Civil Procedure
Chapter 1: Introduction to Civil Procedure
I.
Introduction to Course, etc. (1-10)
A. What Students Need to Know
1. A complaint is a document that begins litigation.
2. Discovery: pretrial fact investigation.
3. The premises and operations of the system of justice, due process, ethical issues, and
balance between efficient and fairness.
4. Jurisdiction:
a. Subject matter jurisdiction: court must be authorized by the Constitution or
statutes to decide cases with that subject.
b. Personal jurisdiction: court must have authority over defendant.
B. Law as Theatre
1. Milner S. Ball – The Promise of American Law
2. The element of metaphor.
3. The functions of judicial theatre:
a. Redirecting aggression
b. Encouraging Impartiality
c. The performance as a whole
II. Due Process (19-45)
A. Kelly v. Goldberg
1. Background: termination of welfare was up to the discretion of the caseworker.
a. The services were like property and so should have legal protection.
2. Man’s welfare got cut off because he was staying at a hotel that he wasn’t supposed to be at.
They terminated his money and he wasn’t allowed an evidentiary hearing before hand.
3. Issue: whether a State that terminates public assistance without affording him the opportunity
for an evidentiary hearing prior to termination denies the recipient procedural due process.
Yes.
4. Rule 8: General Rules of Pleading. Must be short plain statement showing that the pleader is
entitled to relief.
a. Rule 23: Class Actions
b. Rule 57: Summary Judgment
5. Test: the interest of the eligible recipient in uninterrupted receipt of public assistance,
coupled with the State’s interest that his payments not be erroneously terminated, clearly
outweighs the State’s competing concern to prevent any increase in its fiscal and
administrative burdens.
6. Following elements must be shown for a claim: no state, shall deprive, any person, of life,
liberty, or property, without due process.
7. The defendant argued that they were following due process. They didn’t dispute that it was
property – perhaps because of bad PR.
8. Found for P. Said that some welfare people can't write written submissions, etc.
9. Notice, hearing, & impartial judge are necessary for due process.
a. Adding more would cost more.
B. Matthew v. Eldridge
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1. Similar to Goldberg except this is about Social Security.
2. Issue: does the 5th amendment mandate a pre-termination hearing in order to stop social
security benefits?
3. What type of “opportunity to be heard” satisfies due process?
4. Requires 3 factors to decide:
a. Private interest
b. Risk of erroneous deprivation of such interest/the probably value of additional
procedural safeguards.
c. The government’s interest.
5. The government wants to argue that the Goldberg case was unique and to apply it here would
be to extend it.
6. Why is Matthews different? It has more thorough examination before termination of benefits;
terminating welfare could be more life threatening than terminating disability, etc.
C. Hamdi v. Rumsfeld (58-68)
1. Case about US citizen being deemed an “enemy combatant” and what his rights are.
2. Due process is determined by weighing “private interest” vs. “government interest.”
3. Within the possible procedure for due process, due process limits them to permissible
procedures.
4. Holding: DP demands that a citizen held as an enemy combatant deserves the opportunity to
contest it. – Must be notified.
III. The Right to be Heard: Elements and History of Due Process
A. Frank Michelman, The Supreme Court & Litigation Access Fees
1. Dignity Values: can't litigate lowers self-respect.
2. Participation values: an appreciation of litigation as a way to exert influence in societal
decisions.
3. Deterrence values: litigation as a way to influence social behavior.
4. Effectuation values: Litigation as a means to which people are assured they can get what is
rightfully theirs.
B. Tyler & Lind: a Relational Model of Authority in Groups
1. Appearance of fairness is critical to good decision making.
2. Perceptions on procedure have more impact than perceptions of outcomes.
Chapter 3: Thinking like a Trial Lawyer, Pleadings, and Joinder
I. Stages of Litigation, Elements and Burdens of Proof (183-195)
A. Stages and Concepts
1. Cognizable: whether the law will give you relief.
2. Claim = cause of action. Elements make up a claim.
3. Figure out what claims you bring and against whom.
4. Then where do you sue?
a. Jurisdiction
b. Venue
5. Check list:
a. File a complaint
b. check statute of limitations
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c. “serve” the defendant
d. decide if you can/want a jury
e. consider joiner of claims (suing for 2 things) or joinder or parties (suing multiple
people)
6. D must file an answer (admit/deny allegations) and give any affirmative defense.
7. Counterclaims: D against P for damages of relief.
8. Impleader or 3rd party practice: P thinks someone else is responsible for what he owes D.
9. Cross Claims: Co-defendants have claims against each other.
10. Burden of production: Must have enough evidence for each element to permit a
reasonable fact finder to find each element is true.
a. Can ask for directed verdict if not persuaded.
11. Generally, must prove preponderance of the evidence (more likely true than not).
12. Summary Judgment: after discovery a case can be dismissed if there isn’t enough evidence.
13. JNOV: judgment notwithstanding the verdict. After jury verdict.
14. Trial Procedure:
a. Opening statements, examination of witnesses, cross examination, rests, closing
arguments, instructing the jury, verdict, judgment, execution of judgment.
b. Losers can appeal from final judgment.
c. Appealing to US Supreme Court is called writ of certiorari.
d. Res Judicata: can't bring same case twice.
II. Complaints: (195-231)
A. Purpose and Doctrine
1. Claim should be a short, plain statement. (Rule 8)
2. Gets rid of frivolous cases and informs the defendant of the suit and its elements (notice).
3. Form 11 pg. 179 of FRCP is an example.
4. Complaint is followed by a motion to dismiss or an answer.
5. 12(b)(6) – motion to dismiss. Failure to state a claim upon which relief can be granted.
a. Didn’t present a legally cognizable complaint.
b. “Dude what’s your point?” motion.
c. If you fail, you can generally amend and reclaim.
6. 12(b)(1) & 12(b)(2) – kills the case entirely.
7. Answers:
a. Once you’re served you have 20 days to file and answer. You get 60 days if you
“wave service.” 12(a)(2)(a)
b. 12(b) has a list of responses to a claim that will delay the time until you have to
file and answer.
c. You can present this in a motion or just put it in your answer.
d. All procedural complaints that don’t examine facts.
8. Dioguardi v. Durning
a. Case about Port of NY losing his “tonics.”
b. His claim is hard to understand but the court decided that it was enough because
it stated what he was claiming.
9. Conley v. Gibson
a. Railroad discrimination case. Lacks specific details about his claim.
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b. Very plaintiff friendly in regards to what is necessary for rule 8.
10. Leatherman v. Tarrant
a. Lower court says there needs to be more facts in a claim
b. S. Ct. says no and argues that Rule 8 says you only need a plain, short claim.
B. The Pleading Burden (205-229)
1. Bell Atlantic Corp v. Twombly
a. Issue: can a complaint allege that major companies are having unfair
competition without having factual information?
b. Lower ct. dismissed claim under 12(b)(6).
c. Taken to the S. Ct. and created new interpretation of rule 8.
d. Held: that in a claim, factual allegations must be enough to raise a right of relief
above the speculative level. Enough fact to raise a reasonable expectation that
discovery will reveal evidence of illegal agreement.
e. Complaint must move from conceivable to plausible. Need more than “parallel
conduct” here.
2. Iqbal
a. He was from Pakistan and claimed that Ashcroft and Mueller violated 1st and 5th
amendments He was put in a high security thing and he sued the top officials.
b. Reaffirmed Twombly
c. Ct. says you can’t sue them unless they were enacting a policy.
d. Held that they didn’t show that they were discriminated against in the claim.
e. This changed the standard of claims so now the court looks more closely at
allegations and expects more facts.
f. Needs to be “plausible” claim for relief.
3. Bower v. Weisman
a. Bower’s complaint against Weisman charges him with a number of claims
resulting from a termination of their business/personal relationship & his failure
to uphold financial promises to her.
b. Motion dismissed under 12(e) and motion made for a more definite statement is
granted. Here, the claim is too vague because it doesn’t specify defendants.
c. 12(e) “wtf motion” – you just don’t know what it’s about.
d. 12(b)(6): 3 types:
i. Not cognizable
ii. Insufficient facts
iii. Wrong facts – introduced in this case.
e. Lesson: never include too many specifics.
C. Strategic Considerations
1. Hypos Rule 8(a)(2)
a. So and so hit me with their car last year.
b. Issue: enough information? Maybe need to know the date, what the cause of action
is? Battery? Negligence? Etc.?
2. On October 2, 2005 the D injured the P on Main Street.
a. Issue? Cause of Action?
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III.
IV.
3. Protesting the President & was asked to move but the Pro-Bush protestors were allowed
to stay.
a. They brought a claim of action under 1st amendment. They allege an unwritten
secret service policy of suppressing speech critical of the president.
b. Under Twombly and Iqbal would this fly?
c. Issue: how do you find information about an “unwritten policy”
d. This case would be let through the old rules.
4. Summary:
a. Affirmative defense: “even if they prove the elements, I still win.”
b. All the ways to attack a complaint:
i. Rules: 12(b), 12(e), 12(f), 8(b), 8(c), 17, 10 & more.
Rule 17, Anonymous Plaintiffs (231- 237)
1. Plaintiff and defendant; capacity; public officers.
2. Real party in interest rule – determined by the substantive law to determine who to sue.
3. DM II, Ltd v. Hospital Corporation of America
a. Real party in interest case. Rule 17(a) – all about who has the right to sue.
b. Partners in hospital are suing each other for breach of fiduciary duties. D’s seek
dismissal on grounds for real party in interest.
c. Issue: is the right to pursue this action vested in each partner or the partnership
as a whole? Held: each partner – won't be dismissed.
4. Doe v. United Services Life Insurance Co. – Anonymous Plaintiffs
a. Facts: United Services seeks to dismiss the complaint for failure to ID the
plaintiff. Doe tried to get life insurance but he fit the homo profile and they
raised his rates because of “liver problems.” Says discrimination was based on
being gay.
b. Rule 10(a). – must identify himself unless given a good reason not to.
c. Can he use a fake name? Yes, because of privacy and it won't damage the D.’s.
d. Loop hole to rule 10: says you need to “name” the party. You can make up a
name sometimes.
e. Privacy rights (substantive rights) trump federal rights.
Answers, Motions, and Affirmative Defenses (237-246)
A. Preliminary Motions
1. 12(e) motion for a more definite statement.
2. 12(f) motion to strike
3. 12(b) motion to dismiss
B. Answers
1. Drafting answers: go paragraph by paragraph and either admit, deny, or say you lack
information and don’t know.
a. If you flat out deny everything and part was true then you can get in trouble.
b. Admissions and denials are more binding than evidence at trial.
2. Major purpose of answer is to narrow the issues.
3. Affirmative defenses: if you put them in your answer then you wave them so you
should put as many in your answer as you can.
4. 4 types of material in the answer:
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V.
a. Admissions and denials 8(b) – must admit or deny every averment (specific
allegation) unless you lack information to know the truth
b. 12(b) defenses
c. Affirmative defense 8(c)
d. Counter-claims and cross-claims.
Amendments to Pleadings (246-258)
A. Introduction
1. 15(a): when justice requires.
2. Reasons why justice wouldn’t require: unreasonably delayed; prejudiced by delay;
issue raised in bad faith; the issue is “futile.”
3. Why would you want to amend?
a. You want more information during discovery but the other side says it
doesn’t relate to a claim, so you amend the claim.
b. Add another party to sue.
4. When can you amend?
a. 15: pretty lenient standard. “When justice so requires.”
b. 16: applies after a scheduling order has been made. It says you can file a
motion to change the scheduling order. The standard is good cause. “Why
didn’t you do this earlier?”
5. Relation back means you can amend the claim and sort of pretend like it was always
a part of it.
6. 15(c)(1)(b): transaction or occurrence – test for relation back. If within a 120 days
the party won’t be prejudiced, etc. then you can get relation back.
B. Hypo: Karen v. Sam
1. Karen sues Sam for negligence and later adds a claim against Fritz for negligence.
2. What rule governs whether she can amend 15(c).
3. What rule governs whether the new claim will relate back to the original filing? 15?
C. Singletary v. Pennsylvania Department of Corrections
1. Mother tried to sue about her son’s suicide on the day the statute of limitation ran out.
2. Should she be allowed to amend? Ct. held she didn’t meet the relation back standard.
3. 15(c) test: claim must arise out of same conduct, transaction, or occurrence.
a. The new party won’t be prejudiced, and but-for a mistake of identity, the
party would’ve already be charged.
D. Christopher v. Duffy
1. Court denied plaintiff’s motion for leave to amend complaint.
2. Child died of lead poisoning and family wanted to amend to add lead manufacture
company 5 years later.
3. Denied because company would be prejudiced by the delay and because they
could’ve sued them earlier on.
E. Summary
1. Should amendments be allowed?
a. The rule depends on the timing: 15(a) applies until last date to amend under
the scheduling order. Rule 16 applies thereafter.
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b. 15(a): if justice so requires. Look at the reason for delay, whether parties
will be prejudiced, etc. Presumption in favor of amendment.
c. Rule 16: says “good cause.” Look at the same factors as before but
presumption against amendment. The P needs more.
2. Should “relation back” apply?
a. For amendment to add new claim, see Rule 15(c)(1)(b). Must be same
transaction or occurrence.
b. Ignorance doesn’t count as “mistake.”
VI. Historical Background of Civil Procedure; How the Rules get Written and Adopted (264-284)
A. Law v. Equity
1. Have been merged in the US.
2. Despite that, still differences between them.
3. Reliefs:
a. In equity: temporary injunctions, performances, etc.
b. In law: usually monetary.
4. The FRCP was adopted from equity rules.
B. Themes
1. Universal v. Discretion
2. Sometimes strict enforcement leads to injustice.
3. Equity: if law provides inadequate remedy then equity will provide one. It involved
“doing justice where the law fails.”
VII. Sanctions (283-294)
A. Introduction
1. Rule 11: basically, can't file anything for a bad purpose.
2. It has been changed twice. In 1983 and 1993 (I think).
3. “Information and belief” code for saying: “I can’t prove it now, but I can later.”
4. Some subjective and some objective parts of the rule.
5. Makes lawyers “stop and think.”
B. Chaplin v. DuPont Advance Fiber Systems
1. DuPont banned offensive systems like the Confederate flag. P’s allege
discrimination under Title VII based on national origin, religion, and race.
2. Rule 11 sanction applies.
3. Claiming their race was white, religion was Christianity, and their national origin was
the Confederate States of America.
4. Not sanctioned for claiming discrimination under national origin because the purpose
of the claim was to expand Title VII jurisprudence, not to harass.
5. Were sanctioned for the other two because the facts are lacking evidentiary support.
6. All losing claims but may not be big enough “losers” to be fined.
VIII. Simple Joinder of Claims and Parties (298-307)
A. Simple Joinder
1. Rule 18: You can join any claims as long as the parties are the same.
a. Rule 42 gives the court the right to separate. 42(b) – for convenience, etc.
b. P can include as many claims as he wants against defendant even if they’re
unrelated.
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2. Rule 20: Joinder of Parties
a. Requires that new parties being joined in an action must be same transaction
or occurrence and must be a common question of law. - Same nucleus of
operative facts.
b. Look for commonalities.
3. Kendra v. City of Philadelphia
a. Kendra and her children were abused by different members of the police over
a span of 1 ½ years.
b. Same transaction and occurrence because under same “conspiracy.”
c. Kendra and her family were interrogated, arrested, beaten, etc. by different
police on separate occasions.
B. Counterclaims and Cross-Claims (307-311) Rule 13
1. Counterclaim: defendant v. plaintiff – it can be about anything.
2. Cross-Claims: claims between co-parties. For example, a defendant suing another
defendant. The claim must be related to original claim. Never compulsory.
3. Compulsory counterclaim: you have to allege it now if it’s related.
4. Permissive counterclaims:
a. Advantage to claiming them: negotiating power.
b. Disadvantage: does it make you look bad? Does it bring out bad personality
factors or incidents you don’t want the jury to know about?
5. Res Judicata: claims that, as the plaintiff, I have to assert now (during the cause of
action) or forever hold my peace.
6. Podhorn v. Paragon Group, Inc.
a. Plaintiff tried to sue old landlords but they had already been to trial together
about a similar issue.
b. Ct said that claim was compulsory claim and can’t be asserted now. Rule 13
c. The same transaction was based on the apartments.
d. Res judicata: must present all your theories at once because you can’t go to
trial for the same thing twice.
C. Third Party Practice
1. Rule 14 governs the procedure through which a defendant can bring a third party into
the action. It permits the court to allow a D to implead a person not already a party to
the action who is purportedly liable to the D for all or part of the D’s liability to the
P.
2. Can only relate to derivative. Rule 14(a)(1).
3. 3rd party plaintiff: defendant who sues a new party (3rd party defendant).
4. In order for a D to implead a new party three conditions must be met:
a. Must not already be a party.
b. The D has to have a claim against the new party it is trying to implead.
c. The theory of liability against the 3rd party has to be “for all or part” of A’s
claim against B.
5. Gross v. Hanover Ins. Co.
a. If I win, 3rd party defendant isn’t liable. If I lose, then 3rd party D will be
liable to me. It’s a dependant claim.
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b. The court must balance the benefits derived from impleader (settling related
matters in one suit) against the potential prejudice (i.e. more discovery) to the
plaintiff and third party defendants.
c. Here, the claims arise from “the same aggregate or core of facts which is
determinative of the P’s claim.”
d. Owners of jewelry store basically allowed it to be robbed and so the
insurance company said if the co was going to be liable, then so were they.
D. Rule 19: Necessary Parties, and Indispensable Parties (316-328)
1. Identifies persons who haven’t been named as parties but are necessary for a just
adjudication of the underlying dispute. Such parties weren’t initially named as
parties either because the P decided not to join the additional persons, or couldn’t join
them for jurisdictional reasons or because they refused the P’s invitation to join.
2. 19(a): Three situations where they should be joined: compulsory, if feasible.
a. Where the P can’t get relief from the named party
b. Where the absentee may be prejudiced by the failure to join
c. Where the D may be prejudiced by the failure to join the absentee.
3. When joinder isn’t feasible the court must choose whether to dismiss the case or
proceed without the necessary party.
4. Necessary party is rule 19(a) (if they can be joined then we’ll require it) and
indispensable is 19(b) (If we need to join them, but we can't then the suit can't go on).
5. Two steps: are there parties that need to be joined? If so, what should we do?
6. Pretty rare problem for a P not to add someone.
7. 12(b)(7) – failure to join a party under Rule 19.
8. Joint tort feasors aren’t necessary parties because by tort law, you can sue just one
and get all the damages so there isn’t any prejudice. *
9. Temple v. Synthes Corporation, Ltd.
a. Court finds that joint tort feasors are permissive rather than indispensable
parties, and although they believe it is more efficient to have them in
litigation, they refuse to force P to join them.
10. Daynard v. Ness, Motley, Loadholdt, Richardson & Poole, P.A.
a. D’s move for 12(b)(7) and hold that the Mississippi Ds are indispensible.
b. Rules of thumb: Joint tortfeasors aren’t necessary parties; co-obligors may
be necessary but generally aren’t indispensable; and generally, an action to
set aside a contract requires the joinder of all parties to the contract.
E. Intervention and Interpleader (328-332)
1. Interpleader
a. An individual or corporation who is or may be exposed to double or multiple
liability may also initiate the joinder of the parties who have asserted or could
assert such claims. “I have property, it’s not mine, but I don’t know who gave it
to me. And multiple people are asking for it.”
b. Rare. It forces litigation. Generally, insurance disputes.
c. The insurance company would be the stakeholder, the stake is the subject to the
claims, and the adverse claimants are the people asking for it.
d. Two types: statutory and rule 22.
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2. Intervention Rule 24
a. Allows nonparties to join ongoing litigation either as a matter of right or in the
discretion of the court. Intervenors can protect their interests against the possible
adverse effects of a judgment.
b. Happens a lot in environment suits.
c. Can be a P or a D.
d. Have to have a right or a lot of good reasons to be involved.
e. 24(a): right to intervene
i. Unconditional statutory right – rare
ii. If not, claim: interest (significantly protectable interest); resolution will
impair their interest; and party’s interest won’t be recognized adequately
by another party.
f. 24(b) – permissive intervention.
g. US v. NIPSCO
i. Dunes Council wanted to intervene in the case.
ii. To intervene under 24(a)(2) – must be timely (as soon as you know about
your interest or should know, you have to intervene).
iii. Ct. said they didn’t have legal right to intervene and if they let them
(permissive) then the other parties would be prejudiced.
F. Joinder Review
1. Three questions to ask:
a. Which parties and which claims can/should/or must be added?
2. Diagram of joinder:
3. If a party is already adverse – then you want them to be able to sue about everything.
Rule 18.
4. Steps to joinder:
a. Distinguish rules which apply to certain situations (see slide for claims and
for parties).
5. Generally, if something rises out of the same transaction or occurrence then it has the
same question of law.
a. Example where it doesn’t: Someone is in prison and has false imprisonment
and battery – same transaction but different questions of law or fact.
Chapter 4: Discovery
I.
The Role of Discovery (337-355)
A. Introduction
1. Primary role: to provide litigants with an opportunity to review all of the evidence prior
to trial.
2. Prevents trial by ambush and allows trial to be based off merits.
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3. Promotes settlement and reduces the strain on the litigation process.
4. Only turn over what the other party asks for.
5. Ask questions or demand doctrines.
B. Rule 26
1. A party is entitled to demand the discovery of any matter that:
a. Is relevant to the claim or defense of any party (pretty liberal)
b. Is not unreasonable cumulative or burdensome; and
c. Is not privileged.
2. Even if evidence isn’t admissible, you still have to turn it over.
3. 26(b)(1) – relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
4. Discovery abuse is sanctionable.
C. Hickman v. Taylor
1. Tug boat sank and 5 people died. The attorney asked the survivors a bunch of questions.
Then, the opposing party asked for those documents. The attorney said no and was held
in contempt. The S. Ct reversed.
2. This is about the work products doctrine: information attorney had made over the
process of litigation.
3. Ct. says they don’t have to give them the documents because they were personal notes
from witnesses that the other side could interview themselves.
4. Attorney-client privilege: protects from discovery.
II. The Mechanics of Discovery
A. Scope (363-372)
1. Moss v. Blue Cross and Blue Shield of Kansas, Inc.
a. Objections to interrogatories and document requests.
b. Generally, a request for discovery should be consider relevant if there is “any
possibility” that the information sought may be relevant to the claim or defense of
any party.
c. Overly broad: the mere fact that compliance with an inspection order will cause
great labor and expense or even considerable hardship doesn’t itself require denial
of the motion.
d. Why 10 years? Much rather it be 1 or 2.
e. You always want to narrow the time period.
2. 26(a)(1) gives mandatory initial disclosures of:
a. People likely to have discoverable information
b. Copy or description of all documents it has in its control and may use to support its
claims or defenses
c. A computation of damages claimed by the disclosing party; and
d. Insurance agreements under which an insurance business may be liable to satisfy
all or part of a possible judgment.
e. These disclosures must be made within 2 weeks of the conference required by
26(f). It must occur at least 21 days prior to the Rule 16(b) conference.
3. Discovery Schedule (see slide)
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a. At the 26(f) conference the parties are supposed to figure out most of the discovery
stuff and then the judge will agree or fix loose ends at the 16(b) conference.
4. What to do about problems with discovery?
a. Rule 37(a) – compels other side to give you things. “Go crying to the court.”
b. Just say no (passive aggressive approach) or file motion to protect (less likely to
be sanctioned this way).
5. Rule 26(b)(1) Scope of Discovery: Unless otherwise limited by court order the scope is
as follows:
a. Parties may obtain discovery regarding any non-privileged matter that is relevant to
any party’s claim or defense, including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if discovery
seems reasonably calculated to lead to discovery of admissible evidence. All
discovery sometimes limits imposed by 26(b) (2) (c).
b. Court can alter the scope of discovery. Must be non-privileged matter that is
relevant to any party’s claim or defense. Narrow Scope.
c. Exception- for good cause, can incorporate old standard, which is “any matter
related to the subject matter of the action.” Much broader construction.
B. Tools (373-386)
1. Types of Discovery/Disclosure
a. Documents: all the ones that help your case, but not the ones that hurt it. (Rule
26(a)(i) – mandatory disclosure).
b. Depositions (rules 27-32), document requests (34), interrogatories (33), physical
and mental examinations (35), and requests for admission (36) – all party driven.
c. You want to be very specific. They’re all kinda trick questions. The more you
fight, the more you show the other side you have something good.
2. Other Privileges
a. Work-Product Privilege: not allowed to obtain attorneys’ notes on interviews.
Even if they are doing work anticipating litigation, it fits under this privilege.
26(b)(3)
b. Facts aren’t protected.
c. Mental contentions are legal theories are protected.
3. 26(a)(2): certain disclosures of expert testimony at least 90 days before the trial.
4. Depositions are used to question potential witnesses under oath about their knowledge of
and participation in certain events, etc. Rule 27 – 32. They have a degree of spontaneity,
has opportunity for follow-up questions, everything recorded is available for trial, and
nonparties may be deposed. But they are costly.
5. Written Interrogatories: 33. Written questions may be submitted to an opposing party and
must be answered under oath and returned within specified time period. Useful for
obtaining detailed information, inexpensive, available for use at trial. Answered usually by
lawyers though and no timely follow-up.
6. Production of Documents and Things: Any party may request another party to produce
documents and things and may then inspect and copy those before returning them to the
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III.
producing party. Rule 34. “Document” is viewed widely. Hard to strike balance between
over and under inclusiveness.
7. Physical and Mental Examinations: Rule 35: a physical or mental exam of a person may
be requested when the person’s condition is in controversy and the person to be examined
is given proper notice. Need good cause.
8. Requests for admissions: Rule 36: a party may serve upon any other party a request for
admission of any matter within the scope of discovery. Generally, question and answer
statements. Can ‘lock in’ particular admissions or denials of fact.
9. Informal discovery: not in the rules (pg 384 of book).
10. Experts: (384).
Electronic Discovery (388-406)
A. Introduction Rules 27, 37, etc?
1. Have to review each document carefully.
2. Sometimes to reproduce information by making it into a readable form is more expensive
than just having paper documents.
3. Issues with ED:
a. Preservation
b. Very expensive – inaccessible, out of date software, it can be widely dispersed.
c. Normal operations of systems are often crippled because they have to store things
differently.
4. Amend Amended rules: preservation, form of production, privacy waiver, proportionality –
if it’s really hard to get – maybe you don’t have to produce it.
5. Have to meet earlier on to discuss and prevent inadvertent destruction. 26(f)
6. Preservation – if you don’t then it can lead to spoliation charges.
7. If you request information you can specify how they give it to you.
8. Privacy waiver – easier to be accidently given away
a. 26(5)
9. Proportionality: “not reasonably accessible if undue burden & time”
a. If they intentionally made them hard to access – probably have to produce.
10. 37(d): provides a safe harbor that, under certain circumstances, insulates a party from
sanctions for failing to preserve certain evidence. It applies provided the electronically
stored information is lost as a result of the routine, good faith operation of an electronic
system.
11. Teague v. Target
a. P threw away her old computer which had evidence on it because she said it
crashed. D is trying to sanction her for spoliation of documents.
b. They don’t fine her but they get a jury instruction about spoliation. To get that you
must have:
i. The party having control over the evidence had an obligation to preserve it
when it was destroyed
ii. The destruction or loss was accompanied by a “culpable state of mind.”
iii. Evidence that was destroyed was relevant to the claims or defenses of the
party that sought discovery of the spoilated evidence.
c. Spoliation: the destruction or material alteration of evidence or to the failure to
preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.
12. Quinby v. Westlb AG
Civil Procedure 13
a. P requested that 19 former/current West employee’s emails be searched without a
limited time period.
b. No sanction was given for the D for converting data from an accessible to an
inaccessible format even assuming that D should’ve anticipated litigation at the
time it converted the data.
c. A party will be free to preserve electronic evidence in any format it chooses,
including inaccessible formats.
d. Inaccessible formats won't result in spoliation because the responding party will be
able to produce the electronic evidence by restoring it from an inaccessible format,
even at a higher cost.
e. Cost-shifting is appropriate only where ED imposes an undue burden or expense by
converting into an accessible format data that it should’ve reasonably foreseen
would be discoverable material at a time when it should’ve anticipated litigation,
and then it shouldn’t be entitled to shift costs of restoring and searching the data.
Chapter 5: The Right to Jury Trial and Judicial Control of Results
IV. Jury Trial – Values and Historical Background (425-440)
A. Pros
1. Civic engagement
2. Against tyranny – gives people the ability to put the brakes on government tyranny.
3. Legitimizes the results.
B. Cons
1. They made be made up of people that aren’t as educated as the judges.
2. Social costs- taking them away from work, etc.
V. The Right to Jury Trial in Civil Cases
A. Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry
1. Issue: whether an employee who seeks relief in the form of back pay for a union’s
alleged breach of its duty of fair representation has a right to jury trial?
2. Have to decide if back in common law this would be an equity case or legal case?
a. Equitable claims didn’t have a right to jury trial and the 7th amendment doesn’t
give them that right.
b. Equity courts gave injunctions and performance and legal courts gave monetary
damages.
c. Ct says look at the nature of the issues involved and determine if they are
traditionally regarded as a legal claim or equitable claim.
3. This claim didn’t exist in England so you have to compare it to old claims. It’s an
analogy.
4. Then look at the remedies sought.
5. Here, they want back-pay so more like legal.
VI. Judicial Authority to Limit the Right to Jury Trial (463-501)
A. Summary Judgment Rule 56
1. Filtering device that courts apply to weed out bad cases. Similar to motion to dismiss.
Except here were looking at the evidence, not just allegations.
2. What do you have to prove your claims?
3. Judge determines if the evidence is enough to support a jury verdict in the moving party’s
favor.
4. Purpose: increase efficiency in the courts.
Civil Procedure 14
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
56(b): a party may move at any time for SJ.
56(f): a way to respond to an early SJ motion. “Wait we haven’t had discovery yet.”
Every district in the country has its own version of rule 56. Called “Local Rule 56.”
Northern District of Ga: you have to turn in a table that basically says we have the
following facts and you put in evidence for that. Almost all the local rules require a table
like that.
Generally, SJ happens after some discovery.
Material Fact
a. It’s not just a relevant fact. It depends on the other facts in the case.
b. **Key point in applying the SJ is figuring out what makes facts material.
c. Go element by element and look at the evidence they have to establish the burden
they’ll have at the trial.
d. Do they have enough to have a reasonable juror to find in their favor about that
fact?
When thinking about SJ ask:
a. What does it take to make a fact disputed?
b. What facts are material?
c. What is the moving party’s burden on the motion?
Adickes v. S.H. Kress & Co.
a. Restaurant refuses to serve the white teacher because she is with black students.
They serve the students. They decide to leave and then she is arrested for
vagrancy. Dismissed at SJ on trial level.
b. She claims there was a conspiracy between the police and the restaurant in
regards to her arrest.
c. Evidence that cops were in the store?
i. Didn’t swear they weren’t in the store. Two people saw them there.
ii. If you have competing evidence then you have a jury issue which means
you have a disputed issue of fact.
d. Verified complaint: signed at the end under oath by the P. Amounts to an
affidavit. When you oppose SJ usually you make several affidavits but you can
just do it with a complaint and it makes it like an affidavit. Used in this case.
e. The S Ct does a lot to make sure she doesn’t get SJ because of what was going on
in the nation and in Mississippi.
Celotex Corp. v. Catrett
a. Modifies the rule about the moving party’s burden.
b. The statement that the P lacks some evidence on some element is enough.
c. Here, D says the P lacks evidence to show that their asbestos poisoning comes
from the D.
d. Supports the policies of SJ as a filter.
Summary of SJ:
a. Device you can use to attack a complaint when the D believes the party with the
burden of proof of allegations doesn’t have enough to prove them.
b. Can be used early but often after discovery.
c. If you’re trying to get SJ because you think the jury can't reasonably reject your
claim, then you have to have an overwhelming amount of evidence to prove it.
Quite hard.
d. Tools to win: material facts; genuine issue: is there really a dispute here?
e. Questions to see if genuine issue exists:
Civil Procedure 15
i. Is the evidence admissible? Be aware of admissions by the other side (if
you get an admission and they’re trying to get around it, the ct is far less
likely to give credence to that).
ii. How strong is the logical relationship between their evidence and the point
they’re trying to prove? (bad evidence? Non compelling?)
iii. Are these facts actually material? Helpful to start with a grid that lists the
elements then fill in your evidence.
iv. Is the evidence enough that a reasonable juror could find for the other
party? Enough to raise a disputed factual question?
15. Summary of SJ Cases:
a. Celotex: You can win SJ without putting in evidence of your own. Just point to
a hole in the other party’s case if they bear the burden of proof.
b. Liberty Lobby: adds you can consider the parties burden of proof it is a higher
level. “They don’t have enough evidence to meet their higher level of burden of
proof – like clear and convincing.”
c. Matsushita Elec: Evidence that is stupid can be disregarded.
16. Scott v. Harris
a. Harris is suing the cop (Scott) that ran him off the road and injured him.
b. Issue: did the cop use excessive force? Balance potential injury to him against the
potential injuries to the people around him. “If a fleeing felon is endangering the
life of others, then deadly force is reasonable.”
c. Justices were divided on whether they thought a reasonable jury could find it was
excessive, so can't we infer that a jury could be divided on it too?
d. Found that SJ should be upheld. Strange case.
B. Dismissals, Directed Verdict, Judgments NOV, New Trial Motions (501-526)
1. Sometimes there is nothing for the jury to decide.
2. These are jury control devices.
3. Dismissal: voluntary (41) prescribes when a P has a right to dismiss a case voluntarily
and describes the court’s power to permit a P to dismiss a case voluntarily. Involuntary
(41), unless the ct otherwise orders, these and other involuntary dismissals operate “as an
adjudication on the merits,” the dismissal has res judicata effect.
4. Motions for New Trial: Rule 59 – even after the jury renders its verdict, the losing side
can still move for a new trial.
5. Judgment as a matter of law:
a. Summary judgment – before trial
b. Directed verdict – in the middle of trial
c. JNOV – brought after verdict. Rule 50. Earliest point you can bring it is after
they have made their case in chief. “We rest our case.”
d. How do you bring the motion?
i. Orally or written. You have to specify the judgment sought and the law
and facts that entitle the movant to the judgment. I.e. “they have no
evidence on duty.”
e. Doesn’t violate the 7th amendment IF it is an accurate statement that a reasonable
jury couldn’t find this in their favor.
f. Why would a judge allow a directed verdict when they denied summary
judgment? Maybe because evidence didn’t come in as predicted, and because at
SJ they have to look at the evidence in your favor while in ct the inferences that
appeared reasonable before, don’t appear reasonable anymore.
6. Galloway v. US
a. He needs to prove that he wasn’t insane before 1919 and that he was insane after
that day. That the insanity he has now in the 40’s resulted from trauma in 1919.
Civil Procedure 16
b. Evidence?
i. Wasn’t insane before 1919.
ii. Then in the early 1920’s there was evidence that he wasn’t doing well.
iii. In the early 1920s – evidence that he wasn’t doing well.
iv. Gap in evidence until 1930.
c. Agree with P? Shouldn’t have been thrown out because there was enough
evidence to uphold the jury verdict. Dr said insanity was life long illness.
Doesn’t seem to be a lot of reason to overturn jury decision.
d. Agree with court? Gap without evidence, wife didn’t speak up for him during
that gap. Speculative evidence. Dr. didn’t observe him daily, etc.
7. If the judge is considering DV, but he thinks the jury is reasonable and will find for the
same party that judge wants to find for, should he just wait and do a JNOV later?
a. Why: Valuable to the court system as a whole - efficiency. If you cut it off before
a jury verdict then if it is remanded then they have to go through the whole trial
again.
b. Why not: If the jury found for the other party and you issue a JNOV then it is
harder to defend because obviously the jury thought the other party had a good
argument.
8. New Trials
a. Why would a court grant a new trial?
b. Because you think you’ll be reversed on appeal. B/c maybe you let in some
evidence you shouldn’t have and if I hadn’t allowed it then the jury could’ve
gone the other way. Save people from going through the appeals process.
c. Jury tampering, etc.
C. Motions to Vacate Judgment; Remittur and Additur (526-542)
1. Remittitur: take less damages or will grant new trial.
a. Judge will deny motion for new trial if and only if the winning party agrees to
lower damages or losing party agrees to higher damage amounts.
2. Additur: give more damages or will grant new trial.
a. P wins and moves for a new trial because he wants more damages.
b. Judge will say to D that P has moved for new trial but will deny motion if an only
if the D agrees to higher damages.
3. Effect on appeal:
a. Remittitur is a 2 step thing: will deny motion (1) if P takes less damages (2).
b. On appeal the effect is nil as to D…can still appeal the decision.
c. It’s just between the judge and the party that got the judgment.
D. Other Judicial Means of Jury Control: Types of Verdicts, Bifurcation/Trifurcation, Instructions
(531-539) Rule 42(b).
1. Bifurcation: court can split things up.
a. Jury controls because the jury can only look at one element at a time.
b. Classical example: someone has suffered some kind of injury and is suing a
pharmaceutical. Hardest thing to show is causation because the studies aren’t
conclusive. P would love to get in all the evidence of damages at the same time
because it covers up the lack of evidence for causation. D would ask for
bifurcation because they think it would prejudice them.
c. Judges have a lot of discretion here.
2. Jury instructions and verdicts: you can frame what they decide and how they decide
it.
3. Rule 60:
a. Motion to alter the judgment. This is about clerical errors like giving the wrong
names, etc.
Civil Procedure 17
b. Part b: “where the action is.” It might be brought because there is new evidence,
or other things that for reasons of justice the case needs to be reopened and
judgment reversed.
c. If you aren’t happy with a judgment you have several stages of relief. 1)
renewed judgment as a matter of law; 2) motion for new trial; 3) Notice of appeal
– within 30 days of judgment (automatic right of appeal) then go to S. Ct. (not
automatic right); then if you decide not to appeal, then the only thing you can do
is a rule 60 motion for relief from judgment.
d. Rule 60b has two categories of relief:
i. Grounds that have to be raised within a year.
ii. Grounds that have to be raised within a reasonable time.
e. Part c: tells you which category the motion will fall under.
i. 1,2, and 3 have to be raised within a year.
ii. 4,5,6 have to be raised within a reasonable time.
f. 1-6
i. Newly discovered evidence that couldn’t have been discovered in time (2)
ii. Fraud (3)
iii. Any other reason that justifies relief (6)
4. Brandon Case
a. Clerk made error and sent wrong attorney all the info. It was corrected but then
attorney made another. Court date missed and the case dismissed.
b. Filed rule 60 to bring the case back up.
c. Couldn’t apply because he asked for it 1 year and 3 days after. No discretion in
adding more time to 1 year limitation.
d. 60(b)(6) is more limited than it seems.
VII. Closing Arguments and Appeals
1. Appeals (547)
a. On questions of law the appellate court reviews things completely anew.
Civil Procedure 18