Civil Procedure Long Outline
COMPLEX JOINDER ............................................................................................................................................................................ 2
JOINDER .................................................................................................................................................................................................................... 2
Rule 19 Required Joinder.............................................................................................................................................................................................................................. 2
Torrington Company v. Yost: non disclose: rule 19(a)(1)(b) and 19(b): indispensible party. Dismissed ..................................................... 3
INTERPLEADER ........................................................................................................................................................................................................ 4
Statutory Interpleader (29 U.S.C. § 1335): Compelling Multiple Parties to Litigate ........................................................................................................ 4
Rule 22 Rule Interpleader: Compelling multiple parties to litigate ......................................................................................................................................... 5
INTERVENTION ........................................................................................................................................................................................................ 6
Rule 24 Intervention: Party Trying to Get In ....................................................................................................................................................................................... 6
End Chapter Notes............................................................................................................................................................................................................................................ 7
CLASS ACTIONS ....................................................................................................................................................................................................... 8
Rule 23: Class Actions ..................................................................................................................................................................................................................................... 8
Hansberry v. Lee (S.Ct. 1940) : not bound by class action where not adequately represented in the earlier suit ............................. 12
In Re Teflon Products Liability Litigation: 23(b)(3) certification. ................................................................................................................................... 13
SUPPLEMENTAL JURISDICTION .................................................................................................................................................. 14
Exxon Mobil Corp v. Allapattah Services: amount in controversy doesn’t contaminate diversity for claims under supplemental
Jurisdiction of court ................................................................................................................................................................................................................................ 15
DISCOVERING THE FACTS ............................................................................................................................................................. 15
Discovery Tools ............................................................................................................................................................................................................................................... 15
Rule 26 (discovery Generally) .................................................................................................................................................................................................................. 16
Discovery Generally ....................................................................................................................................................................................................................................... 17
INFORMAL INVESTIGATION .................................................................................................................................................................................18
Rule 11: must make reasonable inquiry prior to filing complaint. ......................................................................................................................................... 18
Rule 4.2: no talking to represented Parties ........................................................................................................................................................................................ 18
Gaylord v. Homemakers of Montgomery: informal discovery: talking to other party’s/witnesses ................................................................ 19
SCOPE OF DISCOVERY ...........................................................................................................................................................................................19
Rule 26(b): Scope of Discovery: may obtain discovery regarding any matter (not privileged/protected as prep for trial) which is
relevent to the subject matter involved ............................................................................................................................................................................................... 19
Scope Of Discovery Briefly 26(b)(1)...................................................................................................................................................................................................... 21
Objections To Discovery 26(b)(5) .......................................................................................................................................................................................................... 22
Attorney Client Privilege (restatement 68) ....................................................................................................................................................................................... 22
Asserting the Attorney Client Privilege................................................................................................................................................................................................ 23
WORK PRODUCT ...................................................................................................................................................................................................23
26(b)(3): Materials Made in Anticipation of Litigation ................................................................................................................................................................ 24
Hickman v. Taylor: creation of work product protection: codified in 12(b)(3) ........................................................................................................ 26
EXPERT WORK PRODUCT ....................................................................................................................................................................................26
Expert Work Product: Experts 26(b)(4) ............................................................................................................................................................................................. 26
PLEADINGS AND PRIVILEGES PROCEDURALLY.................................................................................................................................................28
Steps to pleading Privilege and Work Product Protection 26(b)(5) ..................................................................................................................................... 28
Pretrial Conferences; Scheduling; Management (rule 16) .......................................................................................................................................................... 29
Rules 4, 16(b) and 26(a)(1) and 26(f) give timeline ..................................................................................................................................................................... 30
Flores v. Southern Peru Copper Corp: delay required initial disclosures .................................................................................................................... 30
End Chapter Notes.......................................................................................................................................................................................................................................... 30
Steps of Suit Generally .................................................................................................................................................................................................................................. 31
REQUIRED INITIAL DISCLOSURES ......................................................................................................................................................................32
Required Initial Disclosure 26(a)............................................................................................................................................................................................................ 32
(1) Parties must begin with mandatory planning conference under Rule 26(f) and 26(g) ....................................................................................... 34
Initial Disclosures: 26(a) ............................................................................................................................................................................................................................. 35
(2) Timing of Disclosures 26(1)(c/d) ................................................................................................................................................................................................... 35
DISCRETIONARY DISCOVERY ...............................................................................................................................................................................36
Generally ............................................................................................................................................................................................................................................................. 36
Interrogatories: rule 33 ............................................................................................................................................................................................................................... 37
Requests for Admission: if admitted, don’t adjudicate: 36:........................................................................................................................................................ 38
Document Requests/electronically stored info, tangible things, entering onto land: rule 34 .................................................................................. 38
Medical Examinations: rule 35 ................................................................................................................................................................................................................. 39
Sacramona v. Bridgestone / Firestone. Inc. (Mass 1993) –Physical Examinations denied bc connection too attenuated .................. 40
ELECTRONIC DISCOVERY .....................................................................................................................................................................................40
Electronic Discovery: Rule 26 and 34 ................................................................................................................................................................................................... 40
Zubulake v. UBS Warburg L.L.C. balancing test for ESI to shift costs .............................................................................................................................. 42
1
DEPOSITION ...........................................................................................................................................................................................................42
Depositions Rule 28, 30, 31, 32 45 (subpoenas) ............................................................................................................................................................................. 42
Rule 32: Use of Deposition: evidence or contradiction ................................................................................................................................................................ 44
CONTROLLING DISCOVERY AND DISCOVERY ABUSE .......................................................................................................................................45
From Chadusma v. Mazda Motor Corp (what we would do): severity of sanctions (default judgment) too sever: 26(g) sanctions
were rewuired, but too severe........................................................................................................................................................................................................... 45
Ensuring Compliance with discovery rule 26(g) and rule 37 ................................................................................................................................................... 46
Rule 37: discovery Sanctions .................................................................................................................................................................................................................... 46
rule 26(g): sanctions ..................................................................................................................................................................................................................................... 46
DISCOVERY CHART ...............................................................................................................................................................................................47
WHAT LAW APPLIES ....................................................................................................................................................................... 48
Rules of Decision Act 28 USC 1652 ........................................................................................................................................................................................................ 48
Constitution Article VI: Supremacy Clause ......................................................................................................................................................................................... 48
Swift v. Tyson (1842): Federal Courts applying all common law (OVERRULED) .................................................................................................... 48
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. (1928): Federal common law
applies in diversity case when there is no state statute but is state common law (Overruled) .........................................48
Erie R.R. Co. v. Tompkins (1938): Federal Courts apply state substantive statutory/constitutional/common law ............................... 48
Ascertaining State Law: What is the Law of the state? ................................................................................................................................................................. 49
State Supreme Court Predictive Approach: Ascertain how Supreme Court Would hold Today? ............................................................................ 49
Uniform Certification of Question of Law ........................................................................................................................................................................................... 50
Which State Law Applies? Choice of Law ............................................................................................................................................................................................ 50
Klaxon v. Stentor Electric Mfg. Co. (1941): federal courts apply the state choice of law rule in which they sit ........................................ 50
Specific Federal Common Law: in disputes between states, foreign police, other matters of specific federal concern ............................... 50
United States v. Standard Oil Co. of California: soldier hit by truck: apply federal common law for uniformity ...................................... 50
Substantive v. Procedure: When to apply Federal/State Law? ................................................................................................................................................ 51
Guarantee Trust Co of NY v. York: Outcome determinative Test: didn’t afford recovery if made unavailable by state nor can it
substantially affect enforcement of the right given by the state ....................................................................................................................................... 51
Outcome Determinative Test: if applying federal procedural rule instead of state would affect the outcome, federal court should use
state rule ............................................................................................................................................................................................................................................................. 51
Byrd v. Blue Ridge Rural Electric Cooperative, inc: added third test: apply a balancing test for state policy and federal interests
where substance/procedure test and outcome determinate test are not clear. SC NEVER RETURNED ...................................................... 52
Rules Enabling Act of 1934: 28 USC 2072 .......................................................................................................................................................................................... 52
Two Tracks of the Erie Doctrine (ignore this, Nathalie makes no sense) ........................................................................................................................... 52
Hannah v. Plumer: Split the Erie doctrine into two tracts ................................................................................................................................................... 53
Erie Doctrine Under Hannah: Final Overview .................................................................................................................................................................................. 54
Assessing Direct Conflicts with a Federal Rule: ............................................................................................................................................................................... 56
DISPOSITIONS WITHOUT TRIAL................................................................................................................................................. 57
JURY TRIAL ......................................................................................................................................................................................... 57
APPEAL ................................................................................................................................................................................................ 57
PRECLUSION: THE FORCE AND EFFECT OF FINAL JUDGMENT ......................................................................................... 57
COMPLEX JOINDER
Joinder
Rule 19 Required Joinder
 Rule 19: Required Joinder of Parties absence would prevent complete relief, impair rights of
absent party “as a practical matter” or leave a risk of inconsistent obligations: remedy: join if able.
o 19(a): Persons to be joined if feasible
 (1) Required Party
 Person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as party if
o (A): in their absence, court cannot accord complete relief among
existing parties OR
2
o (B): that person claims interest in relating to the subject of action
and is so situated that disposing of the action in persons absence
may:
 (i) as a practical matter impair/impede the person’s ability
to protect interest; or
 (ii) leave an existing party subject to a substantial risk of
incurring multiple/inconsistent obligations because of the
interest
 (2): Joinder by court order
 if person has not been joined as required, the court must order that person to
be made a party: person who refuses to join as P may be made either a D, or,
in proper case, an involuntary P
 (3) Venue
 if a joined party objects to venue and joinder would make venue improper,
the court must dismiss that party
o 19(b): When joinder is not feasible: Party not subject to service of process and/or
territorial jurisdiction (venue/personal) or joinder would deprive court of subject matter
jurisdiction: court makes determination below: can proceed “in equity and good
conscience”
 if person required to be joined if feasibly cannot be joined, court must determine
whether, in equity and good conscience, the action should proceed among existing
parties or should be dismissed.
 Factors if Indispensible: indispensible party: 1. necessary, 2. cannot be joined, 3.
court determines cannot proceed in equity and good conscience (factors: prejudice
to existing parties; if protective provisions in judgment can lessen/avoid prejudice;
if judgment would be adequate; whether P would have alternative remedy)
 (1) Extend judgment rendered in absence might prejudice that
person/existing party
 (2) The extent any prejudice could be lessened or avoided
o Protective provision in the judgment,
o Shaping the relief or
o Other means
 (3) Whether a judgment rendered in person’s absence would be adequate
and
 (4) Whether the P would have adequate remedy if the action were dismissed
for nonjoinder
o 19(c): Pleading the reasons for nonjoinder: when asserting a claim for relief, a party must
state:
 (1)the name, if known, of any person who is required to be joined if feasible but is
not joined; and
 (2) the reasons for not joining that person
o 19(d): Exceptions for Class Actions: this rule subject to 23
Torrington Company v. Yost: non disclose: rule 19(a)(1)(b) and 19(b): indispensible party. Dismissed
 FACTS: P, Torrington Company, employed D, Yost, for 12 years. Yost signed contract not to
disclose Torrington’s trade secrets. In 1990, Yost began working for another bearing
manufacturer, INA. Yost moved to dismiss because, INA (new employer), was a required party
under Rule 19 and needed to be joined.
3


QUESTION: In federal Courts, is nonjoinder of an indispensible party to the lawsuit grounds for
dismissal?
HOLDING: INA’s joinder (under 19(a)(1)(b)) would destroy the court’s diversity jurisdiction.
o Thus joinder is not feasible. Analysis of the four factors set out in Rule 19(b) required that
action be dismissed.
o Under FRCP 19, failure to join in an indispensible party will result in dismissal if the nonjoinder results in prejudice to that party or an existing party and prevents the court from
issuing a full and fair judgment.
 They would be prejeduced bc it would prevent Yost from working for 18 months
Notes
 Three questions you gotta ask
o 19(a): are they necessary?
o Feasibility?
 Subject matter jurisdiction
 Personal jurisdicition issues
 Venue
o Indispensible (19(b))?
 If not joining would fuck up suit
 Joint Tortfeasor are not required party bc P remedy not inadequate,
o Can sue independently
o D can sue for contribution
 19(c): if it’s a required partydon’t joingotta say why in complaint
 19(b): indispensible: if required but can’t be joined look at these factors
o 1. prejeduce to missing party/existing party
 INA might lose employee
 Yost be whipsawed
o 2. avoiding prejeduce by protective order/shaping relief/other matters
 whatever it can do to limit
o 3. Adequacy in person’s absence
 INA wouldn’t be subject to suit. Won’t be bound by decision
o 4. Adequate other remedy
 if could go to state court. Unsure if possible
 Rule 19: only if party’s ask for it
o Go back to rule 12 for this.
o Not in initial response, but basically can’t do it after judgment. I
 A: in a pleading allowed or ordered under rule 7(a)
 B. by a motion under rule 12(C)
 C. at trail rule 12(h)(2)
 Feasibility of joinder
o If they have PJ
o If joinder doesn’t deprive PJ
o If person being joined objects to venue, then could have a problem too
Interpleader
Statutory Interpleader (29 U.S.C. § 1335): Compelling Multiple Parties to Litigate
4
28 U.S.C. §1335: Statutory Interpleader
o (a) District court shall have original jurisdiction of any civil action of interpleader or in the nature of
interpleader filed by any person, firm, corporation, association, society having in his custody or
possession money or property of the value of $500: if…
 (1) 2+ adverse claimants, of diverse citizenship (in 1332(a) and (b)) are claiming or may claim
to be entitled to such money or property… and if
 (2) the Plaintiff has deposited such money/property or has paid the amount of/the loan/other
value of such instrument or the amount due under such obligation into the registry of the
court, there to abide the judgment of the court,
 or has given bond payable to the clerk of the court in such amount and with such surety
as the court/judge may deem proper, conditioned upon the compliance by the P with
the future order of judgment of the court with respect to the subject matter of the
controversy
o (b) such an action may be entertained although titles or claims of the conflicting claimants do not
have a common origin, or are not identical, but are adverse to and independent of one another
Note
1. Federal courts have jurisdiction over “any civil action of interpleader or in the nature of
interpleader’ where:
i. Property worth $500 or more
ii. There is general diversity (minimum) (under 1332) among claiments
1. Minimum: 1 of claimants from different state as others
iii. Plaintiff deposits money/property/Bond into the court
Rule 22 Rule Interpleader: Compelling multiple parties to litigate
Rule 22: Rule Interpleader
 (a) Grounds:
o (1) by a plaintiff: Persons with claims that may expose P to double/multiple liability may be
joined as D’s and required to interplead. Joinder for interpleader is proper even though…
 A
 Claims (of claiments) or the titles on which their claims depend,
 lack a common origin or
 are adverse and independent rather than identical OR
 B: P denies liability in whole or in part to any or all of claimants
o (2) by a Defendant: defendant exposed to similar liabilities may seek interpleader through
a crossclaim(13g)/counterclaim(13a/c)
 (b) relation to other rules/statutes
 Supplements, not limits, joinder of parties allowed by rule 20.
 In addition to 1335, 1397, 2361. An action under those statutes must be conducted
under these rules.
Note
 persons having claims against P may be joined as D’s and required to interplead when P is or may
be exposed to multiple liability
Source
§1335
Subject matter jurisdiction $500 in controversy,
minimum diversity among
claimants (pair of
claimants from different
states).
R-22
Other statute to get
jurisdiciton-§1331/§1332
$75,000 with complete
diversity (no claimant has
same residence as
5
Personal jurisdiction
Venue
deposit
Notes





Nationwide service of
process that establishes
personal jurisdiction
(actually different statute
number but use it when
using §1335)
Where any person resides
Money/property must be
deposited to court
interpleading party) here
we look at interpleader as
plaintiff, and claimants as
defendants
Ordinary personal
jurisdiction rules
Ordinary approach
No requirement
stake holders can interplead: get binding judgment on all claiments to allocate stake
then can’t get sued by other claments
or stake holder can try not to pay at all
rule: need 75,000 and complete diversity
statutory: $500 and minimal diversity
o gotta deposit money in court
Intervention
Rule 24 Intervention: Party Trying to Get In
 Intervention 24: Getting in to case
o (a) Intervention of Right timely motion court MUST grant; by statute or because: (a)
interest in property/transaction; (b) disposition of action may “as a practical matter impair
or impede’s applicant’s ability to protect interest” and (c) applicant’s interest not
represented
o on timely motion, the court must permit anyone to intervene who
 (1): is given an unconditional right to intervene by federal statute
 (2): OR
 Claims an interest relating to property or transaction
 And is so situated that disposing of action may (as a practical matter) impair
or impede the mover’s ability to protect interest
 UNLESS existing parties adequately represent that interest
o 24(b) Permissive Intervention allowed when statute provides/there is a “question of law or
fact in common” Court: Look if intervention will unduly delay or prejudice parties
 (1): in general: on timely motion, court MAY permit anyone to intervene who:
 (A): is given unconditional right to intervene by federal statute
 (B): has a claim/defense that shares with the main action a common question
of law or fact
6
(2): by a government officer or agency: on timely motion, the court may permit a
federal or state governmental officer or agency to intervene if a party’s claim or D is
based on
 (A) a statute or executive order administered by the officer or agency OR
 (b) any regulation, order, requirement, or agreement issued or made under
the statute or executive order
 (3): delay/prejudice: in exercising discretion, court should consider whether
intervention will unduly delay or prejudice the adjudication of the original parties
rights
o 24(c): notice of pleading motion served/say grounds/pleading of claim/defense
 motion to intervene must be served on parties as provided in rule 5. Must state
grounds of intervention and be accompanied by a pleading that sets out
claim/defense for which intervention is sought

Notes
 same thing as 19, but people trying to get in
 requirements
 every time you file a motion
o 1. Motions: 1 page thing about what you’re doing
o 2. Certificuit of service:
o 3. Memorandum brief: the crux of it, local rules, what you argue about
o 4. Proposed form of order:
 order you want judge to sign
 for 24 only
o pleading copy: lay out how you’re gonna plead things
o request for oral hearing (split)
 for evidence
o might need signed depositions
o or exhibits
 Michigan Law Case: Grutter v. Bollinger: allowed to interplead: as matter of right
 Met all requirements under 24(a)(2)
o Minority students trying to intervene to defend affirmative action
 24(1): impair rights as practical matter
 how to get in under 24(1)
o unconstitutional right
o dispising of action as practical matter impair
o interest relating
o unless other ppl will defend
 here: Univ. of Michigan will defend
 but maybe different defenses
 students want to defend to make up for past discrimination, university may not
bring it up bc don’t want to admit
 results in more work for judges/clerks so may fight
 if denied: (24(a)
o permissive intervention (24)(b)
 but still need subject matter jurisdiction for court, can’t destroy diversity
End Chapter Notes
7



rule 19: situations in which a person who has not been made aparty should participate in litigation
to assure a just resolution of the dispute
o 19(a): absantees should be made parties to action if their rights might be adversely affected
or if dispute between original parties cannot be fully resolved w/o their participation
o 19(b): guidance in deciding what to do if absentee should be joined 19(a) but cannot be
made a party due to jursidicitonal/venue prroblems
 list of discretionary factors to allow proceed/dismiss based on “need for just
adjudication
rule 24: authorizes persons not joined in a suit to move to intervene. If motion is granted, the
intervenor becomes a party.
o 24(a): non-party has right to intervene if she has an interest in the transaction and that
interest may be impaired unless allowed to join
 may be denied if intrest is adequately represented by exisiting parties
o 24(b): authorizes permissive intervention if the applicant’s claim/defense involves a
question of law/fact that is also raised by main action. Judges have wide discretion
28 USC 1335/ rule 22: interpleader: proceeding that brings all claimants to particular
funds/property before cour in single suit in order to avoid multiple suits/inconsistent judgments.
An
o brought by the stakeholder, the party holding the disputed property/fund: naming the
contending claiments to the property/fund as D’s
o 1335: only need minimal jurisdiction, low amount in controversy, and nation wide service
Class Actions
Rule 23: Class Actions
 Class Actions 23
o (a) Prerequisites : 1+ members of class may sue/be sued as rep parties on behalf of all
members only if…
 (1) Class so numerous joinder of all members is impracticable
 (2) Common questions of law/fact in class
 (3) Claims/defenses of Reps are typical of claims/d’s of class and
 (4) The representative parties will fairly and adequately protect interest of class
o Types: Either 23B(1A/1B/2/3). Satisfy 23(A) and 1 of following
 23(B)(1): prosecuting separate actions create risk of…
 23(B)(1)(A) Inconsistency: varying judgments make difficult for D
o inconsistent/varying adjudications with respect to indi class members
that would establish incompatible standards of conduct for party
opposing class
 23(B)(1)(B) Limited Fund: difficulty as a practical matter
 Dispositive/impair others P’s ability to protect interests
o adjudications with respect to indi class members would (as a practical
matter) be dispositive of interest of other members not parties to the
individual adjudications OR
o would substantially impair/impede their ability to protect interest
 23(B)2): injunction: want final injunctive relief/declaratory relief (not money)
8

party opposing class has acted/refused to act on grounds that apply
generally to class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole
 23(b)(3): common questions predominate/superiority of C.A. v. factors
 predomination: common questions of law/fact predominate over questions
affecting only individual questions AND
 superiority: class action is superior to other methods for fair/efficient
adjudication
 Factors
o (a) Interest in individually controlling actions
o (b) Extent/nature of litigation already commenced
o (c) Desirability of concentrating litigation in this forum
o (d) Difficulties likely in managing class action
o Procedure 23C
 Certification order 23(C)(1) put order in early, define class, can alter order
 (A) Time of Issue: at an early practicable time after a person sues or is sued
as a class representativecourt must determine by order whether to certify
the action as a class action
 (B) Defining class: appoint council: an order that certifies a class
actionmust define class and class claims, issues, defenses, and appoint
council
 (C) Altering/Amending the Order: order can be conditional and may be
altered before final judgment
 Notice: 23(c)(2)
 (A) 23(B)(1)(a and b)+23(b)(2) Classes: court may direct appropriate
notice
 (B): 23(B)(3) Classes: classes: need best notice practicable under
circumstances: including
o individual notice to IDed members through reasonable effort:
o Notice must clearly and concisely in plain, easily understood language
 i. the nature of the action
 ii. The definition of the class certified
 iii. The class claims, issue, or defenses
 iv: that a class member may enter appearance through
attorney if so desires
 v. Exlusion: Court will exclude any member who so requests
 vi. the time/manner for requesting exlusion and
 vii. The binding effect of a class judgment on members under
rule 23(c)(3)
 Particular Issues 23C4
 When appropriate, action may be brought or maintained as a class action
with respect to particular issues
 Splitting classes into smaller groups
 Subclasses 23C5
 When appropriate, class subdivided and each treated as class
o 23E Settlement
 1. Settlement needs to be approved by court to be fair, and reasonable
 2. Class member can object
 3. You can opt out
9
o 23(f): appeals
 14 days to apply, interlocutory appeal for class ceritiffciaiton
Notes
 23(a) requirements
o 4 initial requirements
 Numerosity - 23(a)(1) – established if the class representative can show that
enough persons are in the class to make joining them as individuals impractical.
 Typically at least 100.
 Only really require 40 (generally).
 If less than 20, may just use joinder
 Commonality – 23(a)(2) – jargon for idea that the class should be a class – that is
should consist of persons who share characteristics that matter in terms of the
substantive law involved.
 Typicality – 23(a)(3) - requirement that class representatives stand, in significant
respects, in the same shoes as the average class member. Less important than the
lawyers.
 Adequacy of representation – 23(a)(4) - class representative must have some stake
in the litigation. The representative’s relation to the lawyer should be
straightforward.
 Lawyer has to be sufficiently skillful and equipped with sufficient support
and resources to handle the case.
 Look at resources/experience of law firm
o Can have discovery first to find these requirements
 Types of Classes
o 23(b)(1) class –class recovery: is essentially a mass production version of Rule 19.
provides a way to assure that similarly situated parties are treated alike. Do they have an
interest that would be impaired if it does not proceed as a class action? If you sue one at a
time will the parties that sue first get more money than those that sue later? – Limited
funds question.
 23(b)(1)(a): about inconsistency of judgments
 orders from multiple suits would cause conflicting orders
 avoid whipsawing
 23(b)(1)(b): for a limited fund
 for s
o 23(b)(2) – injunctive relief class: provides for class actions where the party opposing the
class has acted or refused to act “on grounds generally applicable to the class.” Availability
is limited to cases in which the plaintiffs are seeking injunctive or declaratory relief. (Civil
Rights cases)
 classic are discrimination cases
 new standard: if any individualized damages, can’t be injunctive relief class
action
 damages must be to all, incidnetal, and still not individually calculated
o 23(b)(3) – damages class action (varied damages): most controversial – comprises all
class actions not captured in 23(b)(1) and 23(b)(2). Includes all claims in which the
plaintiffs are seeking primarily money damages. Common claims must predominate and
class action must be superior form
 Small claims lawsuits – actions in which many persons allege small amounts of
damage.
10
Mass Tort – airplane crash, hotel fire, etc..
Individual notice required: best practicable way
 Bc class might not be as similar between mambers
 Can intervene (often to dispute attorneys fees
 Can opt out
 Binds parties to judgment
 Can differ damages from class member to class member: individualize (but losse
efficensy, court less likely to certify
 If amounts too large, then individually viable suits can happen, deny class.
 Then can convert suit into test case: issue is often lack of information
 4 factors to consider
o (a) Interest in individually controlling actions
o (b) Extent/nature of litigation already commenced
o (c) Desirability of concentrating litigation in this forum
o (d) Difficulties likely in managing class action

Whole case can fall on classification
o 23(b)(3): certifying judge weighs advantages/disadvantages
Personal Jurisdiction
o only need it between P/D. not everyone in the clasee
o venue and PJ not needed for class members (and rep will just waive it)
Subject Matter Jurisdiction
o Only class rep needs it (anchor claim: meets diversity requirements
 Other class members, included by supplemental jurisdiction
 But subject to requirements of 1367
 1367(a): same transaction/occurance
 1367(b): diversity specific claim w/o supplemental jurisdiction?
due process: binding on non-participating class members: Hansberry
o if you are member of the class (like actually part of it)bound by the judgment
 even if didn’t participate
 sometimes don’t even have to know about it
 requirements to be bound by it
 1. Common interests (however, even w/ common interest, P could just be
bought off
 2. Adequate representation
 3. Designation as class action
o can be part of original class by buying house (Hansberry)
also need court approval for settlement
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1. Introduction
Why class action?
* efficiency
* small claims – burden
* easier for Ps in class
Negatives for Ps:
* lose identity
* delay settlement
* attys have power
* lose class members
* people-friendly representatives – parties in front of judge/jury
* pro-defendant – limits caps/liability
* increased bargaining power for Ps
* if Ps lose, lost for everyone
* legal resources
* attys can lose control of class action/might have conflicts w/in
* must meet Rule 23 req’ments
* even if win, can’t come forward and get more
If conflicts w/in class, must split into sub-classes (Rule 23(c)(4)(a)) – must go to judge and ask for counsel to represent sub-classes
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Hansberry v. Lee (S.Ct. 1940) : not bound by class action where not adequately represented in the earlier
suit
 FACTS: Black family trying to buy house in neighborhood with a racial covenant, in earlier case
held that covenant was good, however D in that case stipulated 95% had signed covenant to
qualify the case as a class action, when in reality only 54% did, also there is a significant question
of whether or not the current P was part of a class in the earlier suit
o In the old case, the D admitted that 95% had signed, qualified it as a class (but ct didn’t
follow procedure
o Was a sham lawsuit, just to get covenant in.
 PRIOR PROCEEDING: - precedent case- D stipulated that 95% has signed, judge upheld covenant,
D loses.
o Court said that the D was bound by the judgment over the class of old lawsuit
 QUESTION: Did Supreme Ct. of IL derive Ps of due process when it said they were bound by a
former class action suit? When are members of class bound?
 HOLDING: Yes. A judgment in a class action binds absentee members of a class only
o if they have been adequately represented.
o Members of a class are always bound, UNLESS not adequately represented.
o Not bound by intervention if not a party (Martin v. Wilks), but if you are a member of a
certified class, you are bound by that ruling.
o EXCEPT, you are able to collaterally attack the first ruling if you weren’t adequately
represented. This did not represent interest of homeowner’s who wanted to sell to blacks.
 Application
 Common interest: interests were totally different than old suit
o Previously, trying NOT to sell
 Adequately represented
o D stipulated covenant to make it enforceable. Was a sham lawsuit
o So representation not adequate
o D’s in first case were sham, wanting to get enforcement of covenant
 Class action: first case was litigated by classs action
o BUT: wasn’t actually certified as a class
1. Members of a class not present as parties to a litigation may be bound by the judgment
where:
1. Adequate Representation - they are in fact adequately represented by parties who are present,
or where they actually participate in the conduct of the litigation in which members of the class
are present as parties,
2. Share Interests - where the interest of the members of the class, some of whom are present
as parties, is joint, (substantial identity of interests) or where for any other reason the
relationship between the parties present and those who are absent is such as legally to entitle the
former to stand in judgment for the latter
3. Designation - Representatives must claim a designation of the putative class action as such. Has
to be deliberated as a class action (so the court knows that there are people not present who must
be taken into account).
In This case:
 Interests – are not represented. 500 homeowners with conflicting interests
 Adequate Representation – No they lied about the 95%. Absentee class members not
adequately represented.
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Designation – Trial court never followed any procedures for treating the lawsuit as a class
action nor issued a decree addressed to the class.
Court determines that it is a collusive lawsuit and not binding.
In Re Teflon Products Liability Litigation: 23(b)(3) certification.
 Facts: Plaintiffs argue that Dupont wrongfully claimed that their product was safe when in fact it
caused flu-like symptoms. Wasn’t for damages (replacement/research for non-stick)
o The Plaintiff asked the court to approve three subclasses (23(c)(5).
 (1) those who bought branded teflon products and had documentation
 (2) those who bought off brand Dupont coated products and
 (3) those who did not fit into the other classes.
 After discovery, it became clear that very few plaintiffs had documentation or could
remember using the respective products. Dupont opposed certification.
 Issue: May a class action exist if it fails to meet the requirements of 23(a)?
 Holding: No. Rule 23(a) of the FRCP set forth the minimum requirements that must be met in
order for a class action to be constituional. The party seeking certification has burden of making
necessary showing. This fails to meet the implict requirement of objectivevly determining class
membership and whether the proposed class reps are part of the class because too difficult to
know if person bought Teflon product/which group to put them in. Also fails 2 of four 23(a)
requirments:
o (1) Typicality: class representative’s claim are not typical of rest of case because some
claims require individualized showing and
o (2) Representation: Class may not be adequately represented because plaintiff’s are going
after money damages and may not have interest of class. Res Judicata would bar members
of the class from collecting for additional injuries or medical sevices.
End Chapter Notes
 party acts as representative for similarly situated non-parties who are bound by any resulting
judgment
o for efficiency
 binding on absent membersdoesn’t violate due process bc class rep litgates as a surrogate for
classs memebers
o under expectation that usual due process requirement of indi notice/opportunity to be
heard is premised on substantial identity of interests between class
members/representative. Adequacy of it. Application of transparent judicial proceedings.
 To certify: meet 23(a): membership; numerosity; commonality; typicality; adequacy of
representation
 23(b): must qualify as as one of the types of classes
o 23(b)(3): most likely to present individual issues/claims that could be vialble as indi
actions, requires class reps to show common issues predominate and that class action
would be superior to alternative methods of adjudication.
o Members must be given actual notice where practicable, of class action and right to exclude
self from it (opt out)
 Require subject matter jurisdiction: but only class rep must have diversity (in diversity class
actions) / amount in controversy
 Courts more active to protect interests of absent class members.
o Must certify class
o Appoint class counsel
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o Approve any settleemtn or dismissal of claimes, issue/defenses
o Direct notice of propsed settlement be provided in a reasonable manner to all class
members
SUPPLEMENTAL JURISDICTION
1. Modern Supplementary Jurisdiction 1367:
a. (a) allowed to maximum constitutional extent except below, same case/controversy
i. (Except otherwise in (b)/(c)/Federal Statute): any civil action where district
courts have original jurisdiction: court has supplemental jurisdiction over
other claims so related to claims (with (original) statutory subject matter
jurisdiction) that they form part of same case/controversy under
constitution (Us Mine Workers v. Gibbs Test common nucleus of operative
facts)
b. (b) when original jurisdiction is diversity, no supplemental jurisdiction for nondiverse
claims by P’s under 14, 19, 20, 24
i. when original jurisdiction only on 1332 (diversity), NO supplementary
jurisdiction under subsection (a) for…
a. claim by P: against persons (to be D’s) made parties under rule
14, 19, 20, or 24 OR
b. claim by (proposed to be joined) as Ps: proposed under rule 19,
or seeking intervene under 24 (not 23/20)
c. when inconsistent with 1332: supplemental jurisdiction would
mean no diversity (But exxon, don’t need amount in controversy
of P’s)
c. (c) district court has discretion to not exercise supplemental if four circumstances
(novel/compex state; predomination; dismissal of original jur. Claims; other reasons)
i. district court may decline supplemental jurisdiction over claim under (a) if
1. the claim raises novel/complex issue of state law
2. claim substantially predominates over claim/claims with original
jurisdiction
3. district court has dismissed all claims with original jurisdiction
4. in exceptional circumstances, there are other compelling reasons to
decline jurisdiction
d. (d) claims are tolled while pending for at least 30 days
i. SoL tolled while claim is pending and for period of 30 days after dismissed
(unless state law provides longer period) for
1. Claims asserted under (a),
2. and any other claim in same action voluntarily dismissed at the same
time or after the dismissal of claim under (a)
Attack Method
1. Is non-original claim one over which the court has original jurisdiction? No: continue
e. YES: Don’t need supplementary, already in
2. 1. At least one claim with original jurisdiction (1331, 1332, other statute): YES, continue
a. No: no jurisdiction
3. Does the claim share a “common nucleus of operative fact” with claim having original
jurisdiction: YES: continue
a. No: no supplementary
4. If answer to any of the following=no, have supplemental
a. Is only original jurisdiction 1332? Yes: continue
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i. No: GOT IT!
b. Is the claim by a plaintiff/plaintiffs (proposed/intervening/real): Yes: continue
i. No: Got It!
c. Is the claim against a party made a party under rule 14, 19, 20, or 24? Yes: continue
i. No: Got it!
d. If claim brought originally, would it be inconsistent with diversity (shares citizenship
(doesn’t need moneyexxon)): Yes: Fucked
i. No: Got it! (so would have to be diverse, but not amount in controversy)
Notes
 1367(a): first need original jurisdiction, some claim that will independently satisfy
diversity/federal question
o thensupplemental jurisdiction if other claim “arises out of same transaction/occurrence”
 official language: common nucleaus of operative facts.
Exxon Mobil Corp v. Allapattah Services: amount in controversy doesn’t contaminate diversity for claims
under supplemental Jurisdiction of court
 Facts: Claim 1 (Fl, 100,000), Claim 2 (Fl, 50,000): D (DE) amount in controversy doesn’t
contaminate diversity
 Dicta: amount in controversy doesn’t contaminate diversity
 Holding: 1367 shows can have supplemental jurisdiction over other P claims even if doesn’t meet
(75,000) amount in controversy
o Had original jurisdiction: not contaiminated by meeting price in controversy
o Was a class action (1367(b)) doesn’t include P’s brought in by class action (rule 24)
 Dissent: Keep Zahn: must independently meet requisite jurisdiction amount
End Chapter Notes
 United States v. Gibbs: if fed court has jurisdiction over one of P’s claims it may hear others that
arise out of the same nucleus of operative facts. But can decline if more appropriate to have in
state court
 1367(a): federal courts that have original jurisdicition over one claim in original case can hear all
other claims that are part of same case/controversy
 extends to claims by/against additional parties even though no part of it would have OG in federal
court on its own
 1367(b): bars diversity over claims by P’s in cases based on diversity
o by P’s against party’s (D’s) brought in under 14, 19, 20, 24
o by potential P’s coming in under rule 19, 24 (not 20/23)
 can decline to hear under 1367(c)
 if joined claim could be brought under federal court on its own, no problem with jurisdiction
DISCOVERING THE FACTS
Discovery Tools
 1. request for production of docs: most evidence electronic, included
 2. Interrogatories: questions answered under oath
o must answer to best knowledge with resources available
 3. Deposition: equivalent to examination: under oath with court reporter
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o no judge present but like examination
4. Physical/mental examinations: valuable with personal injury claim
o can get own dr. to determine injury
5. Serve Requests for admissions: statements other party must admit or deny
o can simplify trial
Rule 26 (discovery Generally)
 a: required disclosures
 b: discovery scope and limits
 c: protective orders
 d: timing and sequence of Discovery
 e: supplementing disclosures and responses
 f: conference of the parties: planning for discovery
(1) Initial Disclosures. Party shall provide:
(A) name, address, telephone number of any individual. likely to have discoverable info. relevant to disputed
facts alleged w/ particularity in the pleadings
(B) copy of all documents, data compilations, tangible things that are relevant to disputed facts alleged
w/ particularity in the pleadings
(C) computation of any category of damages claimed, making available for inspection and copying as
under Rule 34 the docs on which such computation is based
(D) for inspection and copying as under Rule 34 any insurance agreement
Shall be made w/in 14 days after the meeting of the parties under subdivision (f)
(2) Disclosure of Expert Testimony
(A) shall disclose identity of any person who may be used at trial to present evidence
(B) W/ regard to expert testimony – disclosure shall be accompanied by a written report prepared
and signed by the witness, which shall contain: complete statement of all opinions to be expressed and basis/reasons;
data or other info considered in forming opinions; exhibits as a summary or support; qualifications of the witness,
including all publications over the last 10 years; compensation to be paid for study/testimony; listing of other cases in
which witness has testified.
(C) disclosures shall be made at the time/in the sequence directed by the ct. In the absence of
directions, at least 90 days before trial or within 30 days of the other party’s disclosure if intended to rebut evidence on the
same subject matter identified by another party.
(3) Pretrial Disclosures. In addition, party shall provide:
(A) name, address, phone number of those who will present and those who may be called
(B) designation of witnesses whose testimony is expected to be presented by means of deposition
(C) approp. identification of each doc./exhibit, designating if party expects to offer/may offer as test.
Disclosures must be made at least 30 days before trial unless otherwise directed. W/in 14 days thereafter, party may serve and file
list disclosing (i) any objections to the use under Rule 32(a) of a deposition under (B) and (ii) any objection that may be
made about materials under (C).
(4) Form of Disclosures; Filing.
(5) Methods to Discover Additional Material. May obtain disc. through: depositions (oral or written);
written interrogatories; production of documents/things or perm. to enter land under Rule 34 or 45(a)(1)(C); physical and
mental exams; requests for admission.
(b) Discovery Scope and Limits.
(1) In General. May obtain disc. regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action. Need not be admissible at the time of trial if appears to be reas. calculated to lead to
disc. of admissible info.
(2) Limitations. Ct. may alter limits. Limited if (i) unreasonable, cumulative or duplicative, obtainable from
some other source that is more convenient, less burdensome, less expensive; (ii) party seeking has had ample oppturnity to
obtain info sought; (iii) burden/expense of proposed disc. outweighs its likely benefit.
(3) Trial Preparation; Materials. may obtain things prepared in anticipation of litigation only upon
showing substantial need AND that party is unable w/o undue hardship to obtain by other means. Ct. shall protect against
disclosure of mental impressions, conclusions, opinions, or legal theories of an atty. or other representative of the party
concerning litigation.
(4) Trial Preparation: Experts.
(A) A party may dispose any person identified as expert whose opinions may be presented. If report
req’d, depos. must take place after report provided.
(B) Party may, through interrogatories or depositon discover known facts/opinions of expert retained in prep. for
trial and who is not expected to be called as witness only as provided under Rule 35(b) OR upon showing of exceptional
circumstances that party can’t obtain info through other means.
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(C) Unless manifest justice would result, (i) ct. shall require party seeking disc. pay expert reasonable fee
for time spent responding to disc.; and (ii) w/ respect to disc. under (b)(4)(B) ct. shall req. party seeking disc. to pay
other party fair portion of expenses in obtaining facts/opinions from experts.
(5) Claims or Privilege or Protection of Trial Preparation Materials.
When party withholds info discoverable claiming privilege or subject to protection as trial prep. material, party shall
make claim expressly and describe nature of docs. to enable other parties to assess applicability of privilege or protection.
(c) Protective Orders.
Ct. may make any [protective] order which justice requires to protect party/person from annoyance, embarrassment, oppression,
or undue burden/expense, including . . . If motion denied in whole or in part, ct. may order party to provide disc. Rule 37(a)(4)
applies for expenses incurred in relation to the motion.
(d) Timing and Sequence of Discovery.
Party may not seek disc. before meeting/conference described in (f). Unless ct. orders otherwise, methods
may be made used in any sequence.
(e) Supplementation of Disclosures and Responses.
Party who has made disclosure under (a) or responded to request for disc. is under a duty to supplement or
correct the disclosure or response to include info thereby acquired.
(1) Party is under a duty to supplement disclosures under (a) if party learns that material is incomplete or
incorrect. With respect to testimony of expert under (a)(2)(B) duty extends both to info in report and info from deposition
and other changes shall be disclosed by the time disclosures under (a)(3) are due.
(2) Party under a duty seasonably to amend a prior response to interr., request for prod., request for
admission if party learns that response in material is incorrect or incomplete.
(f) Meeting of Parties; Planning for Discovery.
Parties shall, ASAP or at least 21 days before scheduling conference is held or a scheduling order is due under 16(b), meet to
discuss nature and basis of their claims and defenses and possibilities for a prompt settlement or resolution , or to make/arrange
for disclosures req’d by (a)(1), and to develop proper disc. plan. Plan shall include parties’ views and proposals concerning:
(1) what changes should be made in timing, form, or req’ment for disclosures under (a), including
statement as to when disclosures under (a)(1) were made or will be made;
(2) subjects on which disc. may be needed, when completed, whether in phases or limited to issues;
(3) what changes shall be made in limitations on disc. imposed under these rules or by local rule;
(4) any other orders that should be entered by the ct. under (c) or under Rules (b) and (c).
Attys are jointly responsible for arranging and being present at the meeting, attempting to agree on
proposed disc. plan, and submitting a written report outlining the plan to the ct. w/in 14 days after the mtg.
(g) Signing of Disclosures; Discovery Requests, Responses, and Objections. (RULE 11 FOR DISCOVERY)
(1) Every disclosure under (a)(1) or (a)(3) shall be signed – constitutes a certification that to the best of
signer’s knowledge, info., and belief formed after a reas. inquiry, disclosure is complete and correct as of time it is made.
(2) Every disc. request, response, or objection shall be signed. – constitutes a certification that to the best of
signer’s knowledge, info., and belief formed after a reas. inquiry, request, response, or objection is:
(A) consistent w/ rules & warranted by good law or a good faith arg. for extension, modif., or reversal
(B) not interposed for improper purpose, such as to harass or cause delay or needless increase in cost
(C) not unreas. or unduly burdensome or expensive, given series of factors
If request, response, or objection is not signed, shall be stricken unless signed promptly
(3) If w/o substantial justification a certification made in violation of this rule, the ct., upon motion or upon
its own initiative, shall impose an appropriate sanction. may include order to pay reas. expenses incurred b/c of violation,
including reas. atty’s fee.
Pleading: federal Notice Pleading
 complaint/answer no longer end cases
 just give notice of calims/defenses
 if think it’s frivolous
o motion for summary judgment
o 12(b)(6): failure to state a claim
 evidence is at discovery: both sides should know evidence/what witnesses will saytherefore
tiral on merits
o and more likely to settle
Discovery Generally
 Required Disclosures: 26(a): required disclosures: must disclose things that support claim or
defense
 discretionary Discovery 26(b): relevant to a claim or defense.
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o Regardless of if it helps or hurts you
o Not required to give until asked
Good Cause Discovery: if show good causecourt will allow discovery of thigns that are relevent
to the subject matter of the lawsuit
Informal Investigation
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not governed by FRCP: only part of professional Responsibility
Rule 11: must make reasonable inquiry prior to filing complaint.
 Must have basis for a claim to file a complaint
 Reasonable inquiry into the facts
 Basis for evidentiary support of claim and made w/proper purpose
Examples of rules of professional responsibility
 4.3: duty of candor: don’t state/imply as lawyer you’re disinterested. Reasonable efforts to correct
misunderstandings of other party
 4.3: communicating with unrepresented Parties
o “in dealing on behalf of a client with a person who is not represented by counsel, a lawyer
shall not state/imply that the lawyer is disinterested. When lawyer knows/reasonably
should know unrepresented person misunderstands lawyer’s role in the matter, lawyer
shall make reasonable efforts to correct the misunderstanding
 4.4: can’t violate legal rights to obtain evidence (like recording)
o many states: can’t secretly record
 8.4: can’t engage in conduct involving dishonesty/fraud/deceit/misrepresentation
 doesn’t rule out evidence: separate hearing for lawyer (different for police misconduct)
Rule 4.2: no talking to represented Parties
 In representing a client, a lawyer shall not communicate about the subject of representation with a
party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by law to do so.
To avoid
1. Have someone else conduct the investigation (PI, assistant); OR:
2. Idenitfy themselves to the prospective defendant
3. Advise the prospective defendant that they represent the prospective plaintiff, and
4. Communication with the prospective defendant in writing only, with no oral response being
received.
lawyers avoid taking the standuse paralegals/investigators so can testify
Remember: plain meaning of rules hold over comments/history
 If ambiguity, look to other rules/comments (like contracts)
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Gaylord v. Homemakers of Montgomery: informal discovery: talking to other party’s/witnesses
 facts: Elderly woman scalded in a bath given by home healthcare workers, Ms. Taylor. Woman’s
lawyer called Ms. Taylor for details about the incident without permission from her employer (a
prospective Defendant)
 trial court: refused to admit evidence from phone call bc it was violation of rules of professional
conduct
 Rule: Rule 4.2: Attorney cannot communicate with a party the lawyer knows to be represented by
another lawyer, unless the lawyer has consent or is otherwise authorized by law
o Look closely at LANGUAGE – rule refers to a “party” and since case was not filed, no one
was a party
o Language doesn’t say “should have know,” only “known”
o BUT: other rules are framed differently; look carefully
 Court: no evidence that attorney knew/had reason to know counsel retained by Taylor w/ respect
to P’s injury. Also, rules of professional conduct not rules of evidence.
Scope of Discovery
Rule 26(b): Scope of Discovery: may obtain discovery regarding any matter (not
privileged/protected as prep for trial) which is relevent to the subject matter involved
 (1): Scope in General: parties may obtain discovery regarding any nonpriveleged matter that is
relevant to party’s claim/D
o documents: documents: existence, decription, etc
o People: identity/location of personws who know any discoverable matter
o Musn’t be admissible: doesn’t need to be admissible at trail if reasonably calculated to
lead to the discovery of admissible evidence (subject to 26(b)(2)(c)
 (2): limitations on frequency/extent
o A. when permitted, court can alter limits in rules/number of requests in rule 36
o B. Limits on electronically Stored Information: doesn’t need to provide electronically
stored info form sources not reasonably accessible c of undue burden/cost
 On motion to compel/protective order: party not disclosing must show info not
reasonably accessible bc of undue burden/cost
 Court may non the less order discovery w/ showing of good cause subject to
26(b)(2)(c)
o C. When Required: on motion/its own, court must limit frequency/extent of discovery
otherwise allowed if determines that
 i. unreasonable: it’s unreasonably cumulative/duplicative/can be obtained from
another source that’s more convenient/less burdensome/les expensive
 ii. Prior opportunity: Party seeking has had ample opportunity to obtain info by
discovery in the action
 iii: burden/expense of proposed discovery outweighs likely benefit, considering
 needs of case
 amount in controversy
 parties’ resources
 importance of issue at stake
 importance of the discovery in resolve the issues
 (3) Trial Preparation: Materials: Work Product Protections
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
o A. Documents/tangible things: generally cannot discover documents/tangible things that
are prepared in anticipation of litigation or for trial by/for another party or its
representative
 But subject to 26(b)(4), those mats may be discovered if…
 i. otherwise discoverable: they are otherwise discoverable under rule
26(b)(1) AND
 ii. Substantial need: party shows substantial need for mats to prep its case
and cannot (w/o undue hardship), obtain substantial equivalent by other
means
o B. Protection against Discloser: if court orders discovery of those matsit must protect
against disclosure the mental impressions, conclusions, opinions, or other legal theories of
party’s attorney/other representative concerning the litigation
o C. Previous Statement: party/other person may, on request and w/o required showing,
obtain the person’s own previous statement about the action/its subject matter
 If request is refused, the person may move for a court order, and 37(a)(5) applies to
the award of expenses.
 Previous statement defined
 i. written statement: a written statement that the person has
signed/otherwise adopted/approved or
 ii. Recording: some recording that recites substantially verbatim the
person’s oral statement
(4) Trial Preparation: Experts
o A. Deposition of an Expert Who May Testify: A party may depose any person who has
been id’ed as an expert whose opinions may be presented at trial.
 Report: If 26(a)(2)(b) requires a report from the expertthe deposition may be
conducted only after the report is provided.
o B. Trial Preparation Protection for Draft Reports/Disclosures: 26(b)(3)(A-B)
(protection of trial preparations/protection of mental impressions) protect any drafts of
any report/disclosure required under rule 26(a)(2), regardless of the form in which the
draft is recorded.
o C. Trial Preparation Protection for Communications Between a party’s attorney and
Expert Witness: rule 26(b)(3)(A-B) (protection of trial preparations/protection of mental
impressions) protect communications between party’s attorney and any witness required
to provide a report under 26(a)(2)(B), regardless of the form of the communications,
except to the extent that the communications:
 i. compensation: relate to compensation for the expert’s study/testimony
 ii. Facts/Data: identify facts/data that the party’s attorney provided and that the
expert considered in forming the opinions to be expressed or
 iii. Assumptions: identify assumption that the party’s attorney provided and that
the expert witness relied on in forming the opinions to be expressed.
o D. Expert Employed Only for Trial Preparation (not normally discoverable if not
going to testify): ordinarily, a party may NOT, by interrogatories/deposition, discover
facts known or opinions held by an expert who has been retained or specialy employed by
another party in anticipation of litigation or to prepare for trial and who is NOT expected to
be called as a witness at trial.
 But a party may do so only:
 i. 35(b): as provided in 35(b) or
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ii. Exceptional circumstance: on showing exceptional circumstances under
which it is impracticable for the party to obtain facts/opinions on the same
subject by other means
o E. Payment: unless manifest injustice would result, court must require that the party
seeking discovery:
 i. pay for response: pay the expert a reasonable fee for time spent in reposing to
discovery under 26(b)(4)(A) (deposing expert who will testify) or 26(D) (expert
employed only for trial prep) and
 ii. If under 26(D)also for cost in obtaining: also pay the other party a fair
portion of the fees/expenses it reasonably incurred in obtaining the expert’s
facts/opinions
(5) Claiming Privilege/Protecting Trial-Preparation Materials: Objections to discovery
o A. Information Withheld: when a party withholds information otherwise discoverable by
claiming that the information is privileged/subject to trail-preparation material, the party
must
 i. make the claim: expressly make the claim (gotta actually claim it)
 ii. Describe: describe the nature of the docs, communications, or tangible things not
produced or disclosed—and do so in a manner that (without revealing information
itself privileged/protected) will enable other parties to asses the claim.
o B. Information Produced (take backs of priv/protected): if info produced in discovery
is subject to a claim of privilege/protection as trial prepparty making the claim may
notify any party that received the information of the claim and the basis for it.
 After being notifiedparty must …
 promptly return/sequester/destroy the specified information and copies
 not use/disclose the info until the claim is resolved
 not use/disclose the info until the claim is resolved
 take reasonable steps to retrieve the info if the party disclosed it before being
notified
 give to court to determine MAY: promptly present the info to the court under seal
for a determination of the claim.
 Party producing must preserve: The producing party must preserve the info until
the claim is resolved
Scope Of Discovery Briefly 26(b)(1)
 Generally
 Federal Rule 26(b)(1) is generous:
o Authorizes discovery of “any matter, not privileged, which is relevant to the claim or
defense of any party” that “appears reasonably calculated to lead to the discovery of
admissible facts”
 This is true even if the evidence would be inadmissible at trial;
 New discovery rules includes all email transactions and communications
 Discovery is more broad than the FRE and is not limited to admissible
evidence
 F.R.E. 407 – Subsequent Remedial Measures
o Evidence regarding subsequent design corrections or repairs are not
admissible in court
o Is inadmissible for showing liability, but can be admitted for other
purposes (i.e. showing ownership,…)
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
o Theory is that admitting would amount to an admittance of liability
and would “chill” companies from making products safer for
consumers
o BUT MATERIAL IS DISCOVERABLE
Admissible or Inadmissible If Reasonably Calculated to Lead to Admissible Facts…
o Reasonably Calculated: Requires material to be reasonably calculated to lead to the
discovery of admissible evidence (might form a link in a chain of discovery that could lead
to admissible evidence)
o Doesn’t Waive Objection as Evidence: Producing evidence in response to a valid
discovery request generally does not waive any objection the producer has to admission of
such evidence (unless evidence is privileged)
Objections To Discovery 26(b)(5)
 Make the claim expressly in writing AND
 “Describe the nature of the documents, communications, or things not produced or disclosed in a
manner that, without revealing information itself privileged or protected, will enable other parties
to assess the applicability of the privilege or protection”
 FAILURE TO LAY THE FOUNDATION FOR AN OBJECTION RESULTS IN WAIVER OF THAT
OBJECTION
 Common objections to discovery
o 1. Relevance 12(b)(1)
o 2. Overly Burdensome 12(b)(2)(c)(iii) burden>benefit
 support by affidavits, courts balance (can limit/sample/grant)
o 3. Ask for protective order 12(c)
Attorney Client Privilege (restatement 68)
 Elements:
o 1. A communication
o 2. Made between privileges persons
o 3. In confidence
o 4. For the purpose of obtaining/providing legal assistance for the client
 Who’s Included?
o Client (including prospective client)
o Client’s lawyer
o Agent’s of either who facilitate communications between them
o Agents of lawyer who facilitate representation (paralegals, etc)
 What’s Included?
o Only communications between themnot the facts that are communicated
o So can be asked directly what you know about the case, despite having told lawyer
o Can’t protect facts from discovery just by telling them to his lawyer (even if included in
attorney client)
 What about corporations?
o Control Group Theory: control group entitled to attorney client privilege (w/ some
exceptions)
o Upjohn: privilege extends to employees who reported to general counsel and at direction of
control group.
 Consistent with the underlying purposes of the attorney-client privilege, these
communications must be protected against compelled disclosure
 Fact: they were answering quesitonars for legal council
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info not available from control group
basis for legal advice
within scope of emplyees corporate duties
employees sufficiently aware they were being questioned in order that the
corporation could obtain legal adivce.
 Homemaker rule
 Corporate client can call friends/neighbor of the victim of accident or
something
 But lawyer can’t call anyone
Waiver/non application
o If no longer confidential (in front of third party)
o Discard Doc in negligent way
o If not for purpose of obtaining legal advice (like lawyer is also the CEO, acting as such)
Purpose: to protect confidentiality and promote relationships where confidentiality is valuable
o 1. Don’t wan to hurt relationships that have societal value
o 2. Don’t undermine confidentiality
o 3. At deposition, lawyer will tell you not to answer
Asserting the Attorney Client Privilege
 privileged information is not in scope of discovery
 1. Make sure the privilege applies
o communication specifically: communication relates to a fact of which the attorney was
informed
 1. By his client
 2. Without presence of stangers
 3. For the purpose of securing primarily either
 a. opinion on law
 b. legal services
 c. some assistance in legal proceeding
 d. NOT for purpose fo committing a crime or tort
 e. and the privilege has been
o i. claimed (in writing+specifying grounds for privilege (26(b)(5)
o ii. Not Waived
 like by telling a third party
 2. Make an express objection under rule 16(b)(5)
o make the claim
o describe the thing claimed as privilege (in writing with specific grounds)
 does not extend to these (they are work Product): Hickman v. Taylor
o 1. information that an attorney gathers from a witness while acting for his client;
o 2. memos, briefs, communications, or other writing prepared by counsel or his own use in
prosecuting his client’s case
o 3. writings attorney’s mental impressions, conclusion, opinions, or legal theories
o 4. Statements with third party witnesses (not a relationship we must protect, so don’t get
privilege)
Work Product
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26(b)(3): Materials Made in Anticipation of Litigation
 (3) Trial Preparation: Materials: Work Product Protections
o A. Documents/tangible things: generally cannot discover documents/tangible things that
are prepared in anticipation of litigation or for trial by/for another party or its
representative (attorney/consultant, etc)
 Exceptions But subject to 26(b)(4), those mats may be discovered if…
 i. otherwise discoverable: they are otherwise discoverable under rule
26(b)(1) AND
 ii. Substantial need: party shows substantial need for mats to prep its case
and cannot (w/o undue hardship), obtain substantial equivalent by other
means
o B. Protection against Discloser: if court orders discovery of those matsit must protect
against disclosure the mental impressions, conclusions, opinions, or other legal theories of
party’s attorney/other representative concerning the litigation
o C. Previous Statement: party/other person may, on request and w/o required showing,
obtain the person’s own previous statement about the action/its subject matter
 If request is refused, the person may move for a court order, and 37(a)(5) applies to
the award of expenses.
 Previous statement defined
 i. written statement: a written statement that the person has
signed/otherwise adopted/approved or
 ii. Recording: some recording that recites substantially verbatim the
person’s oral statement
Notes
 Rule: an attempt to secure production of written statements and mental impressions contained in
the files and mind of an attorney which are made in anticipation of litigation will not be granted
o Most courts still apply to intangible work product (Hickman v. Taylor)
o Can still get the facts from the work product, but not through lawyers eyes,
 This is about protecting opinions of lawyer
 Doesn’t apply to all the facts obtained, if outside work product of
lawyerdiscoverable. Get it through the client, not the owner
 rationale: For Public Policy reasons, it is essential that counsel be able to proceed in developing a
case and legal theories without fear of mental intrusion from opposition;
o sifting of what’s relevant reveals impressions and focus of other council
o no free ridesgotta do your own work
o don’t want attorney to be a witness
o chilling effect of representationwould make ppl not put stuff down in writing
 Burden: on objecting party to show it’s work product
 Litigation: includes any adversary court/administrative proceeding
 Anticipation of litigation:
o Complaint need not have been filed
o Splits
 1. Specific Claim Approach
 1. Requires a showing that the documents have been prepared with a specific
claim supported by concrete facts which would likely lead to litigation in
mind
 2. Can be evidenced by a certain demand by potential imposing party
 3. Some courts also require a showing of substantial probability that
litigation will occur and that commencement is imminent
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2. Ad Hoc Approach
 (bc specific claim too narrow)
 specific claim is only one factor to consider
 balance the need with the chilling effect
 3. Primary Purpose Approach
 primary motivation for preparing work product must be to assist in
preparing for possible litigation
 factors to consider
o how is document labeled
o prepared for ordinary business purpose?
o Who prepared it
o Mentions litigation in document
Exception 26(b)(3)
o 1. Work product is otherwise discoverable (not under a privilege) AND
o 2. Discovering party shows…
 a. substantial need for material to prepare case
 more than just relevancy
 b. undue hardship cannot, without undue hardship, obtain their substantial
equivelant by other means
 ex: witnesses dead, so impossible. Or hostile witness/no memory/outside
subpoena range
 not about costs, about if you can actually get it
 c. (added by ravenhansen) injustice
exceptions will not apply to (12(b)(3)(B)opinion work product
o mental impressions, conclusions, opinions, or legal theories of any attorney or other
representative of a party concerning the litigation
o as distinguished from facts
 opinion work product: generally not discoverable
 some courtsmay be discoverable using even more substantial need
 fraud claims, better chance (opinion work product could show fraudulent
intention)
 fact work product: more likely discoverable
 ex. attorney memos/notes/tape recordings of an interview with a witness
 photographs, still reflect judgment of photographer, but maybe not such a
chilling effect
 especially if the witness is dead
who must prepare it?
o “by/for another party or its representatives (including attorney, consultant, surety,
inseminator, insurer, or agent)”
application/examples of when it would not apply
o Labeling: cannot gain protection simply by labeling as work product, but could be good
evidence
o just helpful: just bc a document might be helpful in preparing for litigation is not sufficient
o routine writing if document is typically/routinely prepared for business purposes, it’s not
protected
o legally obligated: when a party is required by law to prepare a documentnot in
anticipation of litigation
o accident reports: most courts have denied protection of routine accident reports
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dorm fire case: general council asked for report. But applying principle purpose
doctrineprimary purpose was for safety.
 Generally doesn’t count as work product, especially if part of regulator/statutory
requirement
o recorded conversations between contractor and clientdiscoverable (not in anticipation)
o lobbyist case: got ppl pardoned. Not attorney client, bc not giving legal advice. Not work
product, wasn’t in anticipation of litigationjust lobbying to get ppl pardoned
Martha Stewart Case: no waiver by sending to valued confidant
o But did waive attorney/client bc not confidential
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Hickman v. Taylor: creation of work product protection: codified in 12(b)(3)
 facts: ship sank. Tug owners employed council to defend. He interviewed survivors/took
statements. One year later, suit brought. Filed interrogatories inquiring into those statements.
 Privilege? NOnot in attorney/client relationship
 Trial court: not privileged, no expectation of confidentiality, discoverable
 Supreme court: reversed
o Interlocutory appeal: exception to final judgment rule
o Only other option, get held in contempt to appeal
 Work Productyes
o Attorney took notes, including mental impressions.
o If work product becomes evidence, will chill effective advocacy
o Don’t want attorneys to be witnesses
o But it’s qualified: can overcome by substantial need and warranted inquiry and undue
hardship if accessing info elsewhere (codified later)
 Ex: witnesses no longer available
 Balance need/difficulty against chilling
 But: Taylor did have to disclose factual matters learned through their agent (lawyer)
o Can get the facts by asking the owners, but not from lawyers (work product/privilege)
o Allow Hickman to get the facts of the case, but not through eyes of opposing council
o But attorney will prepare Taylor to answer
Expert Work Product
Expert Work Product: Experts 26(b)(4)
 (4) Trial Preparation: Experts
o A. Deposition of an Expert Who May Testify: A party may depose any person who has
been id’ed as an expert whose opinions may be presented at trial.
 Report: If 26(a)(2)(b) requires a report from the expertthe deposition may be
conducted only after the report is provided.
o B. Trial Preparation Protection for Draft Reports/Disclosures: 26(b)(3)(A-B)
(protection of trial preparations/protection of mental impressions) protect any drafts of
any report/disclosure required under rule 26(a)(2), regardless of the form in which the
draft is recorded.
o C. Trial Preparation Protection for Communications Between a party’s attorney and
Expert Witness: rule 26(b)(3)(A-B) (protection of trial preparations/protection of mental
impressions) protect communications between party’s attorney and any witness required
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to provide a report under 26(a)(2)(B), regardless of the form of the communications,
except to the extent that the communications:
 i. compensation: relate to compensation for the expert’s study/testimony
 ii. Facts/Data: identify facts/data that the party’s attorney provided and that the
expert considered in forming the opinions to be expressed or
 iii. Assumptions: identify assumption that the party’s attorney provided and that
the expert witness relied on in forming the opinions to be expressed.
o D. Expert Employed Only for Trial Preparation (not normally discoverable if not
going to testify): ordinarily, a party may NOT, by interrogatories/deposition, discover
facts known or opinions held by an expert who has been retained or specialy employed by
another party in anticipation of litigation or to prepare for trial and who is NOT expected to
be called as a witness at trial.
 But a party may do so only:
 i. 35(b): as provided in 35(b) or
 ii. Exceptional circumstance: on showing exceptional circumstances under
which it is impracticable for the party to obtain facts/opinions on the same
subject by other means
o E. Payment: unless manifest injustice would result, court must require that the party
seeking discovery:
 i. pay for response: pay the expert a reasonable fee for time spent in reposing to
discovery under 26(b)(4)(A) (deposing expert who will testify) or 26(D) (expert
employed only for trial prep) and
 ii. If under 26(D)also for cost in obtaining: also pay the other party a fair
portion of the fees/expenses it reasonably incurred in obtaining the expert’s
facts/opinions
Notes
 Required Disclosures: 26(a)(2)(A-B): required to disclose identity of expert and report of what
they will testify about. Opposing party permitted to depose expert w/o leave of court after
receiving report 26(b)(4)(A)
 What kind of expert
o Testifying expert: 26(b)(4)(A): substance of their facts/opinions are necessarily
discoverable.
 Expenses: 26(b)(5)(i) must pay a reasonable fee for time spent in responding to
discovery
o Non-Testifying Expert: 26(b)(4)(D): experts retained in anticipation of litigation, but will
not testify
 Party cannot issue interrogatories/deposition. Except showing of only:
 26(b)(4)(i): as provided by rule 35(b)
 26(b)(4)(ii): exceptional Circumstances: showing exceptional
circumstances under which it is impracticable for the other party to obtain
facts/opinions on the same subject by other means.
o Normally, other party can just get their own experts (so protected).
BUT if there is no other expert, this would be an exceptional
circumstance constituting an exception to their protection (unlikely)
 Expenses: above plus fair portion of fees incurred by other party
 26(b)(5)(i) must pay a reasonable fee for time spent in responding to
discovery
 26(b)(5)(ii): also pay the other party a fair portion of the fees/expenses it
reasonably incurred in obtaining the expert’s facts and opinions
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
o so research costs, hiring costs, etc
o Other Types of Experts
 1. Consultants not retained: a party may not retain an expert if testimony would
be damaging to his case
 essentially: want to avoid ppl just hiring experts they know are damaging so
it’s harder for other side to make them testify/hire them
 rule: silent on if can discover list of witnesses you consulted but didn’t hire
o since rule is very specific, and ommits thismaybe not protected at
all
o comments: consulted+not emplorednot subject to discovery
 treat as work product of non-testifying witness. Must show
substantial need.
 2. Fact witness: if not retained by either party, any one can question them
 Rule 35: if a party subpoenas an unretained expert to give opinions from
study not requested by the parties
 The court may protect her by making the party
o 1. Show undue hardship
o 2. Promise to adequately compensate (otherwise like stealing
intellectual propertyjust don’t higher ppl and then depose them)
draft of report: 26(b)(4)(B): cannot discover drafts of reports to be submitted
Pleadings and Privileges Procedurally
Steps to pleading Privilege and Work Product Protection 26(b)(5)
 (5) Claiming Privilege/Protecting Trial-Preparation Materials: Objections to discovery
o A. Information Withheld: when a party withholds information otherwise discoverable by
claiming that the information is privileged/subject to trail-preparation material, the party
must
 i. make the claim: expressly make the claim (gotta actually claim it)
 ii. Describe: describe the nature of the docs, communications, or tangible things not
produced or disclosed—and do so in a manner that (without revealing information
itself privileged/protected) will enable other parties to asses the claim.
o B. Information Produced (take backs of priv/protected): if info produced in discovery
is subject to a claim of privilege/protection as trial prepparty making the claim may
notify any party that received the information of the claim and the basis for it.
 After being notifiedparty must …
 promptly return/sequester/destroy the specified information and copies
 not use/disclose the info until the claim is resolved
 not use/disclose the info until the claim is resolved
 take reasonable steps to retrieve the info if the party disclosed it before being
notified
 give to court to determine MAY: promptly present the info to the court under seal
for a determination of the claim.
 Party producing must preserve: The producing party must preserve the info until
the claim is resolved
Notes
 1. Party Requests information
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2. Party Claiming the privilege or work product protection must object to the request
o 26(b)(5)(A): Claiming Privilege or Protecting Trial-Preparation Materials: party must
 i. expressly make the claim
 ii. “Describe the nature of the documents, communications, or tangible things not
produced/disclosed—and must do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the
claim”
 must be in writing
o 26(c): seek protective order
3. Requesting Party can file a motion to compel production
o party making the motion to compel discovery must present the court with an argument as
to why the material should be revealed
o either bc privilege/protection doesn’t apply or an exception 26(b)(3)(A)
 otherwise discoverable under rule 26(b)(3-4) and
 substantial need for information+no way to obtain otherwise without undue
hardship
4. Opposing Party can file a memorandum in opposition
o present the court with an argument as to why the material should NOT be revealed
5. Court issues an order either denying or granting production request/privilege/Work
Product/Protective order
o cannot appeal such a decision until after final judgment (unless interlocutory appeal
granted, later)
o usually done by a magistrate
6. Sanctions
o an attorney who does not produce can be found in contempt of court and imprisoned (this
is independent final judgment therefore immediately appealable)
o or other court ordered sanctions
7. Supplemental Discovery 26(e)
o a party who responded to discovery is required to supplement it with new information IF
 (1): the party learns that the disclosed information/interrogatories are incomplete
or incorrect, and new information has not been made known to the other parties
during discovery (or subsequent writing)
 OR
 (2): there were incorrect or incomplete depositions/interrogatories of an expert,
for which reports are required (26(a))
o not constantly required to update, something changes. Kodak case
8. Amending the discovery process (29)
o uless the court mandates otherwise, parties may agree in writing to
 1. Provide depositions, which may be taken before any person, at any time or any
place AND
 2. Modify procedures and limitations dictated by FRCP EXCEPT
 1. Time limits: which may only be extended by the court
Pretrial Conferences; Scheduling; Management (rule 16)
 where court issues scheduling order
 1. purpose
 2. Scheduling: must issue as soon as practicable
o within 120 days after D been served with complaint or
o within 90 days after D has appeared
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3: contents
o A. must limit time to
 join other parties
 amend pleadings
 complete discovery
 file motions
o B permitted
 Modify timing under 26(a) and 26(e)(1)
 Modify extent of discovery
 Provide for disclosure/discovery of electronically storred info
 Include any agreements party’s reach for privilege/protection
 Set aside dates for pretrial conferences and for trial
 Include other appropriate matters
4. Modifying schedule: only for good cause w/ judges consent
C: attendance/matters of consideration
D: pretrial orders: court issues final order. Controls course
E: final pretrial conference and orders
o As close to start of trial as reasonable
o Must be attended by one attorney
o Modfy issued order only to prevent manifest injustice
F sanctions
o On motion/own: issue sacntions under 37(b)(2)(A)(ii-vii)
Rules 4, 16(b) and 26(a)(1) and 26(f) give timeline
Flores v. Southern Peru Copper Corp: delay required initial disclosures
 Facts: Flores sued Souther Peru Copper Corp accusing them of engaging in harmful mining
practices. Under 26(f), the parties provided the court with a joint report and proposed discovery
plan. Both parties agreed to delay in making the initial disclosures required by 26(a)(1(A)-(C)
regarding individuals who may be in possession of discoverable information, production or
description of documents and other documents. Flores refused to waive disclosure of applicable
insurance polices required by Rule 26(a)(1)(D). Southern argued it shouldn’t have to produce
them because it had a motion pening that may dismiss the case.
 Issue: Under the FRCP, must a court compel a party to make an initial disclosure required by Rule
26(a)(1) if the opposing party had refused to waive it?
 Holding: No, Under FRCP Rule 26(a)(1), the required initial disclosures may be delayed by
agreement of the parties or by order of the court.
End Chapter Notes
 rule 11: required lawyers make a “reasonable inquiry” before filing a complaint or other paper
and therefore presumes that the lawyer will conduct an informal investigation before filing a
complaint
 ethics rules:
o can’t speak to represented persons, including in some cases agents/employees of
corporate entities, without the consent of the person’s or entity’s lawyer
30
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o even if person unrepresented: lawyer may be required to ID selves clearly, avoid/correct
misunderstandings about Lawyers role, and refrain from deceitful/unfair conduct (often
including secret recording)
once litigation started: parties may discover any nonprivileged matter relevent to a calim or D,
whether or not its admissible, as long as it is reasonably calculated to lead to discovery of
admissible evidence.
o So evidentiary objection other than privilege unavoidable to resist discovery (but note it in
deposition)
Privilege: when protected from discovery/by evidentiary privilege. Rules made to further
relationship that society favors (lawyer, doctor, priest). FRCP do not create privileges.
Work product (documents/tangible things prepped on behalf of client in anticipation of litigation)
have a qualified protection under 26(b)(3).
o Can be overcome if discovering party shows substantial need to prove its case/defense
in chief, and undue hardship in obtaining equivalent by other means (beyond ordinary
costs)
Anticipation of litigation: litigation doesn’t have to have already begun. Splits
o Primarily prepared with specific claim in mind
o Legal advice about possible claim
o Prepared with primary purpose of litigation
Experts: opinions/facts by testifying expert are discoverable.
o Non testifying expert: only on showing that it is impracticable for discovering party to
obtain facts/opinion on the same subject by other means (like by hiring own expert)
ID the expert. If just consulted, rules say no discovery at all.
o If percipient witness (eyeball witness): discovery available as it would be from any such
witness
Steps of Suit Generally
 Served with Summons/Complaint (rule 45)
o 21 day standard time to answer
o if not enough, call other side and ask for more time
o if that fails go to court to ask
 if skipped talking it out, court may be pissed
 Come up with defenses/Discovery Plan
o Interrogatories (rule 33)
o Document Requests, including electronic (rule 34)
o Depositions (rule 27 and 28 and 30)
o Medical Examinations (rule 35)
o Requests for admission (rule 36)
 Meet and Confer (rule 16, 26(f))
o Schedule discovery
o Maybe settlement
 Make a Report to give to courtSchedule Conference (rule 16(b) and 29)
o Judge looks at agreements, put in local rules and stuff
 Scheduling order
o Usually just stipulated by the parties but if have conflict, judge will settle
 Trial Date set
o Discovery done before trial
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Required Initial Disclosures
Required Initial Disclosure 26(a)
 1. Initial Disclosure
o A. In General: except as exempt by 26(a)(1)(B) or as otherwise stipulated or ordered by
the court, a party must, without awaiting a discovery request, provide to the other parties:
 i. name of ppl with discoverable info: name, and if known the address and
telephone number of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support
its claims/defenses,
 unless the use would be solely for impeachment.
 ii. Copy of all docs a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things that the disclosing
party has in its possession, custody, or control and may use to support its claims/Ds,
 unless the use would be solely for impeachment.
 iii. Computation of damages: a computation of each category of damages claimed
by the disclosing party—
 who must also make available for inspection and copying as under rule 34
 the documents or other evidentiary material ,
 unless privileged or protected from disclosure,
 on which each computation is based,
 including materials bearing on the nature and extent of injuries suffered.
 iv. Insurance agreements: 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 payment made to satisfy judgment
o B. Proceedings Exempt from Initial Disclosure. Following are exempt
 i. an action for review on an administrative record
 ii. A forfeiture action in rem arising from a federal statute
 iii. Petition for habeas corpus or any other proceeding to challenge a criminal
conviction/sentence
 iv. An action brought without an attorney by a person in the custody of the US, a
state, or a subdivision
 v. an action to enforce/quash an administrative summons or subpoena
 vi. An action by the US to recover benefit payments
 vii. An action by US to collect a student loan guaranteed by the US
 viii. A proceeding ancillary to a proceeding in another court
 ix. An action to enforce an arbitration award
o C. Time for initial Disclosures: in General (14 days unless agreed/objected): a party
must make the initial disclosers at or within 14 days after the parties rule 26(f) conference
 UNLESS a different time is set by stipulation or court order
 Or 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.
 In ruling on the objection, the court MUST determine what disclosures, if any,
are to be made and MUST set the time for disclosure.
o D. Time for initial disclosures—Unacceptable Excuses: (didn’t fully investigate,
unhappy w/ other parties sufficiency/other party not made disclosures)
 A party must make its initial disclosers based on the information then reasonably
available to it.
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A party is not excused from making its disclosures bc it has not fully investigated the
case OR
 Bc it challenges the sufficiency of the other party’s disclosure OR
 Bc another party has not made disclosers
2. Disclosure of Expert Testimony
o A. In General: in addition to disclosures required by 26(a)(1), a party must disclose to the
other parties the ID of any witness it may use at trial to present evidence under Fed R. Evid
702, 703, 705.
o B. Witnesses who must provide a written report: unless otherwise stipulated/ordered
by the court, this disclosure must be accompanied by a written report—prepared and
signed by the witness—if the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party’s employee regularly involve
giving expert testimony. This report must contain…
 i. opinions and basis
 ii. Facts/data considered
 iii. Exhibits to be used
 iv. Qualifications (publications in last 10 years)
 v. other cases in last 4 years
Cvi. Compensation statement
o C. Witness Who Do not provide a Written Report: Unless otherwise stipulated or
ordered by the court, if the witness is not required to provide a written report, this
disclosure must state
 Subject matter under 702, 703, 705
 Summary of facts/opinions
o D. Time to Disclose Expert Testimony: a party must make these disclosures at the times
and in the sequence that the court orders. Absent a stipulation/court order, disclosures
must be made
 i. at least 90 days before the date set for trial or for the case to be ready for trial
 ii. Solely to rebut30 days after other party’s disclosure.
o E. Supplementing the Disclosure. The parties must supplement these disclosers when
required under 26(e)
3. Pretrial Disclosures
o 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:
 i. name/number/address of each witness ID’ing those the party expects to
present and those it may call if the need arises
 ii. Designation of witnesses testimony by deposition and transcript
 iii. ID of Docs/summary: an identification of each document or other
exhibit, including summaries of other evidence—separately identifying those
items the party expects to offer and those it may offer if the need arises.
o B. Time for Pretrial Disclosures; Objections
 Unless the court orders otherwise,
 these disclosures must be made at least 30 days before trial.
 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:
 Objection to deposition testimony: any objections to the use under Rule
32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii);



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

Objections to inadmissible materials. and 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).
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.
(1) Parties must begin with mandatory planning conference under Rule 26(f) and 26(g)
 Rule 26(f): Requires this meeting to occur as soon as practicable to discuss the case and possibility
of settlement, arrange required disclosures, to discuss E-discovery issues, and to develop a
discovery plan.
o 26(f)(1). Conference timing: At least 21 days before scheduling conference (rule
16(b))
 but as soon as practicable
 Rule 26(d) Forbids them from taking any discovery prior to this conference.
o 26(f)(2). Conference Content: Submit written report within 14 days after meeting:
outlining the plan
 nature/basis of claims/defenses
 possibility of settleemtn
 develop a proposed discovery plansubmit within 14 days
 If a party objects to the initial disclosures, the court sets the time for the disclosure after deciding
on the objection.
o Party could also ask the court to delay until after court rules.
o It could also object during the discovery and note the objection (to preserve it)
 26(f)(3) discovery plan
o A. changes in timing/requirement of discovery under 26(a)
o B.
 subject of discovery
 when it will be made
 when completed
 if conducted in phases/limited to focus on issue
o C: issues about disclosure/electronic stuff
o D: issues on claim of privilege/protection
 Can agree to set claims aside until after production, ask court to include their
agreement in order
o E. changes/limitation on discovery of these/local rules
o F: any other orders court should issue under (26(c)) or 16(b-c)
 26(f)(4) expedited schedule (under 16(b))
o require parties to meet less than 21 days before scheduling conference/order (16(b)
o require a written report less than 14 days after parties conference
 or excuse report and do it orally at 16(b) conference
 26(g): certification
o every disclosure signed
o phone number, address, email address
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o certify it’s accurate
 A. complete/correct for disclosures
 B. w/ respect to discovery request, response, or objection
 Consistent w/ rules/nonfirvoulous
 Not imporper purpose
 Not unreasonable/improperly burdensome
o If fail to sign ,o duty to act
o (3) Sanctions for improper certification
 on motion or on its own
 can order to pay reasonable expenses, including attorney fees, caused by violation
Initial Disclosures: 26(a)
1. Disclosures req’d w/in 14 days – names of witnesses, descriptions of docs, calculations of damages,
copies of insurance policies. Once exchanged (usu. after Rule 26(f) mtg.), parties may request
additional info. using other methods (see Rule 26(d) – MUST be after 26(f) mtg.).
a. People (name, address, phone, subject matter) likely to have discoverable information that the
disclosing party may use to support claims or defenses- who this includes will depend on the
nature of the case.
b. Relevant documents, data, and tangible things that are in the possession, custody, or control
of the party, and that the disclosing party may use to support claims or defenses.
c. Materials from which computation of damages arose
d. Insurance agreements which may indemnify
e. Exceptions for specific types of cases (usually with the government)
2. Exceptions: Where the parties stipulate or court orders otherwise .
a. Rule 27 (c)(1) provides for a self-executing sanction, without the need for a motion, against
person who fails to make a required disclosure without substantial justification.
After required disclosures are done – you have available discretionary disclosures – any claim or defense
– broader standard.
(2) Timing of Disclosures 26(1)(c/d)
1) Must be made within 14 days after the meeting of the parties under Rule 26(f)
a) Different time may be set by stipulation of parties
b) If a party objects to initial disclosures, the court set the time for disclosure after deciding on the
objection.
c) If a party is served or joined after a 26(f) conference, initial disclosures must be made within 30
days after being served or joined.
All Reasonable Disclosures Must be Made. Not an excuse if: (26(a)?)
a) Investigations are not complete; Or
b) Opponent’s discovery is insufficient; Or
c) Opponents failed to submit discovery at all.
Required Disclosures Regarding Expert Witness Expected To Testify At Trial 26(a)(2)
 Requires parties to disclose the identify of each testifying expert
a) To provide a written report, signed by the expert, of all opinions that may be presented at trial.
b) The basis for all opinions.
c) Data and information upon which the opinions are based.
d) Exhibits to be used to support the opinion.
e) Qualifications, including all publications for past 10 years.
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f) Compensation she is being paid.
g) Listing of other cases in which she has testified either at trial or in depositon.
i) (4) Forms of Disclosure
1. All Disclosures Must be:
(a) In writing; And
(b) Signed; And
(c) Served; And
(d) Promptly filed with the Court.
h) (5) Provides tools and Grants Permission for Discretionary Discovery
i) Lists depsotions, written interrogatories, productions of documents, physical and mental
exams and requests for admission.
i) Sanctions
i) Typically is either contempt, punishment, or preclusion from using the information (i.e. Court
wont allow use of info at trial. )
Rule 26(g) Signing of Disclosures, Requests, Responses, and Objections
a) Only requires the attorney to attest to the completeness of a production, not to its truthfulness
when answered by a party (that burden is on a party).
b) Parallels Rule 11- Requires proper purpose, basis of law, and proportionality (no evidentiary
support req b/c we aren’t at that phase yet)
i) Certification of Disclosures (26(g)
1. All Must be signed by at least one attorney to be valid.
2. Signature is certification that to the best of his knowledge, information and belief (formed
after a reasonable inquiry), the disclosure is complete and correct (as of the time it was
made)
3. Phone number/email address/address
4. Certification of Discovery Requests, Responses or Objections
(a) All must be signed by at least one attorney to be valid.
(b) Signature is certification that to the best of his knowledge, information, and belief
(formed after reasonable inquiry), the request response, or objection is:
(c) Consistent with good faith and existing law.
(d) Has a proper purpose
(e) Is not unreasonable or unduly burdensome or expensive when considering:
(i) Needs of the case; And
(ii) Discovery already obtained in the case; And
(iii)
Amount in controversy; And
(iv)
Importance of Issues at Stake.
(v) AN UNSIGNED REQUEST, RESPONSE OR OBJECTION WILL BE STRICKEN- opposing
party does not have to respond to an unsigned rquest.
(vi)
The court shall upon motion or its own initative impose sanctions (typically
expenses/atty fees) for violation of this rule.
Just look at all parts of 26
Discretionary discovery
Generally
 interrogatories: Common for parties to initiate discovery with exchange of interrogatories (See
Rule 33 and Rule 26(g)): Can serve a party up to 25 written questions and responding party must
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


answer or object within 30 days in writing, under oath and certify that “reasonable inquiry” has
been made
o A. Interrogatories must be answered with all the information available to the parties
o B. Applying law to the facts of a particular case is OK but cannot give the other side a free
ride on legal research
o C. Contention interrogatories: ask alleging party to back up allegations with evidence
Request for Admissions: (36) require responding party to admit or deny – admissions go
straight to fact finder at trial (common with statements of fact and to authenticate a document)
Document Production Requests: (34) Must describe request with “reasonable particularity” and
serve the request on a party, party must then comply or object in writing within 30 days unless
the parties stipulate to a longer time
o Rule 34: Produce documents within your possession, custody or control, must produce as
maintained
o There is no such thing as a “silent objection”
Physical and Mental Examinations: a court order is required for a physical or mental examination
because of concerns for privacy. Such an order is available only as to conditions in controversy
and on a showing of good cause. See Sacramona v. Bridgestone/Firestone, Inc.
Interrogatories: rule 33
 procedure?
o Write them out, give to opposing council, certify as per 26(g) (like 11 but in discovery)
o Serve on opposing party
 A. in general
o 1. Number: no more than 25 unless stipulates/ordered (including subparts)
o 2. Scope: anything under 26(b). not objectionable merely bc asks for fact/contention that
relates to fact/app of law to fact
 but court can order not answered until designated discovery comlete/pretrial
conference/something else
 can’t just have free ride to legal research: like “what’s the law”
 B. Answer and Objections
o 1. Responding party
 answered by party to whom directed OR
 (if corp/something) officer or agent who must furnish info available
 like the resident expert
o 2. Time: answer/object w/in 30 days.
 May be stipulated under 29/court order
o 3. Answer separate/fully (if not objection
o 4. Objection: state specifically, if not timely, waived unless excused
o 5. Signature: answerer must sign and attorney who object signs objections
 C. Use: as allowed by Fed R Evid (not evidence, but can impeach)
 D. business records: if burden same and can get answer from record, responding party can
o 1. Specify record in sufficient detail and
o 2. Give reasonably opportunity to examine/audit and make compies
 contention interogitories: trying to get at party’s claims
 can be delayed till after discovery
 objections
o undue burden of expense: limit of discovery, valid objection
o no purely legal disclosures: can’t make other party do legal research not applied to facts
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

o 33(c):contention interogitorries not objectionable simply bc opinion/contention that
relates to fact/application of fact to law:
how to object?
o Lay foundation, state grounds for objection w/ specificity. In writing, signed by party’s
lawyer
How used
o Evidentiary suppor at trial or admission (BUT NOT BINDING ADMISSION)
Requests for Admission: if admitted, don’t adjudicate: 36:
1) scope: ask for puposes of pending matter truth of any matters w/in 25(b)(1)
a) a. facts, application/opinion of them
b) b. genuineness of any described docs
2) form: each separately stated. If requesting (b above) must be furnished w/ copy of doc/one made
available
a) see form 25
b) request that party admit/deny the truth of statement in request or
c) authenticity of documents attached to it to offer into evidence
3) Time to Respond: after served
a) If don’t respond w/in 30 daysadmitted
b) Unless written answer/objection + signed by attorney
i) Can stipulate under rule 29/court order
4) Answer:
a) If don’t admit, specifically deny or state why answering party cannot truthfully admit/deny
b) Must do in part if that’s the case
c) Lack of Knowledge D: May assert lack of knowledge as reason for failing to admit/deny only if
made reasonable inquiry and still not enough info to admit/deny
5) Objections
a) Grounds stated. Not object solely on ground that request presents a genuine issue for trial
6) Motion regarding sufficiency of answer/objection
a) May move to determine if sufficient answer
b) If court finds objection unjustifiedorders answer be served
c) If doesn’t complycourt can say admitted/defer until pretrial conference ot specified time before
trial
i) Rule 37(a)(5) applies to award of expenses
7) (B) (all above in A) effect of admission
a) matter omitted treated as established
b) unless court on motion allows withdraw/amendment
i) subject to 16(e): court may allow if promote the presentation of the merits and court is not
persuaded that it would prejudice requesting party in maintaining/defending action
c) can’t be used in another proceeding
Document Requests/electronically stored info, tangible things, entering onto land: rule 34
 Must produce docs in own reach (doesn’t count to give to lawyer
 24(b): must organize like a normal person
 procedure
o describe w/ particularity the doc/category of docs to be inspected
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


o specify a reasonable time/place/manner for the inspection and for performing the related
acts
o serve on party
Answer: party then must respond/object in writing w/in 30 days (or otherwise
stipulated/court ordered time)
o no numerical limit
scope of producing party’s obligations and format of production
o 34(a):what can get in possession/custody/control of party whom the requires is served
 includes info in hands of your agents/attorneys
 make reasonable inquiry
 certify
o 34(b)organization “as they are kept in usual course of business” or “organize and label
them to correspond with categories in the request”
 can’t just bury documents
o 45(a)(1)(c): for non party: must be embodied in subpoena
 issue a subpoena for info from non party
 equivalent to rule 34 procedure + subpoena
 but subpoena has limited reach
objections: (26(b)(2)(c)
o privilege or work product
 can’t silently withhold, must describe materials being withheld and why they’re
privileged (general 26 stuff)
o burdensome objection: must be specific on why. How it’s burdensome/oppressive by
affidavit or other evidence substantiating the objection
Trade Secrets
o To protect, can move for protective orderburden of giving this up to competitor
outweighs benefit
o Will probably give up under seal to other council
o Ask the court for this (26(c)
Medical Examinations: rule 35
 generally
o physical injury: if plaintiff is claiming only physical injuries, mental exams are not
allowed;
o mental injury: If claiming emotional distress or similar, mental exams allowed
o not allowed for witnesses: the rule makes it clear that examinations are not available
against mere witnesses outside the custody or control of the parties
 probably not available against spouses when party claiming injury on their behalf
 but is for kids
o strictly applied: narrow under 26(b): relevance is not enough. Must be a condition in
controversy
 can ask for a protective order 26(c)
 procedure (35(a))
o obtain a court order by motion: requirements
 1. Good cause for physical/mental examination
 2. Material matter in controversy
o notice: to all parties specifying the examiner (chosen by discovering party) time, place,
scope of examination
 using the examination Report under rule 35
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o adverse party may request a report of examination: including results of all tests made
o if report requestedalso waives physician patient privilege regarding testimony of the
examining physician
Sacramona v. Bridgestone / Firestone. Inc. (Mass 1993) –Physical Examinations denied bc connection too
attenuated
a) Facts: Defendant filed motion to compel plaintiff to submit to a blood test because plaintiff was
claiming future lost earnings; Plaintiff’s claimed injury was from an exploding tire, which typically
causes eye injuries etc.; Defendant requested physical examination, claiming that plaintiff put their
life expectancy at issue because they used it to calculate future lost earnings – suspected that P
had HIV
b) Holding: Motion to compel is denied; Connection too attenuated, would open to door to
examination in every case; not relevant
c) Rules:
i) Discovery is therefore “if these is any possibility that the information sought may be relevant
to the subject matter of the action”
ii) individual lawsuit as measured by such matters as its nature and complexity” and the
importance of the issues at stake
iii) Rule 35 court may order a physical examination when the physical condition of a party is “in
controversy” and “good cause” is shown—moving party carries the burden
Electronic Discovery
Electronic Discovery: Rule 26 and 34
 Generally
o Information that once was once maintained and communicated by paper is now
maintained in electronic files that often are never printed out, spreadsheets, emails,
websites, and text messages, stored on floppy discs, CD-ROMS, laser discs, thumb drives,
zip drives, and DVDs, at the office and at home, on local and distant servers, on networked
computers and laptops.
o Includes metadata
 Imbedded in the file
 Shows markers that may show changes/author
identity/creation/modification/comments/highlights
 Not usually in printed doc and author may be unaware
 Residual deleted data, back up tapes, legacy data
 Production costs: tend to be much higher
 Depends on how data is kept (accessible or inaccessible format)
o 26(b)(2)(B)Objection by unreasonably burdensome: limitations on electronically
stored information: A party need not provide discovery of electronically stored information
from sources that the party identifies as not reasonably accessible because of undue
burden or cost.
 motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible
because of undue burden or cost
 if undue burden/cost: the court may nonetheless order discovery from such
sources if the requesting party shows good cause, considering the limitations of Rule
40


26(b)(2)(C) (unreasonably cumulative/duplacitive). The court may specify
conditions for the discovery.
o 26(b)(2)(C): Zubulake Balancing Test: consider factors to shift the cost to requesting party
 specificity of request
 availability of such information from other sources
 total cost of production
 COMPARED TO
 Amount in controvery
 Resources of each party
 Relative ability of each party to control cost/incentive to do so
 Importance of issue in litigation
 Relative benefits of parties in obtaining the information
o 34(b)(1)(c) (other (b)(1)’s applicable too): may specify the form/forms in which
electronically stored information is to be produced
 34(b)(2)(D): objection to form: response may state an objection to a requested
form for producing electronically stored information.
 If responding party objects to a requested for or if no form was
specifiedparty must state the form/forms it intends to use
Spoliation: when duty to preserve has been violated by destruction/alteration of ESI
o Ways to decide on spoliation
 1. Spoilators state of mind
 2. Importance of spoilated evidence
o court will give sanctions (rule 37)
RavenHansen Stages for Electronically Stored Info (but also mostly applies to normal docs too)
o 1. Preservation
 must preserve docs after litigation has commenced
 sometimes when litigation is reasonably anticipated (litigation hold)
 splits on what counts as anticipation of litigation
 could be told by perspective P (or their lawyer)
 lawyer must keep documetns from being spoilated
o 2. Meet and confer (SDNY pilot project)
 submit joint electronic discovery submission (certify it), discussing
 preservation
 search and review procedures
 forms of production
 limitaiojn on discovery
 privilege and work product
o 3. Required initial disclosures
 includes ESI (26(a)(1)(ii)
 what you plan to use
o 4. Discretionary discovery
 produce as requested,
 if no form and don’t object, produce in form “ordinarily maintained or in reasonable
form 34(b)(2)(E)
 objections
 under 34(b)(2)(D) (objection to requested form/no form)
 26(b)(2)(B): burden>benefit: burden on producing party to show
o often w/ backup tapes
 resolve
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
26(b)(2)(C): balancing test. (Zubulake)above
o cost benefit analysis, may shift who has to pay
 26(b)(5)(B): if turned over work product/privileged info, you can request it back
o 5. Spoliation: when evidence is destroyed.
 When party controlling it caused it to be destroyed
o State of mind
 Or evidence is very crucial
o How much damage done
 Result? Depends on above
 1. Sanctions (rule 37)
 2. Permissive injunction: jury may assumes evidence in favor of nonspoiliating party, but could decide against
 3. Adverse injunction: jury assumes it’s true
 4. Default judgment: so bad just judgment against you
Zubulake v. UBS Warburg L.L.C. balancing test for ESI to shift costs
i) Facts: Plaintiff sued for gender discrimination and sought discovery of emails amount
defendant’s employees. Their relevancy was undisputed; plaintiff had already obtained a
potential “smoking gun” email “suggesting that she be fired ‘ASAP’ after EEOC charge was filed,
in part so that she would not be eligible for year-end bonuses. Defendant procured 350 pages
of documents, including hundreds of emails, but balked at producing emails from backup tapes
at an alleged cost of $300,000.
ii) Holding: The court rejected the argument that costs should be shifted to the requesting party
in every E-discovery dispute. “The presumption is that responding party must bear the
expense of complying with discovery requests…” the court asserted, and there is no exception
for E-discovery.
(1) Costshifting however could be considered when electronic discovery place an undue
burden on the responding party.
(2) Court ordered Respondent to produce 5 backup tapes and based off the usefulness of
the information the court would consider more.
Deposition
Depositions Rule 28, 30, 31, 32 45 (subpoenas)
 Generally
o Can take a deposition from anyone BUT non-parties must be served w/ a subpoena to bring
them into the courts jurisdiction
o Subpoena Duces Tecum: requires deposed indi to produce any related documents
 Use doc request with it (rule 34)
 Ask them to authenticate the document (bring 3 copies, opponent, you, court)
o CHECK: see notice of deposition (A 53) and Subpoena (A 54)
o May be made w/o leave of court anytime after 30 days of parties’ receipt of the complaint
and summons
 Procedure
42




o Party (non institutional): serve notice of the time/place/date of a deposition with copies
to the other parties in the action (normally sufficient):
 Notice must specify the method of recording the deposition (usually court reporter)
 But not the subject
o Non-Parties (rule45(a)(2) and (b)(2): court that issues subpoena is forum court. Service is
good nation wide
 but limit where deposition can be held
 Non-party not within PJ of court or subject to discovery rules until/unless he is
served
 Process
 1. Open “misc. docket” in the relevant state and have that court issue a
subpoena
 2. Conduct deposition nationwideusually where party lives
o deposing institutional Witnesses (rule 30(b)(5): must give subject matter notice
 send notice to the corporation/institution who must then appoint a representative
deponent knowledgeable about those matters to testify on its behalf
 what they say will be binding
format/procedural notes
o usually at discoverer’s office
o third parties NOT permitted to be present absent agreement of parties
o all statements are recorded by court reporter/stenographer
o depositions expenses are paid by party deposing (cost of court reporter, transcripts, etc)
types of Depositions
o 1. oral deposition: simply the live examination of a witness under oath outside the presence
of the judge
o 2. Depositions on written questions: questions are served on the deponent in advance and
then read to him by the court reporter at the deposition; answers are then live and under
oath (rule 31)
Uses for Depositions (rule 32)
o 1. Discovery Depositions: used purely for discovery purposes; helps build the record and
to give counsel an idea of what information the witness knowswitness will testify again
at trial
o 2. Depositions serving as trial Testimony: used when a witness cannot attend trail and
need to get their statement on record before the jurydeposition will be read to the jury at
trial
 here: deposition is admissible for trial evidence.
 Probably don’t ask questions you don’t know the answer to, bc can go in at trial.
Objections
o Rule 30(d)(1): objections “shall be stated concisely and in non-argumentative and nonsuggestive manner” and limits the circumstances in which a lawyer may instruct a
deponent not to answer
o Model Rules of Professional Responsibility 3.4(a)and(d): proscribe that “unlawfully
obstructing another party’s access to evidence” or “failing to make reasonably diligent
effort to comply with a legally proper discovery request of an opposing party”
 BUT: this is more etiquette. Violations usually minor and on both sides.
 Some jurisdictions have adopted voluntary standards for “civility”
o Objections preserved despite non objection: Rule 32(d)(3)(A): Most evidentiary
objections are preserved until trial and need not be made at deposition
 Ex. witness competency, relevance, materiality
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


o Objections not preserved if don’t object: Rule 32(d)(3)(b): hearsay, compound question
(objectionable question form), leading questions, object to swearing in of witness bc there
is no notary public (would jeapordize depo, so get one)
 Ex. objections which can be cured by simply reforming the questions, correctable
errors
 When object, it’s noted, and move on
 Basically must object to confusing stuff there (mechanical things)
o BUT: if deponent answers after an objection that the question calls for privileged/protected
communication, effectively lost the protection.
o Once objection made+noted
 Deponent must answer
 EXCEPT: a party may refuse to answer on ground of privilege
o Just note objection and move onunless privilege
Using deposition at trial (rule 32)
o Some depositions are strictly for discovery purpsoes, wherein the witness will testify at
trails and the deposition is just a preview
o If deposition used at trial2 level evidentiary problems
 1. Deposition is hearsay; out of court statement offered as truth
 2. Ancillary evidence issues: if the content of the deposition is valid under the
federal rules of evidence
 deposition may be entered as evidence but only parts of it allowed to be
admitted (parts that pass evidenciary rule)
limits on depostions
o 10 depositions: without seeking permission, the total number of depositions taken by one
side may not exceed ten
o 7 hours: no deposition may exceed a day of seven hours and
o no multiple depositions: no person may be deposed a second time w/o permission of the
court or other side
logistics
o costly
o do doc requests before deposition (duces tecum)
o build rapport w/ stenographer: provide glosser of names
o objections are preserved in the record if made (except privilege)
 some don’t need to be made and are preserved for trial regardless (rule 32)
o re-direct: after testimony has been given (at trial), deponents own attorney can clean up
record and give more info, done to fix something
Rule 32: Use of Deposition: evidence or contradiction
 every deposition is heresay, so to use it as admissible evidence, there must be an exception
 rule 32: unavailability of witness: exceptions when deposition can be used as evidence: when a
witness is imprisoned, dead, gravely ill, out of reach of court
 How else? Impeachment/contradiction
o Impeachment/contradiction: Every deposition can be used for the purpose of
contradicting/impeaching the testimony of deponent as a witness (subject to rules of
evidence?)
o Admission: 32(1)(3): it’s an admission
 Rule 45: changed these rules
o Deposition can overcome hearsay, but particular testimony you’re offering at trial must
overcome the hearsay/other evidentiary ruels
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Controlling Discovery and Discovery Abuse
From Chadusma v. Mazda Motor Corp (what we would do): severity of sanctions (default judgment) too
sever: 26(g) sanctions were rewuired, but too severe
a. Options in opposing a discovery request:
i. File objections (usually followed by a motion to compel – moving party’s burden to get
court to consider objections – once court issues an order, if objecting party does not
comply, may be subject to sanctions)
1. Unduly burdensome and expensive: Need to include specifics – affidavit
estimating costs and number of documents
2. Relevancy
ii. Seek a protective order under Rule 26(c)
1. Trade secrets (problem because not privileged, but may be able to get some work
product protection)
2. Cost-benefit analysis  how important is it that information be disclosed despite
sensitivity vs. what damage will be done if sensitive information is disclosed
iii. File rule 12(b)(6) motion to dismiss to carve back on the complaint – carving back on
relevant discovery
iv. Self-help (not actually permitted), i.e. intentionally not disclosing documents
1. If you’ve stonewalled discovery requests, you’ve waived your right to object but
could still argue sanctions were inappropriate
b. Sanctions: should be proportionate to conduct that occasions it
i. Deeming sanction: instruct jury that it may infer based on what party failed to disclose
that certain facts are established (adverse inference)
Ways to dispute
 meet and confer
 26(g)(3) motion (request in bad faith)
 12(b)(6) motion: get rid of the claim
 object in writing 34(b)(2), 33(b)
o no silent objection
o must be w/in period specified (often 30 days)
o then other side will file motion to compel
 now court involved: uphold objection or compel discovery
o if still fail: file motion for sanctions (rule 37)
 protective order motion 26(c)
o especially if trade secrets
o balancing test: weigh needs of information, effects of not allowing/restricting discovery
against costs of making responding party produce and cost to public
 self helpwill end up with sanctions
o Summary judgment: very extreme, usually need bad faith
o Deeming judgment: if won’t produce, just deem facts established
o Adverse inference: May infer from non-compliance: jury may infer that… docs would
show, so allow jury to draw inference:
 Case law: must show some documents that suggest nature of documents withheld
by banks
o Preclusion order: can’t really do in advance, but don’t get to cross evidence of it so don’t
let them try to say the stuff that would be proved/disproved by evidence not produced
o
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Ensuring Compliance with discovery rule 26(g) and rule 37
1. Rule 26(g) – general provision; requires parties to sign docs., punishes parties for unjustified
requests and refusals even when behavior does not violate ct. order. Attys’ fees only generally
used (unlike Rule 11)
2. Rule 37 – more specific provisions; devices to elicit information of to respond to parties’ refusal to
supply it. May impose punishments ranging from award of expenses to dismissals or default
judgment
3. Under 37(d) and (g), sanctions available at occurrence of misbehavior
4. Under 37(b), ct. must first order compliance before sanctions
Rule 37: discovery Sanctions
 Sanctions must be just under the circumstances: “as are just against the party that violates an
order compelling discovery”
o At discretion of courtNOT MANDATORY
o Must be proportionate (Mazda)
 Usually not gonna be default judgment
 37(b)(2)(C): order striking D’s answer and entering a default
 rule 37: usually applied to person giving discovery (opposed to 26(g))
o certify that you have negotiated(rule 37) can compel you to
 possibilities
o 1. Hold party in contempt
o 2. Orders deeming specified facts to be established for purposes of the action
o 3. Precluding the violator from introducing specific facts
o 4. striking/dismissing claims/defenses
o 5. Default judgment
 triggered only by a motion
 not mandatory
rule 26(g): sanctions
 mandatory
 can be both this and above at same time
 rule: requires that discovery-related filings bear the signature of an attorney of record.
o Signature certifies the filing
 1. conforms to the discovery rules,
 2. is made for a proper purpose, and
 3. does not impose undue burdens on the opposing party in light of the
circumstances of the case.
 May be imposed by the court or by motion
o Done AFTER party responds
 Appropriate action: it spells out only the sanction of making the party who violates the rule pay
reasonable expenses incurred, including attorney’s fees
o May be more sanctions: Rule 26(g)(3): analyze the needs of the case under 26(g)(2)(c)
 Most courts ignore and just frame as rule 37 sanction
 mandatory
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Discovery Chart
47
WHAT LAW APPLIES
Rules of Decision Act 28 USC 1652
 The laws of the several states, except where the Constitution or treaties of the United States 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
Constitution Article VI: Supremacy Clause
 This Constitution, and the laws of the United States which shall be made in pursuance thereof; and
all treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.
o If federal law appliesno matter what courtfederal law is binding
 BUT: must be valid under the constitution (becomes important later)
 And probably won’t be on point in diversity/supplemental jurisdiction issues (or
else would just be federal question)
Swift v. Tyson (1842): Federal Courts applying all common law (OVERRULED)
 RDA requires federal courts to apply relevant state statutes to a case, but federal courts not bound
to follow the common law rulings of state judges → common law viewed as a single body of rules,
not just laws pertaining individually to states; therefore, federal courts would consider ALL
common law cases not just those that came from the state where the suit came from
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. (1928): Federal
common law applies in diversity case when there is no state statute but is state common law
(Overruled)
1. Threshold issue w/r/t violation of 28 U.S.C. § 1359: D reincorporates in TN to remove case to federal
court  court refuses to go into motives and finds NOT FRAUDULENT
2. Federal common law: freedom of contract > free competition  Contract is valid
3. State common law: Contract invalid
4. Forum shopping incentive + lack of uniformity between federal and state common law  upsets
equitable administration of justice
Erie R.R. Co. v. Tompkins (1938): Federal Courts apply state substantive statutory/constitutional/common law
 Facts: personal injury case  what standard of care applies? PA state law applies a restrictive duty of
care to a trespasser whereas federal common law applies a standard of ordinary care
 Under Swift, could apply federal common law in absence of a state statute, but Supreme Court
concludes that RDA has been incorrectly interpreted:
o States should decide these issues (federalism)
o Maintain equal protection  unfairness where corporations can easily reincorporate but natural
persons cannot (unevenness of access)
o Constitutionality under the 10th Amendment: powers not delegated to the United States by the
Constitution, nor prohibited to the states are RESERVED to the states respectively, or to the
people – Erie driven by constitutional scheme of federalism and 10th amendment rights.
o Interpreting RDA to apply only to state statutes and local usages but not judicial decisions was
unconstitutional  federal courts must apply state law in diversity cases where law made my
state legislature or state courts.
48
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
o HOLDING: Federal court should apply state law to issues of substantive law  substance vs.
procedure test w/r/t what LAW a federal court should apply in a diversity case.
 Reasoning
 Federal courts shouldn’t decide contracts/torts instead of states
 Equal protection issues
 Making enumerated law (violates the constitution generally and10th
amendment)
Eliminated GENERAL federal common law
Justice Reed Concurrance: with matters of procedurefederal judges must be able to decide what rules
to adopt
o N+P clause
o There is federal common law with respect to procedure: substance v. procedure test
 Substance: regulating outside court behavior
 Procedure: regulating inside court behavior
 this later changed to outcome determinative test
Ascertaining State Law: What is the Law of the state?
 What should federal courts do when they encounter a novel question of state law on which there is no
precedent to apply?
o Consider related areas of law and extrapolate from analogous principles, discern a trend, look to
dicta
o Certify a question of state law to the state’s highest court: decide the issue of law so the federal
case can proceed
 Invoked by a court order, court motion or motion of any party to the case
 Set forth question of law to be answered and statement of all facts relevant to the
questions certified and showing the nature of the controversy
 State supreme court can accept or decline certification
 Expensive and causes delay  not used often
State Supreme Court Predictive Approach: Ascertain how Supreme Court Would hold Today?
 State Supreme Court Predictive Approach: If unclear what state law is (No Statute, No or very old
Supreme Court of State Holding)court predicts how supreme court would rule today
o Even if there is an old supreme court case on pointcan still predict state SC would rule
differently today
o Will infer from lower courts, find closest parallel law, may look at law reviews, majority trend in
states
o Very cautious in ruling differently than state courts/against old SC decision
 Don’t want anti Erie outcomedifferent laws applying in state/federal
 May decide not to hear supplemental jurisdiction bc of this
o What if another federal judge hears the same issue in different state?
 Will probably rule in accordance w/ in state federal judge (or previous one) unless
changed circumstances
 State trial court’sbound by precedent unless it has been so eviscerated by later decisions as to be
“impliedly overruled” (so state/federal courts could end up differently here)
 But more likely to get to state supreme court than have federal court rule against state
supreme court decision
o If state law changed or clarified after federal district judge’s prediction  reversed for retrial
o Consider parallel with supplemental jurisdiction  discretion w/r/t novel questions of state law
49
Uniform Certification of Question of Law
 By state statute: federal courts/other state’s courts can ask a state’s SC how they would rule
o If there is no statute (or ambiguous) no precedent/unclear it would still hold
o Rarely invoked
 If federal district court guesses how state SC would hold, then proven wrongfederal appeal court will
follow new state law. (bc wouldn’t have gotten that decision if certified anyway, not if the law just
changes)
Which State Law Applies? Choice of Law
 What happens when claim in federal court not in state that claim arose out of?
 Federal courts apply the state choice of law rules in the state they sit.
o Under (Klaxon): this was part of state substantive law
 State choice of law: many states (in tort actions)apply the state law where the action occurred
o Can have choice of law provision in the K
Klaxon v. Stentor Electric Mfg. Co. (1941): federal courts apply the state choice of law rule in which they sit
 federal court in a diversity case should apply the substantive law that would be applied by the state court
in the state in which the federal court sits  federal court must choose same body of law that local state
courts would
 federal court must follow forums state in choice of lawenforce DE law
o lower court just preferred NY damages (NOT PROCEDURAL)
 the prohibition declared in Erie against such independent determinations by federal courts
extends to the conflict of laws
Specific Federal Common Law: in disputes between states, foreign police, other matters of specific
federal concern
 1. disputes between states will be decided by federal common law
o otherwiseconflict of interest on who’s state law to apply, just would depend on where
court sits
 2. Foreign countries: probably same thing for cases involving foreign countriesfor
consistency
 3. federal employee immunity (Standard Oil)
 question is (kinda):
o 1. How large is the federal interest compared to state interest?
o 2. Uniformity problems?
o 3. Conflict of interest?
 This is very limited: in creating federal common law, can look to…
o Trends, equity, policy, borrow state law.
 Borrowing from states: implying state law into federal lawSoL where federal law silent, court
will adopt state law on point.
United States v. Standard Oil Co. of California: soldier hit by truck: apply federal common law for uniformity
 facts: truck hit soldier. Army had to pay his bills. Soldier settled with D.
 issue: does state law apply?
o If California law applies, tehn indemnification of US would depend on what state you’re in
 Analsis: court looked to…
o Lack of uniformity possibility
o Federal interest in suit
o State having no particular interest
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Holding 1: apply federal common law
o Where lack of state interest and strong federal interest
How to decide federal common law?
o Borrow from state law (if no SoL for federal law, federal judge will borrow from closest
similar state law claim, don’t need uniformity)no need here bc Cali has no interest
o Policy: here made decisionuniformity.
 No indemnification: congress could just adopt it if wanted it.
Rationale: Erie was to make federal power subject to state authority in local interest.
o That was where claim could be in state court. State law doesn’t govern national
issuesapply federal common law
Court said federal courts ability to create rules is more modest than state court’s (congress should
do itby inaction, maybe meant not to)
Substantive v. Procedure: When to apply Federal/State Law?
 Erie: only said use state law if its substantive law. What about state v. federal procedure?
o Reed Concurrence:
o substantive: controls party’s outside the court room;
o procedure: controlled party’s inside the court room
o BUT: procedural rule can have great effects on rights outside of court
 Burden of proof: Apply state Burdon of proof rules: considered substantive: relates to rights.
 Questions to ask:
o Is state law substantive?
 Yes: state law holds (absent applicable federal law)
 No: move down (until belowoutcome determinative test
Guarantee Trust Co of NY v. York: Outcome determinative Test: didn’t afford recovery if made unavailable by
state nor can it substantially affect enforcement of the right given by the state
 Facts: class action suit. Brought in equity. Suit would be barred by SoL of state.
 Issue: should the court apply the state SoL or Federal Doctrine of Laches
 Court: congress gave jurisdiction of diversity, not the power to deny substantive rights created by
state law or to create substantive rights denied by state law.
o They’re just like another state court (absent other federal court restrictions) when sitting
in diversity. Won’t give recovery not available under state law just bc citizens are diverse.
o Question becomes: statute concerns means by which right to recover is enforced, or matter
of substance in the aspect that alone is relevant to our problem: significant affect?
 Don’t do formalistic divide: look at importance
 Law v. equity doesn’t matter
Outcome Determinative Test: if applying federal procedural rule instead of state would affect the
outcome, federal court should use state rule
 (Guarantee Trust co of NY): Erie was created to ensure state and diversity cases had same
outcome.
o Policy: litigation in federal instead of state shouldn’t change result of case.
o Therefore if state court would completely bar claimfederal court will too
 Rule: if applying federal procedural rule instead of state would affect the outcome, federal
court should use state rule
o eliminating bright line between substantive and procedure to effectuate Erie. Cases should
come out the same in state/federal court sitting in diversity: uniformity
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o retrospective approach: (Guarantee Trust) if applying a federal procedural rule over a state
one would effect the final outcomeapply state rule
Erie Test still good
o Procedure: inside court roomMAY be able to apply federal law (subject to outcome
determinative)
o Substantive: outside the court roommust apply state law
Often using outcome determinative for stuff between Substance and Procedure
Byrd Balancing Test (but never returned to): apply a balancing test for state policy and federal
interests where substance/procedure test and outcome determinate test are not clear (will apply
to either)
Hypo: 14 days to file in DE, 21 in federal court
o File on 15 day
o FUCKED: apply state lawoutcome determinative (even though obviously procedural)
Byrd v. Blue Ridge Rural Electric Cooperative, inc: added third test: apply a balancing test for state policy and
federal interests where substance/procedure test and outcome determinate test are not clear. SC NEVER
RETURNED
 Facts: P trying to figure out if he is statutory employee or indi contractor: for workers comp claim.
 Issue: if federal policy favoring jury policy decisions of disputed facts should yield to the state rule
in the interest of furthering the objectives that litigation come out the same way?
 Conc: Bird Balancing Test: Even if we might want to follow state rule to assure consistency with Erie,
countervailing federal interest weigh in favor of having a jury decide
o 1. Interest in having federal judges control courtroom
o 2. apply a balancing test for state policy and federal interests where substance/procedure
test and outcome determinate test are not clear.
o 3. Here: state policy by accident v. strong fed policy in favor of juryapply federal rule
Rules Enabling Act of 1934: 28 USC 2072
 Language
o 28 USC 2072(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 magistrate judges thereof) and courts of
appeals
o 28 USC 2072(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.
 Therefore the SC passed the FRCPpresumed constitutional
o Bc Rules Enabling Act is N+P for art 3
o And FRCP pass through whole array of judges before being passed
Two Tracks of the Erie Doctrine (ignore this, Nathalie makes no sense)
 The Choice question: Whether clash in law would effect filing in State of Federal Court?
 Outcome of Erie Doctrine depends on nature of the conflict. (if it’s just federal law v. state law and
conflictalways federal law (supremacy))
o Conflicts between federal judicial practice and state law(Hannah I)modified
outcome determinative approach
o Conflicts between FRCP and State law(Hannah II)Rules enabling act analysis
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
Hannah 1 Analysis: modified outcome determinative Test
o 1. Is there a clash between federal and state law in terms of answering the choice
question, which creates a conflict?
 No: then no problem, no conflict
 YES:
 where the state law conflicts with a federal law or the constitution
(supremacy clause)federal statute/constitution wins.
 Where the state law conflicts with judicial practice with respect to
procedure…
o And there is a substantial difference in the outcome that affect’s Erie’s
two aims (1. eliminate forum shopping 2. equal administration of
justice)presumption for state law
 (relatively unguided Erie Analysis, Unless Byrd analysis should
factor in)
Hannah 2 analysis: Rules Enabling Act—conflict between FRCP and state law.
o 1. Is there a clash?
 No: you’re fine
o 2. If yes
 1. is the federal law arguably procedural? (2072(a)) and
 2. Does not abridge a substantive legal right? (2072(b))
 presumptively in favor of FRCP (never overturned one here, presumed
constitutional )
Hannah v. Plumer: Split the Erie doctrine into two tracts
 facts: P served process on executors wife, pursuant to FRCP, but not according to Mass law (too
late). Service was for a negligence claim.
 Issue: apply federal or state service rule?
 Court: Service is FRCP 4(d)(1): w/in congress’ right to create (in passed to judges through rules
enabling act). The federal law is supreme, therefore the court won’t apply state law.
 Bc we already have a valid federal law on point.
o So question becomes: if rule regulates procedure4(d)(1): yes!
o “no alteration of substantive rights”not about incidental effects as necessary to attend to
adoption of prescribed new rules.
 Court:
o Federal courts should apply substantive state law and federal procedural law (Erie)
 Then Guarantee Trust (if procedural): outcome determinative test
o HOWEVER: here: (Guarantee Trust) was really not about automatic classification, but
reference to underlying policies
 1. Prevent forum shopping
 2. Changing rights based on forums
o Here: choice of law wouldn’t effect forumjust serve differently. Service doesn’t alter
enforcement of state created rights in substantial way.
o Erie: not for voiding valid federal rules, but avoiding unconstitutional creation of federal
rules (not w/in 10th amendment rights)
o Here: FRCE are constitutionalsupremehold
 Conc: Erie and Guarantee Trust v. Yost are not relent when there is affirmative
countervailing federal and otherwise constitutionally sound rules
o Treat FRCP as statutes
o So as long as the conflict is between a state rule and FRCPFRCP will win
 Given that it’s arguably procedurally (always but 2)
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 And doesn’t abridge substantive right (always but 2)
 This is Hannah II
o If conflict is between a federal statute/constitution and a state lawfederal rule wins
 Supremecy
o If the conflict is between a state law and a judicial practice (not FRCP, just local stuff that
judge does) look at interests Erie meant to protect…
 A substantial difference in the outcome that effects
 1. forum shopping
 2. Different rights based on forum
 THEN: state law wins
 Hannah I (unguidedbut maybe Byrd will come back in)
Erie Doctrine Under Hannah: Final Overview
 When in Hannah Ipresumption goes to state.
o Rule being substantive
o Procedural but modified outcome determinative (twin evils of Hannah Question)
Example: should jury instruction be permitted in writing or only read to them??
 State practice: Permit
 Federal: FRCP 51
 Judge: doesn’t allow it in his court normally
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1. What’s the actual choice question? Should the jury be permitted to see instructions in writing
and bring them in?
2. Deciding if there’s a clash between federal law and state law? (to determine Hannah I or II)
 looking to see if the closest federal law and state law contradict
o If YES clash: Here: it’s a FRCP: so rules enabling act questionHannah II
o If No clash: then must follow state rule or judicial practiceHannah I analysis (unguided
approach)
o Here: No clash (FRCP 51(b)(3) most relevant”may instruct jury at any time before the
jury is discharged” nothing in federal rule about how jury is instructed and there is a state
rule
 State rule, no federal ruleno clash
3. If NO clash between federal and state lawErie type analysis (Hannah I): is the practice
substantive or procedural?
o Substantive: (effect rights outside court room) follow state law (Erie)
o Procedural: (inside court room effects: argue it’s procedural)judge gets some choice. But
might trigger two evils of Erie (forum shopping, change rights based on forum):
4. apply modified outcome determinative test…
 A. does the difference effect forum shopping?
 B. does the difference effect rights of out of state P’s/D’s vs in state?
o If yes to eitherfollow state law (but subject to 5)
o If no to bothallow federal practice
5. Byrd Considerations: Even if we might want to follow state rule to assure consistency with Erie,
countervailing federal interest weigh in favor of following federal practice.
o Federal interest here: relation between federal judge/jury
o Judge technically isn’t bound by state lawcould possibly not allow jury to see it given his
interest
Example 2
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State rule: No punitive Damages in Negligence Case
FRCP 54(c): demand for judgment; relief to be granted: “every final judgment should grant the
relief to which the party is entitled, even if the party has not demanded that relief in its pleadings”
At trialP showed wanton/reckless conduct by D
In pleading: only claimed negligence


APPLY
 1. What’s the actual choice question? Should punitive damages be allowed
 2. Is there a clash between federal law and state law?
o Argument for CLASH: federal rule allows more damages than state rule would (Go to
Hannah II analysis)
o Argument for NO CLASH: federal rule just means amount asked for in pleading can be
different than final judgment (so go to Hannah I analysis if here)
 3. If CLASH between state/federal lawhannah II analysisguided approach (2072 A and B)
o A. is the federal rule arguably procedural? Yes, court room stuff: still fine
 (if FRCPalmost always gonna say arguably procedural)
o B. does the rule abridge a substantive right? Here seems yes, forcing punitive damages
in violation of substantive right to D by state law.
 (if incidental violation of right, doesn’t count) (most FRCP)
o therefore: APPLY STATE LAW
 3. IF NO CLASH between state/federal lawHannah I analysisunguided Earie/York analysis
o A. Is the practice substantive or procedural?
 If SUBSTANTIVE: then apply state rule: this is about damages, that’s substantive
rule
 (subject to Byrd Qualifyer)
 if PROCEDURALproceed to modified outcome determinative test
 4. Modified outcome determinative Test (addressing the twin evils)
o A. would the application of the federal practice lead to forum shopping?
 If yesFOLLOW STATE RULE (subject to Byrd)
 If noproceed
o B. Does the difference effect rights of out of state P’s/D’s v. in state?
 If yesFOLLOW STATE RULE (subject to Byrd))
 If noALLOW FEDERAL PRACTICE
 5. Byrd Considerations: Even if we might want to follow state rule to assure consistency with Erie,
countervailing federal interest weigh in favor of following federal practice.
Notes
 substantive:
o is policy about daily life
o is it about fiscal decisions
o burden of proof counted as substantive
o same w/ damages
o if about SoL probably good argument for substantive right
 Procedural
o Just about in court room stuff
o Days/dates
 when looking if substantive/procedural under Hannah II
o default will be procedurallots of judges said FRCP were w/ In rules enabling act
o constitutional supporttie goes to FRCP
o Even asking for physical/mental capability (bc need court order)
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when in Hannah I
o presumption goes to stateotherwise federal judges making law
o constitutional support for states making law on state laws (bc this is all necessarily
under a state law)
if the rule on point is a federal statute (constitution/statute that’s valid)then federal
law wins (supremecy)
o I think it’s gotta be right on point
o Unless it’s unconstitutional
o Even if FRCPprobably will override (presumed constitutional, can have incidental
effects on substantive rights)
 Almost always will count as procedural (2072(A)) satisfied
 Better bet is it effects a substantive right too significantly (2072(b)
o But presumption in favor of FRCP
If it’s just a judicial practiceeasier time overturning it (Hannah I bc no clashing laws)
o Couldn’t be substantive
o Can be procedural but subject to modified outcome determinative test
 Forum shopping
 Significantly different litigation opportunity
o BUT: could get back in by Byrd analysis
Assessing Direct Conflicts with a Federal Rule:
 After Hanna, analysis of a conflict between state and federal practice depends on nature of the conflict
 conflicts between federal judicial practice and state law depend on modified outcome determinative
analysis whereas conflicts between FRCP and state require analysis under REA (Hanna 2)  Which
track to pursue?
ii. Walker v. Armco Steel Co. (1980): How to assess if there is actually a CONFLICT -Choice question is was the suit brought too late (FRCP Rule 3 vs. Oklahoma statute)
1. Do Rule 3 and OK statute directly conflict?
a. No, Rule 3 triggers other events within the federal rules (i.e. once you
commence an action, how does this start a domino effect with other
federal rules) whereas OK statue determines effective service of
defendants in order to provide NOTICE (substantive goals) and therefore
does not apply to the choice question
b. Without a clash, Hanna 2 analysis will not apply so instead there is a
conflict with the state statute and federal judicial practice  follow Hanna
1:
i. Is question substance or procedure?
ii. Two aims of Erie? Makes a big difference in outcome
retrospectively  follow state rule
iii. Shady Grove v. Allstate (2010): Choice question is can this action proceed as a class
action in federal court? Everything turns on whether Rule 23 gives an answer to the
choice question
1. Is there a clash between FRCP Rule 23 and NY Stat. § 901?
a. Majority says yes b/c they answer whether a class action may proceed for
a given suit – §901 prohibits a class from existing at all in certain
circumstances whereas Rule 23 governs whether a given group may be
given class treatment
i. 2d. Cir says Rule 23 addresses criteria for class certification
(assumes eligible for class treatment – but can they be certified)
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but §901 addresses whether a claim is eligible for class treatment
in the first place
ii. Dissent says Rule 23 addresses procedure of bringing a class action
but §901 addresses remedies – remedies limited
2. With direct clash  Hanna 2 REA analysis:
a. Arguably procedural? Yes
b. Abridge substantive rights? Scalia doesn’t really handle this in majority
opinion; Stevens says in his concurrence that a high bar is set w/r/t what
will violate REA  mere possibility that a federal rule will alter a state
created right is not sufficient
3. Dissent  There is no direct clash so apply Hanna 1 analysis  state law has a
substantive purpose to protect corporations from too much liability so state law
will prevail
DISPOSITIONS WITHOUT TRIAL
JURY TRIAL
APPEAL
PRECLUSION: THE FORCE AND EFFECT OF FINAL JUDGMENT
A civil Action


Rule 11
FR42(b)
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