RULES Rule 7: Pleadings Allowed; Form of Motions and Other Papers Rule 8: General Rules of Pleading Rule 9: Pleading

Special Matters Rule 11: Sanctions Rule 12: Motions Rule 15: Amendments Rule 18: Joinder of CLAIMS Rule 20: Joinder of PARTIES Rule 13: Counter-Claim and Cross-claim Rule 14: Third Party Practice Rule 19: Required Joinder of PARTIES Rule 26: (a)(1): Discovery Rule 26(b)(1),(2),(3),(5) Rule 26(c) Rule 26(e)(1) Rule 37(a): Electronically Stored info Rule 37(c)(1) Rule 56(c): Summary Judgment

Rule 7: Pleadings Allowed (difference between pleadings and motions) (a) PLEADINGS. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) MOTIONS AND OTHER PAPERS. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. COMPLAINT Rules that apply: • 7 • 8 • 9 • 11 • 15 • 18 • 19 • 20 Rule 8: General Rules of Pleading (a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; • A statement of jurisdiction

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(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) DEFENSES; ADMISSIONS AND DENIALS. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials — Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. Due to Rule 11 and its requirement of good faith based upon reasonable inquiry, a general denial is rarely • proper because there is usually something in the plaintiff's complaint which the defendant in good faith should admit Allegations about the plaintiff's personal identity and jurisdictional matters  (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) AFFIRMATIVE DEFENSES. (1) In General. In responding to a pleading (answer), a party must affirmatively state any avoidance or affirmative defense, including: • These defenses must always be specially pleaded • In addition to the denial, the defendant in her answer must plead any defenses or objection that constitute new matter or an affirmative defense. • accord and satisfaction; • arbitration and award; • assumption of risk; • contributory negligence; • discharge in bankruptcy; • duress; • estoppel; • failure of consideration; • fraud; • illegality; • injury by fellow servant; • laches; • license; • payment; • release; • res judicata; • statute of frauds; • statute of limitations; and • waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. Rule 8: In practice – IQBAL/TWOMBLY Staling a claim under the Federal Rules The plaintiff starts the ball rolling by filing a complaint, but what has to be in it? Federal Rule 8 says it must contain (1) a statement of the basis for the court's jurisdiction, (2) a statement of the relief the plaintiff is seeking, and most perplexingly, (3) a short and plain statement of the claim showing that the pleader is entitled to relied Fed. R. Civ. P. 8(A). • Iqbal/Twombly

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The purpose of pleading under the Federal Rules is notice to the opposing party: notice of the events that gave rise to the claim, and the general nature of the legal right the plaintiff asserts. The idea is to do away with technical requirements, to allow the plaintiff to proceed to discovery based on a simple, general statement of the legal claims she has against the defendant. This "short and plain statement" requirement is probably met even if the plaintiff does not specifically allege each element she must establish to prove the claim she asserts. For example, in a negligence case, the court and the defendant may be able to understand the nature of the plaintiffs claim, even if she does not specifically allege each of the elements of a claim for negligence: duty, breach, causation, and damages. Similarly, it is clear that the plaintiff need not allege every fact she plans to rely on to prove her allegations. For example, she may plead generally that the defendant drove negligently, without specifying the exact conduct that was negligent. Similarly, she may plead generally that she suffered medical expenses as a result of the defendant's negligence, without specifying in the complaint the medical procedures she required or the cost of those procedures. In addition, judges are to construe the complaint liberally, taking all reasonable inferences in the plaintiffs favor in deciding whether an adequate claim has been alleged. The details will be explored through discovery and at trial; they need not be in the pleadings. The forms accompanying the Federal Rules give a sense of just how spare a complaint can be and still pass muster under Rule 8(a)(2). While usually very general pleading suffices, even if it does not allege every element of a legally recognized claim, practice will vary. Judges who are sticklers for good pleading may find a complaint that fails to allege each element of a claim insufficient, while others will find a complaint adequate so long as the plaintiff asserts facts that, if proved, would support relief. Practice also varies with the type of case: Judges may be less exacting for simple types of cases, such as negligence or contract cases, but expect pleading of all the requirements of more complex claims, such as civil rights, securities, or anti-trust cases. While Rule 8 suggests that a minimalist approach will survive a motion to dismiss, it will often make sense, to avoid challenges to the complaint and for strategic reasons, to plead in more detail. Iqbal/Twombly standard The general idea about what states an adequate claim under Fed. R Civil P. 8(a)(2) seemed blear before the Supreme Court’s decision in Bell v. Twombly. Most courts very liberally allowed general pleading, citing Conley v. Gibson. Conley had held that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." As long as the court could conceive of a set of facts, consistent with the allegations asserted in the complaint, that would state a legal claim, the court should let the case go forward, and sort out the validity of the claim through discovery, pretrial motions, or trial. Twombly, appears to draw back from this indulgent approach to the adequacy of a complaint. In Twombly, the plaintiffs sought recovery from local telephone companies. They claimed that the companies had conspired to restrain competition in the telecommunications area, in violation of the Sherman Act, by agreeing to allocate the market for telecommunications services and to stay out of each other's market areas. The complaint flatly alleged that the defendants had conspired. But specific allegations in their pleading indicated that the plaintiffs had inferred a conspiracy from the parallel conduct of the defendants in not seeking to enter each other's market areas. Under federal antitrust law, the mere fact that entities try to discourage competitors or engage in parallel anticompetitive conduct does not amount to a conspiracy. They must agree to engage in conduct in restraint of trade, not just engage in it. The plaintiff's complaint did not allege any evidence of such an agreement. However, it did allege that they conspired. Under Convey v. Gibson's flexible approach, the judge would have let the case proceed, because the plaintiffs might have proved that there were meetings and agreements to engage in anti-competitive conduct. They weren't required to allege the specifics, just that they asserted a conspiracy they could produce the proof as the case proceeded. In Twombly, the Supreme Court held the complaint insufficient under Rule 8(a)(2). The court noted that the plaintiff’s complaint was conclusory and "did not set forth a single fact in a context that suggests an agreement." In part due to the massive discovery costs that the Conley standard could unleash, the court reasoned that a plaintiff must allege enough to show that their claim is "plausible," not just “possible.” Prior to Twombly, a court applying the Conley standard, would have allowed this case to go forward, because the plaintiff alleged that the defendants had conspired, and if she proved that, the Sherman Act allows damages for it. To determine Rule 8, court will look to see if the complaint contains conclusory allegations. If there are conclusory allegations, they must be supported by well plead facts. The court will look at remaining well plead factual allegations and look to whether they are plausible. The allegations have to be more than possible, but less than probable. Courts decide plausibility based on common sense and judicial experience. Twombly has created a lot of uncertainty as to what is sufficient to plead a proper cluing uncover 8(a). Arguably, Twombly requires "fact pleading,” under which a plaintiff must not only plead that the defendant has violated her rights, but must also allege supporting evidence of the violations. Others have argued that Twombly is a bit of a sport, a case in very specialized and complex area of practice in which the plaintiffs by making it clear that they relied on parallel conduct alone to establish conspiracy—had "overpleaded," showing that they were not entitled to relief. However, the court went out of its way to stress that it was not imposing a “heightened

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pleading standard” for any case. Furthermore, the Twombly standard was applied in the Iqbal case, a civil rights suit, showing that this pleading standards applies to more than just anti-trust cases. The type of information, Twombly requires a plaintiff to plead, is that information that is likely to come from discovery. Under Conley v. Gibson, a general allegation would get the plaintiff into court, and she would seek the supporting facts through discovery. This is particularly important for claims in which the defendant is likely to have the evidence that is needed for the plaintiff to make it past rule 8, probably including antitrust claims. Thus, Twombly rather strongly shifts the balance toward defendants in these types of cases. However, Twombly reflects a sentiment that the liberality of Conley is not entirely good. To the extent that those rules make it very easy to get though the pleadings gate, they make it easy to get into discovery. Discovery can be staggeringly expensive and intrusive. To the extent that the Rules allow shaky claims to get through the pleadings gate and force the defendant to go through discovery, they tie up judicial resources and put the defendant to unfair expense. About all that can be said with certainty is that the rules for pleading have changed, at least in some contexts, but it is unclear how much supporting factual material is needed. It seems fair to say that a plaintiff will have to allege some factual support to show that she has a viable claim. And it seems wise, if in doubt, to plead supporting facts that tend to support conclusory allegations. Yet, after Twombly, it is still apparently permissible to plead simple claims in general terms. For example, it is probably still sufficient to plead an auto negligence case in the style of Form 11, alleging that the defendant caused an accident through negligent driving, without alleging specific negligent acts of the defendant. It is in the borderline cases, where a claim clearly would not be legally sufficient without particular facts being established, that a plaintiff will apparently be required to assert those facts or face dismissal. The meaning of Twombly is obscure and if it hasn’t already, will, unleash an avalanche of litigation through motions to dismiss under 12(b)(6). It would probably want some further detail about who met at what times, what was decided at the meetings, and what the defendants do to implement those decisions. Pleading – Rules 8 and 9 What is the relationship between Rule 8 and Rule 11? Rule 8 tells us that your complaint need only have “bare allegations”, while Rule 11 requires you to have investigated and have evidentiary support for your factual allegations. From the plaintiff’s standpoint, when I sign a complaint, I’m supposed to have done all the investigation necessary to support my complaint. But I don’t need to put that research into my complaint! There might thus be a tendency on the part of the plaintiff to cut corners and ultimately violate Rule 11. The rules are in tension with each other! • But don’t forget Twombly, heightened pleading standard? Rule 9(b) where there are particularity requirements for fraud. This rule basically got in by tradition! Fairman thinks it should be abolished!

Rule 9: Pleading Special Matters (b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. • Requires: Time, place, and context of the false representations, facts misrepresented, & the nature of the detrimental reliance • Don’t have to plead intent (g) Special Damages. To give the plaintiff notices of the damages to be able to respond. • If a normal recovery, do not need to plead special damages • If a tort, like in a contract case, where the damages are unknown, yes plead this • Purpose: Just to give notice ANSWER If you don’t file a Rule 12 motion, then your obligation is to file an answer. You don’t have to answer until a Rule 12 motion is ruled on, which is one good reason to always file a Rule 12 motion even if it’s mostly bogus.

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Defenses Besides denials. One way to do this is to waive the technicalities of service." • • • You need to admit or deny. Rule 11 imposes a duty of reasonable inquiry on defendant by which he may obtain the necessary knowledge or information and explicitly applies to "denials of factual contentions. In fact. as a defendant. and facts presumptively within the control or knowledge of the defendant may be deemed admitted if he responds with an empty-headed denial of knowledge or information. you say so and that operates as a denial. But he cannot blind himself to what he should know. The defendant must in her answer admit or deny all the well-pleases allegations of the complaint. 20 days is a short amount of time! You always need to check right away when the answer date is. So there’s nothing to lose! Rule 4(d) tells you how you go about doing this. You have a duty. you have to say that. is deemed an admission. he shall specify so much of it as is true and material and shall deny only the remainder. other than an allegation of the amount of damages. You may have to be personally served before the clock starts. When a defendant neither knows nor can learn whether an averment in the complaint is true or false. and counterclaims.You have to file an answer within 20 days of being served if you don’t file a Rule 12 motion. Nowadays. You don’t need to hire the sheriff or a process server. If you fail to deny an allegation in your answer. it’s like you’re saying it’s true. affirmative defenses. You attach a waiver of service form to the complaint. When a pleader intends in good faith to deny only a part or a qualification of an averment. at least 30 days." Failure to deny an allegation in a required responsive pleading. Pretty much everybody waives service of process these days. Rule 8 commands that "denials shall fairly meet the substance of the averments denied. A defendant must also include any affirmative defenses you may have in your answer. or if you don’t have enough information to admit or deny. As a plaintiff. to avoid unnecessary service costs. Unfavorable defenses can get waived if not used • Defenses are waived if not asserted in the defendant's first pleading (answer or motion) • Crossclaims Rule 18/20 Add all claims if you want • Affirm or deny allegations Defenses Policy: to put at issue the factual allegations in the complaint Rule 13 o o 5 . some or all of the preliminary defenses may be asserted by an answer or. What are the requirements of those? Denials are described by Rule 8(b). You have 60 days to respond! A plaintiff might choose not to use this. The allegations of the defenses are taken as denials. ask the defendant to send it to you. There’s both a carrot and a stick! Also. most jurisdictions permit him to say so in the answer with the effect of a denial. and that’s it. Rule 8(b) o o o Rule 12 o Defenses and objections Use them or lose them. • Plaintiff’s do not have to reply to defenses asserted by answer unless the court orders. The nonwaivable defenses may also be asserted. an answer should contain “in short and plain terms” other defenses to each claim in the complaint. Answering a complaint What must an answer contain? Answers contain denials. If you don’t say anything about a certain allegation. A general denial of each and every allegation of the complaint will almost always be impossible to square with candor and care requirements like those of Rule 11. The Rules require people who get sued to avoid unnecessary service costs. The defendant also has to pay for service if they don’t waive it. Moreover. But the Rules provide a way to extend this date. this is mostly done by counsel. most defendants specifically deny particular paragraphs or sentences of the complaint. to return the waiver. in corporate litigation. though. worry about the statute of limitations. When you intend to only deny part of the allegations. when permitted a reply. it’s admitted. You have a reasonable time. A plaintiff can challenge the legal sufficiency of the defenses by rule 12(f) motion to strike. Unless they have been waived by their omission from a pre-answer motion. if they’re in a jurisdiction where the state statute of limitations is about to run out. You get 60 days to answer if you waive service of process under Rule 4(d). waiving service doesn’t waive any of your defenses (except of course process and service of process). Instead.

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. counterclaim. serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial. or crossclaim within 60 days after service on the officer or employee or service on the United States attorney. (C) A party must serve a reply to an answer within 20 days after being served with an order to reply. an opposing party may assert at trial any defense to that claim. whichever is later. (6) failure to state a claim upon which relief can be granted. 18 20 19 Rule 11 Rule 14 . The United States. the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 20 days after being served with the summons and complaint (unless they file a 12(b) motion. (3) improper venue. (2) lack of personal jurisdiction. • What is a defense or objection? o A defense says that I am not liable for this… I am not liable under the law 6 . the responsive pleading must be served within 10 days after the more definite statement is served. (1) In General. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.impleader of third party defendant Rule 12 (a) TIME TO SERVE A RESPONSIVE PLEADING. (4) insufficient process. which extends the time for filing her answer until 10 days after the rule 12(b) motion is dismissed. (2) United States and Its Agencies. (b) HOW TO PRESENT DEFENSES (this also has to do with objections). Unless the court sets a different time. a United States agency. or Employees Sued in an Official Capacity. unless the order specifies a different time. If a pleading sets out a claim for relief that does not require a responsive pleading. within 60 days after the request for a waiver was sent. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. • More plausible than possible (Iqbal/Twombly) (7) failure to join a party under Rule 19. or within 90 days after it was sent to the defendant outside any judicial district of the United States. But a party may assert the following defenses by motion: Delays having to file an answer (1) lack of subject-matter jurisdiction. Unless another time is specified by this rule or a federal statute.Add all parties if you want • Counterclaims Rule 18/20 Add all claims if you want • Add all parties if you want • Rule 8 gets triggered because you have responded o o 15(a) o Unless the court orders otherwise. counterclaim. or crossclaim within 60 days after service on the United States attorney. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint. Officers. or (ii) if it has timely waived service under Rule 4(d). any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading. or (B) if the court grants a motion for a more definite statement. (4) Effect of a Motion. the responsive pleading must be served within 10 days after notice of the court’s action. whichever is later. or a United States officer or employee sued only in an official capacity must serve an answer to a complaint. (5) insufficient service of process. (3) United States Officers or Employees Sued in an Individual Capacity. (B) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.

so try and raise this after 12(b) motions. (g) JOINING MOTIONS. • A complaint that is too vague . • CASE: Bower v. or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. nasty. The court may strike from a pleading an insufficient defense or any redundant. Suisponte • Plain language of the rule says one thing. a motion for clarification). (c) MOTION FOR JUDGMENT ON THE PLEADINGS. Failure to state a claim upon which relief can be granted. • A plaintiff who desires to challenge the legal sufficiency of an affirmative defense may file a motion to strike any insufficient defense • Not granted very often • If the pleadings are not shown to a jury. or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a). The court held that the ∆ could not effectively respond to ∏’s complaint until he knows which claims the ∏ is asserting against him in his individual capacity. then fighting over how immaterial. if a response is not allowed. discovery. 7 . (2) When to Raise Others. (f) MOTION TO STRIKE (treated like a 12(e) motion. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. matters outside the pleadings are presented to and not excluded by the court. A motion under this rule may be joined with any other motion allowed by this rule. on a motion under Rule 12(b)(6) or 12(c). the motion must be treated as one for summary judgment under Rule 56. not pleading. ambiguous or confused to enable the defendant to respond can be attacked by 12(e) motion. (h) WAIVING AND PRESERVING CERTAIN DEFENSES. In light of • A judge can bring this up on his own. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets. the spirit of the rule says another thing. a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. The court may act: (1) on its own. If. o However in notice pleading. • Submission of materials outside of the pleadings converts 12(c) to a motion for summary judgment (d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. to join a person required by Rule 19(b). impertinent. within 20 days after being served with the pleading. or scandalous matter. There may be an issue if you bring this or a 12(e) motion first). or (2) on motion made by a party either before responding to the pleading or. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. or (B) failing to either: (i) make it by motion under this rule. After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings. or gratuitous they are is a waste of everyone’s time unless their availability in the public record is likely to prejudice the movant.o An objection is something like I don’t have to be here: I wasn’t served right. Plain lang: no. (e) MOTION FOR A MORE DEFINITE STATEMENT (this is not a defense or objection. is the device intended to obtain information about an adversary’s case. the court may strike the pleading or issue any other appropriate order. or (C) at trial. • Can you file a motion for a more definite statement after you file a 12(b) motion? o Best suggestion is to file everything you know together o The plain language of the rule doesn’t say that you cant do this. (1) Right to Join. (1) When Some Are Waived. Except as provided in Rule 12(h)(2) or (3). but o The spirit of the rule is a conservative route and file everything together • What is a defense or objection? o A defense says that I am not liable for this… I am not liable under the law o An objection is something like I don’t have to be here: I wasn’t served right. Weisman o The court granted the motion for a more definitive statement because the ∏’s complaint employed the term "defendant" without specifying which particular defendant is referred to. (2) Limitation on Further Motions. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. immaterial. (B) by a motion under Rule 12(c). A party waives any defense listed in Rule 12(b)(2)–(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2).

are not waived by their omission from a pre-answer motion.  The province of Rule 12(b)(6) motions is to question the availability of a legal formula justifying relief on the alleged facts. as well as Rule 19. that’s a claim. she should become aware of it when the complain t is served upon her. stuff you can include in your answer. plaintiff. even by the court itself without any action from the parties. it is not reasonable to put the burden upon the defendant to raise these defects right away. These are rules for repeat players in the litigation game. venue. Rule 12(b) motions (not considered a pleading under rule 7) • All 12(b) motions are potential pre-trial motions to dismiss a case without it having to go to trial. These are cross-claims. or defendant v. (i) HEARING BEFORE TRIAL. to raise them preliminary. • • • • POLICY: The unfavored defenses are usually personal to the defendants. You have to answer a complaint 20 days after you’ve been served.”: plaintiff v. This would be a third-party claim. If a party so moves. not to test or determine the facts themselves. in the first response to the comliant. If the 8 . and insufficiency of service of process if you didn’t do these right off. if none filed. The test for disposition of the motion depends on the jurisdiction's requirement for stating a claim or cause of action. or even "at the trial on the merits. NOTES: Rule 12(a) says there is an answer deadline. Rule 12(b) says there’s a lot of stuff you can present. and insufficiency of service are typical defenses that can or must be asserted by pre-answer motion.(3) Lack of Subject-Matter Jurisdiction. o Rule 12(h)(3). in an answer or reply or any amendment thereto permitted as a matter of course. Rules 12(g) and (h) provide that these defenses are waived unless they are asserted in a single pre-answer motion. o Use them or lose them! The defenses of failure to state a claim or defense. but they might have claims against each other. and failure to join a party under Rule 19. The process is designed to get you into court quickly and cheaply. any defense listed in Rule 12(b)(1)–(7) — whether made in a pleading or by motion — and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. A defendant. because after your client has been served.g. which can be raised all the way up to the time of trial. All Rule 12(b) says is: bring it on! Let’s get everybody in and on the table before we get started. in fact. But you have another option: if you waive service under Rule 4(d). Subject matter jurisdiction is the most favored defense. the court must dismiss the action. When you file an action against somebody. Thus. Let’s say the defendant wants to bring in their insurance company. who files a 12(b) motion." o The most common nonwaivable defense is the failure to state a claim. these are claims between people on the same side of the “v. while Rule 12(h)(2) states that the other nonwaivable defenses may be asserted in any pleading.  If she prevails she may never have to answer o A pre-answer motion is entirely optional. lack of subject matter jurisdiction. at the earliest time possible. need not answer the complaint until after the motion is decided. and all reasonable inferences are drawn in favor of the pleader. If the defendant has suffered any prejudice from these preliminary defects. Lack of personal jurisdiction. In other words. Defendant’s are required. and their availability is usually clear from the outset of litigation. (2) But we protect a 12(b)(6). or.  All well-pleaded facts (e. provides that the defense of lack of subject matter jurisdiction may be raised at any time. So 12(a) just tells us when. and by the time they get to you. not legal conclusions.. If the court determines at any time that it lacks subject-matter jurisdiction. (3) But subject matter jurisdiction can be raised at any time. What if I want to sue against two different people? I can have a claim against them. by motion for judgment on the pleadings. Rule 12(h) tells us three things: (1) You’ve waived personal jurisdiction. defendant. What if that person wants to sue you back? That’s the counterclaim. o 12(b) is an alternative to answering a complaint. you get 60 days after the request of the waiver. failure to state a claim. they can have a claim against me. you might have far less than 20 days to do your answer. on penalty of waiver. rank opinion or speculation) in the challenged pleading are taken as true for purposes of the motion. It is asserted by a Rule 12(b)(6). and then we’ll work it out later. they go around looking for a lawyer. insufficiency of processes. insufficiency of process. They are the unfavored defenses. As a practical matter. improper venue. most people waive service because that’s a big boon. are the favored defenses and. That’s not a lot of time.

submitting. defenses. and • If an attorney must rely solely on his client (not a good idea). she forgoes the opportunity to obtain immediate appellate review of the denial of her motion. but may not attempt to prove this allegation at trial. directed verdict. if specifically so identified. if specifically so identified. or reversing existing law or for establishing new law. the Rule bars her from “later advocating” that position.strong pre-answer motion by amending his defective complaint. This course will result in the entry of a default judgment against her. modifying. and after trial. and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending. and hasn’t found any. But if the court affirms. Rule l5(a) allows a party to amend his pleading once "as a matter of course" at any time before a responsive pleading is filed. timing of filing causes strategic delays) (2) the claims. The paper must state the signer’s address. Consequences of Challenging a Pleading Successful Challenge One reason why Rule 12(b)(6) motions appear so ineffective is that a plaintiff will often moot a. formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose. Depending upon the federal circuit. If the appellate court agrees with her. (4) the denials of factual contentions are warranted on the evidence or. (3) the factual contentions must have evidentiary support or. not accepting his client version on faith alone • The requisite prefiling factual investigation must at least include a thorough interview with the client and the key witnesses. he must do so. e-mail address. The ∏ doesn’t have ot withdraw her allegation. Unsuccessful Challenge The options to the defendant: She may file an answer. It is in the eye of the beholder. • Objective requirement – so a complaint that is found well-grounded in fact or law cannot be sanctioned as harassing regardless of the attorney’s subjective intent. from which she can appeal. cause unnecessary delay. although she cannot include the waivable defenses if they were omitted from her motion. and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. she may also waive her preliminary defenses by going forward. or later advocating it(if the litigant knows that the paper is no longer well-grounded) — an attorney or unrepresented party certifies that to the best of the person’s knowledge. are reasonably based on belief or a lack of information. it is preserved by the original Rule 12 motion. for judgment notwithstanding the verdict. • When the attorney can obtain factual info from a public source.rule did not require these objections to be raised immediately. the rule provides that the defendant must raise these defenses immediately or waive them by her failure to do so. written motion. a pleading need not be verified or accompanied by an affidavit. o What is nonfrivolous? We don’t know. 9 . (b) REPRESENTATIONS TO THE COURT. Depending upon the jurisdiction. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention. if they are available. the defendant may elect to stand on her motion and refuse to answer. reliance on the client is reasonable under the rule • Later Advocating: Once the ∏ has had the full opportunity to find supporting evidence for the allegation (discovery is complete). o Examples: (multiple filings and a pattern of harassment. it should remand with leave for plaintiff to amend. information. By presenting to the court a pleading. or needlessly increase the cost of litigation. In federal courts. or other paper — whether by signing. It Will thereby be preserved on appeal of an eventual final judgment. By answering. filing. only to learn down the road that the court had no right to do so. But she can preserve the defense that the complaint fails to state a claim by nurturing it throughout the litigation with motions at trial for dismissal. written motion. the attorney must question him thoroughly. the court and the parties might proceed to adjudicate the suit. and belief. and a pre-answer motion is not a responsive pleading. Unless a rule or statute specifically states otherwise. for judgment as a matter of law. To avoid such issues and wasted judicial resources. Alternatively. will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Every pleading. Rule 11: SANCTIONS (a) SIGNATURE. and telephone number. and cannot rely soley on his client o If the necessary info in primarily in the control of the ∆. amendment as of right or by permission is available even after a motion to dismiss has been granted. because there is no final judgment from which to take an appeal. unless the court indicates that no curative amendment is possible. defendant may lose the opportunity to defend on the merits. unless the jurisdiction permits interlocutory appeals. and by appropriate evidentiary objections at trial. such as to harass.

claim. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. but must give the non moving party notice and 21 days to withdraw or correct the sanctionable paper. 5. not compensation) (1) In General. or other paper — whether by signing. This rule does not apply to disclosures and discovery requests. the court may award to the prevailing party the reasonable expenses. unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is. and motion under Rules 26 through 37. 1. Rule 11(d) INAPPLICABILITY TO DISCOVERY. incurred for the motion. The motion must be served under Rule 5. the court determines that Rule 11(b) has been violated. (4) Nature of a Sanction. o Can have a plainly frivolous claim. law firm. associate. the court may impose an appropriate sanction on any attorney. the court may order an attorney. The court also has to impose sanctions on its own initiative. objections. 10 . defense. If. Matter Certified by Signature By signing/presenting to the court a pleading. or party that violated the rule or is responsible for the violation. contention. an order to pay a penalty into court. Sanctions Imposition of sanctions for violation of Rule 11 is discretionary. • 3. or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge. o Do not bring nonfrivolous suits What is it? We don’t know. or. if imposed on motion and warranted for effective deterrence. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). or party to show cause why conduct specifically described in the order has not violated Rule 11(b). or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. but it must not be filed or be presented to the court if the challenged paper. the specific conduct that allegedly violates Rule 11(b). and motion under Rules 26 through 37. and belief. but in any event are to be limited to what is necessary to deter repetition of such conduct. If warranted. defense. (purpose – for deterrence. including attorney’s fees. an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. (Discovery has its own sanction rules) Motion for Sanctions. and (iii) The paper factual assertions have evidentiary support. incurred for disputing the motion. o The motion must not be filed or be presented to the court if the challenged paper. including attorney’s fees. formed after an inquiry reasonable under the circumstances: (b) She has mad an inquiry reasonable under the circumstances to support the factual and legal positions taken. or employee. responses. A motion for sanctions must be made separately from any other motion and must describe 4. The sanction may include nonmonetary directives. written motion. and attorney has 21 days to pull it w/o getting sanctioned. the court may order an attorney. Law firms should be held jointly liable for sanctions along with the firm members who violate Rule 11. law firm. after notice and a reasonable opportunity to respond. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2). or (B) on its own. Certified Requirement: Rule 11 requires that every paper filed in court be signed by an attorney. to be sanctioned. (2) Motion for Sanctions. It is in the eye of the beholder. claim. objections. On its own. information. or party to show cause why conduct specifically described in the order has not violated Rule 11(b). contention. responses. law firm.(c) SANCTIONS. filing. or by the party himself if unrepresented 2. or denial is withdrawn or appropriately corrected within 21 days (safe harbor) after service or within another time the court sets. (d) INAPPLICABILITY TO DISCOVERY. (6) Requirements for an Order. Rule 11(c)(3) On its own. This rule does not apply to disclosures and discovery requests. o What is a reasonable inquiry? The standard is kind of fuzzy o No more good faith standard (Rule 1983) (ii) The factual assertions have evidentiary support. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. a law firm must be held jointly responsible for a violation committed by its partner. If warranted. Absent exceptional circumstances. (5) Limitations on Monetary Sanctions. submitting. the court may award to the prevailing party the reasonable expenses. Sanctions can be monetary or nonmonetary. Will probably receive a bad reputation. or whose attorneys are. Procedure A party may move for sanctions. (3) On the Court’s Initiative.

such as publicity. There is no evidence that this was plaintiffs’ purpose. Getting people to think if their claim is goo. they are not warranted by existing law. modifying or reversing existing law. Have I signed this pleading? 11(a) Have I performed an inquiry that is reasonable under the circumstances? 11(b) Am I presenting this claim for an improper purpose? 11(b)1 Is this claim warranted under existing law. and my firm will be jointly accountable. Accordingly. Case: Chaplin the Court believed that the ∆’s attorney had absolutely no factual foundation upon which to base a claim of  religious discrimination. Even Plaintiffs' belated letter-writing effort failed to support such a claim. Depending on the outcome of defendants’ Rule 12(b)(6) and Rule 12(e) motions. can I make a nonfrivolous argument for extending. (2) Rule 11 is about reliance. or for establishing new law? 11(b)2 Do I have evidentiary support. As to an argument for the establishment of new law. Some lawyers and parties don’t have enough money to do the research. Self weeding. there is no safe harbor and I do not have the opportunity to correct or withdraw my complaint in order to avoid sanction. g. then the court can impose sanctions on me. Coleman’s Answer: First. Court and Party is relying on your homework (3) Access to courts. any argument to establish new law would be frivolous since three circuits have found that the use of pepper spray is per se constitutional. When sanctions are undertaken on the Ct's own initiative. Rule 11(b)(3). Second. and assuming the plaintiffs could not correct their complaint accordingly. so it is not frivolous. You can pull your claim. should I not. so this argument will likely fail. Weeding out. they could assert that the complaint was filed for an improper purpose. I will have 21 days (safe harbor) to correct or withdraw my complaint. b.Policy: (1)Is to deter. Thus. defendants may argue that because there is no Ninth Circuit authority for plaintiffs’ claims. assuming defendants complied with the 21-day safe harbor under Rule 11(c)(2). the court imposed Rule 11 santcions for filing the complaint because the complaint was so lacking in reasonable evidentiary support. As a result. b. Opposing party may serve me with a R 11(c) motion asserting my specific conduct that has violated R 11(b). opposing party may file R 11(c) motion with the court. should I file anyway? What will the consequences be if I file a pleading in violation of R 11(a) and (b)? a. 11(c)(4) A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. at least two circuits have allowed for this claim. Should I file this. I have done my homework and this is a good filing. and I may be sanctioned. or if not. If I do not do so. I must specifically state this. BUT we don’t know what frivolous is and the procedure may not allow the rule to operate for (4) Resource constraints. so the legal contention is not prohibited by existing law. under Rule 11(b)(2). 11(b)3 When I deny knowledge of information. Moreover. If the court feels that I have violated R 11(b) they can require a hearing for me to show why my conduct does not violate R 11(b). sanctions could be levied under this argument. c. e. Am I violating R 11? a. d. or if not. So is this rule keeping party's out of court. defendants may argue that plaintiffs’ complaint runs afoul of Rule 11 because it fails to state any facts to support its claim. the court granted sanctions for that allegation because it was both frivolous and unwarranted such that it failed to satisfy the requirements of Rule 11(b)(3). The Plaintiffs' amended complaint also contained no factual basis whatsoever to support an allegation that DuPont's ban discriminates by race. See Chaplin. will I likely have evidentiary support if given reasonable opportunity for further investigation or discovery? If so. Sanction may be either monetary or nonmonetary. If I cannot. they will withdraw the complaint or risk sanctions. Rule 15: AMENDMENTS 11 . Nowhere in the Amended Complaint did Plaintiffs allege that they had both requested and been denied a religious accommodation. 2 Finally. This argument will likely fail because there is no authority in the Ninth Circuit against plaintiffs’ claim (see Chaplin and the lack of contraauthority for plaintiffs’ Title VII claims). is it reasonable? Should I have access to this information (reasonable inquiry under the circumstances) 11(b)4 If I am not confident that I have complied with R 11(a) and 11(b). f. under Rule 11(b)(1).

and that he was meant to be made a defendant. Most court jurisdictions hold that a lack of knowledge of a defendant's identity is not a "mistake" concerning that identity. there is a question of whether the amended claim "relates back" to the date of the filing of the original complaint. You may amend once “as a matter of course” before a responsive pleading is served (an answer). and was not prejudiced. refusal to permit amendment may be an abuse of the court's discretion. learned within the limitations period that action had been brought. • Relation Back: If the plaintiff seeks to amend the complaint after the SOL has run on a claim. The Singletary court suggests that the Advisory Committee consider amending Rule 15(c) to clearly authorize relation back in such cases. The rule is meant to allow an amendment changing the name of a party to relate back to the original complaint only if the change is the result of an error. Pennsylvania Dept. not a very long time compared to the time a normal trial takes. a court is likely not going to allow the plaintiff to add Sheriff Logalot as a defendant. In the absence of prejudice or disruption. or occurrence set forth in the original pleadings. then we’ve avoided the statute of limitations problem. In most jurisdictions. she must sue well before the limitations period runs. of Corrections. because there’s nothing that comes after it). a party may amend his/her pleading only by leave of court and such leave is usually granted liberally prior to trial. or occurrence.Rule 15. or within 20 of service if no responsive pleading is required. they no longer have the right to amend as a matter of right under 15(a)(1). transaction. If you have done this already. and knew or should have known that the action would have been brought against it. Because the primary function of the pleading is to give notice to the pleader's claim or defense.” Relation back of amendments Once as a matter of right: According to FRCP 15(a)(1). This is basically a plaintiff’s rule. if we were in a jurisdiction that does not allow relation back of "Doe" defendants. and you can amend it once before the answer comes back. Here the limitations period was only one year. However the Third Circuit has taken a more flexible approach. you can always beg the court to amend. In this case the policy of the Third Circuit is the better approach because here the defendant had notice. and therefore do not permit relation back of "Doe" defendants. The result of allowing the plaintiff to amend her complaint seems fair in this case because the "Doe defendant". the claim may be expanded or changed in the course of litigation. This is a tool to get around limitations. • By leave of court: In any other situation. Leave will usually be granted unless some actual prejudice to the other party appears or the trial schedule will be disrupted. Case: Singletary Coleman’s Answer: The court is unlikely to grant plaintiffs leave to amend under Rule 15(a)(2) to add Defendant Logalot because the amendment will not relate back under Rule 15(c). Sheriff Logalot. 2009. which will be freely given as justice so requires. The Third Circuit noted the difficulty of the plaintiff's position in these cases if the majority approach applies: if she doesn’t know the names of those involved in her injury. But just what does justice require? 3. either party may amend his pleading once as a matter of right before a responsive pleading is served by the other party. Additionally. But if the statute of limitations has run. the amended claim "relates back. However. as long as the original pleading gave such notice. relation back is permitted if an amendment changes the party or naming of the party against whom a claim is asserted. The plaintiff files a complaint. If we can get our amendment to relate back. This relation back is permitted only in cases in which the new claim arises from the same transaction as that asserted in the original complaint and the new party had notice of the suit within 120 days of the originally filed complaint (Rule 4). Due to the fact that plaintiffs had already amended their complaint to correct a separate pleading defect before the defendant had filed their answer. you have 20 days after serving the pleading to amend it. the plaintiff learned that the actual the name of the defendant soon after filing the complaint. learn the identities of the "Doe defendants" through discovery. opining that the amendment should relate back in these circumstances. the party to be brought in by the amendment must not be prejudiced in defending on the merits. not after discovery. transaction. Additionally. Singletary v. but the one-year • 12 . but for a mistake concerning the proper party’s identity. There are three ways to amend: 1. Under FRCP 15(c). (Plaintiffs moved to amend their complaint to name Logalot on January 31. knew or should have know. the cause of action is cut off. • Mistake/Doe Defendant’s: The relation back doctrine provision was clearly directed to the situation in which the plaintiff simply uses the wrong name for the defendant. 2. you must ask for the leave of the court. and move to amend before the period runs." as long as the claim asserted in the amended pleading arose out of the same conduct. It will relate back if it relates to the same “conduct. but rather the plaintiff simply did not know who the defendant was until discovery. Relation back – If SOL has run Statute of limitations and relating back Absent some absolute cutoff. If there is no responsive pleading due (like an answer. Rule 15(c) talks to us about what we can do with regard to amending our petitions and having those amendments relate back to when we initially filed the complaint.

o Can join as many defendants as you want. and inclusive. Same transaction or occurrence . Rule 15(c) requires that the defendant. severally.still have to have. or third-party claim may join. you may run the risk of claim preclusion) o Policy: attempt to liberalize litigation practice by making it more permissive.still have to have. (1) Plaintiffs (to sue together)..statute of limitations for their § 1983 claims ran on September 29. so can cause problems (for 2nd semester) (b) JOINDER OF CONTINGENT CLAIMS. occurrence. Rule 18: JOINDER of CLAIMS o Authorize parties. without first obtaining a judgment for the money. Permissive Joinder of Parties (a) PERSONS WHO MAY JOIN OR BE JOINED. but the court may grant relief only in accordance with the parties’ relative substantive rights. • The parties have to have proper claim between them before you can start adding on claims • Policy: JUDICIAL EFFICIENCY (a) IN GENERAL. A party may join two claims even though one of them is contingent on the disposition of theother. Persons — as well as a vessel. and What constitutes the same transaction or occurrence?  Courts tend to look to whether there is a sufficient overlap of facts or evidence. a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff.) For an amendment to relate back. counterclaim. CASE: No case Rule 20: JOINDER of PARTIES (Who May be Joined) Rule 20. or other property subject to admiralty process in rem (against a thing and not against a person. (i) received notice of the action so that he will not be prejudiced. the substitution of the properly named party for a “Doe” defendant—no other court reads Rule 15(c) this way. within the period under Rule 4m (120 days after the filing of the complaint). unless plaintiffs can show that an actual Sheriff Doe served as sheriff when the alleged actions took place. Just need one common question of law and fact  (2) Defendants (Plaintiff to sue multiple defendants). concerning the condition or status of a thing) — may be joined in one action as defendants if: 13 . as independent or alternative claims. Logalot will be more successful in arguing that plaintiffs did not fail to name him because of a mistake but because they did not know who he was. 1. cargo. If you don’t. even if they are totally unrelated o Don’t have to join all the parties and all the claims (res judicata . to assert additional claims against opposing parties.e. and to whether • claims are logically related to each other Some causal relationship or interrelation • Once parties are joined under 20(a). once they are properly joined in a law suit. However. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly. Here. so this can cause problems (for 2nd semester) o Personal jurisdiction . Thus. While the Singletary court indicated that Rule 15(c) should allow for this kind of amendment—i. or in the alternative with respect to or arising out of the same transaction. and (ii) knew or should have known that that the action would have been brought against him but for a mistake concerning his identity. 2008. or series of transactions or occurrences. The seeking of a convenient litigation package. o Subject matter jurisdiction . flexible. (B) any question of law or fact common to all plaintiffs will arise in the action. In particular. and that they mistakenly named him instead of Sheriff Logalot. crossclaim. as many claims as it has against an opposing party. plaintiffs will be able to show that Logalot indeed received a copy of the complaint served on his department and thus had notice of the action within the time prescribed under Rule 4(m). Logalot’s own defense will not be prejudiced because he has already been working with the department’s attorneys on the case. rather than worrying about whether the causes of action were identical 2.claim preclusion: get it all done at once. a court is unlikely to grant plaintiffs leave to amend their complaint to add Sheriff Logalot. A party asserting a claim. Rule 18(a)'s allowance of unlimited Joinder of claims against those  parties is fully applicable. Unification of claims in a single action is more convenient and less expensive and time consuming for the parties and the court. Moreover. Logalot may claim that he was prejudiced because he did not receive notice of the action within Rule 4(m)’s 120-day period.

In addition. which means that he must assert it in the original action or lose it. The claims against the defendants "arise out of the same transaction. or series of transactions or occurrences. it is compulsory. o o Must assert counterclaim with the answer in the original action or lose it (cannot file a separate pleading) Identifying claims that must be brought with an answer or otherwise be waived o A responsive pleading by the plaintiff is required to a counterclaim labeled as such. This is very efficient because the same witnesses will be called to testify since the same issues are likely to arise on the counterclaim. When a number of claims involve a single transaction or occurrence. Although the events giving rise to plaintiffs' claims in this case occurred over a lengthy time period. or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. A permissive counterclaim is any counterclaim that is not compulsory. officials of the Police Department. severally. affirmative defenses. However. since by definition a permissive counterclaim will involve different events from the main claim . and can sue others in a separate action or just never sue • them at all.and the court will almost certainly order separate trial of the permissive counterclaim. and Chief Inspector Court held that Joinder was proper. the claim can be completely unrelated to the original. or even a counterclaim to the counterclaim  All matters in the reply are deemed "denied or avoided" 8(d)  But the defendant can attack the reply by a motion for judgment on the pleadings or a motion to strike FRCP 12 o Test for transaction or occurrence 1. and must be asserted in the defendant’s answer. and against one or more defendants according to their liabilities. occurrence. (3) Extent of Relief. Police Commissioner. expense. or series of transactions or occurrences" for purposes of Rule 20(a). rather than repeatedly in separate suits. and the same issue or issues will have to be litigated to resolve each claim. This cannot be justified on the same efficiency grounds. Division Chief. the plaintiff does not have to join all of the parties. The court may issue orders — including an order for separate trials — to protect a party against embarrassment.(A) any right to relief is asserted against them jointly. The reply may contain denials. Can choose to sue some but not all defendants in one action. When all of this criteria is met. Case: Kedra Fam brings suit against City of Philadelphia. or in the alternative with respect to or arising out of the same transaction. Such inconsistent results reflect unfavorably on the judicial system and are best avoided when possible o The joinder decision is left up to the plaintiff. If the defending party’s counterclaim arises from the same transaction or occurrence as the claim against him. (1) In General. This rule forces parties who are already adverse to litigate all claims arising from the same set of facts in a single transaction. o Can get rid of parties who have no claim o Can sever trials Policy It makes good sense to allow parties to join as plaintiffs or sue defendants jointly in a single action. and (B) any question of law or fact common to all defendants will arise in the action. The court may grant judgment to one or more plaintiffs according to their rights. delay. (a) COMPULSORY COUNTERCLAIM. they all are "reasonably related. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. Are the issues of fact and law raised by the claim and counterclaim largely the same Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule 2. occurrence. 14 ." Rule 13: COUNTERCLAIMS and CROSSCLAIMS (for defendants) Rule: Once properly joined. because the defendant is already before the court. the similarity of the claims against each defendant made it abundantly clear that there are common issues. it is more efficient to litigate those issues once in a combined action. Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claims against him. Such claims are either compulsory and permissive. Defendant parties may also assert permissive counterclaims if they so choose. resolving those issues in a single action avoids the possibility of inconsistent judgments on the same issue. and (B) does not require adding another party over whom the court cannot acquire jurisdiction. A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (the claim will be barred if not asserted in the answer) (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. he is allowed to settle all his claims against his opponent without having to file a separate lawsuit. (b) PROTECTIVE MEASURES.

g. obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer. but the TPP does not have to prove anything (a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY. cross-claim for contribution or idemnification.o 3. Rule: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the same transaction or occurrence that is the subject matter of the original action or of a counterclaim. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. The defendant’s may chose so sue in a separate action if they so choose. After that the grant of the motion is totally up to the discretion of the court Very liberally granted. the defendant may. Is there any logical relation between the claim and counterclaim Podhorn v. The person served with the summons and third-party complaint — the ‘‘third-party defendant’’: (A) must assert any defense against the third-party plaintiff’s claim under Rule 12. • A defendant may set forth in the answer any claims that she has against a co-defendant that relate to the transaction or occurance (or to any property) that is the subject of plaintiff's complaint o e. or if the claim relates to any property that is the subject matter of the original transaction. Inc – See below (b) PERMISSIVE COUNTERCLAIM. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim 4. • Leave of court is not required if the third-party defendant files a third-party complaint of impleader within 10days after he serves his original answerer. But the third-party plaintiff must. A defending party may. Holding: The Court finds plaintiffs' claims in this case arise out of the transaction or occurrence that gave rise to Paragon's rent action in the earlier state court case. CASE: Compulsory Countercalim ..  Due to justice  • Impleader is proper before any loss actually has been paid by the defendants • Most courts do not allow a plaintiff to implead a defendant's insurance company until AFTER the plaintiff has obtained a judgment against the defendant (2) Third-Party Defendant’s Claims and Defenses.. (1) Timing of the Summons and Complaint. assert the claim in an independent action (g) CROSSCLAIM AGAINST A COPARTY.Podhorn v. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. These are claims are optional. and are usually made between defendants. it is optional (or permissive) for the defendant to assert them by way of counterclaim. Accordingly. 15 . as third-party plaintiff. Inc • • The Podhorns did not file a counterclaim in the state court action. namely plaintiffs' tenancy at defendants' apartment. Their claim should have been filed as a compulsory counterclaim in the state court action. Paragon Group. • Courts almost always order a separate trial of the permissive counterclaim • If the defendants claims against the plaintiff are unrelated to the claims set forth in the complaint. • Should be set forth as part of the defendant's answer rather than as an independent pleading o The co-defendant against whom the claim is asserted must file an answer to the cross-claim 7(a) o The cross claimant may add new parties against whom it has claims growing out of the same transaction 13(h) • Policy: allowing assertion of these claims in the main action promotes efficiency and consistency because the same underlying facts will be litigated on the main claim and the cross claim. Paragon Group.e. Rule 14: THIRD PARTY PRACTICE • Must have derivative liability of the main suit! o Derivative liability: Does the liability depend on the outcome of P and D1/TPP? There has to be liability arising out of the original claim between the P and D1/TPP . by motion. plaintiffs were required to file the instant claims as compulsory counterclaims and their failure to do so bars them from having those claims heard. serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. i. if she chooses.

the goal is to get everything out there to litigate (4) Motion to Strike. complication of the issues in the main action. In that event. • Once the parties are adverse. when appropriate. the plaintiff may bring in a third party if this rule would allow a defendant to do so. in order  to affix liability on the impleaded party Judicial economy • Assert affirmative defenses that the D/TPP didn’t assert (not personal defenses because it doesn’t • go to liability) • So liability has been fully litigated and fair (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. Under Rule 14(a) the words "is or may be liable" in Rule 14(a) make it clear that impleader is proper even though the third-party defendant's liability is not automatically established once the third-party plaintiff's liability to the original plaintiff has been determined. and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g). • The court determined that the allegedly speculative nature of the third-party claim did not bar an impleader. or Try Separately. Rule 19: REQUIRED JOINDER of PARTIES 16 . When a claim is asserted against a plaintiff. but the TPP does not have to prove anything Contribution (joint tortfeasors)  • To obtain a judgment that the third party is liable to pay the main defendant part of the damages she is so order to pay the plantiff Indemnification . (5) Third-Party Defendant’s Claim Against a Nonparty. (b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. If it is within the admiralty or maritime jurisdiction. and a reference to the defendant or third-party plaintiff includes. and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a).one party  Subrogation . a reference in this rule to the ‘‘summons’ includes the warrant of arrest. or to try it separately. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. Policy: • Pros: Efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent judgments • Cons: Delay in seeking impleader.(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a). to sever it. (6) Third-Party Complaint In Rem. a third-party complaint may be in rem.D admitting or defaulting to P's claim.insurance company steps in and makes the claims for  you) Coleman's insurance co could have gone after the sellers • (3) Plaintiff’s Claims Against a Third-Party Defendant. and Policy: To prevent collusion between the original parties . a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested. Derivative liability: Does it depend on the outcome of P and D1/TPP? Tuuhhere has to be liability arising  out of the original claim between the P and D1/TPP . and potential prejudice to the plaintiff from impleading a sympathetic third party CASE: Gross v. Any party may move to strike the third-party claim. (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim. Sever.(Can step into the plaintiff's shoes . Hanover Ins Co – (Jewelry store case) • The court granted the insurer's motion to implead the store owner and the employee as third-party defendants in the insured's action to recover on a policy for the theft of his jewelry b/c the third-party claim arose from the same transaction and found that its inclusion would serve the interests of judicial economy. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

Civ. if the party is "necessary. since an obligator held responsible on the joint debt has a right of contribution against the other joint obligators Joint obligees • Policy: A promise made to obligees jointly should be enforced jointly since otherwise there is a risk that the right of the absent obligee to enforce the promise may be prejudiced. is the party "necessary" under Fed. an action to set aside a contract requires the joinder of all parties to the contract. Where the absentee may be prejudiced by the failure to join 19(a)(1)(B)(i) 3. and a joint tortfeasor is not considered a necessary party." is it also "indispensable" under Rule 19(b)? • as a general rule. and that the court would be unable to afford complete relief because it could not provide in its decree for the defendant's obligations to the nonparty while enforcing the same promise for the plaintiff Partial assignees and subrogees Co-owners of property (if case involves interest of all) Corporation in a shareholders derivative action Guardian or representative parties Limited Pie: o Trust: o Very limited pool. Necessary Parties • Joint Obligors • o Parties to contracts •  May be necessary. Nonnecessary Parties Joint tortfeasor Policy: The plaintiff is the master of her lawsuit and can choose to sue as many or as few potential defenders as she desires (in accordance of the FRCP) o 20(2)(B) & 18(a) The plaintiff may join in one action all the defendants potentially liable to her as a result of a given transaction or occurrence. but generally not indispensable  Joint promisors under a contract (and other joint debtors) should be joined as defendants wherever possible. 19(a)? 2. Where the plaintiff cannot get relief from the named party 19(a)(1)(A) 2. the court can still proceed against those before the court  Policy: There is no "substantial prejudice" to the parties before the court that would justify dismissal. so we want everyone there • • • Original parties to a contract when third-party beneficiary sues • • • • • Third-party beneficiary when original party to a contract sues (a)(1)(A): Complete Relief (a)(1)(B)(i): Impairment (a)(1)(B)(ii): Inconsistent Obligations (a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE. if one cannot be joined. When the defendant may be prejudiced by the failure to join the absentee 19(a)(1)(B)(ii) The determination of whether a party is "indispensable" requires two steps: 1. However. ought to be joined if possible) 17 . P. ordinarily she is not required to do so. that the defendant might be subjected to inconsistent obligations in an action brought by the absent obligee.Three situations in which an absentee should be joined: 1. R. (necessary.

(2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment. multiple. a party must state: (1) the name. then the additional • parties need to effect that relief could be necessary parties. the court must determine whether. A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if: (A) in that person’s absence. if known. A person who refuses to join as a plaintiff may be made either a defendant or. the court cannot accord complete relief among existing parties. or otherwise inconsistent obligations because of the interest. (b) WHEN JOINDER IS NOT FEASIBLE. the action should proceed among the existing parties or should be dismissed. and (2) the reasons for not joining that person.(1) Required Party. or (C) other measures. and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. (3) whether a judgment rendered in the person’s absence would be adequate. or Where the plaintiff cannot get relief from the named party • Focus is on the relief that is sought and the ability of the named parties to render that relief. of any person who is required to be joined if feasible but is not joined. When asserting a claim for relief. If a plaintiff seeks a equitable relief that the named defendant cannot alone effect. or Where the absentee may be prejudiced by the failure to join • Courts only recognize legally protected interests • • Must be more that a financial stake (ii) leave an existing party subject to a substantial risk of incurring double. the court must dismiss that party. When the defendant may be prejudiced by the failure to join the absentee • An inconsistent obligation occurs when a court orders a party to do one thing. an involuntary plaintiff. If a person who is required to be joined if feasible cannot be joined. This rule is subject to Rule 23. in a proper case. 18 . in equity and good conscience. (B) shaping the relief. Inability to collect on a judgment typically will not satisfy the "complete relief" criterion • (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest. and another court • orders the same party to perform an inconsistent act (2) Joinder by Court Order. if so ordered by • the court. (3) Venue. (c) PLEADING THE REASONS FOR NONJOINDER. (d) EXCEPTION FOR CLASS ACTIONS. If a person has not been joined as required. The factors for the court to consider include: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties. the court must order that the person be made a party. If a joined party objects to venue and the joinder would make venue improper.

Dynard v.procedure 26(c) Protective Orders 26(e)(1) Supplementing disclosures and responses 37(a) Motion to Compel 37(c)(1) Failure to Disclose. • If the Mississippi defendants are not "necessary" under Rule 19(a). Loadholdt. Ness. then by definition they cannot be "indispensable" under Rule 19(b) Rule 26/37: DISCOVERY 26(a)(1) Mandatory initial disclosures 26(b) (1) Scope of Discovery – what can be requested (2) When the court must limit discovery – When discovery doesn’t have to occur (3) Work Product – What is it (5) How claim Attorney-Client/Work Product . Synthes Corp.CASE: Temple v. could be) jointly and severally liable co-obligors. drawing inferences in Daynard's favor. the Court holds that it is not necessary for Daynard to join the Mississippi defendants in this action because they are (or. – • Are joint tortfeasors indispensable parties under Rule 19(b)? • It is not necessary for all joint tortfeasors to be named as defendants in the same suit. ∏ and an attorney from the Mississippi lawyers group shook hands and made an oral agreement for legal fees with the South Carolina lawyers. This is a black-letter rule. PA • The law professor worked with 2 lawyer groups in litigation against the tobacco industry. The gist of the Supreme Court’s ruling in Temple is that the lower court went past the threshold question in Rule 19(a) too soon and skipped right to the balancing test of 19(b). to Supplement an earlier response or admit 19 . The Court finds that joint tortfeasors are permissive rather than indispensable parties. The defendant received nothing • The South Carolina lawyers then brought a motion to dismiss the action for failure to join an indispensable party HOLDING: • The court denied the South Carolina lawyers' motion to dismiss the action for failure to join an indispensable party or for a change of venue • In short. Motley. Richardson & Poole. Multiple tortfeasors equals permissive joinder. which also applied to the Mississippi lawyers.

(3) Pleadings get stricken or a dispositive ruling is made. If the attorney really wants it. (2) Winnowing down the issues in controversy. But you can discover lots and lots of stuff that will not be admissible. All of these tools are subject to other general discovery rules.What is Discovery This is simply the methods used by a party or potential party in a lawsuit to obtain or preserve information. Confer a. (2) Evidence is prohibited. such as: (1) Facts are deemed admitted. (3) Obtain information that will lead to admissible evidence. These are the six main tools of discovery. Attorney's have a choice b. interrogatories. like Rule 37: what do you do if you don’t cooperate? This is a sanction rule.but not the judge is involved. (2) disclosures. (3) depositions. and other stuff. Move for a protective order (26) . Judge will issue a court order… and tell the parties what to do 20 . You record it through depositions. These are the tools we have to find out stuff or keep stuff from being destroyed. and (6) mental or physical exams. Produced and/or object on the scope grounds 3. (4) interrogatories. (4) Contempt! (5) Attorney’s fees and expenses are awarded. Or. you can get sanctions. The purposes of discovery are: (1) Preservation of information that might not be available at trial. (5) requests for admissions. but really irritated 6. they will have to confer with the other side because discovery happens outside of the courtroom Move for a motion to compel (Rule 37) or 4. Discovery comes in the form of: (1) Requests for production. For non-compliance with any of the discovery rule. Request documents 2. you might find that you’re going to be liable and so you’ll settle. as a defendant. We want to start narrowing things down. 5. Some of the issues alleged in the pleadings might not be supportable at trial and you might choose to drop a claim. Rules to the fight of discovery: 1.

the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense (including the existence. 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. if they are relevant for some purpose other than impeachment. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). • Must be given in discovery even if inadmissible at trial b/c can be relevant to the issue of ownership… also helps with encouraging settling • Must produce for inspection and copying each insurance agreement that might cover the claim. (2) Limitations on Frequency and Extent. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court. and • A party claiming damages should disclose a computation of these damages and produce the documents on which the computation is based. • Impeachment: very few materials fall into this category. custody. Sufficient use even includes certain discovery events. description. custody. the court may order discovery of any matter relevant to the subject matter involved in the action. • Is the info properly requested? → is the info Relevant? • Material does not have to be admissible as proof at trial. 21 . a party must. Unless otherwise limited by court order. a court may hold this exemption inapplicable. The expected use of a document or witness that mandates disclosure is not limited to use a trial. However. • Only have to go to the judge and ask for a protective order if you want to use the information for substantive purposes • Don’t have to go to the judge if you only want to use the documents for impeachment • Only need to disclose information that YOU may use to help support your claim (ii) DOCUMENTS THAT MAY BE USED a copy — or a description by category and location — of all documents. nature. unless the use would be solely for impeachment. (iii) COMPUTATION OF DAMAGES. • The determination of whether information is “relevant to the claim or defense of any party. provide to the other parties: (i) WITNESSES the name and. . • The court is authorized to expand discovery to any information relevant to the subject matter of the action is good cause is shown. (iv) INSURANCE INFO must produce for inspection and copying as under Rule 34. condition. It is sufficient is the information sought appears reasonably calculated to lead to discovery of admissible evidence. 26(b) SCOPE OF DISCOVERY and LIMITS (1) Scope in General. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The expectation that a document or witness will be used in connection with any motion or a pretrial conference is sufficient. including materials bearing on the nature and extent of injuries suffered. 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 or defenses. For good cause. • You can just give the other party of list of what you have if both parties have the same document • i.e. and the type of information that are not directly pertinent to the incident in suit could be relevant to the claims or defenses. and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter). the concept of use here does not extend to the mere use of a document or witness’s name to respond to another party’s divisory inquiry. and tangible things that the disclosing party has in its possession.REQUIRED DISCLOSURES 26(a)(1) INITIAL DISCLOSURES (A) In General. any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. such as questioning a witness by using a document.both parties would have a police report • This is a broad concept of use. if known. on which each computation is based.. unless privileged or protected from disclosure. without awaiting a discovery request.” depends on the facts of each case. electronically stored information. or control and may use to support its claims or defenses. unless the use would be solely for impeachment.

the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. (B) Specific Limitations on Electronically Stored Information. Zubulake identifies seven factors to be considered in determining whether shifting the cost of production is appropriate: • 22 . By order or local rule. After defendant was ordered to produce the e-mails.has to show why the info is not reasonably accessible. If good cause is shown. do we cost shift? • o Should there be Cost shifting? There is no rule for cost shifting." Data that is "accessible" is stored in a readily usable format that "does need to be restored or otherwise manipulated to be usable. Judge Scheindlin stated that "cost-shifting should be considered only when electronic discovery imposes an 'undue burden or expense' on the responding party. 3) Bad Behavior. data that is "inaccessible" is not readily useable and must be restored to an accessible state before the data is usable. o As a threshold matter. Appropriate considerations may include: 1) the specificity of the discovery request. (Make these objections) 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. 5) predictions as to the importance and usefulness of the further information. thus. The court may specify conditions for the discovery. Backup tapes are considered an inaccessible format. 2) Availability. saying that ESI is not reasonably accessible Then the other side moves to compel or you move for a protective order • The burden is on the producing party . considering the limitations of Rule 26 that balance the costs and potential benefits of discovery. When information is not reasonably accessible because of undue burden or cost. If that showing is made. the quantity of information available from other and more easily accessed sources. The plaintiff in Zubulake was a highly-paid investment banker who accused her employer of gender discrimination and illegal retaliation. the requesting party may still obtain discovery by showing good cause. considering the limitations of Rule 26(b)(2)(C). and. but also on whether those burdens and costs can be justified in the circumstances of the case. the court may also limit the number of requests under Rule 36. and 7) The parties' resources." Conversely. the court may nonetheless order discovery from such sources if the requesting party shows good cause. • Zubulake set forth an analytical framework for determining whether it is appropriate to shift the costs of • electronic discovery. the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources (started deleting and moving info). you "Object" in the • response.(A) When Permitted. shifting the costs of producing data from backup tapes may be considered. It is a multi factor test.they can show good cause that they need it • o Can requesting party show Good cause for discovery? The test comes from the advisory notes. By order." “Whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production). the Judge considered whether cost-shifting was merited. Zubulake claimed that key evidence was located in e-mails that were contained only in backup tapes and sought an order compelling the defendant to produce the e-mails at its own expense. but some courts still use the Zubulake test. 4) The likelihood of finding relevant. On motion to compel discovery or for a protective order. o If the responding party is producing data from inaccessible sources. • o Advisory Committee Notes: o Once it is shown that a source of electronically stored information is not reasonably accessible. more easily accessed sources. the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. 6) The importance of the issues at stake in the litigation. • The plaintiff is going to have to hire an IT expert to determine if the info is reasonably accessible  Cost Shifting Analysis o We don’t know what reasonably accessible is? If it is RA .they produce • If it is not RA . responsive information that cannot be obtained from other. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so.

” This is probably not what the drafters of the rules had in mind. This privilege is absolute b. without undue hardship. a. compared to the amount in controversy. Attorney-Client (applies only when invoked by attorney) i. the first factor being the most important • consideration and the seventh factor the least important. parent if young.can always cost shift. and the importance of the discovery in resolving the issues. compared to the resources available to each party. • You can always cost shift because the protective order section says that a judge an provide any protective • measure they want. which has been interpreted as cost-shifting Producing party has the P will move to show good cause burden of showing that • How to show good cause: the info is not o Specificity request reasonably accessible o Available o Bad behavior . subject to Rule 26(b)(4). the importance of the issues at stake in the action. Between attorney and client c. (3) Trial Preparation: Materials – Work Product (A) Documents and Tangible Things. the amount in controversy. the parties’ resources. Can’t overcome. those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1). considering the needs of the case. If the party seeking discovery has had ample opportunity to obtain the information sought by discovery in the action. insurer. • Criticism: This authority appears to permit the judge to truncate discovery in cases she does not think are “important. and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot. the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (More Objections to make) (i) If discovery sought is unreasonably cumulative or duplicative. under 26(C). indemnitor. Ordinarily. people there for moral support) 23 . From a lawyer – when the client reasonably believes that the person seeking advice from is a lawyer f. communication between you and your client d.giving or receiving legal advice. and 7) The relative benefits to the parties of obtaining the information. Legal advice sought about "law" . consultant. or can be obtained from some other source that is more convenient. But. If seeking business advice – no privilege e. surety. or less expensive. The presence of other people during the communication may indicate that the communication was not confidential. The total costs of production. Made in Confidential. There is no good body of law to • do a cost shift analysis for unreasonably accessible info Courts are still citing Zubulake • 1) 2) 3) 4) 5) 6) (C) COURT MUST LIMIT (or forbid) DISCOVERY if: On motion or on its own. or (iii) The discovery is unduly burdensome or expensive. a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney. The relative ability of each party to control costs and its incentive to do so. (ii) Ample opp for discovery. (Secretary. These factors are to be weighed in descending order.started deleting and moving info o Likely-hood of finding o Predictions of useful o Importance of litigation o Parties resources Under 26(b)(2)(C) . a. The importance of the issues at stake in the litigation. less burdensome.The extent to which the request is specifically tailored to discover relevant information. or agent). unless the presence of these people was necessary to the communication. The availability of such information from other sources. The total costs of production. obtain their substantial equivalent by other means. Must behave as though they intend the communications to be private. If the he burden or expense of the proposed discovery outweighs its likely benefit.

d. Attorney’s employees: May apply to statements made to an investigator employed by the c. but may be subject to the qualified work product privilege if they were made or prepared in anticipation of litigation. d.. iii. legal research.g. Respondents. through counsel. Taylor (Work Product) o Tugboat sank killing 5 crew members. e. not allowed. not theories of the case. Petitioner filed 39 interrogatories (questions) directed to respondents. tug boat owners and underwriters. then the protection cannot apply. Only have to give the facts. with free rein to develop her own theory of the case and her own trial strategy. Respondents' attorney interviewed and took written statements from the survivors in anticipation of litigation. b. accident reports prepared by a truck driver according to company policy that such reports be submitted immediately following any accident for confidential use of the corporation's lawyers. a party . claimed work product. If statements are made in confidence regarding past events party’s counsel A party cannot hide behind this rule and put documents beyond the reach of discovery by turning them over to counsel. Documents and tangible thing in preparation of litigation or trial • If there is absolutely no foreseeable possibility of litigation at the time the materials are prepared. 24 . If a showing has been made to justify disclosure. but this purpose must be reconciled with the overriding need to require full disclosure of the facts. CASE: Hickman v. mental impressions. AN attorney cannot just label doc’s privilege to avoid discovery. records. Other reports: Other reports of employees to corporate counsel are not covered by the attorney-client privilege. it may be held that such reports are not prepared in anticipation of litigation. Statements by employees of corporation i. Are statements by witnesses attorney-client priv or work product? i. employed a law firm to defend them against potential suits resulting from the sinking of a tug in which their crew members drowned. The attorney-client privilege applies to communications made in confidence by employees of a corporation. The party must show that the material sought is of substantial importance to its case. c. b. How to beat this rule: To obtain production of material that is protected as work product. conclusions. g. and did not have to produce. did not provide the requested materials. remember that regular reports may be found to not meet the "in anticipation" requirement. iii. Nor can a party relieve himself the obligation to disclose by making disclosure to his own lawyer.If eavesdroppers overhear. opinions. ii. Attorney Opinion work product is sacred i. Shortly after this hearing. Work Product a. since they can be used for other purposes and are prepared in situations which litigation is not foreseen. Confidential reports: The attorney-client privilege may also apply to routine reports that are intended to be confidential records of the corporation. All that is protected is the content of the communication form client to lawyer. materials containing the mental impressions of an attorney are given special protection ii. usually courts do not treat minimal relevance as sufficient. assessments of the persuasiveness of various possible witnesses. o Rule: Materials prepared and information developed by or under the direction of a party or her attorney in anticipation of litigation are subject to discovery only if the discovering party can show a substantial need and an inability to obtain equivalent material by other means. No tort or crimes ii. Respondents. some of which requested copies of written statements taken from the crew members. Steamboat inspectors held a Public hearing where the 4 survivors were examined. Eavesdropper can testify 1) If electronic surveillance was used. avenues of investigation. detailed reports of oral statements. When a party makes regular reports of incidents that often lead to litigation (e. or other memoranda made concerning the tug's sinking.ust make a showing of substantial need and that you cannot get substantial equivalent by other means without undue hardship. However. • Purpose: This qualified privilege is designed to maintain the adversary process by enabling each party to prepare her own case. Attorney Client a. accidents). Is the system about truth and fairness… or about being the best adversary for your client? b. • Regular reports. including nonsupervisory employees in many jurisdictions. So ask for redaction to cover them up in the copying process so that they cannot be read.g. prepared for the corporation's attorney.

or destroy the specified information and any copies it has. (C) prescribing a discovery method other than the one selected by the party seeking discovery. The producing party must preserve the information until the claim is resolved. embarrassment. (1) A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory. Policy: Protective orders are designed to prevent undue burdens that might otherwise be imposed by discovery. What to do If Claiming Attorney Client Privilege or Work Product (Protecting Trial-Preparation Materials) (A) Information Withheld. (B) If accidently produce Privileged material. (D) forbidding inquiry into certain matters. or undue burden or expense. and Rule 37(a)(5) applies to the award of expenses. (F) requiring that a deposition be sealed and opened only on court order. the person may move for a court order. embarrassing. for good cause. or legal theories of a party’s attorney or other representative concerning the litigation. or limiting the scope of disclosure or discovery to certain matters. Good Cause Req: Confidentiality. If the court orders discovery of those materials. The court may. or tangible things not produced or disclosed — and do so in a manner that. or (ii) a contemporaneous stenographic. the party must: (i) expressly make the claim. and (ii) describe the nature of the documents. it must protect against disclosure of the mental impressions. (E) designating the persons who may be present while the discovery is conducted. or other recording — or a transcription of it — that recites substantially verbatim the person’s oral statement. a party must promptly return. (C) Can Obtain your own Previous Statement. or request for admission — must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete 25 . After being notified. 26 is broader. for the disclosure or discovery. mechanical. will enable other parties to assess the claim.Court takes an eye. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material. sequester. the party making the claim may notify any party that received the information of the claim and the basis for it. (B) specifying terms. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. in the court for the district where the deposition will be taken. If the request is refused. The availability of protective orders recognizes both that discovery can be extremely intrusive and that parties may seek to abuse it. issue an order to protect a party or person from annoyance. conclusions. must take reasonable steps to retrieve the information if the party disclosed it before being notified. must not use or disclose the information until the claim is resolved. or oppressive (e) MUST SUPPLEMENT/CORRECT DISCLOSURES AND RESPONSES. and may promptly present the information to the court under seal for a determination of the claim. (G) requiring that a trade secret or other confidential research. to be opened as the court directs. Specific harm. request for production. Any party or other person may.o Hickman only applies to the work of lawyers. opinions. and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes. (1) In General. without revealing information itself privileged or protected. or commercial information not be revealed or be revealed only in a specified way. oppression. including time and place. communications. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material. o Redaction . development. along with the attorney's help to remove mental impressions. electrical. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved. (B) Protection Against Disclosure. including one or more of the following: (A) forbidding the disclosure or discovery. obtain the person’s own previous statement about the action or its subject matter (and can give it to your attorney or anyone you want). A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition. on request and without the required showing. privacy Inconvenient place of examination Unduly burdensome (expensive or excessive) Unreasonable conduct of deposition deposition conducted in a manner annoying. (c) PROTECTIVE ORDERS. Both concerns can be ameliorated through protective orders.

or (B) as ordered by the court. If the motion is denied. an evasive or incomplete disclosure. the court. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. production. require the party or deponent whose conduct necessitated the motion. the party is not allowed to use that information or witness to supply evidence on a motion. the court may issue any protective order authorized under Rule 26(c) and may. • If party fails to make disclosures req under 26(a) . But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. the attorney filing the motion. A party seeking discovery may move for an order compelling an answer. TO SUPPLEMENT AN EARLIER RESPONSE. Answer. (C) If the Motion Is Granted in Part and Denied in Part. If a party fails to make a disclosure required by Rule 26(a). require the movant. or inspection. the party or attorney advising that conduct. If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must. discovery sanctions can be sought right away w/o the need for a prior order compelling discovery (ii) a corporation or other entity fails to make a designation (iii) a party fails to answer an interrogatory submitted (iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested (C) Related to a Deposition. If the motion is granted in part and denied in part. designation. (B) To Compel a Discovery Response. (5) Payment of Expenses. apportion the reasonable expenses for the motion. or respond. or objection was substantially justified. or (iii) other circumstances make an award of expenses unjust. or at a trial. or response must be treated as a failure to disclose. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. In addition to or instead of this sanction. and may impose rule 37 sanctions  Unless the party has substantial justification for its failure to disclose. a party may move for an order compelling disclosure or discovery. after giving an opportunity to be heard. after giving an opportunity to be heard. and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. 26 . SANCTIONS (1) On notice to other parties and all affected persons. the court may issue any protective order authorized under Rule 26(c) and must. or Response. or both to pay the movant’s reasonable expenses incurred in making the motion. (3) Specific Motions.or incorrect. including attorney’s fees. • Need to meet and confer before the motion is filed with the court. (2) Appropriate Court. (1) Failure to Disclose or Supplement. 37(c)(1) FAILURE TO DISCLOSE. 37(a) FAILURE to MAKE DISCLOSURES. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). including attorney’s fees. caused by the failure. the party asking a question may complete or adjourn the examination before moving for an order. including attorney’s fees. after giving an opportunity to be heard. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e). or to supplement disclosures. (4) Evasive or Incomplete Disclosure. answer. at a hearing. the court should usually exclude undisclosed materials from evidence. When taking an oral deposition. (ii) the opposing party’s nondisclosure. unless the failure was substantially justified or is harmless. answer. or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action. on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses. For purposes of this subdivision (a). (A) To Compel Disclosure. A motion for an order to a party must be made in the court where the action is pending. This motion may be made if: (i) a deponent fails to answer a question asked under • if the party completely fails to file a response to a discovery request or to attend a properly notices deposition. OR TO ADMIT. or when the failure to disclose was harmless. Protective Orders. (B) If the Motion Is Denied. response. any other party may move to compel disclosure and for appropriate sanctions.

or agent) • b. 26(b)(3) is broader a. Documents and tangible things done Anticipation of Litigation b. and a. Work Product a. P sued B. Does the doctrine apply to nonlawyers. Is not unreasonably cumulative . or c. burdensome. Is relevant to the claim or defense of any party. and (C) may impose other appropriate sanctions A party is entitled to demand the discovery of any matter that: a. Requesting party can’t have already had ample opportunity for your own discovery c. indemnitor. obtain the person’s own previous statement about the action or its subject matter. just • the facts) What is protected is what the lawyers do with the information • No 26(b)(1) identity of persons . conclusions. communication between you and your client d.. the name of a witness). i. obtain their substantial equivalent by other means o Work Product Doctrine: -conditional Rule 26(b)(3): •  Redaction . If the request is refused.Protection Against Disclosure.g. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved. At the time of Hickman. on request and without the required showing. Attorney-Client a. surety. No strangers . What about factual information (e. insurer. without undue hardship. What if a party or witness makes a written statement to the lawyer? Is that discoverable? If you make a signed statement then yes! 26(b)(3)(C)(i) • (C) Previous Statement. or legal theories of a party’s attorney or other representative concerning the litigation. about "law" . Between attorney and client c.has to be private f. such as insurance adjusters and investigators? Yes! (3)(a) . Can’t overcome. It now does. Work Product HYPOS Hickman/Work Product Problems 1. Is not privileged ii. as opposed to mental impression—is that undiscoverable if the facts were uncovered by a lawyer? Yes. the facts are not protected just because a lawyers found them (don’t have to give the documents. consultant. this criterion is virtually without burden ii. Confidential. opinions. If the court orders discovery of those materials.giving or receiving legal advice e. Entitled to information that "appears reasonably calculated to lead to the discovery of admissible evidence" .R 26(b)(1) b.Attorney Opinion work product is sacred 1) Can overcome if party shows the party shows that it has substantial need for the materials to prepare its case and cannot. This privilege is absolute b. Rule 26 did not deal specifically with the topic of trial preparation materials. the person may move for a court order. Assume P was injured when struck by a bus owned by B Bus Co. Any party or other person may.(B) may inform the jury of the party’s failure. No tort or crimes ii.(including the other party’s attorney. Entitled to material that is relevant and admissible in trial iii. Due to human imagination. Opinion .unless the info can be obtained from another source • 2. and Rule 37(a)(5) applies to the award of expenses. or expensive. it must protect against disclosure of the mental impressions. The litigation raises the following discovery issues: 27 . Read Rule 26(b)(3) and answer the following questions: Hickman only protects the work of lawyers.

can you obtain a copy of the statement before Boris’s scheduled deposition next month?. a vice president of B went to the scene and made a full investigation. a good friend of Boris. you must disclose that information to the other side • 3. will testify on his behalf. and they had died before giving their testimony to the agency inquiring into the accident? Yes. P serves an interrogatory asking for the names of all eyewitnesses. But there may be another argument that this was only done as a business purpose and not in anticipation of litigation.this report may not be prepared in anticipation of litigation since it can be used for other purposes and • are prepared in situations in which litigation is not foreseen. or after) . Fortenbaugh interviewed the witnesses and took notes but apparently did not ask the witnesses to write out statements or tape-record the witnesses’ statements. but I will give it at the deposition. (See Rule 26(b)(3)(C)) a. Hoping to catch them by surprise to see if they lie. What if the crew members were still alive but there had been no public hearing on the accident. Immediately after the accident. Can P obtain the report? Would it make any difference if B has a claims department and the vice president is part of that department? No . They are only asking for facts. What if Fortenbaugh had interviewed the crew members in the hospital. Can you nevertheless think of a lawful way to get it? Have Frank ask for it as a matter of right and ask him for it • 26(b)(3)(c)(i) • 4. (iii) if Boris did not give a statement. In the hospital Boris is visited by an investigator for Farm Insurance Co. cannot be an oral statement 26(C)(i) & (ii)  Yes. 26(a) .” Must B disclose the witness’s name. Preparing for trial. no other way of getting that information and it is of substantial importance • Court will go through and remove any mental impressions • b. They are only asking for the names of witness •  Just because you hired an investigator. As the attorney for Boris. Frank gave a written. Many lawyers will do so in order to have a basis for subsequent examination or impeachment of the witness. What does it take to overcome a claim of work product? How special must the circumstances be? If the material sought was NOT prepared in anticipation of litigation or for trial • If it is a routine report • If the material is of substantial importance to the party seeking discovery • If the party seeking discovery cannot obtain from another source the substantial equivalent of the • information sought • Must show that the material sought is of substantial importance to its case. In Boris’s suit against Charles.witness himself are entitled to a copy of his statement as a matter of right  (ii) if so. can you find out what he told the investigator? No. and uncovers another eyewitness to the accident. He then made a written report to the directors of B. you cannot protect the facts that they uncover. (i) can you find out whether Boris made a statement? Yes 26(b)(3)(c)(i) .if there is a witness that you may use.because you are trying to impeach the witness. B’s lawyer hires a private investigator who runs up $10. …. Frank.  Employees' accident reports to claims department are discoverable b.. which had insured Charles’s car. and Yes 26(b)(4)(A) deposition may be conducted only after the report is provided  They should give it to you unless.can likely be obtained herself and in preparation of litigation and may be privileged if they are • intended to be confidential records of the corporation. yes I have to provide the information.. they go to the court and say can I wait until after deposition (ask  for a protective order that says. you are not entitled to obtain that statement under Rule 26(b)(3)(C). signed statement to Charles’s attorney but does not remember what he said. Boris thinks he gave a videotaped statement to the investigator and knows that he talked to the investigator about the accident. and B objects on the ground of “trial preparation materials. Yes . As attorney for Boris. including interviews with witnesses and measurements of the accident location. Yes. Boris is seriously injured in an automobile accident with Charles. cant be minimally relevant a. if the court says that this material has been "otherwise adopted or approved" 26(C)(i)  b.000 in fees. In Hickman.a. and the witnesses claimed not to be able to remember events clearly? Argument for: • 28 .

but its existence comes to light in a deposition of the surgeon. You file an answer denying that there was a contract. then you have to disclose the info ii. alleges that Baker agreed to sell her his car. but that they never agreed. and then refused to go through with the transaction. Nothing . gives you a state court complaint from a state employing the current version of the discovery rules. Probably as long as no mental impressions and legal theories Substantial need and inability to obtain equivalent material Argument Against: you had the opportunity to interview the witnesses. • Make party pay the costs • 2. Baker tells you that he and Alice discussed such a possibility. Albert’s lawyer intends to present a straightforward version of the case: Barbara ran a red light. Alice. The other info doesn’t go to his claims If you are not going to use it for your claim.info Not the boss .you are not using anything to help your defense a. let us suppose. In response to your questions. Alice seeks damages. You know that Rule 26(a)(1) requires some disclosures. her boss (with whom she had a major argument just before the accident). who as a result lost wages and incurred medical expenses. however. so the judge is likely to grant the motion • Don’t know what substantially justified is. What disclosures must Albert make under 26(a)(1)? Witness info: The name. he receives a substantial new bill from the treating surgeon. On this state of the pleadings. There are. On this state of the pleadings. but just didn’t Albert alleges that Barbara “negligently collided” with his car. A witness at the intersection will testify that Barbara ran the light. Your client. his job situation has been precarious.this info must be made know to the other party • Or else sanctions • 1. and has spoken with various other potential witnesses.why? This does not go to her defense… 1. some soft spots in the case: Albert has a poor driving record and has himself been cited for running red lights. What must Albert do (see Rule 26(e))? Must supplement or correct its disclosure . collided with Albert. The plaintiff. what information would you have to prepare for disclosure? a.name address phone Witness . i.  •  DISCOVERY Hypos Discovery Problems: 1. Explain how each of these witnesses might have information relevant to the lawsuit. Baker.probably not. is not the same on located by Albert. the address and phone # of the witness • • • iii. then you don’t have to turn it over If you are going to use it for your claim or defense. How should the judge rule (see Rule 37(c)(1))? Was the failure substantially justified? . Her lawyer has interviewed her and knows the name and address of a mechanic who can testify about the maintenance of her car (he will say it was well maintained). Barbara’s answer has denied negligence. He may have to produce other info it if it is requested…. This witness is not an attractive one—a vagrant with a long history of minor drug arrests— but he says he thinks the light was green for Barbara when she entered the intersection. obtained copies of his medical and wage records. what would be the information you would be confident Alice would have to disclose to you? 29 . Thereafter. Baker tells you no one witnessed their discussion. 1. The bystander... and a bystander who saw the accident. Suppose Albert has supplied her with all of his medical bills pursuant to Rule 26(a)(1)(A)(ii). and Albert thinks that his boss might testify that he was about to be fired (thus reducing potential damages for lost wages). Which of their names should Barbara’s lawyer supply at the time appropriate for the disclosure required in Rule 26(a)(1)(A)(i)? • • • Mechanic . Thereafter. and if known.  Now consider Barbara’s disclosures. Barbara seeks to block admission of the bill as part of the evidence on damages. Assume Albert does not inform Barbara of the new surgeon’s bill. Albert’s lawyer has interviewed him.

• • Depends . Centerville’s lawyer would very much like to hold back the photograph—perhaps until a devastating crossexamination of Alice. the evidence may be excluded 1. and (C) may impose other appropriate sanctions. must you now produce the photograph? • Is a photograph a document? Yes. Thereafter Alice makes a Rule 34 demand that Centerville produce “all documents. Centerville’s lawyer learns that she will contend that the police assault injured her leg. or control and may use to support its claims or defenses. Suppose Centerville produces the photograph in response to the Rule 34 demand. Must the defendant produce the photograph as part of the disclosures required under Rule 26(a)(1) (A)(ii)? Think about what Centerville’s possible defense strategies might be and what role the photo would play in each of them? RULE: (A)(ii) .” The city attorney assigned to the case uncovers a photograph of Alice. answering questions about the interpretation of the contract in question. In addition to or instead of this sanction. the court. Can Alice seek sanctions? Of what sort (read Rule 37(c))? Can Centerville argue that any failure to disclose initially is harmless because the evidence eventually came to light? • Yes • costs attorney fee's caused by the failure • May inform the jury of the party's failure • Harmless? • It depends on where we are in the trial process • The closer we get to trial the more harm it causes • If it smells bad. but I want to impeach her with this photo. on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses.if they are going to use the photo for impeachment • But this is a risky strategy because you may lose the right to use this photo to support your defense. then yes you must disclose it.• • • Damages computation Anything that may help our case. a. Assume that Centerville does not disclose the existence of the photograph in the initial round of disclosures. unless the use would be solely for impeachment. c. including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). • • What is risk does Centerville run if it does not disclose the photograph (read Rule 37(c)(1)? Sanctions. caused by the failure. • The better course is to go to the judge and say I will produce it. without awaiting a discovery request. Her complaint alleges that the assault “severely injured her. Assume there is a contract dispute where the parties’ understanding of a clause is at issue. Producer believes that both documents are protected by the attorney-client privilege. it is a ethical violation a. Alice brings suit against Centerville Village. taken the night after the incident. the party is not allowed to use that information to supply evidence on a motion. electronically stored information. showing her participating enthusiastically in a local dance contest. and tangible things that the disclosing party has in its possession.34(b)(2)(C) • If no objection is filed. unless the failure was substantially justified or is harmless.a party must. claiming that its police officers assaulted her during a political demonstration one afternoon. At the Rule 26f conference with Alice’s lawyer. or at a trial. memoranda. • No. (B) may inform the jury of the party’s failure. provide to the other parties: a copy — or a description by category and location — of all documents. Assume that Plaintiff serves a request for particular documents. and reports relating to the incident.arguments to go either way No .facts Any witness that Alice may have ( but hypo says that Baker says no one witnessed their discussion) 2. custody. at a hearing. • If they don’t. and may not be allowed to use it If a party fails to provide information or identify a witness as required by Rule 26(a) or (e). How should Producer raise such a contention (see Rules 26(c) and 37(a))? What tactical advantage might accrue from using Rule 26(c) rather than Rule 37(a)? 30 . may file an objection within 30 days .” As attorney for Centerville. Assume further that two of the documents sought are letters from Producer’s lawyer to Producer. including attorney’s fees. and the document has been properly asked for. that is not privileged . ask for a protective order so that you don’t have to disclose this photo until deposition b.

You represent DiChem. Ask for Redaction Rule 56: SUMMARY JUDGMENT 56(c) SERVING THE MOTION. and says. Shortly thereafter. o What do you do if there has been no discovery yet? o Going to present things that we got out of discovery Not relying on the pleadings anymore • Using evidence • o Summary judgment is tough to get Why would defendants do this then? •  Save time & money  Risk factor with taking a chance on the jury  Get the other side to show their evidence 31 . “any management-level employee knows that the job depends on the company’s continued financial viability. Morris has sued DiChem and its president Eve Barrie.” You attach a separate sheet of this special letterhead. Eve Barrie tells you that neither she nor anyone else said anything at all about DiChem’s financial situation at the interviews. 1. Have to confer first • 1. and came on board in December. If the other party makes a motion for it later. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.notes.may move for a protective order (forbid discovery or forbid inquires into certain mattes) Can forbid discovery • 37(a)(1). Attorney client privilege . Barrie is a smart cookie.” When you ask for Eve Barrie’s complete file on the hiring of the director of Advertising. does that include your memorandum attached to the Eve Barrie note? How will you protect your work? You don’t have to answer this in great detail…just be ready to discuss. You should object . the discovery and disclosure materials on file. sold his house. PROCEEDINGS. Your heart misses a beat when you come to an undated scrawled note in what you have come to recognize as Eve Barrie’s handwriting. to each item in Barrie’s file. Under 26(A) .you don’t have to turn this over at this point (Mandatory initial discovery) because you are not using it to help our defense….assert work product & attorney-client privilege 1. theories of the case! a. “Attorney Work Product. and interviewed several applicants.” Back at your office. “Shall I go through it first?” You smile back and say: “I need to know everything. alleging that the company should have disclosed the precarious fiscal state to him and had failed to do so. using special firm letterhead on which is preprinted in large capital letters. “If we ever get into a court fight. you may have to produce it b. must decide how much to tell re: black hole—company collapse????” You make the following note: “Item 5—looks like a possible damning admission that company knew they were in danger of collapse. But we don’t know what our defense is going to be a. Charles Morris from New Mexico won the job. a small San Diego corporation whose business is assessing air and water quality for private industries to determine compliance with environmental and occupational safety regulations. In the fall of 2006. DiChem advertised nationally to fill the position of Director and Advertising.. she gives you a meaningful look. An opposing party may serve opposing affidavits before the hearing day. thoughts. Was it bad enough to verge over into fraud? Did they misrepresent? Get associate to research this if it becomes relevant. Work product .may move for an order compelling disclosure or discovery. I’m sure. The judgment sought should be rendered if the pleadings.” Must you turn the notes over under Rule 26(a)(1)(A)? How will you respond if your opponent moves the court under Rule 26(b) for the complete file on the hiring of the new director? Suppose the court orders disclosure of everything in the file.Object and say that it is attorney-client privilege or work product 26(c) . with your notes on it.Client thinks that she is covered by attorney-client privilege so that is why she turned that info over. Anything detrimental to our position will be covered by a privilege. but it may be better not to ask her too many more questions until and unless we have to prepare her for deposition. The motion must be served at least 10 days before the day set for the hearing. you go through the file and make notes on each item in it. She adds. the company went though hard financial times and laid him off. and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. It says. 2.

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts (Matsushita). If the initial showing is insufficient. which should be denied. that standard of proof is “beyond a preponderance of the evidence. A motion for summary judgment must be guided by the standard of proof that is required at trial. but rather as an integral part of the Federal Rules as a whole" and noted the it has an important role: With the advent of 'notice pleading.” In a case like Liberty Lobby. and the motion should be denied. that is. Was the opposing party given notice and an opportunity to respond? If the initial showing was sufficient. Note that the circumstances sometimes justify delay in the decision in order to give the opposing party an opportunity to gather evidence. he must initially produce enough evidence to show that no reasonable jury could find for his opponent. summary judgment would still be improper unless the opposing party was given notice of the motion and an opportunity to respond. When the moving party has carried its burden under Rule 56(c). In the language of the Rule. I heart SJ: For more than a decade. and its place must be taken by the motion for summary judgment. The moving party must affirmatively show the absence of the evidence. Those documents form evidence that you can use at this stage. summary judgment can avoid unnecessary delay and expense in deciding the case. The moving party has the initial burden of production demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (56c/Celotex). the burden then shifts to the non-moving party. A genuine dispute is one which a reasonable jury could resolve against the movant.' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore. the nonmoving party may not rest upon the mere allegations or denials of his pleadings and must come forward with "specific facts showing that there is a genuine issue for trial. affidavits are very important. The depositions will create transcripts that you can use as evidence at this stage. [Celotext] o But what about the Iqbal/Twombly standard? What kind of evidence does the court consider on summary judgment? They can look at the requests for production of documents. Policy: Summary judgment is a method for getting beyond the allegations of the pleading and examining evidentiary material without holding a full-dress trial. STEPS OF ANALYSIS: 1. If the moving party has not made the required initial showing. If the moving party has the burned of proof at trial. Pointing to cannot be a conclusory assertion that there is no evidence. In most cases. 32 .  You might win. but the court should not reach the question whether there is a genuine dispute until it has evaluated the moving party’s showing to determine whether it suffices to justify pretrial scrutiny of the evidence. Whether any disputed issue of fact exists is for the Court to determine. In addressing a motion for summary judgment. Most importantly. (Celotex). or must demonstrate that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim or defense by “pointing to” an absence of evidence. he still must make an initial showing of his opponent's lack of proof. If the evidentiary material shows that there is actually no genuine controversy that requires trial. At minimum. “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor” (Matsushita). Has the moving party made a sufficient initial showing? If the moving party would have the burden of proof on the issue at trial. The opposing party must come forward with evidentiary material that established the existence of a triable issue. You can also use interrogatories and requests for admissions. whether the evidence is such that a reasonable jury might find has been shown with convincing clarity (Liberty Lobby). Issues of material fact are those that might affect the outcome of the suit under the governing law. This must be satisfied before the burden shifts to the opposing party. he must produce evidence of such strength that no reasonable jury could find for the opposing party. especially if the motion is made early in the case or before there has been substantial discovery. you as the attorney will have to write an affidavit that the copies you submitted as evidence were “true and correct” copies of the documents given to you. A material fact is an essential element of claim of defense. the opposing party need not submit any opposing proof. it has seemed that the courts have become more receptive to deciding cases on summary judgment. SJ cannot be granted if the moving party’s evidence is merely colorable or not sufficiently probative. If the moving party meets his burden of production. 2. If the moving party does not have the burden of proof at trial the moving party must either offer affirmative evidence that negates an essential element of the opposing party’s claim or defense (Adickes). where malice was pleaded. If the moving party would not have the burden of proof.” The opposing party can call the court’s attention to other material in the record that demonstrates the existence of a genuine issue. What is the harm Narrows issue for trial MY RULE: A party is entitled to judgment when there is no “genuine issues of material fact” and the undisputed facts warrant judgment for the moving party as a matter of law. the standard at the summary judgment stage was a "clear and convincing" evidentiary standard in determining whether a genuine issue fact exists. there technically is no burden on the opposing party to make any showing in response to the motion. so go for it. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut.

decided before trial. it has seemed that the courts have become more receptive to deciding cases on summary judgment. Summary judgment may be more difficult to obtain In many courts. such a moving party would have to make an initial showing of the insufficiency of the evidence of his opponent's case. the motion should be granted only if the evidence is so strong that a reasonable jury could find only for the moving party. Only if such an initial showing is made does the opponent then have the burden of bringing forth sufficient evidence to show that there is a genuine issue for trial. [Celotext Corp. Relevance of pleadings to summary judgment The pleadings delineate what is in controversy in the case. however.initial showing requirement (1) Opposing party with burden To obtain summary judgment. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut. if certain allegations have been admitted. Trend Favoring Use of Summary Judgment . it must be clearer to the court that the case can reasonably be decided only one way. If the initial showing is insufficient. may be immediately appealable if it results in a final judgment. Is there a triable issue? Assuming the moving-party's initial burden was met and the nonmoving party was given an opportunity to respond. 33 . which is usually recorded in a deposition transcript or by videotape. Timing The summary judgment motion can be. only as to some issues or some parties).' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore. he still must make an initial showing of his opponent's lack of proof. v. or such consideration may convert the motion into a motion for summary judgment. Reliance on pleadings in respond to summary judgment An opposing party may not rely on the allegations in her pleadings to defeat a summary judgment motion. he must initially produce enough evidence to show that no reasonable jury could find for his opponent. summary judgment may be based on live testimony from depositions. and its place must be taken by the motion for summary judgment. the court must look at the evidence in the light most favorable to the nonmoving party to determine whether there is a genuine issue of fact to be tried. the opposing party need not submit any opposing proof. Grant of summary judgment. 2. Also note that summary judgment may be partial (i. [FRCP12(b)—on motion to dismiss for failure to state a claim. Nature of material considered The summary judgment motion is based essentially on pretrial written submissions. On review the appellate court has plenary power. it appears that courts are gradually becoming more accepting of summary judgment.3. If the moving party would have the burden of proof at trial. motion is to be treated as one for summary judgment. it is said that consideration of any material beyond the face of the complaint is forbidden on a pleadings motion.e. Catrett] o But what about the Iqbal/Twombly standard? BURDEN of PRODUCTION .I heart SJ For more than a decade. those admissions may form part of the basis of summary judgment.. and normally is.] a. Thus. Pleadings and Motions Compared Summary judgment differs from pleadings motions attacking the sufficiency of claim or defense in that summary judgment allows the court to look at evidentiary material. However. Denial of • summary judgment is not immediately appealable. the court should grant the motion only if the opposing party fails to come forward with sufficient evidence to support a verdict in his favor. A defendant may move for summary judgment at any time and a plaintiff may do so 20 days after commencement of the action. but rather as an integral part of the Federal Rules as a whole" and noted the it has an important role: With the advent of 'notice pleading. b. it is said that summary judgment is more difficult to obtain than judgment as a matter of law—i. If the moving party would not have the burden of proof. if materials outside pleadings are presented and not excluded by court. Recall that pleadings motions look only at the face of the pleading an test only its legal sufficiency. and the motion should be denied. However.. If the moving party would have the burden of proof on the issue at trial.e. If the moving party would not have the burden of proof at trial. it need not give deference to the trial judge's decision. Usually.

a. The burden of proof at trial does not shift. the part who must raise an issue in the pleadings must also prove it. making that showing before trial does not represent an additional burden on the party because the party would have to put on such evidence at trial to justify a directed verdict. summary judgment should be granted only if the opposing party fails to present sufficient evidence to permit a jury reasonably to find for him. I need more time because I have to do a certain amount of discovery for this case 2. All reasonable inferences indulged in favor of the nonmoving party The court is to make all reasonable inferences in favor of the opposing party. because a trial should be held if a reasonable jury could disbelieve the moving party's proof. In response. non-movant must…. Opposing party with burden If the party moving for summary judgment does not have the burden of proof on the issue raised by the motion. b. The court's evaluation process must be based on a case-by-case basis. Ask for more time for discovery 1. Standard for Grant of Summary Judgment 1. [ issue of material fact Burden of proof at trial: o Does not shift Burden of production at summary judgment: o Shifts Movant's Initial Burden of production. the opposing party comes forward with sufficient evidence to support a verdict in her favor. Unless. if there is. summary judgment should be granted only if the evidence favoring the moving party is of such strength that the jury could not reasonably disbelieve the moving party's evidence. Court may "not" weigh evidence The court is to determine whether there is a genuine dispute. The movant must produce evidence demonstrating… there Non Movement must produce evidence showing… there is a is no genuine issue ("any reasonable jury would find for genuine issue (a reasonable jury could find for me) me") 1. There are a number of general principles that guide SJ. but the burden of production at Summary Judgment does. it may choose between two versions of events and grant SJ to the party whose version seems more persuasive. a. New evidence/Ignored evidence 2. such a party must make a compelling case for entry of summary judgment." 2.(2) Distinguish-moving party with burden If the moving party has the burden of proof on the issue raised at the summary judgment stage. Relation to Standard for Judgment as a Matter of Law The United States Supreme Court. Court doesn’t have to grant this motion If nonAdickes: movant Produce evidence negating the claim or defense of nonhas burden movant of proof at 34 . or that there is "no triable issue as to any material fact. Moving party with burden of proof If the party moving for summary judgment has the burden of proof on the issue raised by the motion. To shift the burden If moving party has burden of proof at trial Non-Movant's Burden of Production. in Anderson v. b. Liberty Lobby. Basic Standard The court is to grant summary judgment when it determines that "there is no genuine issue as to material fact" [FRCP 56(c)]. Rehabilitate or attack 3. summary judgment should be entered un favor of the moving party. and to view the evidence in the light most favorable to that party. More time 56(f) i. The burden of pleading various issues depends on whether they are considered elements of the claim or affirmative defenses. This makes it appropriate to focus on whether the moving party has the burden of proof on the issue raised by the summary judgment motion. has stated that in federal court the standard for entry of judgment us the same at the summary judgment stage as at the judgment as a matter of law stage. However. Usually.

Demonstrate that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim • Point to an absence of evidence something. which are designed "to secure the just. a." • the motion to dismiss seldom fulfills the function of striking insufficient claims or defenses any more. Kress & Co. .]. . P.says that if  you later believe that the evidence can become admissible.Didn’t foreclose the possibility that the police officers were in the store. J. Thought is that the evidence must be admissible at the time of summary judgment (Celotex . [Celotex Corp. Procedure 1." But with the advent of "notice pleading. (2) Moving party without burden of proof If the moving party does not have the burden of proof. the exact requirements in this circumstance are unclear. with the conclusory assertion that the plaintiff has no evidence to prove his case"] 35 . speedy and inexpensive determination of every action. Initial Showing Analytically.rejected the early view. supra (White. Catrett. and its place has been taken by the motion for summary judgment. concurring)—"It is not enough to move for summary judgment .  The moving party must produce evidence negating the claim. but rather as an integral part of the Federal Rules as a whole. the court should not reach the question whether there is a genuine dispute until it has evaluated the moving party's showing to determine whether it suffices to justify pretrial scrutiny of the evidence. Submit evidence that negates an essential element 2. you can do Celotex o I heart summary judgment Summary judgment procedure is properly • regarded not as a disfavored procedural shortcut. owing to disagreement within the Court on the proper formulation.. Civ. Moving party's burden The moving party is to demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  How do you prove a negative?  In Adickes .trial Celotex: "pointing to" o Opinion does not over rule Adickes BUT they changed the characteristic around o Two ways the moving party can carry it's burden: 1. you can use it at summary judgment) (b) Current view .CELOTEX Celotex Corp . the matter is more complicated.ADICKES Relying on a decision of the Supreme Court [Adickes v. v. S. 56(c)] (1) Moving party with burden of proof If the moving party has the burden of proof. (a) Early view . but cannot be a conclusory assertion that there is no evidence • Must affirmatively show the absence • Don’t have to do Adickes. some lower courts took the position that a moving party without the burden of proof had to make as strong a showing as one with the burden of proof to invoke summary judgment." [Fed. 1) Mere conclusory assertion It appears that a bald assertion that the opposing party lacks sufficient evidence to support his case is not sufficient. R. However. he must produce evidence of such strength that no reasonable jury could find for the opposing party.H.

Defendant moved for summary judgment on ground that there was no evidence in the record linking its products to plaintiff's husband's death. the • showing should reliably indicate that. Kreiss would have had to file an interrogatory asking the P Who are your witnesses that were in the store? • But the P would have just given the names of witnesses. Must produce evidence negating the claim or defense of non-movant • 2) Insufficient Evidence . If the thrust of the motion is that the opposing party has no evidence. the party must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Thus. however." (c) 2 Methods of Making showing RULE: There are two methods to make a proper showing for SJ.ADICKES Case:  In Adickes. Demonstrate that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim Point to an absence of evidence something. or (2) Demonstrate that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim or defense by pointing to an absence of something. plaintiff claimed that her husband died due to exposure to asbestos that the defendant manufactured. creating a genuine dispute of material fact. 1) Affirmative evidence that negates an element . v. The court held that summary judgment should not be granted because plaintiff was able to point to material in the record that indicated that at trial she would have a witness to support her claim—a letter from an official of a former employer of plaintiffs husband indicating that company records showed that plaintiff's husband had been exposed to defendant's products.Rationale: "Such a 'burden' of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. The Supreme Court added another method to make the showing • required under SJ.CLEOTEX Case:  In Celotex. the moving party should be able to point to discovery calculated to elicit from the opposing party any evidence he had to support his case and then demonstrate that this evidence is inadequate. to negate the conspiracy claim. "Pointing to" cannot be a conclusory assertion that there is no evidence. urged that the moving party should have to "make a prima facie showing that it is entitled to summary judgment. The moving party must affirmatively show the absence of the evidence. Such a showing invites the argument that the opposing party needs more time to gather facts. dissenting in Celotex. dissenting)] 2) Initial responsibility of informing court of basis for motion The majority in Celotex stated that the moving party has the initial responsibility of informing the court of the basis for its motion. evidence in the record that the arresting police officer had been in defendant's store permitted the inference that he and the defendant had conspired to deny the plaintiff service. Catrett. you can do Celotex • To meet the 2nd part of Cleotex. (1) The moving party can offer affirmative evidence that negates an essential element of the opposing party's claim or defense. The case arose from the plaintiff's arrest for vagrancy. All the defendant needed to do was to produce some sort of evidence that the police officer had not been in the store." [Celotex Corp. The Supreme Court reversed summary judgment that was found in favor of the defendant store in a civil rights action despite plaintiff's failure to opposes the motion with admissible materials. In deciding Cleotex. Although the defendant properly denied a conspiracy.. J. but cannot be a • conclusory assertion that there is no evidence • Must affirmatively show the absence Don’t have to do Adickes. the students or employees in the store 36 . [Rule 56(f)] Celotex: "pointing to" langueage • Opinion does not over rule Adickes BUT they changed the characteristic around • Two ways the moving party can carry it's burden: 1. Submit evidence that negates an essential element 2. supra (Brennan. However it is unclear how much more than a conclusory assertion this is designed to require 3) Prima facie showing Justice Brennan.

there is no genuine issue for trial Bias Case: . the burden. the court held that summary judgment should not be granted because plaintiff was able to point to material in the record that indicated that at trial she would have a witness to support her claim—a letter from an official of a former employer of plaintiffs husband indicating that company records showed that plaintiff's husband had been exposed to defendant's products.  However. is on the opposing party to come forward with evidentiary material that establishes the existence of a triable issue.Affirmed • The ∆s provided evidence that every insurance company inquired about drug use for the policy Bias wanted 37 .  This ruling is favored for defendants. sufficient evidence to support a jury verdict in his favor Coleman's thoughts on SJ: • Is this standard wrong? She hasn’t fully decided • Agree: If the plaintiff doesn’t have evidence to support their claim.Affirmed • The ∆s provided evidence from two witnesses that they had seen Bias use cocaine on numerous occasions prior to his death o estate did not try to impeach these witnesses and  instead provided general statements from his parents and coach and drug test results that suggested no drug use.  They should have deposed these witnesses or should nhave provided conflicting evidence from others who would have been at those parties. then they have rule 56(f) to ask for more time Disagrees: When do we want to force our Plaintiff to show their hands? 2. (2) Initial showing made If the moving party has made the initial showing. (a) No advance determination of sufficiency of initial showing However. then why are we even in trial? 1..• And this is all that is required under discovery • Kreiss still wouldn’t have been able to prevail on SJ b. Libby o Must grant SJ if there can be but one reasonable conclusion as to the verdict • Dissent: o Made because they judge is weighing evidence Matsushita Electric Industrial Co. to be prudent. Opposing party's burden (1) If Initial showing not made If the moving party has not made the required initial showing.court granted SJ (1) Drug Use .  SJ is giving the judge too much discretion to blur the line of law and fact  This favors big corporations when they fight small individual parties  Is the job of the Federal Rules to even the playing field?  Maybe not  What about the small parties that cannot afford discovery Do JUDGES DECIDE FACT? Anderson v. v.e. there technically is no burden on the opposing party to make any showing in response to the motion. the opposing party is not entitled to advance notice of the court's attitude toward the sufficiency of the moving party's showing Thus. • Where the record taken as a whole could not lead a reasonable rational trier of fact (jury) to find for the nonmoving party. the opposing party should submit opposing evidence unless he is absolutely sure of the insufficiency. Makes the burden for the Plaintiff high. i. (2) Insurance Policy .  If the plaintiff hasn’t had enough time for adequate discovery. Zenith • The Court implied that summary judgment is proper even when there are equally plausible competing inferences. (b) Attacking showing The opposing party can call the court's attention to other material in the record that demonstrates the existence of a genuine issue In Celotex. this evidence failed to contradict the specific evidence that 2 witnesses saw him using drugs. which should be denied.

Insurance Policy . o In opposition to the motion. Specific evidence was marshaled by the ∆'s. HOLDING: • The court held that the estate was not entitled to reach the jury merely on the supposition that the jury might not believe defendants' witnesses. Drug results 3. Court Says: a. There was enough here for a jury to decide. Johns-Manville Sales Corportation • The decedent installed asbestos fireproofing products.he is making inferences about habitual drug use. but this feels a little fact based. Prior Drug Use 1. ∏ a. they only provided b. a drug user. but the ∏'s evidence did not address the specific point. • The estate failed to do more than show that there was some metaphysical doubt as to the material facts. but the ∏'s evidence did not address the specific point. Coach b. Specific evidence was marshaled by the ∆'s. In response to interrogatories. and • • • • 38 . Not all companies inquire about prior drug use at certain particular stages in the application process. they only provided general evidence b. The manufacturer contended that the widow failed to show that the decedent was exposed to any of its products. (2) the author of the letter could testify to the facts contained therein. Every insurance policy that exist 1986 would at some point would inquire about drug use 2. The court found that the record reflected a direct link between the manufacturer and the product because (1) the letter reflected knowledge of the decedent's exposure to the product and that its maker was a corporation now owned by the manufacturer. the district court properly concluded that there was no genuine issue of material fact as to the insurability of the player. Didn’t create a genuine issue of fact • • Is the judge here deciding fact? Yes . ∆ used Affirmative Evidence for their burden standard a. the widow listed the executive as a witness. ∏ a.Would any insurance co give a policy to a drug user 1. Friends/teammates saw him 2. o The estate didn’t rebut the ∆s specific evidence with specific enough evidence of their own 2 factual issues: i.the estate only showed that insurance companies did not ask about drug use in every stage of the process and failed • to show that an insurance company would have insured him without asking about drug use at all. An all inferences should be made for the nonmoving party. He may be right. ∆ used Affirmative Evidence for their burden standard a. ∏ should have deposed the witnesses or offered testimony of other friends or teammates of Bias ii. Court Says: a. o Bias family was not aware of Biases drug use • Judge is assuming that habitual drug users hide their drug use  But how does he know this? o Bias pasted drug tests • Habitual Users can pass drug tests  But how does the drug know that? • Is the problem with SJ? Or maybe with the substantive law So do we go after the legislature to change the substantive law o Example: woman lost racial harassment case because there were only 3 issue of racial epiphyte So do we want juries to come back into play and decide these issues? Catrett v. Holding: The court held that the manufacturer was not entitled to summary judgment because the record contained sufficient evidence to create a genuine issue of material fact with respect to the decedent's exposure to the particular asbestos product. the widow submitted a letter from an executive of decedent's former employer describing decedent's use of a particular asbestos product.

Insurance Letter Content (what does it prove) 1. Purchase Orders 4. she has 2 yrs… but is that enough when you go up against • SJ is not really rule based anymore. It is almost form language Trial By JURY Civil cases: o o o There is no guaranteed right to a jury trial 7th Amendment gives the right to a jury trial. C's answer to interrogatory 3. Hoff will testify 3. Workers comp testimony 6. Mr. C worked for AJ 2. Why do we care? Everything that each party does is as if there is a jury trial This affects how the parties behave • The threat of a jury trial may make the parties behave • Con-Jury • Not representative of the population o Not diverse • Juries decide off of emotion o Influenced off of subjective prejudice and passion • Juries are not law folks • Inefficient o No training Long and complex trials are problematic • Attention span • High profile • Group think • o Can squash good ideas Nullification • Jurors may not want to be there so may not fully participate • or may decide fast to go home No Predictability • Pro-Jury Judge not representative of the population White men Judge/Jury decide on merits match #'s temper biases Higher #'s = better truth Civil participation Juries are not law folks Don’t want lawyers deciding your fate Collective recall 12 people putting their memories together o Different jurors remember. different items of the trial so that the jury as a group remembers far more than most of its members could as individuals Well rounded knowledge Common sense Judges less of ∆ focus Juries are not part of the government Less corruption Nullification Every case you have a blank slate Not a judge who comes in with biases 39 .waived And admissible if we can see out • way to admissibility Yes . Cleotex is the successor of Panacon Cleotex is liable for all of • Panacon Admissible? 1. 3. Celotex answer interrogatory 5.way more reliance on the paper record • Policy: Is discovery bad? o Do these standards put unfair pressure on the party w/out the evidence? • Think about the little guy o Or is this a lazy lawyering standard? • In Cleotex. .waived at District Court level Yes .(3) the manufacturer submitted documents recording its sale of the asbestos product to decedent's employer during the period of his employ. 4. Type of Evidence 1. Hoff letter 2. and make available to all.defendant's own admission Yes No No These standards put more pressure on SJ standard. 2. 6. Firebar was sold to AJ 4. Yes . Mrs. 5. Mr.

law (tension between jury and judges) • Common law . Are the remedies monetary or equitable in nature? ii. unless the remedy is strictly equitable or the nature of it is  strictly equitable • You can waive a jury trial. Local No. Under the second part the court says it is legal. came up with resolutions other than money: Specific performance  Injunctions  Making someone do something  • Now courts are dealing with law. ii. Usually always have the right to a jury trial. and equity. Teamsters & Helpers. The employees' action encompassed both equitable and legal issues. but rather any lawsuit in which parties’ legal rights were to be determined. The back pay was not money wrongfully held by the union. Therefore. you have to demand it... The relief the employees' sought was not restitutionary.. and you can choose to have a bench trial • 40 . • the right to a jury trial provided by the 7th Amendment encompasses more than the common law forms of action recognized in 1791. Find analogous cases from history b. Terry Issue: Does an employee who seeks relief in the form of back pay for the union's alleged breach of its duty of fair representation have a right to trial by jury? Yes. Two step test: a. as opposed to suits which only involve equitable rights and remedies. Under the first part it is unclear. Compare the action to actions historically brought in England prior to the merger of the courts of law and equity. 391 v. Historical Test i.. To recover from the union. equitable= judge. Examine the remedy sought: legal= jury.all judge made law • Sometimes money does not solve your problem • The equity courts were run by judges. but wages the employees would have received from their employer had the union processed their grievances properly. Holding: • The remedy of back pay sought in the action was legal in nature. and congressional statutes • Step 1 historical test • Step 2 is the functional test (this is the more important test) The remedy  Usually always have the right to a jury trial. you have to demand it. and therefore it was not equitable. Is this issue one that is like a case that would have been decided when the 7th Amendment was adopted iii. unless the remedy is strictly equitable or the nature of it is strictly equitable • You can waive a jury trial. the employees had to prove that their employer breached a collective-bargaining agreement and that the union breached its duty of fair representation. the employees were entitled to a jury trial on all issues presented in their suit. Functional test i. The court says that the second inquiry is more important.Legitimizes democracy People take their civic duty seriously CASE: Chauffeurs. and you can choose to have a bench trial • Equity vs.

The judge gives us several reasons for this: (1) It was an ineffective denial under the Rules. We don’t want to boot people out of court for labeling their motions wrong! That’s the whole point of the Federal Rules! Say the 12(b)(6) is denied. there’s no problem. under 12(g) and 12(h)(1). which tells us that we can still raise this. Is that valid? Nope. But that doesn’t help the defense. But you can’t ignore all the Federal Rules of Civil Procedure to get to that result: so the judge says that it’s an ineffective denial. But 12(h) also says that the issue can’t be raised in another Rule 12 motion. If you don’t do them first. Nothing happens on its own! You must raise the issue.Hypotheticals My opponent files a 12(b)(6) motion for failure to state a claim. But we can see how this fact colors the procedural ruling. they can raise the defense. typically judgment on the pleadings or summary judgment. If you make a Rule 12 motion. you can say that too. No good. Think of Rule 12 this way: you receive a complaint. and this is why you try to delay doing an answer. This is technical. It must be raised in a different way. based on 12(h)(2). The Rules are designed to encourage you to do certain things first. which insures both PPI and CCI. A proper denial would have broken down the component parts. like in a judgment on the pleadings or later on at trial. The issue is still alive. As a practical matter. (2) The judge finds that there was no bad faith. There are strategic choices that you can make. the courts allow you to raise this issue by motion. So I respond to this by filing a motion to deny the 12(b) motion on the grounds that it’s been waived by 12(g) and (h)(1). neither defendant will pay the judgment. Here’s what you should do: think about the universe of possible things you might be able to say about the complaint. you lose everything else unless it’s saved by Rule 12(h). The insurance company will pay. That part explicitly gives us the hierarchy. You must use these defenses either before your answer or in your answer. and there are bad choices you can make. It seems like a harsh penalty. Then you have to figure out what you must do now in order to not waive it. you must do so piece by piece. but in reality it may not be since the insurance company pays either way! Joinder Rule 18 tells us that they can join as many claims as they want against the same person! So if you’re just looking at the Federal Rules. or else you can never raise it on appeal (unless it’s subject matter jurisdiction). which would have been a signal to the plaintiff that the plaintiff sued the wrong party. Say the other person files the 12(b)(6) and it gets denied. essentially. but then they file a 12(b)(7) for failure to join an indispensable party. But what if they had their 12(b)(6) denied and then tried to do 12(b)(5). the judge will probably be willing to recharacterize the motion as a motion for judgment on the pleadings. Then they file a 12(b)(3) motion to dismiss for improper venue. 12(g) says that you have to raise this objection along with your other Rule 12 motions. 41 . 12(g) says bring them all at once or lose them! What if they had their 12(b)(6) denied. That’s where the case comes from. But the amendment option won’t help you much in general. Realistically. and then they move for the 12(e) motion for a more definite statement. Denials are back in Rule 8. which means. we’ll do denials and affirmative defenses. By practice. So you already waived your 12(e) motion. Denials So we have to do our answer 20 days or later. but it must be done in some other form. This is often a consideration when judges decide what to do on the pleadings. Can you save some of the stuff for a motion for summary judgment under Rule 56? You can present challenges in a lot of different ways. you automatically admit! So be careful! The end result here is that the court requires that there is a deemed admission that PPI is the owner of the forklift. You can either admit or deny the averments. Rule 15 tells you that you can amend your pleading once before the answer comes back. When you can only admit or deny part of the allegations. If you notice your mistake quickly. you’re going to lose them. What if the other side just goes ahead and files a complete answer? Then they want to move to dismiss for improper venue. What really underlies this case is the party in interest here: the insurance company. you’ll be able to catch it. In the answer. Do you have a plausible subject matter jurisdiction argument? What about personal jurisdiction? What about venue? What about process or service of process? Is there a claim? Are there parties that need to be joined? Could you get judgment on the pleadings? Think about all the stuff. labeling it something different. If you don’t have enough information and you’re not sure. but they can’t make the motion. It’s a painstaking process! If you fail to deny. 12(g) doesn’t say anything about an answer! It only says that if you make a Rule 12 motion. What can we do? They can raise the defense. Can they do it? Nope! Rule 12(h)(1) says that the defense is waived if it’s omitted from the answer. The plaintiff could have then amended his pleadings. they’ll be subject to liability if it can be proved that they were negligent. What do you do? They can’t file it! They’ve already waived that defense due to the combination of 12(g) and 12(h)(1). you waive everything else. it will be denied. but then they come back with 12(b)(1)? The defense is preserved! Can they do the 12(b)(1) motion? No. So it doesn’t really matter who gets sued! The liability will pass through. The court denies the motion.

but we won’t get into that. You need multiple defendants to be able to testify! Here. It’s a single cause of action with one plaintiff and multiple defendants. the plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases. The plaintiff says: 42 . These transactional tests that were in force in the claim rules are more rigid when we look at the party side. and can put on evidence that the other guy did it. But they said that if they are liable. Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation. really. but then you and your friend get hit by an Upper Arlington school bus. whatever that means. This is so common that the insurance company usually comes in directly and controls the litigation because they’re the ones who will ultimately pay. so the counterclaim would probably be okay under Rule 13. Misjoinder doesn’t lead to the dismissal of the actions. This is most often seen in an insurance case. Andy gets assaulted by Blair. There’s nothing fancy about the lawsuit. but Blaine. but a plaintiff can bring in a third party when a counterclaim is asserted against the plaintiff. It’s a very liberal rule that allows you to join people together. It’s basically just a reciprocal rule. it can be done under Rule 14(b)! It’s a lot shorter than 14(a). What if we have a counterclaim by Latco that Price never paid for the chicken coop? Can they bring the counterclaim? This is like Plant. but you can’t implead him. though. This is unusual. but others will fail due to poor drafting. This is no liability! Blair claims a defense. in Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”. Is not paying for the chicken coop related to the cause of action for defective production? We look at our logical relationship test. You call a friend who picks you up and takes you to class. Here. A defendant. Could ITW implead the steel company that provided the steel for the nails? Let’s check the Rule: is there any reason why we couldn’t do this? The Rule is designed to bring in parties to whom you may be liable derivatively. The key is that you can only implead them under Rule 14 if the liability is derivative. but rather severing them and then letting them proceed separately. RULE 14 Impleader is not to be confused with interpleader or intervention. The Court of Appeals doesn’t have to accept the interlocutory appeal. Could you file both claims against the city of Upper Arlington together? Does this arise out of the same set of facts? Just because you have a common defendant doesn’t typically mean that you’ll be able to join your claims together. In general. Complex joinder Let’s do some problems to help set the stage for these issues and how they play into the supplemental jurisdiction statute. Consider the original set of facts. There’s a bunch of stuff about Alabama tort law. Could the farmer turn around and implead the bank for failing to pay the bills? Sure. Rule 20(a) isn’t that active a rule in federal litigation today. and it looks like it’s the same transaction. It’s an efficiently rule. you would have to do two separate suits. There isn’t a lot of litigation over this rule. There are a lot of tools to sort through the complexities of this rule without litigation. You don’t have to admit that you’re liable. The coop isn’t being paid for because it’s defective. or both! These situations are pretty much the same. Is the “nail as to steel manufacturer” lawsuit any different than “chicken coop as to nail”? No! You can string these along for as long as you want as long as you have a derivative liability relationship.. and Blair’s defense is that it wasn’t him that did it. He thinks it’s defective. we had two separate accidents. The impleader rule. and Latco probably said they weren’t. Blaine should be a co-defendant or alternative defendant. bad nails. They don’t want to screw up and then have to try the whole case over again. But maybe “bad chicken coop. doesn’t have a lot of controversy either. This case talks about who the defendant can bring in. If we erase the defective coop claim and have Latco sue on the unpaid bill as to the plaintiff. Some of these claims will get in under supplemental jurisdiction. It’s best considered as an efficiency rule. Rule 14. Can Blair implead Blaine under Rule 14? This is not derivative liability. If you’re responsible for an accident and get sued but you’re insured. But the court can still choose to sever these cases if they think that’s most fair and efficient. oversight. It’s debatable. and we usually think of this rule as a defendant’s rule. you’ll implead the insurer. Say we have a single plaintiff who buys a car from a dealership. the liability goes to the third party. Price is acting the same way in that lawsuit as the defendant as he is here as the plaintiff bringing in a third-party defendant related to the counterclaim. bad steel” is an efficient trial package.Joinder of parties Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you. Can ITW implead into this case? The court lets them in. The court can also use Rule 42 to do this: it allows for both consolidation and separate trials. There are some limits on joinder of claims and parties. That’s a perfectly good example of derivative liability. Unless you’re alleging a city policy that they only hire negligent people. You want the claims joined so you can see a pattern of bad treatment by a common defendant. He sues both the dealership and the manufacturer. But it did here. though.

If it were a compulsory counterclaim. What makes the statute difficult is that this is the general grant of power that is then restricted as to certain types of claims brought in certain types of ways. which owns the lines and sold them. then the dealer would have to bring it or risk losing it under preclusion doctrine under Rule 13(a). Then there’s the people who leased the crane. If it’s a permissive counterclaim. and all that’s left is the claim against Owen. Everybody would think to sue the employer first. Why can’t we do that here? The lower courts try to stick it to Owen due to deficiencies in their pleading and strategy. Can the dealer countersue the plaintiff for not paying for the car? Yes! You don’t need the same transaction or occurrence. you must read this Rule as being limited by other Rules that add more specificity. But there is testimony that Owen actually has its principal place of business in Iowa! Diversity is smershed! We have Iowa on both sides of the “v”. Two years later. If this was the only Rule you were looking at. you would screw up a lot! You have to view the Rules as a system and be guided by the principles that are involved in the construction of the Rules themselves. Owen gets involved under Rule 14. sues for wrongful death. What messes things up is that once Owen gets brought in. you may not have other options because you weren’t the master of the complaint. After summary judgment. The specific always trumps the general. but there’s no transactional relationship! They have to file a separate lawsuit. What if the manufacturer wants to raise the claim that the defect was the dealer’s fault and not their fault? They just file their Rule 8(b) answer. depending on whether it’s a permissive or compulsory counterclaim. including at trial. Kroger. where we interpret the statute to mean that you can’t have a party on one side who is from the same state as the other. but they deny every other allegation.C.“One of these two defendants or a combination of the two is liable. It’s a truthful but not forthcoming answer. Kroger – Yeazell starts with the Circuit case to work us up to the Supreme Court case. which has the same language. The general rule is that there is supplemental jurisdiction over claims and parties that are part of the same case or controversy in a constitutional sense. Justice Stewart says that this is different from the Rule 14 issue in that here we have a non-federal claim asserted by the plaintiff that could have all been brought in state court. What do we do? Isn’t this just a Zielinski issue? The court in that case considered it “deemed admitted” that the defendant owned and operated the forklift in question. theoretically the court has no power over the defendant. The only problem that messes this up is if you have jurisdictional issues that make joinder cumbersome. and he got electrocuted and he died. it’s discovered at trial that Owen has its principal place of business in Iowa! We have jurisdictional problems! A plaintiff may assert any claim against a third-party defendant that arises under the same transaction or occurrence. Who would we rather sue between Owen and Omaha Power? Who is more involved in these events? The plaintiff’s lawyer chose to sue Omaha Power. but it’s precluded as a matter of substantive law by worker’s compensation. It was an on-the-job injury. What’s going on in the underlying lawsuit? Kroger was employed by a steel company. which doesn’t require anything except that you have any claim against the opposing party. Omaha and Kroger were from different states. If the court doesn’t have subject matter jurisdiction over the case. The widow. We could sue the employer! That would be a great option! He could sue the Omaha Public Power District. everyone thought that Owen was a corporate citizen of Nebraska. Statutory jurisdiction comes from 28 U. You’re just denying your own liability.C. v. The dealer can file a cross-claim! Rule 13(g) lets you do it. The Rules tell us that subject matter jurisdiction can be raised as an issue at any time. § 1332. Owen responds to the third party complaint. It doesn’t say anything about complete diversity. the federal courts are courts of limited jurisdiction. The Supreme Court views it as a diversity issue. admits that they are a Nebraska corporation. Maybe the manufacturer is contractually obligated to indemnify the dealer. But decisions like Strawbridge give us the rule of complete diversity. You want to bring claims and parties that seem to come out of the same events together because it appears to be an efficient trial package. Why wouldn’t Rule 18 help us? It says that you can join as many claims as you have against anybody you want! The Rules are a system. What does OPPD do? They implead Owen. Maybe the facts weren’t as fully developed when the plaintiffs brought the suit. where you put your denials and defenses. The suit was filed as a diversity action. They were moving a crane. It’s all a matter of whether the court will give substance to that rule of law or try to ease out of it. the power company has dropped out. That’s an efficiency rule. At the time the impleader action was filed. There’s nothing else special that you have to file.S. How do we balance a Rule that says this is a favored defense against the charge that Owen was trying to be manipulative and mislead the other party until the statute of limitations had run? What should the court do in this situation? On the one hand. But recall the source of diversity jurisdiction: Article III gives the federal courts power to try cases “between citizens of different States”. Who can we sue? We ought to be able to sue somebody. Owen Equipment & Erection Co. It’s difficult. it will pass through to the crane operator. Impleader could bring them in as a third-party defendant. Why did the plaintiff make that decision? They ultimately bring a claim against Owen. Rule 14(a) would have worked if the manufacturer hadn’t already been in the lawsuit. who is ultimately liable for the injury caused. What if the manufacturer wants to assert a claim for non-payment of other vehicles other than the one that’s allegedly a lemon? The only way that the manufacturer could make this as a cross-claim would be to use 13(g). Subsection (b) takes away certain types of jurisdiction. Even though this Rule says that you can bring any cross-claim you want. Owen.” Let’s say the dealer wants to file a claim of indemnity against the manufacturer. The idea is that if OPPD has any liability at all. When you use impleader. All of this answer that we get from Owen v. There was no subject matter jurisdiction problem. Kroger is later codified by the supplemental jurisdiction statute: 28 U. Mrs.S. or the plaintiffs’ lawyers didn’t do their homework. the plaintiff amends to add a claim directly against Owen. You can’t get supplemental jurisdiction when jurisdiction is based only on 28 43 . This includes joinder of additional parties. which is part of what state tort law does. § 1367. you can do it under 13(b).

then they had better be brought in. because the plaintiff was acting as if it were a defendant. There is a plate and screw device implanted that broke. But. or the person could be subjected to multiple or inconsistent obligations in their absence. and if they can’t be brought in. It doesn’t make any sense for them to be precluded. In Rule 19(b). It’s a joinder of parties rule. There are concerns about this. and you don’t have supplemental jurisdiction over claims made by plaintiffs against third parties. Synthes Corp. allows you to bring in essentially everybody. permissive joinder. Rule 20.C. so there’s no problem! What if Kroger had a federal question claim she could raise against Owen. If you don’t fit in part (a). This is the so-called “gaping hole”! No court has ever allowed this to go forward. you never get to part (b). then there might be a chance to implead them. So why does Synthes want them involved in the lawsuit? If the plaintiff loses the federal suit. If there was a contract between Synthes and the doctor and hospital. The defendant says that the lawsuit must be dismissed because there aren’t enough defendants to sue! The motion to dismiss is based on non-joinder of the hospital and doctor. then they’re necessary parties. Therefore. Let’s say the plaintiff uses Rule 20(a) to join another co-plaintiff from Texas who then turns around and asserts another state negligence claim against the Texas defendant. If complete relief can’t be given to the people who are already parties without another person. – This case is trying to tell us that the Rule has two parts in a sequence. they would have included this situation. Rule 19 is talking about when people have to be brought in. Temple v. Kroger. you don’t have supplemental jurisdiction. Synthes is a Pennsylvania company. why didn’t they just implead them under Rule 14(a)? Because impleader must be based on derivative liability. and sues the doctor and hospital in state court. Could Temple have brought everyone into one lawsuit? Sure! It’s the same transaction or occurrence. but it’s used by defendants to get lawsuits dismissed.S. § 1332 (diversity jurisdiction) and when you’re trying to join up people (in certain ways. This lawsuit could go forward. So the intent of Congress was to codify the result of Owen v. all the claims arise from the same case or controversy. it must be okay! If that’s okay. But this is a claim by a defendant. which doesn’t fall into any of the § 1367(b) excluded categories. he doesn’t necessarily lose the state suit. Do we have to dismiss the lawsuit when we lack a person? There are certain factors the court considers: (1) the extent to which a judgment will be prejudicial to parties already involved in the lawsuit. (2) whether the judgment will be adequate without that person’s interest being represented. We have to think about strategy here. what the court should do. but it’s more efficient to put them all together. We could have three different cases if we wanted to. 20. If their relationship to the lawsuit is so important that the people in the lawsuit can’t get relief or they would be hurt if they’re not brought in. The plaintiff has spine surgery. so it’s good! What if Owen sues Kroger for vandalizing the crane? The defendant can certainly plead that claim. according to § 1367. as long as you’re within certain categories. The guy with the hurt back is a Mississippi resident and the hospital is in Louisiana. who arguably must be joined. So (a) says that you have supplemental jurisdiction over claims and parties. But if Synthes wanted the doctor and hospital in the suit so bad. though. It’s a claim by a third-party defendant against a plaintiff. There’s personal jurisdiction in Louisiana because the state and federal court cases are filed there. like Rule 14. and § 1367(b) wouldn’t get in the way because it’s not the plaintiff’s claim. Compulsory joinder – Rule 19 This has also been described as joinder of “necessary and indispensable parties”. 19. The plaintiff chose to have two different lawsuits going on about the same subject matter in different forums! There’s no problem with personal jurisdiction for filing both suits in state court in Louisiana. The original lawsuit is okay.U. Rule 19(a) determines whether they’re a party that is necessary for complete adjudication. but Fairman says that the statute doesn’t allow this. Kroger is still a plaintiff! It looks like the wrongful death claim is still a claim made by a plaintiff against a person made a party under Rule 14. and (3) whether the person will still have a good remedy if you dismiss them for non-joinder. Say we have a plaintiff from Ohio with a state negligence claim against a Texan. How did they do? In Owen. Subject matter jurisdiction would be diversity: Mississippi versus Pennsylvania and Louisiana. and 24) who would destroy complete diversity. What about OPPD’s claim against Owen? The statute generally says that we’ll grant jurisdiction for anything that comes from the same case or controversy. This can’t be possible! This is the absolute subversion of complete diversity. What’s the risk that the defendants are facing when they’re separated? They could both get hit because it’s two 44 . like a federal statute about the operation of cranes? Could she bring that claim? § 1367 says this isn’t based solely on § 1332. decisions like Strawbridge don’t allow it. this is allowed! This is a claim made by a party joined under the Rules against the defendant! Weird! It’s not a claim by a plaintiff against a person made a party under Rule 20. It has always been rejected on the ground that it’s so gross a violation of the concept of complete diversity that no matter how clear the statute seems on its face. then you add someone later who will mess up complete diversity. can Kroger then bring the wrongful death claim? Is it a compulsory counterclaim? Check out the statute. but there’s no basis for derivative liability on the facts that we know them. but it’s a diversity case. Who do we sue? The plaintiff sues the manufacturer in federal court. This is one of the big problems of the statute: plaintiffs’ defensive claims barred by § 1367(b). the court has to decide whether the action should proceed or be dismissed. It’s a claim by a plaintiff against a defendant! Had the drafters of the statute thought about it. There’s a Rule 12(b)(7) motion to dismiss! This tells you something about Rule 19. Yeazell says that Kroger is now acting as a defendant. but (b) says that if you don’t have diversity.

You need to find a “home” for yourself in Rule 19(a) before you get to the balancing test in Rule 19(b). What about impeding the kids’ interests? It may depend on how we classify the various interests. it must be widespread. There is a breach. and the buyer wants specific performance. a husband and wife own land a buyer wants to buy it. and experience has shown that they were basically right. Some said that these amendments wouldn’t lead to much change. The Fifth Circuit was so careful in its analysis that it didn’t even read the notes to the Rule! Joint tortfeasors are not necessary and indispensable parties! There aren’t that many parties that are truly indispensable. but that was seen as too broad. the complaints are deemed properly discoverable. parties that have to be joined? It’s not even a close case! The district court went immediately to Rule 19(b) to look at the prejudice factors. represented parties and limited pools/multiple claimant. depositions. That’s wrong. because the dad could ask for some kind of relief that would affect the income stream at the expense of the remainder of the corpus of the trust. and a magistrate judge is writing the opinion. Other examples would include people with joint interests in property. 45 . we had our last series of changes to the Rules related to discovery. however. it tends to show that there is widespread hostility. interrogatories. Are the kids Rule 19 parties? What if the kids are already adults? Can complete relief be given in the kids’ absence? Sure. Precoat Metals – This case takes place in the Northern District of Illinois. and requests for mental or physical exams. and it can sort it out itself. The kids are Rule 19 parties. which tells us that joint tortfeasors are never indispensable parties. The intent is to limit discovery. and we learn this from the Court of Appeals. joint obligors/obligees. The conclusion is that Lord’s is a Rule 19 party that can’t be joined. Under Rule 26(b). In this case. or other potential parties. There was no question that its interests would be impeded if Lord’s was in the case. We left off with Rule 19 and “necessary and indispensable parties”. Let’s say for example. which would in turn affect the kids’ remainder. it turns out that Synthes had such a close relationship with the doctor and hospital that they thought it was unlikely they would point the finger at each other. requests for admissions. the court skipped over the (a) inquiry altogether and went to the (b) inquiry. the court decided that the mall got itself into its own mess. How does the Supreme Court deal with this issue? Are the hospital and doctor. If they meet this category and can be joined. Discovery – Rules 26-37 Discovery is the method by which a party to a lawsuit. requests for production. obtain information and preserve it for trial. they circumvented the Rule. By avoiding the threshold question. should the action proceed or be dismissed? You could also transfer to another venue that would be more appropriate. We ended up with Helzberg’s. They used to relate the scope of discovery to the “subject matter” of the action. but. parties may obtain discovery under any matter not privileged that is relevant to the claim or defense. and the dad wants to sue the trustee for trust abuse. The court could allow the lawsuit to go forward if it could cobble together ways to limit the prejudice against the parties. In this case. used to get people to comply with the rules of discovery. Will there be multiple or inconsistent obligations without the kids? No. But we know that a husband and wife would be indispensable parties for this purpose. Another example would be when there is a dad who set up a trust for himself and his kids. you would want both defendants in the same lawsuit because they’ll make your case for you. as the manufacturer claims. Without the wife being there. Davis v. but they failed to make a determination under Rule 19(a) that they were necessary to begin with. Rule 37 is the sanction motion. These judges handle a lot of discovery matters. In the end. This case comes up before the court on a motion to compel under Rule 37. This is what the Rule was designed to bring in as discoverable! What would have happened under the old “subject matter” Rule? It would have been the same. according to the Supreme Court. Is the wife going to be a Rule 19 party? Is the wife a necessary and indispensable person? There’s no way on these facts that the buyer can get specific performance of the land contract if it’s jointly owned by the husband and wife. they are joined. Rule 19(a) says they must be someone you can’t go without. What information do the plaintiffs want? They are trying to get information about other employees’ complaints. This is something brought up by the defendant trying to get out of the lawsuit rather than the plaintiff trying to join other parties. the court can’t adjudicate the wife’s half-interest in the land. But the problem is what happens if they destroy jurisdiction. the lawsuit is allowed to go forward. He enters into a contract with the husband only. There is no question that the other jewelry store is a necessary party. The Rules were changed to indicate that the scope of discovery should be defined to claims and defenses as served in the pleadings. African-American and Latino workers sue this company for Title VII violations. They sue the mall. They complain that they were discriminated against and that they experienced a hostile work environment. not the other jewelry store.different causes of action! Typically. What’s the discovery problem? The Navy was deposing him and wanted to know if he had engaged in homosexual conduct while he was a midshipman. Cheney – Steffan was “constructively discharged” from the Navy for proclaiming himself gay. Discovery includes rules related to disclosures. Are other people’s complaints relevant to these plaintiffs’ claims? The key is that to have a hostile work environment. There are lots and lots of rules with lots of detail. So if there are other complaints. The discovery process is one of the most important innovations of the Federal Rules. Steffan v. In the first case. Factually. In 2000. as a plaintiff. in equity. as long as there is no jurisdiction problem. and it’s hard to see what the big change is in practice.

The mechanic might be a good witness to claim that the car was in good working order. and that’s why there is so much litigation over discovery disputes: there is so much to work with. He has information that he was about to be fired from his job. We left off talking about Rule 26. Steffan argues that the questions that he’s being asked are not relevant. at which point the standard for review is whether the discovery ruling caused you to lose the case. There is also another eyewitness who will claim that Albert is at fault. She has a mechanic and a boss. You do want to find out how much money people have. He has wage statements which are used to support claims of lost wages. What if your claim is for an intentional tort? Because punitive damages are part of the law that goes along with the intentional tort and part of the recovery that you request. So most action on discovery is at the district court level. The original administrative proceeding was based only on his statements and not his conduct. But this is a civil suit.C. The only reason there is a right to appeal on this discovery issue is that he’s been poured out of court entirely. she could plead the Fifth Amendment. Compare this to the previous case: there was no appeal of the discovery ruling until the entire case is finished. Is it relevant? Of course. Though usually there is a confidential relationship between doctor and patient. They also file a request for sanctions (including simply dismissing the case). not because of any conduct. You must show a calculation of your damages. and the amount of money that the person you’ve sued has to pay you if you win is not one of the elements of negligence and is thus not discoverable. Disclosures Rule 26(a) deals with disclosures. Why can she use that privilege? Even though this is a civil case. anything that’s not privileged and is related to claims or defenses is discoverable. because it’s not relevant to whether she was negligent. what is said in the civil case is a statement that can be used in other actions. against Barbara. What does the Navy do? They file a motion to compel Steffan to answer. You must disclose any key documents you’re using to support your claim or defense. He has a poor driving record. Circuit. Steffan claimed that he was discharged because he said he was gay. Is this good policy? It drives up the cost of litigation because discovery is. civil or criminal. even though such agreements aren’t typically admissible as evidence. Date counting is very important! Prior to the 2000 revisions. Evidence as to discovery is a case-specific issue. 26(a)(1)(D). The claim is for negligence. Albert wants to discover how much money Barbara has. But what about the drunk witness? We’re not sure whether we want to use that 46 . We don’t want to disclose the boss. and the case is dismissed. You also have to provide copies of any insurance agreements. Basically. Steffan refuses to answer. It’s not because it’s relevant to the claim or defense. Can he do that? No.Steffan refused to answer on Fifth Amendment grounds (which you can do in a civil matter as well as a criminal matter). Albert sues Barbara for negligence. Albert put his own health at issue: he can’t hide behind the privilege and not have to answer questions. This is precisely where you want to raise the Fifth Amendment to avoid offering up free incriminating evidence to the state. courts will find that how much money the other person has is relevant as to punitive damages. She’s not being tried of anything. The district court judge doesn’t buy it. He probably has to fork over both the medical records and the wage statements. that says you are required to disclose whether you’re carrying insurance. You must disclose the contact information of people who might have useful information. why can I get your insurance coverage information? There’s actually a Rule. Let’s say Barbara gets asked in a deposition whether Barbara intentionally hit Albert. This is why when you sue a company for an intentional tort you get to find out how much the company is worth: you craft a punitive damages award that will hurt them. All of this stuff must be coughed up within 14 days of the Rule 26(f) conference. How about Barbara? She has an insurance policy. the most expensive part of the lawsuit. But that eyewitness has substance abuse issues. The witness must be mentioned if he will be used. It can give one side a strategic advantage in the lawsuit. the disclosure Rule was optional. He appeals his dismissal on the grounds that the discovery ruling and sanction were wrong. The Court of Appeals says that the question is not relevant. by far. Privilege Say Albert sues Barbara for an intentional tort. such as the contract in a contract dispute or a codicil in a will dispute. A hypothetical We have Albert and Barbara. Let’s say that Albert has medical records that will support his injuries and damages. Then he appeals to the D. this will probably be an exception to that privilege. It’s relevant. What if the defendant is insured and you have a simple negligence action? If I can’t find out how much money you have in the bank. Who and what do we disclose? Barbara must disclose her insurance policy. The Rule here says that discovery is relevant if it relates to claims or defenses. Is this information privileged? Is there a privilege that might be raised? Sure. Let’s say Albert is claiming damages for emotional distress. She had a fight with her boss on the way to work. Now it’s mandatory and it actually plays a role in answers questions of what is and is not properly disclosable at the start of a lawsuit. Does that make sense? Are they splitting hairs here? They take a very narrow view of the “claims or defenses” standard. but rather it’s so integral to this lawsuit that we force you to disgorge the information as soon as the lawsuit is filed. and virtually every District Court opted out of enforcing this Rule. Let’s say Barbara’s counsel wants to question Albert’s doctor about his emotional state.

but not on these facts. The typical sanction under Rule 26(g) will be the fees associated with having to respond to the request. but also the party’s consultant or other representative. But at the end of the day. Upjohn Co. evidence can be banned. and was prepared in anticipation of litigation. Who does this Rule apply to? It applies not just to the party’s attorney. They must show some reason why the other attorney’s work should be available to them. Rule 26(g) is kind of like a mini version of Rule 11. Norman Hickman is one of the guys killed. The customer thinks she’s made a deal. you usually get it. If it’s not privileged. What disclosures would we have to make? We wouldn’t have to disclose anything. is it relevant? Yes.g. These are the statements of people who would know best what happened. but they may not create any burden in a particular case. who is employed by the tug boat company. witness statements in some form. But note that Rule 11 doesn’t apply to discovery. The Court doesn’t establish a set rule. the court will protect the lawyer’s mental impressions in constructing an order of discovery. and then you think it’s still too soon? You can use Rule 26(c) to get a protective order to try to prevent the use of the deposition because you think it’s premature. He made notes about what they said. You might be able to defuse a discovery dispute that will be enflamed by filing a protective order motion. Even then. The intersection between Rules 37 and 26 These are both tools that may be used in certain contexts depending on whether the facts of the situation make each Rule applicable. But what makes this material special and allows it to be treated specially? It’s attorney work product. (But to whose advantage is such strategy? The client? The attorney? “Justice?”) Hickman v. what does the plaintiff have to disclose? The plaintiff would have to disclose some kind of damage computation. The information would otherwise be discoverable. but the salesman doesn’t agree. You use Rule 37 when the other side fails to disclose something and they try to introduce it at trial. A party may obtain discovery of documents and tangible things otherwise discoverable prepared in the preparation of litigation only upon a showing of substantial need. We don’t want to just protect the top of the hierarchy. The customer sues for breach of contract. but it did stop the use of the “Control Test”. United States – Who is the client in the corporate context? The “Control Group Test” protects communications by decision-makers or those who influence them. A party might not be able to get this statement. The attorney declines. Just because you spent a lot of money finding a witness. timeliness). If it’s not privileged and it’s relevant. There are more bad things in Rule 37(b)(2): facts can be deemed established. If someone isn’t a party to a lawsuit. There’s this attorney. then they don’t get to use the person or fact in the trial. Fortenbaugh. He talks to the survivors and other witnesses. but you don’t have to give up exactly what they said. but the important stuff is that you need to look at both Rule 37 and Rule 26(c) and (g). We left off discussing compliance. Why not? The Court says that it’s not protected from discovery. On the other hand. claiming that the memos are privileged.witness or not. They could have just gone out and done these interviews themselves. or is it better to object and wait for the other side to file motions to compel and then raise the same issues you would raise in a protective order? Yeazell says that it’s better not to rush for the protective order. but maybe we would say that the salesman himself is a person with knowledge of claims and defenses. they don’t get this. Taylor – This is a much more broadly focused case and it establishes some larger issues. which provides any employee with privilege as long as the matter is within the employee’s performance of their duties. Rule 37 says that if they failed to disclose. What about the mental impressions of the lawyer as a result of the other witness investigation? The Court says there is no legitimate purpose served by having this information discoverable. If you’re going to use the witness. they can obtain a statement that they made previously. Is it better strategically to seek protective orders to prevent having to answer discovery. There were some tug boat guys who got killed. We could go over a lot of different problems. Are the things that we don’t disclose not discoverable? They may be discoverable even if it’s not necessary to disclose them. you still have to cough up their name. you must disclose the witness. There was no effort on the part of the requestors to get this information themselves. Rehnquist says we want to encourage frank communication between attorneys and clients. If the material is otherwise discoverable and doesn’t relate to experts. Rule 26(b)(3) talks about trial preparation and what may or may not be discoverable. This lawyer interviews witnesses to prepare for trial. Say your client is a used-car salesman. What if we wait until after the discovery conference. but a non-party can get it for you. But he ends up going to jail for contempt! Are these documents really privileged? We’re told that these memos fall outside of attorney-client privilege. the Court tells us that there may be some way to get this information. 47 . An alternative test is the “Subject Matter Test”. Why aren’t these discoverable? As to these witnesses. then you can’t get discovery of that information unless the discoverer can show some substantial need and there is no reasonably available substitute. If you find great eyewitnesses. You could also list yourself as a person with knowledge of the claims and defenses. So disclosures are mandatory. and pleadings may be struck. There is an interrogatory from Hickman to provide the notes from these interviews. v. There are sanctions imposed for an attorney having signed discovery requests that are “bad” for whatever reason (e. There are two types of information: first. you must give up the name of who you found.

A mandatory discovery conference may be required under Rule 26(f). Kress & Co. – At trial. On summary judgment. You’ll encounter a person who doesn’t want to disclose information even if it is explicit required. The case goes up to the Supreme Court on that issue. When you look at the pleadings. that Catrett was exposed to the defendant’s asbestos. Fairman has also used short-answer. around 70% of them. People don’t want to disclose stuff that would be bad for your client. Rule 12 motions dispose of a certain number of cases. Default judgments can cause the end of suits. The case will be dismissed. Adickes v. period. what makes you think you’ll be able to do it at trial?” The case goes up to the D. which reverses. Celotex Corp. that is. They claim that this plaintiff has proved that he was exposed to their particular type of asbestos. At the core of discovery is the fear of abuse. But if you can make a minimal showing. That may be the same as who has the ultimate burden of proof. The defendant. Initial disclosures under Rule 26(a) are designed to solve the problem of too little discovery. Circuit. to prove that he wasn’t exposed to Celotex asbestos. motions to compel. S. you can get summary judgment against a party if they fail to establish an element that was central to their case and on which they would have the burden of persuasion at trial. That’s because there’s no information that the plaintiff came forward with that can show exposure to Celotex asbestos. Sometimes millions of pieces of paper are disclosed. problem-type questions to test discovery. and that it caused his death and damages. even though there are many. There should be old exams on file now. But there probably won’t be a pending case that deals solely with a discovery issue. non-privileged stuff. every document you sign is signed in a “Rule 11” fashion. By Rule 26(g). and you can also get a protective order under Rule 26(c) to prevent having to respond. There may be too little discovery (or the “stonewall position”). in essence. The defendant responds by admitting they produced asbestos. Rehnquist suggests that this Rule operates much like Rule 50 (judgment as a matter of law). Facts can be deemed established: even things that aren’t true! Evidence can be banned. There are three typical discovery abuse problems. When 48 . Summary judgment – Rule 56 Don’t mix up the “burden of production” and the “burden of persuasion”. Resolution without trial There are fewer and fewer actual trials. saying basically “if you can’t do it now. Celotex moves for summary judgment on the issue of exposure. you’ll clear Rule 56 and have the chance to get before a jury.Discovery disputes We can get protective orders that can prevent you from having to disclose information.H. There are certain categories of information you must give up. The burden of production is the obligation to go forward by producing some evidence on an issue. This case more or less moots summary judgment in federal court practice from the defendant’s standpoint. v. You can be held in contempt. You can also get motions to compel under Rule 37. They don’t explicitly overrule Adickes. which is the obligation to convince the trier of fact to some level of certainty of the truth of an issue. Finally. you can’t come up with any evidence of something you have to prove at trial. there is the problem of too much discovery. If the plaintiff can make a showing. then there’s no reason to try the case. There are compliance Rules in 26(g). or rather. the data is about the same. and ADR are other options. Pleadings can be stricken. There can be an ethical question here. There are Rule 26(g) sanctions. The burdens to prove that the plaintiff can’t win would be so heavy that you might as well try the case. That’s a burden they would have at trial as to causation. If a proper request is made for relevant. there may be attorney fees and expenses awarded regarding the discovery at issue. the complaint alleged that the defendant manufactured asbestos. These become the “big sanctions”. Next. The court says that there was no evidence that the plaintiff was exposed to Celotex-brand asbestos. the defendant’s burden was to show that the plaintiff could not prevail at trial. dismissals. and of course the right to appeal. the plaintiff had the burden of production and persuasion. Judges can intervene to prevent something from going forward in a lawsuit if plaintiffs cannot meet a minimal showing with the production burden. But when will the right to appeal kick in? It will frequently be way too late. though. but denying basically everything else. that the asbestos was unreasonably dangerous. Most cases are state cases. you can limit the scope of a discovery request. many more cases! The data that Fairman is showing us is just for federal trials. if there’s nothing the defendant can say. If after discovery. Catrett – Here’s a wrongful death claim. the plaintiff will be entitled to judgment as a matter of law. But that may or may not be responsive. And when we look at what happens in the states. It also provides other specific “tiers” of sanctions under Rule 37(b)(2). you must cough it up. There are ways to control this: under the general Rule 26(b).C. The exam will be based on pending real cases. big sanctions. Otherwise. had the burden of production and burden of persuasion. The district court grants summary judgment to the defendant. the burden shifts to the defendant to make some showing that there is an issue of fact for the jury to decide. The defendant had to prove that the plaintiff couldn’t win. saying that the burden of the moving party (Celotex) required it to support its motion with affidavits to negate exposure. Summary judgment. Lots of cases settle. You certify that what you’ve done is complete and in good faith. Rehnquist says that after a period of discovery. There are also limitations in Rules 30 and 33 on depositions and interrogatories. but you have no choice under the Rules. the burden of persuasion.

49 . As to that motion. the burden of production then shifts back to the plaintiff. They get their last chance. When they do that. it has to say that the plaintiff failed to produce evidence as to the exposure. Now’s the time they must come up with any evidence.Celotex files its motion for summary judgment. Celotex has the burden of production.

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