grant motion to new trial unless you agree
to pay more.”
 Exception – In contrast w/ remittitor  CAN’T get additor in fed. cts., (but CAN in state cts.)
 In both, judge comes up with new amount of verdict
36

Harmless Error – R61
o Unless justice requires otherwise, no error in admitting or excluding evidence—
or any other error by the court or a party—is ground for granting a new trial, for
setting aside a verdict, or for vacating, modifying, or otherwise disturbing a
judgment or order.
o At every stage of the proceeding, the court must disregard all errors and defects
that do not affect any party's substantial rights.
f) Other Techniques for Controlling Juries
i) Instructions - R51
 Statements of law judge gives jury on which to base its verdict
 Judge gives to jury either before or after close of evidence; OR both
 Lawyers submit proposed instructions during trial OR at beginning of trial at last
pre-trial conference; judge then decides what goes to jury
 Counsel must object to improper instruction OR when instruction improperly not
given to jury by judge –
o Must get objection on the record
o Then objection can form basis for appeal
ii) Verdict Forms
 1. General verdict –
o Announce (a) who win and (b) how much
o But does not require jury to explain why or how it resolved particular
issues
o ( type for most civil cases)
 2. Special interrogatories (aka special verdict) - R49(a)
o Lists issues, and jury must answer those questions. But jury doesn’t decide
who wins/loses.
o Judge, NOT jury, looks to jury answers and comes up w/ bottom line
amount of judgment for P or D
 3. General verdict w/ special interrogatories – R49(b)
o Asks specific questions jury must answer – makes jury have to justify
verdict; avoids jury nullification
o Jury then determines bottom line amt. of judgment for P or D
 If concerned that amount of verdict incorrect - options: (R49(b)(4) )
o Judge may use special interrogatories instead of general verdict
o Judge may send it back to the jury
o “ “ order new trial w/ respect to damages issue- R59(a)
o Judge may not use new special interrogatories
3) Ascertaining the Applicable Law
a) Choice of Law in Fed. Courts: Applies in diversity cases- Does state or fed. law apply?
(P & D dispute which should apply based on which favors them)
37

Swift and Erie answer Q. – how to interpret Rules of Decision Act (RDA), 28
U.S.C. § 1652:
o “The laws of the several states, except where the Con. or treaties of the
U.S. or Acts of Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the courts of the United
States, in cases where they apply.”
i) Erie RR:
 Reverses Swift interp. of RDA.
 fed. cts. must apply state law for substantive law matters & fed. law to proced.
law matters in diversity cases
 Policy goals: avoid vertical forum shopping based on more favorable law in fed.
/state ct. at beginning of litig.
 Subtext: diversity jurisdiction’s point NOT provide neutral law, just a neutral
forum
Erie Case Tests – When dispute arises as to whether state or fed. law applies in diversity cases –
which law applies?
- Step 1. When there IS federal enactment (FRCP, statute, or Con.) on point: - REA prong
(Hanna)

A. Does enacted fed. law preempt the state law that one of the parties wants to apply?
[Will fed. rule work properly, as drafters intended, if we apply state law in this case?
Depends on what fed. rule was designed to do.]
o I. If yes to A, then fed. law applies under Supremacy Cl […UNLESS it’s invalid
under Step 2 below]
 Paradigm ex. of fed. preemption:
o 1. Direct conflict- Federal rule says X, State rule says ~X.
o 2. Discretionary v. mandatory
 If federal law is discretionary, and state law is mandatory,
federal rule will not work correctly if we apply state rule.

R26(f), and R16 won’t work properly if state rule is applied
b/c FRCP rules stress judges’ discretion in discovery sched. &
judicial management, whereas state rule sets strict time limit
o 3. State/fed. timing rule discrepancies
 State rule says D can file summary judgment no sooner than 3
months after P starts discovery. R56- party can MSJ “at any
time until 30 days after the close of all discovery.” – R56 won’t
work properly w/ its flexibility alongside rigid state rule
o Regulation of discovery/trial proceedings
 Federal rule says malpractice cases must have 2 witnesses that
prove gross negligence.
38

State rule says that there must be testimony at trial that
establishes regular negligence.
o If federal law is intended to occupy an entire field
 Federal labor law says employees are forbidden from a, b, c,
but doesn’t say anything about x, y, z.
 State law makes x, y, z, illegal also.
 Employer will bring suit and argue that federal law preempts
state law, even though federal law didn’t say anything about
x,y, z,
 Since federal regulation was intended to say everything that
there is to say about what employers cannot do in this context,
anything that federal law doesn’t mention still wholly governed
by federal regulation

Step 2- Exception- Even if fed. law preempts state law under Step 1, is fed.
law valid in the 1st place?
 i. If no, then fed law does NOT apply, state law applies.
 ii. If yes – fed law applies
 Determining whether fed. enactment valid
 a. Con.- always valid
o b. Statute- valid if it’s Constitutional (Did Congress have
power to pass it?)
 Hanna - under Art. III and N&P cl., Cong. has power
to pass statutes that “regulate matters which, though
falling within the uncertain area between substance and
procedure, are rationally capable of classification as
either.”
 If fed. statute procedural  it applies/trumps state law
o c. Rule from FRCP –
 1. Is it constitutional?
 2. Does it satisfy Rules Enabling Act (REA), 28
U.S.C. §2072 [authorizes SC to make FRCP]
 REA - 28 U.S.C. § 2072 “ REA(a) The Supreme Court shall have the
power to prescribe general rules of practice
and procedure and rules of evidence for cases
in the United States district courts (including
proceedings before magistrates thereof) and
courts of appeals.


Liberal. Any FRCP rule that’s even
arguably procedureal- deals w/ form and
manner in which case is litigated -valid
under REA(a)
*** Presumption that FRCP valid given their rigorous review process by
39
advisory committee, Congress & SC.
[SC has NEVER struck down FRCP]


REA (b) Such rules shall not abridge, enlarge or
modify any substantive right. All laws in
conflict with such rules shall be of no further
force or effect after such rules have taken effect.
“
 [Means: SC can promulgate proced.
rules for fed. cts, but not if they
alter/amend substantive rights.,]
*Even it seems clear that there’s fed. enactment on point under REA prong, analyze
under Step 3 RDA prong in the alternative.
Step 3 - If there is no governing fed. enactment (FRCP or Con.) on point, OR I’m wrong under
Step 2 that there’s fed. enactment on point…. then can fed. judge MAKE UP fed. common law
rule, under circumsts. of this case, that conflicts w/ relevant state law? (RDA prong)


[A. Will choice of rule avoid inequitable admin. of the law? - rarely used prong- just
acknowledge, no analysis]
B.*** Is choice of rule [1] predictably outcome determinative [2] at beg. of litig. [3]
as to cause vertical forum shopping? (Is difference in state & fed. rules so substantial
as to cause Ps to vertically forum shop for most favorable fed./state law at beg. of
litigation, contrary to Erie policy goals?)
o A. If yes – substantive law  fed. ct. applies state law*
 Guaranty Trust v. York- Choice of law for statute of limitations 
substantive  State law applies
 Gasperini- Choice of rule for app. ct.’s SoR for reviewing excessive jury
verdicts will create sig. diff. in what kinds of awards allowed under NY
vs. fed. law  substantive state law applies
 Hanna dicta: Is P, in choosing her forum, “presented w/ a situation where
app. of the state rule would wholly bar recovery?”
o B. If no- proced . law - Fed ct. applies fed. common law
 Hanna (dicta)- Unlikely that P would choose fed. ct. over state ct. for
difference between state vs. fed. (FRCP 4(f) ) service rules since more
rigorous service under state rule requires only marginally greater
effort than FRCP 4(f).
 Byrd - choice of whether or not there’s jury trial in fed. vs. state ct. is
NOT predictably outcome determinative at beg. of litig. so as to cause
forum shopping proced.--> fed. common law applies.
40


Chambers – difference between state/fed. sanctions for bad faith
conduct would NOT result in vertical forum shopping  proced. 
fed. common law applies.
Hanna applies Step 1 and 2, RDA prong,
o Step 1. There is valid fed. enactment on point for proper service- FRCP 4(f)
 Under Supremacy Cl., FRCP 4(f) (service only requires leaving complaint
& summons w/ person of “suitable age & discretion) directly preempts
Mass. state service rules (more rigorous- requires in-hand personal
service).
o Step 2. FRCP 4(f) valid – approved by advisory committee, Congress, SC
ii) Determining the Content of State Law – How does Fed. Ct. Interpret State Law?
o Rule: Fed. ct. must decide issue the way the highest state ct. of the state whose
law its applying would decide the cas
o Issue: what if state SC has not decided the issue fed. ct. addressing?
 Fed. ct. not bound by authority from anything below highest state ct. of the
state, but lower state ct. decisions = persuasive authority
 Even though fed. ct. supposed to do what state SC would do, they’re not
reviewed by state SC. So effectively, fed. cts. have a LOT of “wiggle
room” to manipulate state law of state’s highest ct.. Sometimes fed. cts
interpreting state law “like reading tea leaves” Ultimately this undermines
Erie policy goal of discouraging forum shopping, vertical uniformity in
fed/state substantive law.
 Practical implications, DESPITE Erie aims: Litigants must research fed &
state precedent & choose which one is most favorable, and strategically
pick where to file case accordingly.
DeWeerth – Fed. cts. misinterpreting state law in Erie cases
 Facts:
o Fed. ct. thought NY SoL law required reasonable diligence to toll SoL for
locating stolen property.
o Several yrs. latter, highest NY ct. held relevant SoL did not require reasonable
diligence, meaning Fed. ct. had interpreted relevant NY SoL incorrectly when it
barred P’s Nazi stolen art claim.
o P wanted case to be. reopened pursuant to R60(b) in extraordinary circumsts.
 Issue on appeal: can case be. reopened pursuant to R60 “extraordinary circumsts” if it
turned later that fed. ct. misinterpreted state SoL law at expense of P’s meritorious claim
getting barred?
 Concl.: No.
 Analysis:
o Harsh result for P justified by policy: repose, finality
o P assumed the risk of fed. ct. misinterpreting state law by filing case in federal
court when it could have been filed in state court
b) Post-Erie Issues
 Whose state law governs?
41



o SC: A fed. ct. sitting in diversity will use conflict of laws rule of state in which it
sits to determine which state’s substantive law to apply
What does state law require?
o How does fed. law know what state law requires/means, when it’s really
unfamiliar w/ the area, how state would rule, & it may be issue of 1st impression
in fed. ct.?
When does fed. govt. have power to create substantive fed. preemptive common law that
will bind state cts? Controv.
o Scalia: fed. cts. are statutorily created cts; they don’t have power to make any fed.
common law
o Others: There is fed. substantive common law. (ex. forum non conveniens
doctrine- Piper)
Erie- substantive common law in diversity cases is state law. But when does fed. ct. have
power to create procedural law?
o Art. III – grant of jd. to federal cts. to decide cases implicitly includes power to
make their own rules. This includes . . .
 FRCP
 Procedural Common Law
o How do you disting. between what’s procedural (and thus can be made by fed.
cts. & governed by fed. law), and what’s substantive , (where fed. ct.s obligated to
apply state law rule under Erie)?
42
4) Respect for Judgments - CP and IP are both AFFIRMATIVE DEFENSES – raised when
party WON in case 1.
a) Claim Preclusion aka Res Judicata
 1. WHOSE LAW APPLIES? [see federalism notes below]
 2. Same claimants? (can be either P or D, in case of counter-claim); AND
 Did claimant in case 2 bring claim against this particular party in case 1?
 Exception – if not same parties, then parties in 2nd suit must be in privity
(meaning 3d party who did not sue this “D” in case 1 has acquired right to sue
from someone else who’s sued “D” before)
 A. Party in case 2 bound by case 1 judgment if he was represented by
party in case 1
 Ex. Trustee litigating in case 1 on behalf of estate represents
beneficiary of estate in case 2; thus beneficiary can’t sue again
 Ex. 2- Guardian, executor, or other fiduciary in privity with
beneficiary (thus beneficiary cannot sue again), as long as brings
litigation in representative capacity
 B. Substantive legal relationships between litigant and nonparty can justify
binding the nonparty  Successive owners of property, assignor/ee of
note or contract rights, decedent’s estate and decedent

3. Same Claim; and ; AND [APPLY ALL 3 FOR ESSAY]
 A. Same trans. or occurrence – [ONLY use this for mult. Choice!]
 Gloss- [Even if you didn’t actually raise case 2 claim in case ]
does new claim in case 2 share w/ case 1 claim,:
o same facts,
o same witnesses,
o same other evidence,
o same narrative as case 1 claim against this “D”
43



o ……such that it doesn’t make sense from judic. econ.
POV to tell same “story” to ct. more than once?
Were to events close in time, space, origin or motivation?
B. Single wrongful act test - Does all damage in both cases flow from one,
single wrongful act by D?
 Ex. car crash (negligence-1) that leads to screaming obscenities
(defamation-2) – 2 claims b/c 2 separate “wrongful acts” by D
 C. primary rights test (Carter)
 (1) Property damage; and (2) personal injury arising from same car
accident = 2 rights violate, thus 2 claims.
4. Quality of Judgment- must be; AND
 A. Final (at the time of the judgment in trial ct.); and
 B. Valid; and
o 1. Fed. ct.: proper (1) PJ and (2) notice?
o 2. State ct: proper (1) PJ and (2) notice? and (3) SMJ (did litigant
properly file in correct state ct., i.e. probate, juvenile, etc.?)
 C. On the merits […-]
o Proced. dismissal for lack of PJ, SMJ, improper service DOESN’T
COUNT;
o Dismissal for default DOES count
o Means: on substantive issue for which case brought
o 12(b)(6) dismissal
 Counts as judgment on the merits, unless ct. says otherwise.
 If ct. says nothing, it’s on the merits.
 But if it’s dismissal on Twombly-Iqbal improper pleading
drafting grounds, not dismissal on the merits (dismissed w/o
prejudice)
44
b) Issue Preclusion aka Collateral Estoppel
 1. WHOSE LAW APPLIES? [see federalism notes below]
 2.. Same Issue…? AND
o a. Same facts?  EXACTLY same facts from same accident to same people?
o b. Same law?  EXACT same legal standard? – Poss. differences:
 State law standard v. federal law standard
 Criminal standard v. civil standard v. insurance standard
 Crim. burden of proof v. civil burden of proof 
o Only matters if case 1 standard was lower than case 2’s
 Definition of negl. used in state bar disciplinary case vs.
regular fed. ct. case
 [For negl., if theory of recovery is different- ex. personal injury vs.
property damage vs. wrongful death – still generally legal standard the
sam]
 3. Was this partic. issue actually litigated in case 1? AND
o Did case 1 ct. actually make a decision about this particular issue with respect
to these 2 same adversaries in case 1?
o Spectrum- default judgment (not actually litigated)-----------case reaches
final judgment (definitely actually litigated)
o Different between claim and issue preclusion
 Claim preclusion- barred even if you didn’t raise/litigate specific claim
in case 1
 Issue preclusion- Issue only barred if it was actually litigated in case 1
 4. Was this partic. issue. necc. to the result in case 1? AND
o What if 2 findings in case 1 are both independently sufficient causes for result
in case 1?
45

A. RST 1st j’ments - both issues precluded b/c both were necc. to
result, and thus both could’ve been appealed by party against whom IP
is asserted
 B. RST 2d of j’ments*- NEITHER issue precluded…unless party
against whom IP asserted in case 2 appealed both case 1 findings
(*apply for mult. Choice)
 5. Was/did party against who I.P. is asserted… AND
o a. Present or in privity w/ other party in case 1?
 [See privity def. above under C.P.]
o b. Have Full & Fair Opp. to Litig. this issue against this adversary in case
1?
 (1) Were stakes high enough in case 1 to incentivize vigorous litig. on
this issue?
 (2) No proced. barriers to fully litigating case 1? (ex. it was in regular
state or Art. III fed. ct., w/ proced. safeguards like discovery……as
opp. to state bar hearing/ summary proceeding for eviction/ admin.
proceeding)
 6. Was quality of judgment on this particular issue in case 1
o a. Final? AND b. Valid? [same as claim preclusion above]
c) Compulsory Counter-claim: R13(a)  Preclusive Effect
 R13(a)(1)(A) Compulsory Counterclaim.
o “A pleading must state as a counterclaim any claim that—at the time of its
service—the pleader has against an opposing party if the claim. . .arises out
of the transaction or occurrence that is the subject matter of the opposing
party's claim; and “
o Means: Party (“P”) in case 1 must make all transactionally related counterclaims against another party (“D”)
o Gloss: Does it make sense from judicial economy POV that to try all of these
claims at the same time in case 1?
 Same accident?
 Same facts?
 Same witnesses?
 Sam narr. Presented to the court?
d) Non-mutual issue preclusion- I.P. used by someone who was NOT A PARTY IN
CASE 1
 I. Offensive non-mutual issue preclusion (ONMIP ) : different P in case 2 wants to
use I.P. to win a claim that was litigated against same D as case 1
o Ex.
 Case 1: P1  D (D loses on Issue A)
 Case 2: P2  D (new P2 asserts IP to prevent D from litigating Issue
A that P1 won in case 1)
o Step 1: Party asserting ONMIP must fulfill all normal elements of I.P. above.
o Step 2: Apply Parklane Factors
46

(1) Was there valid reason for P in case 2 to not have joined P from
case 1? AND
 P’s intent? – obj. standard- what would reasonable P have
done in that situation?
o Invalid reason: P2 didn’t join P1 in case 1 for tactical,
pretextual reasons, just to use I/P later in case 2 if P wins
in case 1 – “wait and see”];
o Valid reasons for P2 not joining in case 1  Would have been unreasonably inconvenient for P2
to have joined in case 1 – ex. case 1 in AL and case
2 in TX
 Would forum have been unfavorable to P2 case 1?
 Would jury have been unfavorable to P2 in case 1?

(2) Would app. of ONMIP to bind D in case 2 to j.’ment . from case 1
be unfair to a D such that…[must satisfy all- i – iii.] ?
 i. Was there incentive for D to litigate in case 1? AND
o A. were stakes high enough to D to fully litigate the
issue in case 1?
o B. Were future suits involving same issue – case 2foreseeable?

ii. Were there prior inconsistencies in judgments? AND
o Step 1: Is than an actual inconsistent judgment?
 Series of lawsuits with same defendant, 5th one
in favor of P after 4 in favor of D
o Step 2:
 Multiple Plaintiff Anomaly- Are there multiple
future Ps (ex. airplane crash) who might use IP
against this D, such that it’s unfair to bind D to
his case 1 loss in too many future cases?
 Courts will wait as a matter of discretion
to allow ONMIP in such large-#-P cases,
until proportional # of Ps sues D (i.e. 1
of 3-4, 2 of 20, 5 of 200) to make sure
D’s loss in case 1 = representative result
of future suits against D
 If D consistently loses on that issue, then
cts. allow multple future Ps to use I.P. to
bind D to his case 1 loss on that issue.

iii. Were there sig. proced. disadvantages to D in case 1 that
altered D’s ability to effectively prepare his case?
o What if there’s right to jury in case 2 but not in case 1?
NOT ENOUGH to bar NMOIP ; doesn’t count as
47
serious disadvantage from D having fair case in case 2
(Parkane )
o Paradigms– case 1 was LL/T summary eviction
proceeding (party had no time to prepare) ;
administrative proceeding; lacked Art. III judic.
proced. safeguards, incl. discovery

II. Defensive non-mutual I.P. (DNMIP):
o Ex.
 Case 1: P D1 (P loses on issue A)
 Case 2: P  D2 (new D2 asserts I.P. to bar from P re-litigating Issue
A, won by D1)
o OK as long as P has full and fair opportunity to litigate in Case 1 (usually
true).
o Makes sense in terms of judicial economy. Incentive for plaintiffs to join
together all defendants in one case.
e) Inter-system Preclusion – Federalism Issues
STEP 1 IN BOTH IP AND CP ANALYSIS: WHICH PRECLUSION RULES APPLY?
- Generally state & fed. preclusion rules the same – will be given if diff. on exam.]
 1. State A-to-state B
o To determine whether State A’s j’ment in case 1 was valid, State B asks: Did
State A have P.J.?
 If no, j’ment in State A was void and unenforceable.
 If yes, State A’s j’ment entitled to full faith and credit (FF&C) in State
B, even if j’ment was wrong on the merits of the dispute.
 2. State A- to-state A: State A’s I.P. law applies, b/c State A gets to determine
preclusive effect of its own past decisions
 3. State-to-federal
o [does it make a difference in state-to-federal shift is within the same state or
not?]
o FF&C Act: 28 U.S.C. § 1738:
 Fed. ct. in State B must give FF&C to valid judgment of State A
 Fed. ct. must give effect to state judgments of state in which ct. sits
 Therefore, Federal Court must use the state preclusion law. [For exam,
assume that state preclusion law is the same as federal law.]
o Can 2nd ct. (fed.) give state judgment greater preclusive effect? Split
 Hart v. American Airlines- as long as second state gives as much issue
preclusion, it’s ok to give a judgment greater preclusive effect
 Marrese v. American Academy of Orthopedic Surgeons - When going
to state to federal, must give the EXACT same preclusion effect.
Second case must have the exact same preclusion effect that state court
would give to that original decision.
48


4. Fed.-to-State
o Case 1 was fed Q.
 Supremacy cl – states must respect fed. judgments –so state ct. in case
2 obligated to use fed. common law rules on I.P. to decide preclusive
effect of case 1 in fed. ct..
 Thus, state ct. must ascribe to fed. ct. j’ment the same preclusive effect
that the fed. ct. would.
o Case 1 was diversity
 A. apply fed. common law*… b/c ultimately fed. cts. Can control
preclusive effect of their own judgments
 B. ….*but fed. common law says that in case 2, preclusion law of
state in which fed ct. in case 1 sat applies as matter of public policy.
 Qualific: But fed. ct. won’t apply state preclusion law if it guts
fed. preclusion law…if state preclusion law is hostile to
enforcement of fed. judgments….meaning if state law gives
lesser preclusive effect oto ed. judgments than it does to its
own state judgments (RARE), then regular fed c.l. preclusion
rules will apply.
5. Fed-to-fed.: fed. preclusion law governs.
5) Appeals
a) App. Jd. of the Fed Cts.
 Timing – FINAL JUDGMENT RULE
o A. Fed. ct. - only when you have final judgment.
 “The courts of appeals. . .shall have jurisdiction of appeals from all
final decisions of the district courts of the United States. . . except
where a direct review may be had in the Supreme Court.” 28 U.S.C. §
1291
 What is final judgment?
 Only final judgment when trial court is done with case.
 Denial of motion to dismiss for lack of SMJ/PJ- NOT final
judgment, thus not immediately appealable
 Discovery rulings – generally NOT final judgments, thus NOT
immediately appealable .
 Grant of motion to dismiss for SMJ/summary judgment- IS
final judgment, thus is immediately appealable
 Policy:
 Avoiding piecemeal litigation
 Efficiency
 App. ct. deferring to the trial ct.’s role
o B. Some states allow interlocutory appeals- appeals of decisions made in the
course of litig. that come before final judgment on the merits.
 Ex. of pre-final judgment decisions: rulings on motions to transfer,
disc., & admissibility of evidence
49

Exceptions to Final Judgment Rule:
o 1. R54 (b) –
 Alows trial court to enter/certify final judgment as to some separate
claim/party and thereby make that judgment appealable, even though
other portions of the case remain unresolved.
 Two –part test:
 1. There must be dismissal of separate. claim or party, even if
whole claim not yet dismissed.
o Dismissal of that claim means that individual claim can
be appealed immediately.
o But different THEORIES of negl. dismissed doesn’t
count as sep. claim (ex. wrongful death vs. harm to
property)
 2. Trial ct. must certify that there’s no just reason for delay
o 2. Collateral order rule - requirements:
 A. Must be an important issue
 If it’s just a disc. matter, that’s not important enough-Judge’s
discretion
 Dist. ct.’s determination on the particular issue must not have
been tentative or incomplete
 B. Issue must be separate from the merits
 Policy: protects against repetitive consideration of the same
matters by the court of appeals. So long as the matter is so
collateral that it need not entail consideration of the merits,
app. ct. may review it immediately with no greater cost in
appellate time than if review were postponed.
 C. Must be effectively unreviewable (unable to be vindicated) on
appeal, post-final judgment

Ex. 1– Cunningham
 Facts
o Petitioner/P served w/ interrogatory & production
requests; P did not comply w/ deadline for either
o Magistrate issued order to comply w/ deadline for P; P
still did not comply
o Magistrate granted sanctions under R37(a)(4) for Ps –
for costs & fees Ds incurred
o P’s counsel was also material witness in the case
 Issue: Is magistrate judge’s order imposing disc. abuse
sanctions on atty under FRCP 37(a)(4) excepted from “final
50




judgment rule” (28 USC § 1291) pursuant to collateral order
exception (which would allow atty. to pursue interlocutory
appeal of the sanctions order, even though it’s not final
j’ment)?
Concl.: No.
Rule: Collateral Order Exception to Final Jdg. Rule (see above)
Analysis:
o A. – order was conclusive (conceded)
o B. Can appellate review of a sanctions order remain
completely separate from the merits?
 No. Here, appellate ct.’s review of extent of
disc. abuse requires judgments about how bad
these abuses were in light of the merits of the
case
 …Ex. how important was the info. sought?
What was the adequacy/truthfulness of a
response?
 Thus review of sanctions order for disc. abuse
under R37(a)(4) is intertwined with the merits;
o C. Effectively unreviewable on appeal?
 Disting. civil contempt under R37 sanctions
(774m)
 Contempt order comes at high price of
atty. actually having to put himself in
contempt, go to jail; thus immediately
appealable by atty.
 In contrast, R37(a) does not cause
sanctioned atty. any such “inordinate
injury from a deferral of appellate
consideration of the sanction.”
o Policy concerns -efficiency
 Ct. worried about tactical use of interlocutory
appeals to delay litigation by attys. after they are
sanctioned for disc. abuse under R37
 Allowing interloc. Appeals of R37(a) sanctions
would create loophole in final jdg. rule that
could be abused for tactical readings
Ex. 2-Hickman
o Issue: If judge says that something is not attorneyclient privilege, and orders party raising privilege to
disclose the doc., is this immediately appealable?
o Concl: Yes.
o Analysis:
 A. solves an important issue (because to disobey
judge’s order to disclose info. deemed
51


unprivileged, attorney must put himself in
contempt, faces poss. jail)
 B. Sep. from the merits
 C. Not reviewable on appeal because if lawyer
follows judge’s order to disclose the doc., the
privilege will be lost because the information
must be admitted.
Ex. 3- Immunity from suit – Will v. Hallock
o Issue: If order to be dismissed is denied, can party seek
immediate review under Collateral Order Doctrine?
o Concl: Yes. This is designed to protect against
defending cases in court, not entry of judgment against
a gov’t official. Therefore, not effectively reviewable
on appeal, because if an immune party must defend
through trial w/o right to interloc. appeal, he has lost
benefit of the immunity right.
Ex. 4- Van Cauwenberghe (1988)
o Issue: Is judge’s denial of MTD for lack of PJ
immediately appealable pursuant to collateral order
doctrine?
o Analysis
 MTD for lack of PJ = right not to have a binding
judgment entered against you in the wrong
jurisdiction, which IS effectively appealable
(“may be effectively vindicated”) after final
judgment
 Thus not immediately appealable. Collateral
Order exception doesn't apply
o 3. Decisions granting, modifying or denying injunctions ARE immediately
appelable, even w/o final judgment.
 § 1292(a)(1) “…[T]he courts of appeals shall have jurisdiction of
appeals from: (1) Interlocutory orders of the district courts of the
United States. . . granting, continuing, modifying, refusing or
dissolving injunctions, OR refusing to dissolve or modify injunctions,
except where a direct review may be had in the Supreme Court;”
 Rationale: injunctions have many requirements under rules of equity:
(1) Irreparable injury; (2) Extraordinary remedy. So statute
acknowledges that the erroneous grant or denial of even a prelim.
injunction may result in irreparable harm.
o 4. Discretionary appeals
 [Part A] §1292(b): When a district judge, in making in a civil action
an order not otherwise appealable under this section, shall be of the
opinion that such order involves a
 [1] controlling question of law…
52
o  legal issue on the merits that will determine
whether the P or D wins the case. (determines
ultimate disposition of the case)

[2] as to which there is substantial ground for difference of
opinion and that…
o Ex. no higher cts. have resolved issue of what new law
requires, w/ split across jurisdictions

[3] an immediate appeal from the order may materially
advance the ultimate termination of the litigation…
o Party seeking interloc. appeal argues immed. appeal of
this issue will resolve case quicker/avoid full trial

[Part B]…. The Court of Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order. . . .Provided, however, That
application for an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of Appeals or a
judge thereof shall so order.

Paradigm – if case hinges on brand-new statute no cts. know knows
how to interpret
o 5. Writs of mandamus
 Extraordinary writ - Almost never works
 Available as writ under All Writs Act (1789) to review action trial ct.
takes that it had no discretion to take/ no discretion to refuse to take
 Can’t be used to get app. review of discretionary acts by trial ct.
 Paradigm- Part asked trial ct. to grant phys. & ment. exam authority of
bus driver involved in accident; having been asked to give 4 types of
exams, trial ct. orders NINE exams by different med. specialists
 SC: grants writ of mandamus b/c trial ct. had no discretion to order 9
exams under FRCP
o **1990 amd. to REA allows SC, by rule, to make exceptions to the final
judgment rule under 28 USC 1291
b) Scope and Standard of Review on Appeal

Principle: Appeals NOT designed to remedy all mistakes at trial level; just to review
whether RESULT (JUDGMENT) below was appropriate

Can only appeal issue if:
o 1. Error was on the record.
o 2. Appellant OBJECTED to the determination at trial.
 Must make sure that trial judge:
53
 (1) RESPONDS to objection,
 (2) on the record
 Encourages parties to raise these issues below so trial ct. can correct
its own mistakes;
 Gives app. ct. clear ruling & basis for trial jd.’s ruling so it can do
better judge of reviewing trial judge’s decision;
o 3. Appellant IS NOT raising issue for the 1st time on appeal. Issue must have
been raised below.
o 4. Appellant IS NOT appealing harmless error.
 If error (ex. in admission or exclusion of evidence) occurred but it
didn’t cause change in trial ct. result (JUDGMENT), no basis for
appeal
 Controversial what constitutes “harmless error” – a counter-factual
inquiry – “If x had been properly admitted/excluded, then result would
have been different”
o 5. Appellant WASNOT winning party at trial.
 Winner means party who got the judgment (RESULT) at trial and thus
doesn’t want to change anything w/ the judgment (RESULT)
 [Reasoning behind “necc. to result” requirement for I.P.”]

Cross-appeals: Overall-winning party raises it when losing party has already
appealed the whole case, so overall winner in ct. below uses this is opp. to appeal part
of the judgment that was unfavorable at trial.
o 1. If losing party appeals, then winning party may cross-appeal ANY ISSUE
that would sustain the judgment, even if issue was NOT clearly decided
below.
 Ex. If at trial winning party made args. x y and z, but judge just based
his judgment that he won on arg. X, he can still raise arguments y and
z above
 HOWEVER winning party (nor losing party) can raise evidence issues
on appeal.
o 2. Losing party files appeal. If you want to change j’ment in any way, even if
you technically won, you must cross-appeal.
 If you win case overall and get $50K judgment, but trial judge denies
you atty’s fees, and then other side appeals whole case, arguing they
were not liable….
 If you want to change 1 unfavorable aspect of the judgment, (ex. by
arguing ”I won, but I should have ALSO won atty’s fees”) then you
must file cross-appeal. T
 While you were winning party OVERALL on issue of liability &
compensation for damages, you were technically loser on issue of
additional recovery of atty’s fees.
 Logic: If losing party going to appeal the case anyway, then overall
winning party below can cross-appeal if he didn’t like 1 aspect of the
judgment below, which he technically lost..
54
Standard of Review : What level of deference should app. ct. give to trial ct.’s judgment,
OR to spec. issues decided by trial ct.?


1. Trial ct.’s ruling legal issues
o (ex. Trial ct. said jury instruc. should be X.)
o Reviewed de novo – NO deference to trial ct. App. ct. reviews trial ct.
determination as if it were considering issue for 1st time
2. Trial ct.’s rulings on factual issues – Depends on who fact-finder is:
 I. Factual issues decided by trial judge (bench trial)- Affirmed, unless
clearly erroneous
 Means “firm and definite conviction that trial judge is wrong” R52
 More deferential than de novo, but less deferential than abuse of
discretion

II. Factual Issues decided by jury
 A. Appealing judge’s denial of your motion for JMOL at trial:
o Means judge found that a reasonable jury, if it accepted all
of winning party’s evidence, COULD have returned verdict
for that party.
o This is legal issue, so reviewed de novo. – NO
DEFERENCE to trial ct.
o [NOT an appeal of jury’s factual findings, but rather of
judge’s decision not to grant motion for JMOL.]
55


B. Appealing judge’s denial of your motion for new trial…
o Trial judge’s determination that jury verdict was NOT
against great weight of the evidence required factual
determination –weighing evidence, credibility
determinations.
o Thus, app. ct. won’t reverse trial ct.’s factual determination
unless abuse of discretion:
 MAX. DISCRETION to trial ct.
 As long as trial judge decides motion within range
of permissible discretion, and that decision was
NOT manifestly erroneous, then app. ct. will affirm.
3. Case management/Proced. issues
o Ex. disc., sanctions, timing, motions to transfer, scheduling issues
o All subject to abuse of discretion  MAX. DISCRETION to trial ct.
 As long as trial judge decides issue within range of permiss. discretion, &
trial ct. judgment NOT manifestly erroneous, then app. ct. will affirm