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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
(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
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
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.
waiving service doesn’t waive any of your defenses (except of course process and service of process). As a plaintiff." Failure to deny an allegation in a required responsive pleading. So there’s nothing to lose! Rule 4(d) tells you how you go about doing this." • • • You need to admit or deny. Rule 8 commands that "denials shall fairly meet the substance of the averments denied. and counterclaims. it’s like you’re saying it’s true. most defendants specifically deny particular paragraphs or sentences of the complaint. 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 . he shall specify so much of it as is true and material and shall deny only the remainder. in corporate litigation. One way to do this is to waive the technicalities of service. The defendant also has to pay for service if they don’t waive it. In fact. Moreover. and that’s it. you say so and that operates as a denial. Rule 8(b) o o o Rule 12 o Defenses and objections Use them or lose them. But he cannot blind himself to what he should know. Instead. The allegations of the defenses are taken as denials. though. worry about the statute of limitations. when permitted a reply. as a defendant. 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. You don’t need to hire the sheriff or a process server. When you intend to only deny part of the allegations. it’s admitted. some or all of the preliminary defenses may be asserted by an answer or. to return the waiver. Unless they have been waived by their omission from a pre-answer motion. When a defendant neither knows nor can learn whether an averment in the complaint is true or false. A defendant must also include any affirmative defenses you may have in your answer. to avoid unnecessary service costs. 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. • Plaintiff’s do not have to reply to defenses asserted by answer unless the court orders. an answer should contain “in short and plain terms” other defenses to each claim in the complaint. You have a reasonable time. But the Rules provide a way to extend this date. this is mostly done by counsel.You have to file an answer within 20 days of being served if you don’t file a Rule 12 motion. most jurisdictions permit him to say so in the answer with the effect of a denial. The nonwaivable defenses may also be asserted. You attach a waiver of service form to the complaint. A plaintiff can challenge the legal sufficiency of the defenses by rule 12(f) motion to strike. affirmative defenses. You get 60 days to answer if you waive service of process under Rule 4(d). at least 30 days. ask the defendant to send it to you. other than an allegation of the amount of damages. Defenses Besides denials. or if you don’t have enough information 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. If you don’t say anything about a certain allegation. You have a duty. The Rules require people who get sued to avoid unnecessary service costs. is deemed an admission. Nowadays. What are the requirements of those? Denials are described by Rule 8(b). if they’re in a jurisdiction where the state statute of limitations is about to run out. Answering a complaint What must an answer contain? Answers contain denials. The defendant must in her answer admit or deny all the well-pleases allegations of the complaint. There’s both a carrot and a stick! Also. you have to say that. If you fail to deny an allegation in your answer. 20 days is a short amount of time! You always need to check right away when the answer date is. You may have to be personally served before the clock starts. Pretty much everybody waives service of process these days. You have 60 days to respond! A plaintiff might choose not to use this. When a pleader intends in good faith to deny only a part or a qualification of an averment.
(C) A party must serve a reply to an answer within 20 days after being served with an order to reply. or crossclaim within 60 days after service on the United States attorney. or Employees Sued in an Official Capacity. (1) In General. or (B) if the court grants a motion for a more definite statement. counterclaim. or a United States officer or employee sued only in an official capacity must serve an answer to a complaint. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. Unless the court sets a different time. Unless another time is specified by this rule or a federal statute. Officers. • More plausible than possible (Iqbal/Twombly) (7) failure to join a party under Rule 19. the responsive pleading must be served within 10 days after notice of the court’s action. If a pleading sets out a claim for relief that does not require a responsive pleading. The United States. counterclaim. (3) improper venue. (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. • 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. (2) United States and Its Agencies. 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. (6) failure to state a claim upon which relief can be granted. within 60 days after the request for a waiver was sent. or (ii) if it has timely waived service under Rule 4(d). or crossclaim within 60 days after service on the officer or employee or service on the United States attorney. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.impleader of third party defendant Rule 12 (a) TIME TO SERVE A RESPONSIVE PLEADING. which extends the time for filing her answer until 10 days after the rule 12(b) motion is dismissed. 18 20 19 Rule 11 Rule 14 . (4) insufficient process. (3) United States Officers or Employees Sued in an Individual Capacity. (2) lack of personal jurisdiction. whichever is later. or within 90 days after it was sent to the defendant outside any judicial district of the United States. whichever is later. (4) Effect of a Motion. serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial.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. a United States agency. unless the order specifies a different time. (b) HOW TO PRESENT DEFENSES (this also has to do with objections). But a party may assert the following defenses by motion: Delays having to file an answer (1) lack of subject-matter jurisdiction. an opposing party may assert at trial any defense to that claim. 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. 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. 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. (5) insufficient service of process.
or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. 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. immaterial. (2) Limitation on Further Motions. Failure to state a claim upon which relief can be granted. discovery. is the device intended to obtain information about an adversary’s case. the motion must be treated as one for summary judgment under Rule 56. ambiguous or confused to enable the defendant to respond can be attacked by 12(e) motion. The court may act: (1) on its own. 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. After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings. 7 . (B) by a motion under Rule 12(c). 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. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. within 20 days after being served with the pleading. (2) When to Raise Others. to join a person required by Rule 19(b). Plain lang: no. 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). (f) MOTION TO STRIKE (treated like a 12(e) motion. so try and raise this after 12(b) motions. In light of • A judge can bring this up on his own. (1) When Some Are Waived. the spirit of the rule says another thing. 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. (e) MOTION FOR A MORE DEFINITE STATEMENT (this is not a defense or objection. • 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. • Submission of materials outside of the pleadings converts 12(c) to a motion for summary judgment (d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. then fighting over how immaterial. • CASE: Bower v. The court may strike from a pleading an insufficient defense or any redundant. (1) Right to Join. • 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. or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a). nasty. 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. Suisponte • Plain language of the rule says one thing. matters outside the pleadings are presented to and not excluded by the court. or gratuitous they are is a waste of everyone’s time unless their availability in the public record is likely to prejudice the movant. If.o An objection is something like I don’t have to be here: I wasn’t served right. 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). or scandalous matter. or (2) on motion made by a party either before responding to the pleading or. the court may strike the pleading or issue any other appropriate order. 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. if a response is not allowed. impertinent. There may be an issue if you bring this or a 12(e) motion first). not pleading. o However in notice pleading. or (B) failing to either: (i) make it by motion under this rule. a motion for clarification). or (C) at trial. (g) JOINING MOTIONS. (h) WAIVING AND PRESERVING CERTAIN DEFENSES. (c) MOTION FOR JUDGMENT ON THE PLEADINGS. Except as provided in Rule 12(h)(2) or (3). • A complaint that is too vague . The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.
in the first response to the comliant. most people waive service because that’s a big boon. These are rules for repeat players in the litigation game. stuff you can include in your answer. or defendant v. provides that the defense of lack of subject matter jurisdiction may be raised at any time. you might have far less than 20 days to do your answer. Rule 12(b) says there’s a lot of stuff you can present. All Rule 12(b) says is: bring it on! Let’s get everybody in and on the table before we get started. So 12(a) just tells us when. and insufficiency of service of process if you didn’t do these right off. need not answer the complaint until after the motion is decided. not to test or determine the facts themselves. defendant. venue. or even "at the trial on the merits. which can be raised all the way up to the time of trial. who files a 12(b) motion. because after your client has been served. lack of subject matter jurisdiction. These are cross-claims. but they might have claims against each other. Lack of personal jurisdiction. are not waived by their omission from a pre-answer motion.. But you have another option: if you waive service under Rule 4(d). while Rule 12(h)(2) states that the other nonwaivable defenses may be asserted in any pleading. in an answer or reply or any amendment thereto permitted as a matter of course. and all reasonable inferences are drawn in favor of the pleader. (2) But we protect a 12(b)(6). are the favored defenses and. The province of Rule 12(b)(6) motions is to question the availability of a legal formula justifying relief on the alleged facts. the court must dismiss the action. insufficiency of processes. and insufficiency of service are typical defenses that can or must be asserted by pre-answer motion. If she prevails she may never have to answer o A pre-answer motion is entirely optional. insufficiency of process. 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. If a party so moves. The test for disposition of the motion depends on the jurisdiction's requirement for stating a claim or cause of action." o The most common nonwaivable defense is the failure to state a claim.”: plaintiff v. she should become aware of it when the complain t is served upon her. as well as Rule 19. failure to state a claim. it is not reasonable to put the burden upon the defendant to raise these defects right away. on penalty of waiver. or. at the earliest time possible. to raise them preliminary. in fact. All well-pleaded facts (e. o Rule 12(h)(3). Subject matter jurisdiction is the most favored defense. • • • • POLICY: The unfavored defenses are usually personal to the defendants. Rule 12(h) tells us three things: (1) You’ve waived personal jurisdiction. they can have a claim against me. If the court determines at any time that it lacks subject-matter jurisdiction. you get 60 days after the request of the waiver. rank opinion or speculation) in the challenged pleading are taken as true for purposes of the motion. improper venue. Rules 12(g) and (h) provide that these defenses are waived unless they are asserted in a single pre-answer motion. Let’s say the defendant wants to bring in their insurance company. If the defendant has suffered any prejudice from these preliminary defects.g. (3) But subject matter jurisdiction can be raised at any time. they go around looking for a lawyer. these are claims between people on the same side of the “v. NOTES: Rule 12(a) says there is an answer deadline. if none filed. They are the unfavored defenses. and their availability is usually clear from the outset of litigation. A defendant. As a practical matter. even by the court itself without any action from the parties. The process is designed to get you into court quickly and cheaply. Thus. It is asserted by a Rule 12(b)(6). What if that person wants to sue you back? That’s the counterclaim. by motion for judgment on the pleadings. and then we’ll work it out later. In other words. (i) HEARING BEFORE TRIAL. that’s a claim.(3) Lack of Subject-Matter Jurisdiction. What if I want to sue against two different people? I can have a claim against them. o Use them or lose them! The defenses of failure to state a claim or defense. 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. This would be a third-party claim. o 12(b) is an alternative to answering a complaint. Defendant’s are required. That’s not a lot of time. not legal conclusions. If the 8 . You have to answer a complaint 20 days after you’ve been served. and failure to join a party under Rule 19. When you file an action against somebody. plaintiff. and by the time they get to you.
are reasonably based on belief or a lack of information. it should remand with leave for plaintiff to amend. unless the court indicates that no curative amendment is possible. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention. timing of filing causes strategic delays) (2) the claims. and belief. Rule 11: SANCTIONS (a) SIGNATURE. 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). the attorney must question him thoroughly. it is preserved by the original Rule 12 motion. Alternatively. modifying. 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.strong pre-answer motion by amending his defective complaint. if specifically so identified. she forgoes the opportunity to obtain immediate appellate review of the denial of her motion. It Will thereby be preserved on appeal of an eventual final judgment. the defendant may elect to stand on her motion and refuse to answer. only to learn down the road that the court had no right to do so. although she cannot include the waivable defenses if they were omitted from her motion. But if the court affirms. such as to harass. (4) the denials of factual contentions are warranted on the evidence or. because there is no final judgment from which to take an appeal. she may also waive her preliminary defenses by going forward. 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. By presenting to the court a pleading. The paper must state the signer’s address. and hasn’t found any.rule did not require these objections to be raised immediately. he must do so. Every pleading. 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. Unless a rule or statute specifically states otherwise. defendant may lose the opportunity to defend on the merits. defenses. will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unsuccessful Challenge The options to the defendant: She may file an answer. or needlessly increase the cost of litigation. information. The ∏ doesn’t have ot withdraw her allegation. and telephone number. • 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. o Examples: (multiple filings and a pattern of harassment. 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. or reversing existing law or for establishing new law. It is in the eye of the beholder. 9 . submitting. filing. and • If an attorney must rely solely on his client (not a good idea). a pleading need not be verified or accompanied by an affidavit. and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending. To avoid such issues and wasted judicial resources. the court and the parties might proceed to adjudicate the suit. for judgment as a matter of law. but may not attempt to prove this allegation at trial. In federal courts. the Rule bars her from “later advocating” that position. for judgment notwithstanding the verdict. 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. Depending upon the federal circuit. (3) the factual contentions must have evidentiary support or. formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose. or other paper — whether by signing. This course will result in the entry of a default judgment against her. (b) REPRESENTATIONS TO THE COURT. if specifically so identified. unless the jurisdiction permits interlocutory appeals. and after trial. amendment as of right or by permission is available even after a motion to dismiss has been granted. e-mail address. • When the attorney can obtain factual info from a public source. written motion. o What is nonfrivolous? We don’t know. directed verdict. cause unnecessary delay. By answering. If the appellate court agrees with her. 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. and cannot rely soley on his client o If the necessary info in primarily in the control of the ∆. and by appropriate evidentiary objections at trial. from which she can appeal. the rule provides that the defendant must raise these defenses immediately or waive them by her failure to do so. and a pre-answer motion is not a responsive pleading. written motion. Depending upon the jurisdiction. if they are available.
1. This rule does not apply to disclosures and discovery requests. Law firms should be held jointly liable for sanctions along with the firm members who violate Rule 11. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2). including attorney’s fees. If. (4) Nature of a Sanction. claim. On its own. claim. law firm. incurred for the motion. and motion under Rules 26 through 37. and belief. (5) Limitations on Monetary Sanctions. If warranted. contention. associate. the court determines that Rule 11(b) has been violated. (2) Motion for Sanctions. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. 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 denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. defense. and attorney has 21 days to pull it w/o getting sanctioned. 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).(c) SANCTIONS. Absent exceptional circumstances. Matter Certified by Signature By signing/presenting to the court a pleading. if imposed on motion and warranted for effective deterrence. or party that violated the rule or is responsible for the violation. or by the party himself if unrepresented 2. 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. Sanctions Imposition of sanctions for violation of Rule 11 is discretionary. o The motion must not be filed or be presented to the court if the challenged paper. (purpose – for deterrence. law firm. an order to pay a penalty into court. 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. 5. Procedure A party may move for sanctions. responses. 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. The court also has to impose sanctions on its own initiative. and (iii) The paper factual assertions have evidentiary support. a law firm must be held jointly responsible for a violation committed by its partner. after notice and a reasonable opportunity to respond. the court may award to the prevailing party the reasonable expenses. Rule 11(d) INAPPLICABILITY TO DISCOVERY. the court may order an attorney. the court may order an attorney. objections. The motion must be served under Rule 5. law firm. (6) Requirements for an Order. but must give the non moving party notice and 21 days to withdraw or correct the sanctionable paper. 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. 10 . It is in the eye of the beholder. or denial is withdrawn or appropriately corrected within 21 days (safe harbor) after service or within another time the court sets. but in any event are to be limited to what is necessary to deter repetition of such conduct. o Do not bring nonfrivolous suits What is it? We don’t know. information. Certified Requirement: Rule 11 requires that every paper filed in court be signed by an attorney. or (B) on its own. submitting. defense. incurred for disputing the motion. contention. 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. the court may impose an appropriate sanction on any attorney. responses. This rule does not apply to disclosures and discovery requests. A motion for sanctions must be made separately from any other motion and must describe 4. but it must not be filed or be presented to the court if the challenged paper. (3) On the Court’s Initiative. (d) INAPPLICABILITY TO DISCOVERY. The sanction may include nonmonetary directives. or employee. o Can have a plainly frivolous claim. including attorney’s fees. or. or party to show cause why conduct specifically described in the order has not violated Rule 11(b). not compensation) (1) In General. objections. and motion under Rules 26 through 37. written motion. or whose attorneys are. Rule 11(c)(3) On its own. Sanctions can be monetary or nonmonetary. • 3. filing. Will probably receive a bad reputation. or other paper — whether by signing. or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge. If warranted. to be sanctioned. (Discovery has its own sanction rules) Motion for Sanctions.
should I file anyway? What will the consequences be if I file a pleading in violation of R 11(a) and (b)? a. any argument to establish new law would be frivolous since three circuits have found that the use of pepper spray is per se constitutional. The Plaintiffs' amended complaint also contained no factual basis whatsoever to support an allegation that DuPont's ban discriminates by race. should I not. So is this rule keeping party's out of court. and I may be sanctioned. can I make a nonfrivolous argument for extending. Self weeding. As a result. 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). 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). Court and Party is relying on your homework (3) Access to courts. If I do not do so. e. assuming defendants complied with the 21-day safe harbor under Rule 11(c)(2). Should I file this. such as publicity. and my firm will be jointly accountable. Case: Chaplin the Court believed that the ∆’s attorney had absolutely no factual foundation upon which to base a claim of religious discrimination. modifying or reversing existing law. Rule 15: AMENDMENTS 11 . Nowhere in the Amended Complaint did Plaintiffs allege that they had both requested and been denied a religious accommodation. Even Plaintiffs' belated letter-writing effort failed to support such a claim. or if not. I will have 21 days (safe harbor) to correct or withdraw my complaint. or if not. 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). You can pull your claim. b. See Chaplin. d. Accordingly. Sanction may be either monetary or nonmonetary. I have done my homework and this is a good filing. 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. BUT we don’t know what frivolous is and the procedure may not allow the rule to operate for (4) Resource constraints.Policy: (1)Is to deter. so the legal contention is not prohibited by existing law. and assuming the plaintiffs could not correct their complaint accordingly. Coleman’s Answer: First. 2 Finally. g. at least two circuits have allowed for this claim. Rule 11(b)(3). they will withdraw the complaint or risk sanctions. Am I violating R 11? a. they could assert that the complaint was filed for an improper purpose. then the court can impose sanctions on me. When sanctions are undertaken on the Ct's own initiative. c. b. Opposing party may serve me with a R 11(c) motion asserting my specific conduct that has violated R 11(b). As to an argument for the establishment of new law. opposing party may file R 11(c) motion with the court. f. defendants may argue that plaintiffs’ complaint runs afoul of Rule 11 because it fails to state any facts to support its claim. defendants may argue that because there is no Ninth Circuit authority for plaintiffs’ claims. sanctions could be levied under this argument. Depending on the outcome of defendants’ Rule 12(b)(6) and Rule 12(e) motions. the court imposed Rule 11 santcions for filing the complaint because the complaint was so lacking in reasonable evidentiary support. 11(b)3 When I deny knowledge of information. Thus. There is no evidence that this was plaintiffs’ purpose. Getting people to think if their claim is goo. 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). If I cannot. under Rule 11(b)(1). I must specifically state this. will I likely have evidentiary support if given reasonable opportunity for further investigation or discovery? If so. 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. Second. so it is not frivolous. under Rule 11(b)(2). (2) Rule 11 is about reliance. they are not warranted by existing law. so this argument will likely fail. Weeding out. Some lawyers and parties don’t have enough money to do the research. Moreover. or for establishing new law? 11(b)2 Do I have evidentiary support. there is no safe harbor and I do not have the opportunity to correct or withdraw my complaint in order to avoid sanction.
or occurrence. if we were in a jurisdiction that does not allow relation back of "Doe" defendants. which will be freely given as justice so requires. transaction. opining that the amendment should relate back in these circumstances. Here the limitations period was only one year. or within 20 of service if no responsive pleading is required. she must sue well before the limitations period runs. In the absence of prejudice or disruption. But just what does justice require? 3. you have 20 days after serving the pleading to amend it. relation back is permitted if an amendment changes the party or naming of the party against whom a claim is asserted. Leave will usually be granted unless some actual prejudice to the other party appears or the trial schedule will be disrupted. 2009. In this case the policy of the Third Circuit is the better approach because here the defendant had notice. If we can get our amendment to relate back. You may amend once “as a matter of course” before a responsive pleading is served (an answer). Pennsylvania Dept." as long as the claim asserted in the amended pleading arose out of the same conduct. Additionally. Under FRCP 15(c). 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 rather the plaintiff simply did not know who the defendant was until discovery. Most court jurisdictions hold that a lack of knowledge of a defendant's identity is not a "mistake" concerning that identity. 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. there is a question of whether the amended claim "relates back" to the date of the filing of the original complaint. If there is no responsive pleading due (like an answer. either party may amend his pleading once as a matter of right before a responsive pleading is served by the other party. This is a tool to get around limitations. The plaintiff files a complaint. knew or should have know. transaction. and you can amend it once before the answer comes back. refusal to permit amendment may be an abuse of the court's discretion. the amended claim "relates back. The Singletary court suggests that the Advisory Committee consider amending Rule 15(c) to clearly authorize relation back in such cases. Sheriff Logalot. and therefore do not permit relation back of "Doe" defendants. 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. then we’ve avoided the statute of limitations problem. • 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. a court is likely not going to allow the plaintiff to add Sheriff Logalot as a defendant. There are three ways to amend: 1. 2.Rule 15. and that he was meant to be made a defendant.” Relation back of amendments Once as a matter of right: According to FRCP 15(a)(1). However. the cause of action is cut off. But if the statute of limitations has run. of Corrections. but for a mistake concerning the proper party’s identity. not after discovery. In most jurisdictions. If you have done this already. Singletary v. • By leave of court: In any other situation. This is basically a plaintiff’s rule. but the one-year • 12 . the claim may be expanded or changed in the course of litigation. The result of allowing the plaintiff to amend her complaint seems fair in this case because the "Doe defendant". a party may amend his/her pleading only by leave of court and such leave is usually granted liberally prior to trial. Additionally. because there’s nothing that comes after 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. you must ask for the leave of the court. and was not prejudiced. However the Third Circuit has taken a more flexible approach. and knew or should have known that the action would have been brought against it. not a very long time compared to the time a normal trial takes. It will relate back if it relates to the same “conduct. the party to be brought in by the amendment must not be prejudiced in defending on the merits. learned within the limitations period that action had been brought. you can always beg the court to amend. or occurrence set forth in the original pleadings. Due to the fact that plaintiffs had already amended their complaint to correct a separate pleading defect before the defendant had filed their answer. Relation back – If SOL has run Statute of limitations and relating back Absent some absolute cutoff. (Plaintiffs moved to amend their complaint to name Logalot on January 31. • Relation Back: If the plaintiff seeks to amend the complaint after the SOL has run on a claim. and move to amend before the period runs. they no longer have the right to amend as a matter of right under 15(a)(1). Because the primary function of the pleading is to give notice to the pleader's claim or defense. as long as the original pleading gave such notice. 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). 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).
Unification of claims in a single action is more convenient and less expensive and time consuming for the parties and the court.statute of limitations for their § 1983 claims ran on September 29. the substitution of the properly named party for a “Doe” defendant—no other court reads Rule 15(c) this way. Rule 15(c) requires that the defendant.claim preclusion: get it all done at once. o Subject matter jurisdiction . 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. rather than worrying about whether the causes of action were identical 2. occurrence. However. concerning the condition or status of a thing) — may be joined in one action as defendants if: 13 . but the court may grant relief only in accordance with the parties’ relative substantive rights.. cargo. Just need one common question of law and fact (2) Defendants (Plaintiff to sue multiple defendants). 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). and that they mistakenly named him instead of Sheriff Logalot. unless plaintiffs can show that an actual Sheriff Doe served as sheriff when the alleged actions took place. even if they are totally unrelated o Don’t have to join all the parties and all the claims (res judicata . once they are properly joined in a law suit. and What constitutes the same transaction or occurrence? Courts tend to look to whether there is a sufficient overlap of facts or evidence. flexible. A party may join two claims even though one of them is contingent on the disposition of theother. and to whether • claims are logically related to each other Some causal relationship or interrelation • Once parties are joined under 20(a). and (ii) knew or should have known that that the action would have been brought against him but for a mistake concerning his identity. or series of transactions or occurrences. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly. as independent or alternative claims. While the Singletary court indicated that Rule 15(c) should allow for this kind of amendment—i. Same transaction or occurrence . Permissive Joinder of Parties (a) PERSONS WHO MAY JOIN OR BE JOINED. Persons — as well as a vessel. a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff. Here. or in the alternative with respect to or arising out of the same transaction. A party asserting a claim. (1) Plaintiffs (to sue together). or third-party claim may join. The seeking of a convenient litigation package. severally. Thus. Rule 18(a)'s allowance of unlimited Joinder of claims against those parties is fully applicable. crossclaim. Logalot’s own defense will not be prejudiced because he has already been working with the department’s attorneys on the case. within the period under Rule 4m (120 days after the filing of the complaint).e. 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. a court is unlikely to grant plaintiffs leave to amend their complaint to add Sheriff Logalot. to assert additional claims against opposing parties.still have to have. Moreover. so can cause problems (for 2nd semester) (b) JOINDER OF CONTINGENT CLAIMS. In particular. 1. so this can cause problems (for 2nd semester) o Personal jurisdiction . (i) received notice of the action so that he will not be prejudiced. 2008. as many claims as it has against an opposing party. Rule 18: JOINDER of CLAIMS o Authorize parties.still have to have. without first obtaining a judgment for the money. If you don’t.) For an amendment to relate back. counterclaim. o Can join as many defendants as you want. • The parties have to have proper claim between them before you can start adding on claims • Policy: JUDICIAL EFFICIENCY (a) IN GENERAL. you may run the risk of claim preclusion) o Policy: attempt to liberalize litigation practice by making it more permissive. (B) any question of law or fact common to all plaintiffs will arise in the action. Logalot may claim that he was prejudiced because he did not receive notice of the action within Rule 4(m)’s 120-day period. and inclusive.
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. 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 cannot be justified on the same efficiency grounds." Rule 13: COUNTERCLAIMS and CROSSCLAIMS (for defendants) Rule: Once properly joined. and can sue others in a separate action or just never sue • them at all. Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claims against him. resolving those issues in a single action avoids the possibility of inconsistent judgments on the same issue. Case: Kedra Fam brings suit against City of Philadelphia. This is very efficient because the same witnesses will be called to testify since the same issues are likely to arise on the counterclaim. The court may grant judgment to one or more plaintiffs according to their rights. and Chief Inspector Court held that Joinder was proper. However. When all of this criteria is met. and must be asserted in the defendant’s answer. Such claims are either compulsory and permissive. since by definition a permissive counterclaim will involve different events from the main claim . (b) PROTECTIVE MEASURES. Police Commissioner. 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 series of transactions or occurrences" for purposes of Rule 20(a). (a) COMPULSORY COUNTERCLAIM. 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. A permissive counterclaim is any counterclaim that is not compulsory. occurrence. 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. 14 . expense. it is compulsory. Can choose to sue some but not all defendants in one action. severally. 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. or in the alternative with respect to or arising out of the same transaction. delay.(A) any right to relief is asserted against them jointly. affirmative defenses. the similarity of the claims against each defendant made it abundantly clear that there are common issues. Division Chief. (3) Extent of Relief. In addition. the claim can be completely unrelated to the original. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. which means that he must assert it in the original action or lose it. occurrence. or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. The reply may contain denials. The court may issue orders — including an order for separate trials — to protect a party against embarrassment. they all are "reasonably related. or series of transactions or occurrences. because the defendant is already before the court. and against one or more defendants according to their liabilities. the plaintiff does not have to join all of the parties. and the same issue or issues will have to be litigated to resolve each claim. If the defending party’s counterclaim arises from the same transaction or occurrence as the claim against him. 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. rather than repeatedly in separate suits. it is more efficient to litigate those issues once in a combined action. (1) In General. Defendant parties may also assert permissive counterclaims if they so choose. The claims against the defendants "arise out of the same transaction. and (B) any question of law or fact common to all defendants will arise in the action. This rule forces parties who are already adverse to litigate all claims arising from the same set of facts in a single transaction.and the court will almost certainly order separate trial of the permissive counterclaim. and (B) does not require adding another party over whom the court cannot acquire jurisdiction. officials of the Police Department.
(1) Timing of the Summons and Complaint.e. 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. • 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. but the TPP does not have to prove anything (a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY. Their claim should have been filed as a compulsory counterclaim in the state court action. A defending party may. Paragon Group. cross-claim for contribution or idemnification. CASE: Compulsory Countercalim . • 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. Inc – See below (b) PERMISSIVE COUNTERCLAIM. and are usually made between defendants. it is optional (or permissive) for the defendant to assert them by way of counterclaim. • 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. plaintiffs were required to file the instant claims as compulsory counterclaims and their failure to do so bars them from having those claims heard. The defendant’s may chose so sue in a separate action if they so choose. 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. i. Accordingly. After that the grant of the motion is totally up to the discretion of the court Very liberally granted. if she chooses. 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. 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. 15 . But the third-party plaintiff must. obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer.o 3.g. assert the claim in an independent action (g) CROSSCLAIM AGAINST A COPARTY. 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 . 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. These are claims are optional. the defendant may.. namely plaintiffs' tenancy at defendants' apartment. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim 4. as third-party plaintiff. or if the claim relates to any property that is the subject matter of the original transaction.. • 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. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. Is there any logical relation between the claim and counterclaim Podhorn v.Podhorn v. by motion. 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. Inc • • The Podhorns did not file a counterclaim in the state court action. Paragon Group.
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. In that event. and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).one party Subrogation . (b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. • Once the parties are adverse. when appropriate.(Can step into the plaintiff's shoes . Sever. • The court determined that the allegedly speculative nature of the third-party claim did not bar an impleader. a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested. (6) Third-Party Complaint In Rem. (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim. 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 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). 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 . 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. complication of the issues in the main action. and a reference to the defendant or third-party plaintiff includes. or to try it separately. Any party may move to strike the third-party claim. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a). Policy: • Pros: Efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent judgments • Cons: Delay in seeking impleader. 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. (5) Third-Party Defendant’s Claim Against a Nonparty. the plaintiff may bring in a third party if this rule would allow a defendant to do so. Rule 19: REQUIRED JOINDER of PARTIES 16 .D admitting or defaulting to P's claim.(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a). 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. a third-party complaint may be in rem. If it is within the admiralty or maritime jurisdiction. a reference in this rule to the ‘‘summons’ includes the warrant of arrest. or Try Separately. the goal is to get everything out there to litigate (4) Motion to Strike. and potential prejudice to the plaintiff from impleading a sympathetic third party CASE: Gross v. When a claim is asserted against a plaintiff.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. to sever it. and Policy: To prevent collusion between the original parties . 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.
that the defendant might be subjected to inconsistent obligations in an action brought by the absent obligee. Where the absentee may be prejudiced by the failure to join 19(a)(1)(B)(i) 3. 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. and a joint tortfeasor is not considered a necessary party. but generally not indispensable Joint promisors under a contract (and other joint debtors) should be joined as defendants wherever possible. 19(a)? 2.Three situations in which an absentee should be joined: 1. an action to set aside a contract requires the joinder of all parties to the contract. (necessary." is it also "indispensable" under Rule 19(b)? • as a general rule. ought to be joined if possible) 17 . However. 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. if one cannot be joined. if the party is "necessary. Where the plaintiff cannot get relief from the named party 19(a)(1)(A) 2. Necessary Parties • Joint Obligors • o Parties to contracts • May be necessary. R. Civ. is the party "necessary" under Fed. P. 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. ordinarily she is not required to do so. 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. 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. 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.
and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. If a person who is required to be joined if feasible cannot be joined. 18 . If a plaintiff seeks a equitable relief that the named defendant cannot alone effect. and another court • orders the same party to perform an inconsistent act (2) Joinder by Court Order. an involuntary plaintiff. 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 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. 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. the court must order that the person be made a party. (3) Venue. or (C) other measures. if known. in equity and good conscience. (d) EXCEPTION FOR CLASS ACTIONS. if so ordered by • the court. If a person has not been joined as required. A person who refuses to join as a plaintiff may be made either a defendant or. (b) WHEN JOINDER IS NOT FEASIBLE. the court must determine whether. (c) PLEADING THE REASONS FOR NONJOINDER. the court cannot accord complete relief among existing parties. a party must state: (1) the name. multiple. or otherwise inconsistent obligations because of the interest. in a proper case. of any person who is required to be joined if feasible but is not joined. (B) shaping the relief. and (2) the reasons for not joining that person. When asserting a claim for relief. 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. 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. (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment. This rule is subject to Rule 23. then the additional • parties need to effect that relief could be necessary parties. If a joined party objects to venue and the joinder would make venue improper. 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. (3) whether a judgment rendered in the person’s absence would be adequate. the court must dismiss that party.(1) Required Party. the action should proceed among the existing parties or should be dismissed.
• If the Mississippi defendants are not "necessary" under Rule 19(a). Motley. Dynard v. which also applied to the Mississippi lawyers. to Supplement an earlier response or admit 19 . Loadholdt. could be) jointly and severally liable co-obligors. Synthes Corp. drawing inferences in Daynard's favor. Multiple tortfeasors equals permissive joinder. PA • The law professor worked with 2 lawyer groups in litigation against the tobacco industry. ∏ and an attorney from the Mississippi lawyers group shook hands and made an oral agreement for legal fees with the South Carolina lawyers. the Court holds that it is not necessary for Daynard to join the Mississippi defendants in this action because they are (or. Ness.CASE: Temple v. 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). Richardson & Poole.procedure 26(c) Protective Orders 26(e)(1) Supplementing disclosures and responses 37(a) Motion to Compel 37(c)(1) Failure to Disclose. This is a black-letter rule. 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. 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 . – • 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 (6) mental or physical exams. (2) Winnowing down the issues in controversy. All of these tools are subject to other general discovery rules. Attorney's have a choice b.What is Discovery This is simply the methods used by a party or potential party in a lawsuit to obtain or preserve information. Judge will issue a court order… and tell the parties what to do 20 . like Rule 37: what do you do if you don’t cooperate? This is a sanction rule. We want to start narrowing things down. (3) Obtain information that will lead to admissible evidence. (3) Pleadings get stricken or a dispositive ruling is made. Move for a protective order (26) . 5. (2) Evidence is prohibited. you might find that you’re going to be liable and so you’ll settle. and other stuff. These are the tools we have to find out stuff or keep stuff from being destroyed. Produced and/or object on the scope grounds 3. For non-compliance with any of the discovery rule. (3) depositions. (4) Contempt! (5) Attorney’s fees and expenses are awarded. as a defendant. (2) disclosures. but really irritated 6. These are the six main tools of discovery. Rules to the fight of discovery: 1.but not the judge is involved. The purposes of discovery are: (1) Preservation of information that might not be available at trial. you can get sanctions. Or. interrogatories. Some of the issues alleged in the pleadings might not be supportable at trial and you might choose to drop a claim. Confer a. (4) interrogatories. But you can discover lots and lots of stuff that will not be admissible. 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. You record it through depositions. If the attorney really wants it. Request documents 2. such as: (1) Facts are deemed admitted. (5) requests for admissions. Discovery comes in the form of: (1) Requests for production.
unless the use would be solely for impeachment. the court may order discovery of any matter relevant to the subject matter involved in the action. (iii) COMPUTATION OF DAMAGES.e. 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. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. • The determination of whether information is “relevant to the claim or defense of any party. nature. 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. 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. unless the use would be solely for impeachment. and tangible things that the disclosing party has in its possession. and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter). unless privileged or protected from disclosure. Unless otherwise limited by court order. or control and may use to support its claims or defenses. and • A party claiming damages should disclose a computation of these damages and produce the documents on which the computation is based.” depends on the facts of each case. For good cause. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court. .REQUIRED DISCLOSURES 26(a)(1) INITIAL DISCLOSURES (A) In General. • The court is authorized to expand discovery to any information relevant to the subject matter of the action is good cause is shown. without awaiting a discovery request. 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. The expected use of a document or witness that mandates disclosure is not limited to use a trial. However. description. custody. The expectation that a document or witness will be used in connection with any motion or a pretrial conference is sufficient. on which each computation is based. including materials bearing on the nature and extent of injuries suffered. • You can just give the other party of list of what you have if both parties have the same document • i. electronically stored information. • 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. 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. a court may hold this exemption inapplicable.both parties would have a police report • This is a broad concept of use. 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. custody. (2) Limitations on Frequency and Extent. • Is the info properly requested? → is the info Relevant? • Material does not have to be admissible as proof at trial. (iv) INSURANCE INFO must produce for inspection and copying as under Rule 34. if known. Sufficient use even includes certain discovery events. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). provide to the other parties: (i) WITNESSES the name and. 21 . condition. and the type of information that are not directly pertinent to the incident in suit could be relevant to the claims or defenses. such as questioning a witness by using a document. a party must. • 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. if they are relevant for some purpose other than impeachment.. • Impeachment: very few materials fall into this category.
Judge Scheindlin stated that "cost-shifting should be considered only when electronic discovery imposes an 'undue burden or expense' on the responding party. The plaintiff in Zubulake was a highly-paid investment banker who accused her employer of gender discrimination and illegal retaliation. the court may also limit the number of requests under Rule 36." Conversely." “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. Backup tapes are considered an inaccessible format. 4) The likelihood of finding relevant. 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." Data that is "accessible" is stored in a readily usable format that "does need to be restored or otherwise manipulated to be usable.they produce • If it is not RA . • Zubulake set forth an analytical framework for determining whether it is appropriate to shift the costs of • electronic discovery. On motion to compel discovery or for a protective order. more easily accessed sources. and. thus. the requesting party may still obtain discovery by showing good cause. It is a multi factor test. 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). 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. • 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 . If good cause is shown. After defendant was ordered to produce the e-mails. (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. data that is "inaccessible" is not readily useable and must be restored to an accessible state before the data is usable. considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. the court may nonetheless order discovery from such sources if the requesting party shows good cause. o As a threshold matter. shifting the costs of producing data from backup tapes may be considered. By order. but also on whether those burdens and costs can be justified in the circumstances of the case. the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. but some courts still use the Zubulake test. the quantity of information available from other and more easily accessed sources. 2) Availability. (B) Specific Limitations on Electronically Stored Information. o If the responding party is producing data from inaccessible sources. you "Object" in the • response. If that showing is made. Zubulake identifies seven factors to be considered in determining whether shifting the cost of production is appropriate: • 22 . 6) The importance of the issues at stake in the litigation.has to show why the info is not reasonably accessible. When information is not reasonably accessible because of undue burden or cost. considering the limitations of Rule 26 that balance the costs and potential benefits of discovery. 3) Bad Behavior. By order or local rule.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. Appropriate considerations may include: 1) the specificity of the discovery request. 5) predictions as to the importance and usefulness of the further information. • o Advisory Committee Notes: o Once it is shown that a source of electronically stored information is not reasonably accessible. 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 .(A) When Permitted. do we cost shift? • o Should there be Cost shifting? There is no rule for cost shifting. 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. responsive information that cannot be obtained from other. and 7) The parties' resources.
insurer. Ordinarily. without undue hardship. This privilege is absolute b.giving or receiving legal advice. a. If the party seeking discovery has had ample opportunity to obtain the information sought by discovery in the action. or can be obtained from some other source that is more convenient.can always cost shift. the importance of the issues at stake in the action. Can’t overcome. the first factor being the most important • consideration and the seventh factor the least important. and the importance of the discovery in resolving the issues. or (iii) The discovery is unduly burdensome or expensive. Legal advice sought about "law" . 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 . less burdensome. (3) Trial Preparation: Materials – Work Product (A) Documents and Tangible Things. But. the parties’ resources. From a lawyer – when the client reasonably believes that the person seeking advice from is a lawyer f.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) . The total costs of production. a. Must behave as though they intend the communications to be private. the amount in controversy. and 7) The relative benefits to the parties of obtaining the information. or less expensive. (ii) Ample opp for discovery. If seeking business advice – no privilege e. people there for moral support) 23 . and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot. • You can always cost shift because the protective order section says that a judge an provide any protective • measure they want. Made in Confidential. Between attorney and client c. (Secretary. under 26(C). those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1). The total costs of production. parent if young. unless the presence of these people was necessary to the communication. 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. The relative ability of each party to control costs and its incentive to do so. indemnitor. 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. or agent). The importance of the issues at stake in the litigation. 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 extent to which the request is specifically tailored to discover relevant information. The presence of other people during the communication may indicate that the communication was not confidential. The availability of such information from other sources. surety. If the he burden or expense of the proposed discovery outweighs its likely benefit.” This is probably not what the drafters of the rules had in mind. obtain their substantial equivalent by other means. • Criticism: This authority appears to permit the judge to truncate discovery in cases she does not think are “important. compared to the amount in controversy. consultant. These factors are to be weighed in descending order. Attorney-Client (applies only when invoked by attorney) i. communication between you and your client d. compared to the resources available to each party. subject to Rule 26(b)(4). considering the needs of the case.
ii. All that is protected is the content of the communication form client to lawyer. then the protection cannot apply. 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. employed a law firm to defend them against potential suits resulting from the sinking of a tug in which their crew members drowned. claimed work product. AN attorney cannot just label doc’s privilege to avoid discovery. 24 . Attorney’s employees: May apply to statements made to an investigator employed by the c. avenues of investigation. Petitioner filed 39 interrogatories (questions) directed to respondents. 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. or other memoranda made concerning the tug's sinking.g. did not provide the requested materials. g. Is the system about truth and fairness… or about being the best adversary for your client? b. usually courts do not treat minimal relevance as sufficient. 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. c. No tort or crimes ii. since they can be used for other purposes and are prepared in situations which litigation is not foreseen. including nonsupervisory employees in many jurisdictions. Other reports: Other reports of employees to corporate counsel are not covered by the attorney-client privilege. Respondents. When a party makes regular reports of incidents that often lead to litigation (e. e. Shortly after this hearing. • Purpose: This qualified privilege is designed to maintain the adversary process by enabling each party to prepare her own case. Nor can a party relieve himself the obligation to disclose by making disclosure to his own lawyer. and did not have to produce. not allowed. with free rein to develop her own theory of the case and her own trial strategy. 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. but this purpose must be reconciled with the overriding need to require full disclosure of the facts. prepared for the corporation's attorney. it may be held that such reports are not prepared in anticipation of litigation. accidents). So ask for redaction to cover them up in the copying process so that they cannot be read. If a showing has been made to justify disclosure.ust make a showing of substantial need and that you cannot get substantial equivalent by other means without undue hardship. iii. assessments of the persuasiveness of various possible witnesses. a party . remember that regular reports may be found to not meet the "in anticipation" requirement. • Regular reports. detailed reports of oral statements. The party must show that the material sought is of substantial importance to its case. Taylor (Work Product) o Tugboat sank killing 5 crew members. conclusions. iii. mental impressions. CASE: Hickman v. How to beat this rule: To obtain production of material that is protected as work product. tug boat owners and underwriters. Respondents' attorney interviewed and took written statements from the survivors in anticipation of litigation. 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. Only have to give the facts. through counsel. b. d. Respondents. However. but may be subject to the qualified work product privilege if they were made or prepared in anticipation of litigation. records.g. The attorney-client privilege applies to communications made in confidence by employees of a corporation.If eavesdroppers overhear. legal research. Confidential reports: The attorney-client privilege may also apply to routine reports that are intended to be confidential records of the corporation. materials containing the mental impressions of an attorney are given special protection ii. Are statements by witnesses attorney-client priv or work product? i. Attorney Client a.. Work Product a. Statements by employees of corporation i. d. b. Attorney Opinion work product is sacred i. not theories of the case. Eavesdropper can testify 1) If electronic surveillance was used. opinions.
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.Court takes an eye. If the court orders discovery of those materials. What to do If Claiming Attorney Client Privilege or Work Product (Protecting Trial-Preparation Materials) (A) Information Withheld. The court may. including one or more of the following: (A) forbidding the disclosure or discovery. for good cause. 26 is broader. (D) forbidding inquiry into certain matters. (G) requiring that a trade secret or other confidential research. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material. After being notified. embarrassing. or (ii) a contemporaneous stenographic. development. it must protect against disclosure of the mental impressions. the party must: (i) expressly make the claim. 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 . (C) prescribing a discovery method other than the one selected by the party seeking discovery. or commercial information not be revealed or be revealed only in a specified way. and may promptly present the information to the court under seal for a determination of the claim. must not use or disclose the information until the claim is resolved. privacy Inconvenient place of examination Unduly burdensome (expensive or excessive) Unreasonable conduct of deposition deposition conducted in a manner annoying. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved. (B) Protection Against Disclosure. Both concerns can be ameliorated through protective orders. opinions.o Hickman only applies to the work of lawyers. and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes. without revealing information itself privileged or protected. Any party or other person may. the party making the claim may notify any party that received the information of the claim and the basis for it. mechanical. embarrassment. conclusions. or tangible things not produced or disclosed — and do so in a manner that. or limiting the scope of disclosure or discovery to certain matters. (B) If accidently produce Privileged material. 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). (B) specifying terms. (c) PROTECTIVE ORDERS. o Redaction . If the request is refused. for the disclosure or discovery. (1) In General. Good Cause Req: Confidentiality. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material. (F) requiring that a deposition be sealed and opened only on court order. The availability of protective orders recognizes both that discovery can be extremely intrusive and that parties may seek to abuse it. to be opened as the court directs. on request and without the required showing. issue an order to protect a party or person from annoyance. (E) designating the persons who may be present while the discovery is conducted. a party must promptly return. oppression. or legal theories of a party’s attorney or other representative concerning the litigation. in the court for the district where the deposition will be taken. must take reasonable steps to retrieve the information if the party disclosed it before being notified. (C) Can Obtain your own Previous Statement. electrical. (1) A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory. and Rule 37(a)(5) applies to the award of expenses. 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. communications. or other recording — or a transcription of it — that recites substantially verbatim the person’s oral statement. request for production. and (ii) describe the nature of the documents. or oppressive (e) MUST SUPPLEMENT/CORRECT DISCLOSURES AND RESPONSES. or destroy the specified information and any copies it has. along with the attorney's help to remove mental impressions. the person may move for a court order. or undue burden or expense. Policy: Protective orders are designed to prevent undue burdens that might otherwise be imposed by discovery. Specific harm. The producing party must preserve the information until the claim is resolved. including time and place. sequester. will enable other parties to assess the claim.
the court may issue any protective order authorized under Rule 26(c) and must. In addition to or instead of this sanction. For purposes of this subdivision (a). the party asking a question may complete or adjourn the examination before moving for an order. apportion the reasonable expenses for the motion. (A) To Compel Disclosure. production. answer. the party is not allowed to use that information or witness to supply evidence on a motion. or (iii) other circumstances make an award of expenses unjust. (5) Payment of Expenses. answer. or objection was substantially justified. OR TO ADMIT. • If party fails to make disclosures req under 26(a) . (3) Specific Motions. and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. TO SUPPLEMENT AN EARLIER RESPONSE. after giving an opportunity to be heard. or (B) as ordered by the court. including attorney’s fees. 26 . an evasive or incomplete disclosure. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e). If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must. on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses. Answer. 37(c)(1) FAILURE TO DISCLOSE. 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. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If a party fails to make a disclosure required by Rule 26(a). any other party may move to compel disclosure and for appropriate sanctions. (1) Failure to Disclose or Supplement. or Response. A motion for an order to a party must be made in the court where the action is pending. (ii) the opposing party’s nondisclosure. • Need to meet and confer before the motion is filed with the court. designation.or incorrect. (C) If the Motion Is Granted in Part and Denied in Part. A party seeking discovery may move for an order compelling an answer. a party may move for an order compelling disclosure or discovery. after giving an opportunity to be heard. and may impose rule 37 sanctions Unless the party has substantial justification for its failure to disclose. If the motion is denied. (B) If the Motion Is Denied. (2) Appropriate Court. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. or when the failure to disclose was harmless. unless the failure was substantially justified or is harmless. require the movant. the court may issue any protective order authorized under Rule 26(c) and may. or inspection. including attorney’s fees. 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. 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. the attorney filing the motion. 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. SANCTIONS (1) On notice to other parties and all affected persons. (4) Evasive or Incomplete Disclosure. the court. Protective Orders. require the party or deponent whose conduct necessitated the motion. the party or attorney advising that conduct. after giving an opportunity to be heard. 37(a) FAILURE to MAKE DISCLOSURES. or response must be treated as a failure to disclose. If the motion is granted in part and denied in part. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. including attorney’s fees. or respond. or both to pay the movant’s reasonable expenses incurred in making the motion. (B) To Compel a Discovery Response. at a hearing. caused by the failure. the court should usually exclude undisclosed materials from evidence. When taking an oral deposition. or at a trial. or to supplement disclosures. or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion. response.
communication between you and your client d. or expensive. burdensome. Does the doctrine apply to nonlawyers. Requesting party can’t have already had ample opportunity for your own discovery c. It now does. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved. Entitled to material that is relevant and admissible in trial iii. indemnitor. Due to human imagination. Opinion . What about factual information (e. without undue hardship. No strangers . as opposed to mental impression—is that undiscoverable if the facts were uncovered by a lawyer? Yes.has to be private f. P sued B. At the time of Hickman. If the court orders discovery of those materials. the person may move for a court order. surety. just • the facts) What is protected is what the lawyers do with the information • No 26(b)(1) identity of persons . and a. Rule 26 did not deal specifically with the topic of trial preparation materials. Is relevant to the claim or defense of any party. Is not privileged ii. insurer. or agent) • b. Assume P was injured when struck by a bus owned by B Bus Co. Any party or other person may.giving or receiving legal advice e. on request and without the required showing. the name of a witness). Is not unreasonably cumulative . opinions. consultant.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. this criterion is virtually without burden ii. conclusions. Confidential. Documents and tangible things done Anticipation of Litigation b. If the request is refused. and (C) may impose other appropriate sanctions A party is entitled to demand the discovery of any matter that: a. 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. the facts are not protected just because a lawyers found them (don’t have to give the documents. No tort or crimes ii. or legal theories of a party’s attorney or other representative concerning the litigation. Work Product HYPOS Hickman/Work Product Problems 1. obtain the person’s own previous statement about the action or its subject matter. Between attorney and client c. Can’t overcome.. it must protect against disclosure of the mental impressions. The litigation raises the following discovery issues: 27 . such as insurance adjusters and investigators? Yes! (3)(a) .g. and Rule 37(a)(5) applies to the award of expenses. obtain their substantial equivalent by other means o Work Product Doctrine: -conditional Rule 26(b)(3): • Redaction . 26(b)(3) is broader a.unless the info can be obtained from another source • 2. i.(including the other party’s attorney.Protection Against Disclosure. or c. Read Rule 26(b)(3) and answer the following questions: Hickman only protects the work of lawyers. about "law" . Entitled to information that "appears reasonably calculated to lead to the discovery of admissible evidence" . Work Product a.(B) may inform the jury of the party’s failure. Attorney-Client a.
a good friend of Boris. As the attorney for Boris. (i) can you find out whether Boris made a statement? Yes 26(b)(3)(c)(i) . no other way of getting that information and it is of substantial importance • Court will go through and remove any mental impressions • b. which had insured Charles’s car. (See Rule 26(b)(3)(C)) a.witness himself are entitled to a copy of his statement as a matter of right (ii) if so. 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. Yes. As attorney for Boris. Hoping to catch them by surprise to see if they lie. they go to the court and say can I wait until after deposition (ask for a protective order that says. What if the crew members were still alive but there had been no public hearing on the accident. will testify on his behalf.” Must B disclose the witness’s name. can you obtain a copy of the statement before Boris’s scheduled deposition next month?. 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 .000 in fees. a vice president of B went to the scene and made a full investigation.if there is a witness that you may use. can you find out what he told the investigator? No.a. …. Frank gave a written. Yes . They are only asking for the names of witness • Just because you hired an investigator. In Boris’s suit against Charles. you are not entitled to obtain that statement under Rule 26(b)(3)(C). He then made a written report to the directors of B. 26(a) . Frank. yes I have to provide the information. or after) . P serves an interrogatory asking for the names of all eyewitnesses.because you are trying to impeach the witness. Boris is seriously injured in an automobile accident with Charles. cannot be an oral statement 26(C)(i) & (ii) Yes. if the court says that this material has been "otherwise adopted or approved" 26(C)(i) b. 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. 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. But there may be another argument that this was only done as a business purpose and not in anticipation of litigation. Fortenbaugh interviewed the witnesses and took notes but apparently did not ask the witnesses to write out statements or tape-record the witnesses’ statements. They are only asking for facts. Many lawyers will do so in order to have a basis for subsequent examination or impeachment of the witness. signed statement to Charles’s attorney but does not remember what he said. and the witnesses claimed not to be able to remember events clearly? Argument for: • 28 . B’s lawyer hires a private investigator who runs up $10. and they had died before giving their testimony to the agency inquiring into the accident? Yes.. (iii) if Boris did not give a statement. Employees' accident reports to claims department are discoverable b.. you cannot protect the facts that they uncover. In Hickman. including interviews with witnesses and measurements of the accident location. Preparing for trial. you must disclose that information to the other side • 3. and uncovers another eyewitness to the accident.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. In the hospital Boris is visited by an investigator for Farm Insurance Co. but I will give it at the deposition.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. cant be minimally relevant a. Immediately after the accident. and Yes 26(b)(4)(A) deposition may be conducted only after the report is provided They should give it to you unless.
Explain how each of these witnesses might have information relevant to the lawsuit.why? This does not go to her defense… 1. obtained copies of his medical and wage records. Albert’s lawyer has interviewed him. A witness at the intersection will testify that Barbara ran the light. 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. is not the same on located by Albert.. Alice. 1. so the judge is likely to grant the motion • Don’t know what substantially justified is. Baker.. 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). What must Albert do (see Rule 26(e))? Must supplement or correct its disclosure . what would be the information you would be confident Alice would have to disclose to you? 29 . On this state of the pleadings. Baker tells you that he and Alice discussed such a possibility. • Make party pay the costs • 2.probably not. but just didn’t Albert alleges that Barbara “negligently collided” with his car.you are not using anything to help your defense a. but that they never agreed. who as a result lost wages and incurred medical expenses. and a bystander who saw the accident. • DISCOVERY Hypos Discovery Problems: 1. Barbara seeks to block admission of the bill as part of the evidence on damages. some soft spots in the case: Albert has a poor driving record and has himself been cited for running red lights. Baker tells you no one witnessed their discussion. the address and phone # of the witness • • • iii. he receives a substantial new bill from the treating surgeon. and if known. but its existence comes to light in a deposition of the surgeon. alleges that Baker agreed to sell her his car. Albert’s lawyer intends to present a straightforward version of the case: Barbara ran a red light. and has spoken with various other potential witnesses. How should the judge rule (see Rule 37(c)(1))? Was the failure substantially justified? . her boss (with whom she had a major argument just before the accident). then you have to disclose the info ii. Alice seeks damages. however. Your client. i. and Albert thinks that his boss might testify that he was about to be fired (thus reducing potential damages for lost wages). What disclosures must Albert make under 26(a)(1)? Witness info: The name. Thereafter. then you don’t have to turn it over If you are going to use it for your claim or defense. You know that Rule 26(a)(1) requires some disclosures. collided with Albert. Now consider Barbara’s disclosures. Barbara’s answer has denied negligence. and then refused to go through with the transaction. He may have to produce other info it if it is requested…. gives you a state court complaint from a state employing the current version of the discovery rules. 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. In response to your questions. his job situation has been precarious. Nothing . Thereafter. let us suppose. what information would you have to prepare for disclosure? a. Assume Albert does not inform Barbara of the new surgeon’s bill. Suppose Albert has supplied her with all of his medical bills pursuant to Rule 26(a)(1)(A)(ii).name address phone Witness .info Not the boss . The other info doesn’t go to his claims If you are not going to use it for your claim. The plaintiff. 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 . The bystander. There are.this info must be made know to the other party • Or else sanctions • 1. You file an answer denying that there was a contract. On this state of the pleadings.
may file an objection within 30 days . the evidence may be excluded 1. Centerville’s lawyer learns that she will contend that the police assault injured her leg. taken the night after the incident. Assume further that two of the documents sought are letters from Producer’s lawyer to Producer. • If they don’t. custody. and tangible things that the disclosing party has in its possession.facts Any witness that Alice may have ( but hypo says that Baker says no one witnessed their discussion) 2. Assume that Plaintiff serves a request for particular documents.a party must. 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) . ask for a protective order so that you don’t have to disclose this photo until deposition b. answering questions about the interpretation of the contract in question. At the Rule 26f conference with Alice’s lawyer. Producer believes that both documents are protected by the attorney-client privilege. provide to the other parties: a copy — or a description by category and location — of all documents. • • What is risk does Centerville run if it does not disclose the photograph (read Rule 37(c)(1)? Sanctions. Thereafter Alice makes a Rule 34 demand that Centerville produce “all documents. 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 . it is a ethical violation a. In addition to or instead of this sanction. 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. claiming that its police officers assaulted her during a political demonstration one afternoon. and the document has been properly asked for. or at a trial. then yes you must disclose it. (B) may inform the jury of the party’s failure. Centerville’s lawyer would very much like to hold back the photograph—perhaps until a devastating crossexamination of Alice. 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). Assume that Centerville does not disclose the existence of the photograph in the initial round of disclosures. the party is not allowed to use that information to supply evidence on a motion.” The city attorney assigned to the case uncovers a photograph of Alice. • The better course is to go to the judge and say I will produce it. Alice brings suit against Centerville Village. electronically stored information.• • • Damages computation Anything that may help our case. Assume there is a contract dispute where the parties’ understanding of a clause is at issue. unless the use would be solely for impeachment. memoranda. Her complaint alleges that the assault “severely injured her. that is not privileged .arguments to go either way No . • • Depends . a. and reports relating to the incident. Suppose Centerville produces the photograph in response to the Rule 34 demand. but I want to impeach her with this photo. unless the failure was substantially justified or is harmless. including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). the court. c. at a hearing. showing her participating enthusiastically in a local dance contest. without awaiting a discovery request. caused by the failure. and (C) may impose other appropriate sanctions.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. on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses. • No. must you now produce the photograph? • Is a photograph a document? Yes. or control and may use to support its claims or defenses. including attorney’s fees.” As attorney for Centerville.34(b)(2)(C) • If no objection is filed.
assert work product & attorney-client privilege 1.” 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. Eve Barrie tells you that neither she nor anyone else said anything at all about DiChem’s financial situation at the interviews. PROCEEDINGS. You should object . and interviewed several applicants. you may have to produce it b. You represent DiChem.” Back at your office. theories of the case! a. Ask for Redaction Rule 56: SUMMARY JUDGMENT 56(c) SERVING THE MOTION. but it may be better not to ask her too many more questions until and unless we have to prepare her for deposition. Barrie is a smart cookie. The judgment sought should be rendered if the pleadings. Attorney client privilege .” When you ask for Eve Barrie’s complete file on the hiring of the director of Advertising. Under 26(A) . 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. using special firm letterhead on which is preprinted in large capital letters. 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.” You attach a separate sheet of this special letterhead.you don’t have to turn this over at this point (Mandatory initial discovery) because you are not using it to help our defense…. Anything detrimental to our position will be covered by a privilege. alleging that the company should have disclosed the precarious fiscal state to him and had failed to do so. She adds. It says. 1. But we don’t know what our defense is going to be a. Have to confer first • 1. the company went though hard financial times and laid him off.may move for a protective order (forbid discovery or forbid inquires into certain mattes) Can forbid discovery • 37(a)(1). to each item in Barrie’s file. and says. the discovery and disclosure materials on file. If the other party makes a motion for it later. Was it bad enough to verge over into fraud? Did they misrepresent? Get associate to research this if it becomes relevant. 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. you go through the file and make notes on each item in it. “If we ever get into a court fight. DiChem advertised nationally to fill the position of Director and Advertising. 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. Charles Morris from New Mexico won the job. and came on board in December.Object and say that it is attorney-client privilege or work product 26(c) . she gives you a meaningful look. In the fall of 2006.. 2. 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 . 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. An opposing party may serve opposing affidavits before the hearing day. with your notes on it. 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.Client thinks that she is covered by attorney-client privilege so that is why she turned that info over. I’m sure. sold his house. “Attorney Work Product. The motion must be served at least 10 days before the day set for the hearing. Morris has sued DiChem and its president Eve Barrie. “any management-level employee knows that the job depends on the company’s continued financial viability.may move for an order compelling disclosure or discovery. Work product . thoughts.notes. “Shall I go through it first?” You smile back and say: “I need to know everything. Shortly thereafter.
the standard at the summary judgment stage was a "clear and convincing" evidentiary standard in determining whether a genuine issue fact exists. The opposing party must come forward with evidentiary material that established the existence of a triable issue. its opponent must do more than simply show that there is some metaphysical doubt as to the material facts (Matsushita). 2. Policy: Summary judgment is a method for getting beyond the allegations of the pleading and examining evidentiary material without holding a full-dress trial. where malice was pleaded. In the language of the Rule. In addressing a motion for summary judgment. This must be satisfied before the burden shifts to the opposing party. 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. Those documents form evidence that you can use at this stage. At minimum. If the evidentiary material shows that there is actually no genuine controversy that requires trial. If the moving party has not made the required initial showing. 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. If the moving party meets his burden of production. he must produce evidence of such strength that no reasonable jury could find for the opposing party. “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). Pointing to cannot be a conclusory assertion that there is no evidence. If the initial showing is insufficient. affidavits are very important. STEPS OF ANALYSIS: 1.' 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. which should be denied. (Celotex). and the motion should be denied. Most importantly. the burden then shifts to the non-moving party. the opposing party need not submit any opposing proof. 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). so go for it. 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. I heart SJ: For more than a decade. whether the evidence is such that a reasonable jury might find has been shown with convincing clarity (Liberty Lobby). 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. Has the moving party made a sufficient initial showing? If the moving party would have the burden of proof on the issue at trial. You can also use interrogatories and requests for admissions. Whether any disputed issue of fact exists is for the Court to determine. Was the opposing party given notice and an opportunity to respond? If the initial showing was sufficient. there technically is no burden on the opposing party to make any showing in response to the motion. [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. that is. In most cases. that standard of proof is “beyond a preponderance of the evidence. Note that the circumstances sometimes justify delay in the decision in order to give the opposing party an opportunity to gather evidence. The moving party must affirmatively show the absence of the evidence. A genuine dispute is one which a reasonable jury could resolve against the movant. especially if the motion is made early in the case or before there has been substantial discovery. A material fact is an essential element of claim of defense. 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). he must initially produce enough evidence to show that no reasonable jury could find for his opponent.” In a case like Liberty Lobby. 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. A motion for summary judgment must be guided by the standard of proof that is required at trial. SJ cannot be granted if the moving party’s evidence is merely colorable or not sufficiently probative. summary judgment can avoid unnecessary delay and expense in deciding the case. The depositions will create transcripts that you can use as evidence at this stage. it has seemed that the courts have become more receptive to deciding cases on summary judgment.” The opposing party can call the court’s attention to other material in the record that demonstrates the existence of a genuine issue. 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). and its place must be taken by the motion for summary judgment. Issues of material fact are those that might affect the outcome of the suit under the governing law. You might win. 32 . If the moving party would not have the burden of proof. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut. If the moving party has the burned of proof at trial. 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.
initial showing requirement (1) Opposing party with burden To obtain summary judgment. 33 . or such consideration may convert the motion into a motion for summary judgment. summary judgment may be based on live testimony from depositions. Trend Favoring Use of Summary Judgment .' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore. [Celotext Corp.] a. If the moving party would have the burden of proof on the issue at trial.e. Thus.. Summary judgment may be more difficult to obtain In many courts. it is said that consideration of any material beyond the face of the complaint is forbidden on a pleadings motion. the opposing party need not submit any opposing proof.3.e.I heart SJ For more than a decade. Timing The summary judgment motion can be. [FRCP12(b)—on motion to dismiss for failure to state a claim. 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. those admissions may form part of the basis of summary judgment.. If the moving party would have the burden of proof at trial. however. On review the appellate court has plenary power. if certain allegations have been admitted. he still must make an initial showing of his opponent's lack of proof. If the initial showing is insufficient. However. only as to some issues or some parties). motion is to be treated as one for summary judgment. and normally is. decided before trial. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut. Recall that pleadings motions look only at the face of the pleading an test only its legal sufficiency. However. b. which is usually recorded in a deposition transcript or by videotape. Usually. it is said that summary judgment is more difficult to obtain than judgment as a matter of law—i. 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. Relevance of pleadings to summary judgment The pleadings delineate what is in controversy in the case. such a moving party would have to make an initial showing of the insufficiency of the evidence of his opponent's case. 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. 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. if materials outside pleadings are presented and not excluded by court. A defendant may move for summary judgment at any time and a plaintiff may do so 20 days after commencement of the action. he must initially produce enough evidence to show that no reasonable jury could find for his opponent. and its place must be taken by the motion for summary judgment. Nature of material considered The summary judgment motion is based essentially on pretrial written submissions. the motion should be granted only if the evidence is so strong that a reasonable jury could find only for the moving party. and the motion should be denied. Is there a triable issue? Assuming the moving-party's initial burden was met and the nonmoving party was given an opportunity to respond. it has seemed that the courts have become more receptive to deciding cases on summary judgment. 2. 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. it must be clearer to the court that the case can reasonably be decided only one way. Denial of • summary judgment is not immediately appealable. 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. it appears that courts are gradually becoming more accepting of summary judgment. If the moving party would not have the burden of proof. it need not give deference to the trial judge's decision. v. Catrett] o But what about the Iqbal/Twombly standard? BURDEN of PRODUCTION . Grant of summary judgment. may be immediately appealable if it results in a final judgment. Also note that summary judgment may be partial (i. If the moving party would not have the burden of proof at trial.
In response. non-movant must…. 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. the opposing party comes forward with sufficient evidence to support a verdict in her favor. There are a number of general principles that guide SJ. Rehabilitate or attack 3. 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. To shift the burden If moving party has burden of proof at trial Non-Movant's Burden of Production. 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)]. I need more time because I have to do a certain amount of discovery for this case 2. 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. such a party must make a compelling case for entry of summary judgment. Court may "not" weigh evidence The court is to determine whether there is a genuine dispute. b. the part who must raise an issue in the pleadings must also prove it. Ask for more time for discovery 1. summary judgment should be granted only if the opposing party fails to present sufficient evidence to permit a jury reasonably to find for him. Unless. All reasonable inferences indulged in favor of the nonmoving party The court is to make all reasonable inferences in favor of the opposing party. Standard for Grant of Summary Judgment 1. Liberty Lobby." 2. if there is. 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 . 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.(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. The burden of proof at trial does not shift. but the burden of production at Summary Judgment does. 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. it may choose between two versions of events and grant SJ to the party whose version seems more persuasive. Usually. because a trial should be held if a reasonable jury could disbelieve the moving party's proof. or that there is "no triable issue as to any material fact. summary judgment should be entered un favor of the moving party. The burden of pleading various issues depends on whether they are considered elements of the claim or affirmative defenses. b. in Anderson v. 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. However. [ 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. a. The court's evaluation process must be based on a case-by-case basis. New evidence/Ignored evidence 2. 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. a. and to view the evidence in the light most favorable to that party. More time 56(f) i.
Catrett. but rather as an integral part of the Federal Rules as a whole. which are designed "to secure the just. (2) Moving party without burden of proof If the moving party does not have the burden of proof. [Celotex Corp. you can use it at summary judgment) (b) Current view ." [Fed. R.H. P. a. Procedure 1." • the motion to dismiss seldom fulfills the function of striking insufficient claims or defenses any more. Submit evidence that negates an essential element 2.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 do Celotex o I heart summary judgment Summary judgment procedure is properly • regarded not as a disfavored procedural shortcut.ADICKES Relying on a decision of the Supreme Court [Adickes v. speedy and inexpensive determination of every action. J. supra (White. with the conclusory assertion that the plaintiff has no evidence to prove his case"] 35 . 56(c)] (1) Moving party with burden of proof If the moving party has the burden of proof. Thought is that the evidence must be admissible at the time of summary judgment (Celotex . However. he must produce evidence of such strength that no reasonable jury could find for the opposing party. . and its place has been taken by the motion for summary judgment. the matter is more complicated. the exact requirements in this circumstance are unclear. concurring)—"It is not enough to move for summary judgment . 1) Mere conclusory assertion It appears that a bald assertion that the opposing party lacks sufficient evidence to support his case is not sufficient. 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. S. owing to disagreement within the Court on the proper formulation. 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. Kress & Co. Initial Showing Analytically. .rejected the early view. Civ.says that if you later believe that the evidence can become admissible. v.. but cannot be a conclusory assertion that there is no evidence • Must affirmatively show the absence • Don’t have to do Adickes." But with the advent of "notice pleading. The moving party must produce evidence negating the claim.Didn’t foreclose the possibility that the police officers were in the store. 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. How do you prove a negative? In Adickes .CELOTEX Celotex Corp .]. (a) Early view . 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.
Catrett. The case arose from the plaintiff's arrest for vagrancy. Submit evidence that negates an essential element 2. 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. the party must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. If the thrust of the motion is that the opposing party has no evidence. you can do Celotex • To meet the 2nd part of Cleotex. 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. 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. Defendant moved for summary judgment on ground that there was no evidence in the record linking its products to plaintiff's husband's death. but cannot be a • conclusory assertion that there is no evidence • Must affirmatively show the absence Don’t have to do Adickes.CLEOTEX Case: In Celotex." [Celotex Corp." (c) 2 Methods of Making showing RULE: There are two methods to make a proper showing for SJ. plaintiff claimed that her husband died due to exposure to asbestos that the defendant manufactured. 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. [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. The moving party must affirmatively show the absence of the evidence.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 • showing should reliably indicate that. 1) Affirmative evidence that negates an element .. 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 . Such a showing invites the argument that the opposing party needs more time to gather facts. urged that the moving party should have to "make a prima facie showing that it is entitled to summary judgment. 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. to negate the conspiracy claim. The Supreme Court added another method to make the showing • required under SJ. J. "Pointing to" cannot be a conclusory assertion that there is no evidence. however. Although the defendant properly denied a conspiracy. creating a genuine dispute of material fact. supra (Brennan.ADICKES Case: In Adickes. (1) The moving party can offer affirmative evidence that negates an essential element of the opposing party's claim or defense. All the defendant needed to do was to produce some sort of evidence that the police officer had not been in the store. the students or employees in the store 36 . In deciding Cleotex. 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. Thus. 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. However it is unclear how much more than a conclusory assertion this is designed to require 3) Prima facie showing Justice Brennan. dissenting in Celotex. v.
which should be denied.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. This ruling is favored for defendants.• And this is all that is required under discovery • Kreiss still wouldn’t have been able to prevail on SJ b. (a) No advance determination of sufficiency of initial showing However. (2) Insurance Policy . If the plaintiff hasn’t had enough time for adequate discovery. v. the opposing party is not entitled to advance notice of the court's attitude toward the sufficiency of the moving party's showing Thus. 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.court granted SJ (1) Drug Use . there is no genuine issue for trial Bias Case: . then why are we even in trial? 1. the burden. is on the opposing party to come forward with evidentiary material that establishes the existence of a triable issue. 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. the opposing party should submit opposing evidence unless he is absolutely sure of the insufficiency.Affirmed • The ∆s provided evidence that every insurance company inquired about drug use for the policy Bias wanted 37 . i. to be prudent. Zenith • The Court implied that summary judgment is proper even when there are equally plausible competing inferences. this evidence failed to contradict the specific evidence that 2 witnesses saw him using drugs. However. They should have deposed these witnesses or should nhave provided conflicting evidence from others who would have been at those parties.e. Opposing party's burden (1) If Initial showing not made If the moving party has not made the required initial showing. • Where the record taken as a whole could not lead a reasonable rational trier of fact (jury) to find for the nonmoving party. 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. Makes the burden for the Plaintiff high.. there technically is no burden on the opposing party to make any showing in response to the motion. (2) Initial showing made If the moving party has made the initial showing. 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. 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. (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.
(2) the author of the letter could testify to the facts contained therein. a drug user. In response to interrogatories. ∆ used Affirmative Evidence for their burden standard a. o In opposition to the motion. Insurance Policy . Prior Drug Use 1. the district court properly concluded that there was no genuine issue of material fact as to the insurability of the player. Drug results 3. Coach b. There was enough here for a jury to decide. Every insurance policy that exist 1986 would at some point would inquire about drug use 2. the widow listed the executive as a witness. but the ∏'s evidence did not address the specific point. 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. Court Says: a.Would any insurance co give a policy to a drug user 1. they only provided b. Didn’t create a genuine issue of fact • • Is the judge here deciding fact? Yes .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. Johns-Manville Sales Corportation • The decedent installed asbestos fireproofing products. 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. He may be right. they only provided general evidence b. Specific evidence was marshaled by the ∆'s. An all inferences should be made for the nonmoving party. • The estate failed to do more than show that there was some metaphysical doubt as to the material facts. The manufacturer contended that the widow failed to show that the decedent was exposed to any of its products. but this feels a little fact based. ∏ a. and • • • • 38 . ∏ should have deposed the witnesses or offered testimony of other friends or teammates of Bias ii.he is making inferences about habitual drug use. ∏ a. the widow submitted a letter from an executive of decedent's former employer describing decedent's use of a particular asbestos product. 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. ∆ used Affirmative Evidence for their burden standard a. 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. Court Says: a. 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. Specific evidence was marshaled by the ∆'s. but the ∏'s evidence did not address the specific point. Not all companies inquire about prior drug use at certain particular stages in the application process.
. Mrs. Celotex answer interrogatory 5. C worked for AJ 2.waived at District Court level Yes .waived And admissible if we can see out • way to admissibility Yes . 6. 3. she has 2 yrs… but is that enough when you go up against • SJ is not really rule based anymore. Yes . and make available to all. Purchase Orders 4.(3) the manufacturer submitted documents recording its sale of the asbestos product to decedent's employer during the period of his employ. Hoff will testify 3. Insurance Letter Content (what does it prove) 1. 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. Workers comp testimony 6. 5. Type of Evidence 1. 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. Firebar was sold to AJ 4. 2. Cleotex is the successor of Panacon Cleotex is liable for all of • Panacon Admissible? 1. Mr.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.defendant's own admission Yes No No These standards put more pressure on SJ standard. C's answer to interrogatory 3. Mr. Hoff letter 2. 4. 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 .
. Compare the action to actions historically brought in England prior to the merger of the courts of law and equity. The relief the employees' sought was not restitutionary. you have to demand it. and you can choose to have a bench trial • Equity vs. and you can choose to have a bench trial • 40 . Usually always have the right to a jury trial. as opposed to suits which only involve equitable rights and remedies. Under the first part it is unclear. unless the remedy is strictly equitable or the nature of it is strictly equitable • You can waive a jury trial. The employees' action encompassed both equitable and legal issues. 391 v. Local No. Therefore.Legitimizes democracy People take their civic duty seriously CASE: Chauffeurs. • the right to a jury trial provided by the 7th Amendment encompasses more than the common law forms of action recognized in 1791. Functional test i.. Find analogous cases from history b. Examine the remedy sought: legal= jury. law (tension between jury and judges) • Common law . Holding: • The remedy of back pay sought in the action was legal in nature. unless the remedy is strictly equitable or the nature of it is strictly equitable • You can waive a jury trial. equitable= judge. you have to demand it. but wages the employees would have received from their employer had the union processed their grievances properly. and equity. Is this issue one that is like a case that would have been decided when the 7th Amendment was adopted iii... but rather any lawsuit in which parties’ legal rights were to be determined. the employees were entitled to a jury trial on all issues presented in their suit. The court says that the second inquiry is more important. Historical Test i. The back pay was not money wrongfully held by the union. ii. 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. Are the remedies monetary or equitable in nature? ii. Under the second part the court says it is legal. Two step test: a.all judge made law • Sometimes money does not solve your problem • The equity courts were run by judges. To recover from the union. the employees had to prove that their employer breached a collective-bargaining agreement and that the union breached its duty of fair representation. Teamsters & Helpers. and therefore it was not equitable. came up with resolutions other than money: Specific performance Injunctions Making someone do something • Now courts are dealing with law. 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.
but they can’t make the motion. There are strategic choices that you can make. you’re going to lose them. 12(g) doesn’t say anything about an answer! It only says that if you make a Rule 12 motion. But we can see how this fact colors the procedural ruling. Think of Rule 12 this way: you receive a complaint. The judge gives us several reasons for this: (1) It was an ineffective denial under the Rules. Say the other person files the 12(b)(6) and it gets denied. you lose everything else unless it’s saved by Rule 12(h). which means. If you notice your mistake quickly. 12(g) says that you have to raise this objection along with your other Rule 12 motions. That’s where the case comes from. What really underlies this case is the party in interest here: the insurance company. But what if they had their 12(b)(6) denied and then tried to do 12(b)(5). 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. This is technical. The Rules are designed to encourage you to do certain things first. You can either admit or deny the averments. they can raise the defense. So you already waived your 12(e) 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).Hypotheticals My opponent files a 12(b)(6) motion for failure to state a claim. you can say that too. But 12(h) also says that the issue can’t be raised in another Rule 12 motion. What can we do? They can raise the defense. Here’s what you should do: think about the universe of possible things you might be able to say about the complaint. neither defendant will pay the judgment. 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 must use these defenses either before your answer or in your answer. you’ll be able to catch it. If you don’t do them first. A proper denial would have broken down the component parts. But the amendment option won’t help you much in general. but then they come back with 12(b)(1)? The defense is preserved! Can they do the 12(b)(1) motion? No. 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. It must be raised in a different way. we’ll do denials and affirmative defenses. If you don’t have enough information and you’re not sure. Denials So we have to do our answer 20 days or later. So it doesn’t really matter who gets sued! The liability will pass through. No good. Nothing happens on its own! You must raise the issue. It seems like a harsh penalty. 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). Is that valid? Nope. it will be denied. under 12(g) and 12(h)(1). and this is why you try to delay doing an answer. or else you can never raise it on appeal (unless it’s subject matter jurisdiction). (2) The judge finds that there was no bad faith. As a practical matter. Then they file a 12(b)(3) motion to dismiss for improper venue. but it must be done in some other form. which would have been a signal to the plaintiff that the plaintiff sued the wrong party. That part explicitly gives us the hierarchy. What if the other side just goes ahead and files a complete answer? Then they want to move to dismiss for improper venue. By practice. and there are bad choices you can make. The issue is still alive. Rule 15 tells you that you can amend your pleading once before the answer comes back. Then you have to figure out what you must do now in order to not waive it. But that doesn’t help the defense. 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. The court denies the motion. 12(g) says bring them all at once or lose them! What if they had their 12(b)(6) denied. labeling it something different. typically judgment on the pleadings or summary judgment. 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. the judge will probably be willing to recharacterize the motion as a motion for judgment on the pleadings. Denials are back in Rule 8. If you make a Rule 12 motion. When you can only admit or deny part of the allegations. 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. The plaintiff could have then amended his pleadings. there’s no problem. Can they do it? Nope! Rule 12(h)(1) says that the defense is waived if it’s omitted from the answer. they’ll be subject to liability if it can be proved that they were negligent. It’s a painstaking process! If you fail to deny. The insurance company will pay. essentially. which tells us that we can still raise this. based on 12(h)(2). like in a judgment on the pleadings or later on at trial. 41 . you waive everything else. and then they move for the 12(e) motion for a more definite statement. you must do so piece by piece. Realistically. which insures both PPI and CCI. the courts allow you to raise this issue by motion. but then they file a 12(b)(7) for failure to join an indispensable party. This is often a consideration when judges decide what to do on the pleadings.
The Court of Appeals doesn’t have to accept the interlocutory appeal. 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. but rather severing them and then letting them proceed separately. Is not paying for the chicken coop related to the cause of action for defective production? We look at our logical relationship test. These transactional tests that were in force in the claim rules are more rigid when we look at the party side. doesn’t have a lot of controversy either. It’s debatable. but then you and your friend get hit by an Upper Arlington school bus. The coop isn’t being paid for because it’s defective. There isn’t a lot of litigation over this rule. you’ll implead the insurer. Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation. This is unusual. It’s a very liberal rule that allows you to join people together. If you’re responsible for an accident and get sued but you’re insured. He sues both the dealership and the manufacturer. it can be done under Rule 14(b)! It’s a lot shorter than 14(a). Rule 20(a) isn’t that active a rule in federal litigation today. This case talks about who the defendant can bring in. There are some limits on joinder of claims and parties. we had two separate accidents. oversight.Joinder of parties Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you. It’s best considered as an efficiency rule. Here. But it did here. really. whatever that means. This is no liability! Blair claims a defense. Some of these claims will get in under supplemental jurisdiction. Unless you’re alleging a city policy that they only hire negligent people. 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. It’s basically just a reciprocal rule. Could the farmer turn around and implead the bank for failing to pay the bills? Sure. The court can also use Rule 42 to do this: it allows for both consolidation and separate trials. but we won’t get into that. In general. The key is that you can only implead them under Rule 14 if the liability is derivative. but a plaintiff can bring in a third party when a counterclaim is asserted against the plaintiff. The impleader rule. You call a friend who picks you up and takes you to class. Rule 14. and we usually think of this rule as a defendant’s rule. Can Blair implead Blaine under Rule 14? This is not derivative liability. but others will fail due to poor drafting. You want the claims joined so you can see a pattern of bad treatment by a common defendant. You don’t have to admit that you’re liable. But maybe “bad chicken coop. Andy gets assaulted by Blair. and Blair’s defense is that it wasn’t him that did it. He thinks it’s defective. so the counterclaim would probably be okay under Rule 13. If we erase the defective coop claim and have Latco sue on the unpaid bill as to the plaintiff. Complex joinder Let’s do some problems to help set the stage for these issues and how they play into the supplemental jurisdiction statute. There’s a bunch of stuff about Alabama tort law. RULE 14 Impleader is not to be confused with interpleader or intervention. Blaine should be a co-defendant or alternative defendant. That’s a perfectly good example of derivative liability. bad steel” is an efficient trial package. though. and it looks like it’s the same transaction. and Latco probably said they weren’t. 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. There’s nothing fancy about the lawsuit. There are a lot of tools to sort through the complexities of this rule without litigation. the plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases. and can put on evidence that the other guy did it. but Blaine. Consider the original set of facts. Misjoinder doesn’t lead to the dismissal of the actions. though. This is most often seen in an insurance case. 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. bad nails. A defendant. It’s an efficiently rule. But they said that if they are liable. They don’t want to screw up and then have to try the whole case over again. you would have to do two separate suits. 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. The plaintiff says: 42 . You need multiple defendants to be able to testify! Here. or both! These situations are pretty much the same. Say we have a single plaintiff who buys a car from a dealership. the liability goes to the third party. But the court can still choose to sever these cases if they think that’s most fair and efficient. Can ITW implead into this case? The court lets them in. in Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”. but you can’t implead him. 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.. It’s a single cause of action with one plaintiff and multiple defendants.
But decisions like Strawbridge give us the rule of complete diversity. What messes things up is that once Owen gets brought in. 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.S. 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. Maybe the manufacturer is contractually obligated to indemnify the dealer. Omaha and Kroger were from different states. 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”. theoretically the court has no power over the defendant. It’s difficult. Owen. but it’s precluded as a matter of substantive law by worker’s compensation. 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. All of this answer that we get from Owen v. or the plaintiffs’ lawyers didn’t do their homework. 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. It’s a truthful but not forthcoming answer. it will pass through to the crane operator. the power company has dropped out. Everybody would think to sue the employer first. Kroger. you must read this Rule as being limited by other Rules that add more specificity. sues for wrongful death. The Rules tell us that subject matter jurisdiction can be raised as an issue at any time. If it were a compulsory counterclaim. There was no subject matter jurisdiction problem. which has the same language. Then there’s the people who leased the crane. They were moving a crane. You can’t get supplemental jurisdiction when jurisdiction is based only on 28 43 . Maybe the facts weren’t as fully developed when the plaintiffs brought the suit. But recall the source of diversity jurisdiction: Article III gives the federal courts power to try cases “between citizens of different States”. including at trial. then the dealer would have to bring it or risk losing it under preclusion doctrine under Rule 13(a). Why can’t we do that here? The lower courts try to stick it to Owen due to deficiencies in their pleading and strategy. Even though this Rule says that you can bring any cross-claim you want. What does OPPD do? They implead Owen. We could sue the employer! That would be a great option! He could sue the Omaha Public Power District. The dealer can file a cross-claim! Rule 13(g) lets you do it. The only problem that messes this up is if you have jurisdictional issues that make joinder cumbersome. 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. It doesn’t say anything about complete diversity. Can the dealer countersue the plaintiff for not paying for the car? Yes! You don’t need the same transaction or occurrence. The suit was filed as a diversity action. Who can we sue? We ought to be able to sue somebody. 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. admits that they are a Nebraska corporation. which owns the lines and sold them. 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. 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.S. Why did the plaintiff make that decision? They ultimately bring a claim against Owen. This includes joinder of additional parties. the federal courts are courts of limited jurisdiction. which is part of what state tort law does. Rule 14(a) would have worked if the manufacturer hadn’t already been in the lawsuit. § 1367. you may not have other options because you weren’t the master of the complaint. § 1332. 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. Impleader could bring them in as a third-party defendant. The idea is that if OPPD has any liability at all. If it’s a permissive counterclaim. Owen Equipment & Erection Co. It’s all a matter of whether the court will give substance to that rule of law or try to ease out of it. where you put your denials and defenses. everyone thought that Owen was a corporate citizen of Nebraska. but they deny every other allegation.“One of these two defendants or a combination of the two is liable. The widow. Owen responds to the third party complaint. You’re just denying your own liability. depending on whether it’s a permissive or compulsory counterclaim. 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. At the time the impleader action was filed. and all that’s left is the claim against Owen. 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). Statutory jurisdiction comes from 28 U. which doesn’t require anything except that you have any claim against the opposing party. v. 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. Subsection (b) takes away certain types of jurisdiction. If this was the only Rule you were looking at. What’s going on in the underlying lawsuit? Kroger was employed by a steel company. If the court doesn’t have subject matter jurisdiction over the case.C. Owen gets involved under Rule 14. Mrs. Two years later. There’s nothing else special that you have to file. Kroger is later codified by the supplemental jurisdiction statute: 28 U. After summary judgment. The specific always trumps the general. the plaintiff amends to add a claim directly against Owen. Kroger – Yeazell starts with the Circuit case to work us up to the Supreme Court case. but there’s no transactional relationship! They have to file a separate lawsuit. It was an on-the-job injury.” Let’s say the dealer wants to file a claim of indemnity against the manufacturer. 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. When you use impleader. That’s an efficiency rule. who is ultimately liable for the injury caused. you can do it under 13(b). The Supreme Court views it as a diversity issue. and he got electrocuted and he died.C.
This can’t be possible! This is the absolute subversion of complete diversity. which doesn’t fall into any of the § 1367(b) excluded categories. We could have three different cases if we wanted to. like a federal statute about the operation of cranes? Could she bring that claim? § 1367 says this isn’t based solely on § 1332. It’s a claim by a third-party defendant against a plaintiff. they would have included this situation. Temple v. why didn’t they just implead them under Rule 14(a)? Because impleader must be based on derivative liability. It’s a claim by a plaintiff against a defendant! Had the drafters of the statute thought about it. Say we have a plaintiff from Ohio with a state negligence claim against a Texan. all the claims arise from the same case or controversy. – This case is trying to tell us that the Rule has two parts in a sequence. so it’s good! What if Owen sues Kroger for vandalizing the crane? The defendant can certainly plead that claim. How did they do? In Owen. and § 1367(b) wouldn’t get in the way because it’s not the plaintiff’s claim. as long as you’re within certain categories. The original lawsuit is okay. Rule 19(a) determines whether they’re a party that is necessary for complete adjudication. the court has to decide whether the action should proceed or be dismissed. This is the so-called “gaping hole”! No court has ever allowed this to go forward. and 24) who would destroy complete diversity. In Rule 19(b). § 1332 (diversity jurisdiction) and when you’re trying to join up people (in certain ways. Rule 20. because the plaintiff was acting as if it were a defendant. Yeazell says that Kroger is now acting as a defendant. 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. and if they can’t be brought in. There’s a Rule 12(b)(7) motion to dismiss! This tells you something about Rule 19. 20. though. allows you to bring in essentially everybody. This is one of the big problems of the statute: plaintiffs’ defensive claims barred by § 1367(b). What’s the risk that the defendants are facing when they’re separated? They could both get hit because it’s two 44 . But. 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. Kroger.U. So the intent of Congress was to codify the result of Owen v. 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. decisions like Strawbridge don’t allow it. It’s a joinder of parties rule. The guy with the hurt back is a Mississippi resident and the hospital is in Louisiana. then you add someone later who will mess up complete diversity.C. 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. Could Temple have brought everyone into one lawsuit? Sure! It’s the same transaction or occurrence. but it’s a diversity case. 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. Who do we sue? The plaintiff sues the manufacturer in federal court. 19. Subject matter jurisdiction would be diversity: Mississippi versus Pennsylvania and Louisiana. If there was a contract between Synthes and the doctor and hospital. you never get to part (b). It doesn’t make any sense for them to be precluded. Therefore. but there’s no basis for derivative liability on the facts that we know them. permissive joinder. 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. The plaintiff has spine surgery. who arguably must be joined. So why does Synthes want them involved in the lawsuit? If the plaintiff loses the federal suit. Synthes is a Pennsylvania company. what the court should do. If you don’t fit in part (a). and sues the doctor and hospital in state court. Rule 19 is talking about when people have to be brought in. But this is a claim by a defendant. then there might be a chance to implead them. There are concerns about this. he doesn’t necessarily lose the state suit. but Fairman says that the statute doesn’t allow this. There’s personal jurisdiction in Louisiana because the state and federal court cases are filed there. 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. 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. So (a) says that you have supplemental jurisdiction over claims and parties. but it’s used by defendants to get lawsuits dismissed. There is a plate and screw device implanted that broke. Compulsory joinder – Rule 19 This has also been described as joinder of “necessary and indispensable parties”. it must be okay! If that’s okay.S. then they had better be brought in. so there’s no problem! What if Kroger had a federal question claim she could raise against Owen. If complete relief can’t be given to the people who are already parties without another person. We have to think about strategy here. 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. then they’re necessary parties. but (b) says that if you don’t have diversity. (2) whether the judgment will be adequate without that person’s interest being represented. and you don’t have supplemental jurisdiction over claims made by plaintiffs against third parties. like Rule 14. but it’s more efficient to put them all together. according to § 1367. or the person could be subjected to multiple or inconsistent obligations in their absence. Synthes Corp. This lawsuit could go forward. you don’t have supplemental jurisdiction. and (3) whether the person will still have a good remedy if you dismiss them for non-joinder. can Kroger then bring the wrongful death claim? Is it a compulsory counterclaim? Check out the statute. But if Synthes wanted the doctor and hospital in the suit so bad.
Another example would be when there is a dad who set up a trust for himself and his kids. We ended up with Helzberg’s. These judges handle a lot of discovery matters. In this case. obtain information and preserve it for trial. a husband and wife own land a buyer wants to buy it. Precoat Metals – This case takes place in the Northern District of Illinois. requests for production. or other potential parties. 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. as the manufacturer claims. the lawsuit is allowed to go forward. the court can’t adjudicate the wife’s half-interest in the land. Some said that these amendments wouldn’t lead to much change. but they failed to make a determination under Rule 19(a) that they were necessary to begin with. 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. and the buyer wants specific performance. In the first case. Under Rule 26(b). The discovery process is one of the most important innovations of the Federal Rules. which tells us that joint tortfeasors are never indispensable parties. Factually. This case comes up before the court on a motion to compel under Rule 37. They used to relate the scope of discovery to the “subject matter” of the action. So if there are other complaints. they are joined. This is something brought up by the defendant trying to get out of the lawsuit rather than the plaintiff trying to join other parties. You need to find a “home” for yourself in Rule 19(a) before you get to the balancing test in Rule 19(b). Are other people’s complaints relevant to these plaintiffs’ claims? The key is that to have a hostile work environment. But we know that a husband and wife would be indispensable parties for this purpose. depositions. but that was seen as too broad. If they meet this category and can be joined. the court decided that the mall got itself into its own mess. In this case. The Rules were changed to indicate that the scope of discovery should be defined to claims and defenses as served in the pleadings. we had our last series of changes to the Rules related to discovery. 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. Other examples would include people with joint interests in property. Discovery – Rules 26-37 Discovery is the method by which a party to a lawsuit. and a magistrate judge is writing the opinion. 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. African-American and Latino workers sue this company for Title VII violations. Rule 37 is the sanction motion. There is no question that the other jewelry store is a necessary party. 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. not the other jewelry store. and it’s hard to see what the big change is in practice. Discovery includes rules related to disclosures. it must be widespread. There was no question that its interests would be impeded if Lord’s was in the case. interrogatories. The kids are Rule 19 parties. He enters into a contract with the husband only. and it can sort it out itself. and we learn this from the Court of Appeals. There is a breach. They complain that they were discriminated against and that they experienced a hostile work environment. Without the wife being there. they circumvented the Rule. and experience has shown that they were basically right. 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. should the action proceed or be dismissed? You could also transfer to another venue that would be more appropriate. By avoiding the threshold question. Are the kids Rule 19 parties? What if the kids are already adults? Can complete relief be given in the kids’ absence? Sure. however. in equity. 45 . Let’s say for example. We left off with Rule 19 and “necessary and indispensable parties”. joint obligors/obligees. Steffan v. Davis v. the court skipped over the (a) inquiry altogether and went to the (b) inquiry. That’s wrong. 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. Rule 19(a) says they must be someone you can’t go without. parties may obtain discovery under any matter not privileged that is relevant to the claim or defense. requests for admissions. The conclusion is that Lord’s is a Rule 19 party that can’t be joined. it tends to show that there is widespread hostility. the complaints are deemed properly discoverable. But the problem is what happens if they destroy jurisdiction. In the end. Cheney – Steffan was “constructively discharged” from the Navy for proclaiming himself gay. and requests for mental or physical exams. as a plaintiff. There are lots and lots of rules with lots of detail. according to the Supreme Court. you would want both defendants in the same lawsuit because they’ll make your case for you. What information do the plaintiffs want? They are trying to get information about other employees’ complaints. Will there be multiple or inconsistent obligations without the kids? No. The intent is to limit discovery. represented parties and limited pools/multiple claimant. What about impeding the kids’ interests? It may depend on how we classify the various interests. which would in turn affect the kids’ remainder. They sue the mall.different causes of action! Typically. The court could allow the lawsuit to go forward if it could cobble together ways to limit the prejudice against the parties. but. as long as there is no jurisdiction problem. How does the Supreme Court deal with this issue? Are the hospital and doctor. and the dad wants to sue the trustee for trust abuse. In 2000. used to get people to comply with the rules of discovery.
The Rule here says that discovery is relevant if it relates to claims or defenses. Can he do that? No. This is precisely where you want to raise the Fifth Amendment to avoid offering up free incriminating evidence to the state. and virtually every District Court opted out of enforcing this Rule. even though such agreements aren’t typically admissible as evidence. Why can she use that privilege? Even though this is a civil case. Is this information privileged? Is there a privilege that might be raised? Sure. but rather it’s so integral to this lawsuit that we force you to disgorge the information as soon as the lawsuit is filed. You also have to provide copies of any insurance agreements. anything that’s not privileged and is related to claims or defenses is discoverable. Is it relevant? Of course. Then he appeals to the D. She’s not being tried of anything. Though usually there is a confidential relationship between doctor and patient. Is this good policy? It drives up the cost of litigation because discovery is. There is also another eyewitness who will claim that Albert is at fault. Date counting is very important! Prior to the 2000 revisions. against Barbara. The district court judge doesn’t buy it. The mechanic might be a good witness to claim that the car was in good working order. He has a poor driving record. civil or criminal. He has information that he was about to be fired from his job. He probably has to fork over both the medical records and the wage statements. You do want to find out how much money people have. They also file a request for sanctions (including simply dismissing the case). All of this stuff must be coughed up within 14 days of the Rule 26(f) conference. 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. 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. Albert put his own health at issue: he can’t hide behind the privilege and not have to answer questions. Let’s say Barbara gets asked in a deposition whether Barbara intentionally hit Albert. It’s relevant. But this is a civil suit. what is said in the civil case is a statement that can be used in other actions. Circuit. It can give one side a strategic advantage in the lawsuit. Albert sues Barbara for negligence. But that eyewitness has substance abuse issues. 26(a)(1)(D). Albert wants to discover how much money Barbara has. Does that make sense? Are they splitting hairs here? They take a very narrow view of the “claims or defenses” standard. Steffan argues that the questions that he’s being asked are not relevant.C. What does the Navy do? They file a motion to compel Steffan to answer. So most action on discovery is at the district court level. He appeals his dismissal on the grounds that the discovery ruling and sanction were wrong. But what about the drunk witness? We’re not sure whether we want to use that 46 . the disclosure Rule was optional. that says you are required to disclose whether you’re carrying insurance. The only reason there is a right to appeal on this discovery issue is that he’s been poured out of court entirely. courts will find that how much money the other person has is relevant as to punitive damages. The witness must be mentioned if he will be used. Steffan refuses to answer. The original administrative proceeding was based only on his statements and not his conduct. It’s not because it’s relevant to the claim or defense. this will probably be an exception to that privilege. He has wage statements which are used to support claims of lost wages. We left off talking about Rule 26. We don’t want to disclose the boss. Compare this to the previous case: there was no appeal of the discovery ruling until the entire case is finished. why can I get your insurance coverage information? There’s actually a Rule. Basically. and that’s why there is so much litigation over discovery disputes: there is so much to work with. She has a mechanic and a boss. You must show a calculation of your damages. She had a fight with her boss on the way to work. 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. at which point the standard for review is whether the discovery ruling caused you to lose the case. because it’s not relevant to whether she was negligent. 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. Evidence as to discovery is a case-specific issue. Let’s say Barbara’s counsel wants to question Albert’s doctor about his emotional state. Let’s say Albert is claiming damages for emotional distress. How about Barbara? She has an insurance policy. she could plead the Fifth Amendment. the most expensive part of the lawsuit. The Court of Appeals says that the question is not relevant.Steffan refused to answer on Fifth Amendment grounds (which you can do in a civil matter as well as a criminal matter). Steffan claimed that he was discharged because he said he was gay. not because of any conduct. The claim is for negligence. Who and what do we disclose? Barbara must disclose her insurance policy. and the case is dismissed. 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. You must disclose the contact information of people who might have useful information. You must disclose any key documents you’re using to support your claim or defense. Privilege Say Albert sues Barbara for an intentional tort. such as the contract in a contract dispute or a codicil in a will dispute. by far. Disclosures Rule 26(a) deals with disclosures. A hypothetical We have Albert and Barbara. Let’s say that Albert has medical records that will support his injuries and damages.
He talks to the survivors and other witnesses. The Court doesn’t establish a set rule. Rule 37 says that if they failed to disclose. On the other hand. you usually get it. v. Norman Hickman is one of the guys killed. and was prepared in anticipation of litigation. These are the statements of people who would know best what happened. An alternative test is the “Subject Matter 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. So disclosures are mandatory. who is employed by the tug boat company. which provides any employee with privilege as long as the matter is within the employee’s performance of their duties. and pleadings may be struck.g. What disclosures would we have to make? We wouldn’t have to disclose anything. 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. The typical sanction under Rule 26(g) will be the fees associated with having to respond to the request. then they don’t get to use the person or fact in the trial. witness statements in some form. what does the plaintiff have to disclose? The plaintiff would have to disclose some kind of damage computation. Upjohn Co. Taylor – This is a much more broadly focused case and it establishes some larger issues. Who does this Rule apply to? It applies not just to the party’s attorney. Say your client is a used-car salesman. If it’s not privileged. 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. Is it better strategically to seek protective orders to prevent having to answer discovery. If the material is otherwise discoverable and doesn’t relate to experts. claiming that the memos are privileged. But note that Rule 11 doesn’t apply to discovery. There is an interrogatory from Hickman to provide the notes from these interviews. Rule 26(b)(3) talks about trial preparation and what may or may not be discoverable. Fortenbaugh. you must disclose the witness. 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. The attorney declines. 47 . We left off discussing compliance. but maybe we would say that the salesman himself is a person with knowledge of claims and defenses. Rehnquist says we want to encourage frank communication between attorneys and clients. 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. Are the things that we don’t disclose not discoverable? They may be discoverable even if it’s not necessary to disclose them. (But to whose advantage is such strategy? The client? The attorney? “Justice?”) Hickman v. If you’re going to use the witness. but a non-party can get it for you. We could go over a lot of different problems. The customer thinks she’s made a deal. is it relevant? Yes. What if we wait until after the discovery conference. but the salesman doesn’t agree. The customer sues for breach of contract. There were some tug boat guys who got killed. We don’t want to just protect the top of the hierarchy. There’s this attorney. If you find great eyewitnesses. the court will protect the lawyer’s mental impressions in constructing an order of discovery. There are more bad things in Rule 37(b)(2): facts can be deemed established. they don’t get this. you must give up the name of who you found. 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. they can obtain a statement that they made previously. you still have to cough up their name. You use Rule 37 when the other side fails to disclose something and they try to introduce it at trial. This lawyer interviews witnesses to prepare for trial. but they may not create any burden in a particular case. but not on these facts. Why aren’t these discoverable? As to these witnesses. There are sanctions imposed for an attorney having signed discovery requests that are “bad” for whatever reason (e. then you can’t get discovery of that information unless the discoverer can show some substantial need and there is no reasonably available substitute. But at the end of the day. They must show some reason why the other attorney’s work should be available to them. Even then. but you don’t have to give up exactly what they said. Rule 26(g) is kind of like a mini version of Rule 11. They could have just gone out and done these interviews themselves. timeliness). The information would otherwise be discoverable. If it’s not privileged and it’s relevant. But what makes this material special and allows it to be treated specially? It’s attorney work product. A party might not be able to get this statement. Just because you spent a lot of money finding a witness. evidence can be banned. 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. but the important stuff is that you need to look at both Rule 37 and Rule 26(c) and (g). the Court tells us that there may be some way to get this information. There was no effort on the part of the requestors to get this information themselves. You could also list yourself as a person with knowledge of the claims and defenses. but also the party’s consultant or other representative.witness or not. Why not? The Court says that it’s not protected from discovery. 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. There are two types of information: first. If someone isn’t a party to a lawsuit. but it did stop the use of the “Control Test”.
Adickes v. around 70% of them. problem-type questions to test discovery. There are Rule 26(g) sanctions. Judges can intervene to prevent something from going forward in a lawsuit if plaintiffs cannot meet a minimal showing with the production burden. If the plaintiff can make a showing. the burden shifts to the defendant to make some showing that there is an issue of fact for the jury to decide. which reverses. that is. but denying basically everything else. dismissals. had the burden of production and burden of persuasion. There are compliance Rules in 26(g). There should be old exams on file now. But when will the right to appeal kick in? It will frequently be way too late. The case goes up to the Supreme Court on that issue. Resolution without trial There are fewer and fewer actual trials. you can’t come up with any evidence of something you have to prove at trial. You’ll encounter a person who doesn’t want to disclose information even if it is explicit required. that Catrett was exposed to the defendant’s asbestos. Catrett – Here’s a wrongful death claim. Fairman has also used short-answer. saying that the burden of the moving party (Celotex) required it to support its motion with affidavits to negate exposure. Rule 12 motions dispose of a certain number of cases. but you have no choice under the Rules. Summary judgment. A mandatory discovery conference may be required under Rule 26(f). even though there are many. Lots of cases settle. non-privileged stuff. Next. period. 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. and you can also get a protective order under Rule 26(c) to prevent having to respond. These become the “big sanctions”. This case more or less moots summary judgment in federal court practice from the defendant’s standpoint. to prove that he wasn’t exposed to Celotex asbestos. The case will be dismissed. The defendant. But there probably won’t be a pending case that deals solely with a discovery issue. There are certain categories of information you must give up. there may be attorney fees and expenses awarded regarding the discovery at issue. and ADR are other options. If after discovery. Default judgments can cause the end of suits.C. When 48 . But if you can make a minimal showing. then there’s no reason to try the case. though. the complaint alleged that the defendant manufactured asbestos. Rehnquist says that after a period of discovery. The burdens to prove that the plaintiff can’t win would be so heavy that you might as well try the case. v.H. Kress & Co. There are also limitations in Rules 30 and 33 on depositions and interrogatories. Rehnquist suggests that this Rule operates much like Rule 50 (judgment as a matter of law). you’ll clear Rule 56 and have the chance to get before a jury. there is the problem of too much discovery. They claim that this plaintiff has proved that he was exposed to their particular type of asbestos. Celotex Corp. There can be an ethical question here. It also provides other specific “tiers” of sanctions under Rule 37(b)(2). And when we look at what happens in the states. if there’s nothing the defendant can say. Pleadings can be stricken. that the asbestos was unreasonably dangerous. Celotex moves for summary judgment on the issue of exposure. saying basically “if you can’t do it now. what makes you think you’ll be able to do it at trial?” The case goes up to the D. Summary judgment – Rule 56 Don’t mix up the “burden of production” and the “burden of persuasion”. Sometimes millions of pieces of paper are disclosed. Finally. every document you sign is signed in a “Rule 11” fashion. Most cases are state cases. and of course the right to appeal.Discovery disputes We can get protective orders that can prevent you from having to disclose information. which is the obligation to convince the trier of fact to some level of certainty of the truth of an issue. There may be too little discovery (or the “stonewall position”). People don’t want to disclose stuff that would be bad for your client. big sanctions. There are ways to control this: under the general Rule 26(b). Circuit. At the core of discovery is the fear of abuse. The burden of production is the obligation to go forward by producing some evidence on an issue. the plaintiff will be entitled to judgment as a matter of law. If a proper request is made for relevant. the defendant’s burden was to show that the plaintiff could not prevail at trial. The defendant responds by admitting they produced asbestos. in essence. The exam will be based on pending real cases. The defendant had to prove that the plaintiff couldn’t win. The district court grants summary judgment to the defendant. many more cases! The data that Fairman is showing us is just for federal trials. motions to compel. There are three typical discovery abuse problems. That’s because there’s no information that the plaintiff came forward with that can show exposure to Celotex asbestos. Facts can be deemed established: even things that aren’t true! Evidence can be banned. Initial disclosures under Rule 26(a) are designed to solve the problem of too little discovery. Otherwise. But that may or may not be responsive. You certify that what you’ve done is complete and in good faith. S. That may be the same as who has the ultimate burden of proof. The court says that there was no evidence that the plaintiff was exposed to Celotex-brand asbestos. That’s a burden they would have at trial as to causation. By Rule 26(g). On summary judgment. – At trial. you can limit the scope of a discovery request. They don’t explicitly overrule Adickes. When you look at the pleadings. You can be held in contempt. and that it caused his death and damages. or rather. the burden of persuasion. the plaintiff had the burden of production and persuasion. you must cough it up. You can also get motions to compel under Rule 37. the data is about the same.
Now’s the time they must come up with any evidence. Celotex has the burden of production. it has to say that the plaintiff failed to produce evidence as to the exposure. As to that motion. They get their last chance.Celotex files its motion for summary judgment. When they do that. 49 . the burden of production then shifts back to the plaintiff.
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