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

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

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


(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.


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

which extends the time for filing her answer until 10 days after the rule 12(b) motion is dismissed. or within 90 days after it was sent to the defendant outside any judicial district of the United States. Unless another time is specified by this rule or a federal statute. (3) United States Officers or Employees Sued in an Individual Capacity. counterclaim. unless the order specifies a different time. serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial. the responsive pleading must be served within 10 days after the more definite statement is served. or crossclaim within 60 days after service on the United States attorney. (4) Effect of a Motion. 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. whichever is later. or crossclaim within 60 days after service on the officer or employee or service on the United States attorney. or (B) if the court grants a motion for a more definite statement. 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. or a United States officer or employee sued only in an official capacity must serve an answer to a complaint. whichever is later. (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. (5) insufficient service of process. (b) HOW TO PRESENT DEFENSES (this also has to do with objections). the responsive pleading must be served within 10 days after notice of the court’s action. (2) lack of personal jurisdiction. • What is a defense or objection? o A defense says that I am not liable for this… I am not liable under the law 6 . A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. Officers. (4) insufficient process. If a pleading sets out a claim for relief that does not require a responsive pleading.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. an opposing party may assert at trial any defense to that claim. a United States agency. 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. Unless the court sets a different time. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. or (ii) if it has timely waived service under Rule 4(d).impleader of third party defendant Rule 12 (a) TIME TO SERVE A RESPONSIVE PLEADING. The United States. (C) A party must serve a reply to an answer within 20 days after being served with an order to reply. (6) failure to state a claim upon which relief can be granted. or Employees Sued in an Official Capacity. (3) improper venue. (1) In General. counterclaim. But a party may assert the following defenses by motion: Delays having to file an answer (1) lack of subject-matter jurisdiction. (2) United States and Its Agencies. 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. within 60 days after the request for a waiver was sent. • More plausible than possible (Iqbal/Twombly) (7) failure to join a party under Rule 19. 18 20 19 Rule 11 Rule 14 .

matters outside the pleadings are presented to and not excluded by the court. 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. (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3). (1) Right to Join. or scandalous matter. is the device intended to obtain information about an adversary’s case. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (B) by a motion under Rule 12(c). Failure to state a claim upon which relief can be granted. or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. (1) When Some Are Waived. the motion must be treated as one for summary judgment under Rule 56. • 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 gratuitous they are is a waste of everyone’s time unless their availability in the public record is likely to prejudice the movant. impertinent. 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 to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a). If. • 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. o However in notice pleading. 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. or (2) on motion made by a party either before responding to the pleading or. (g) JOINING MOTIONS. or (B) failing to either: (i) make it by motion under this rule. 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. 7 . the spirit of the rule says another thing. In light of • A judge can bring this up on his own. • Submission of materials outside of the pleadings converts 12(c) to a motion for summary judgment (d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS.o An objection is something like I don’t have to be here: I wasn’t served right. The court may strike from a pleading an insufficient defense or any redundant. discovery. The court held that the ∆ could not effectively respond to ∏’s complaint until he knows which claims the ∏ is asserting against him in his individual capacity. then fighting over how immaterial. If 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. immaterial. • CASE: Bower v. on a motion under Rule 12(b)(6) or 12(c). to join a person required by Rule 19(b). • A complaint that is too vague . The court may act: (1) on its own. There may be an issue if you bring this or a 12(e) motion first). if a response is not allowed. (e) MOTION FOR A MORE DEFINITE STATEMENT (this is not a defense or objection. 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. (h) WAIVING AND PRESERVING CERTAIN DEFENSES. or (C) at trial. (f) MOTION TO STRIKE (treated like a 12(e) motion. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. the court may strike the pleading or issue any other appropriate order. within 20 days after being served with the pleading. not pleading. (c) MOTION FOR JUDGMENT ON THE PLEADINGS. ambiguous or confused to enable the defendant to respond can be attacked by 12(e) motion. a motion for clarification). After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings. Plain lang: no. Suisponte • Plain language of the rule says one thing. so try and raise this after 12(b) motions. (2) When to Raise Others. A motion under this rule may be joined with any other motion allowed by this rule.

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

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

defense. It is in the eye of the beholder. Rule 11(c)(3) On its own. 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. Absent exceptional circumstances. On its own. the court may award to the prevailing party the reasonable expenses. (4) Nature of a Sanction. and motion under Rules 26 through 37. law firm. 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. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. or party to show cause why conduct specifically described in the order has not violated Rule 11(b). including attorney’s fees. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). o The motion must not be filed or be presented to the court if the challenged paper. Law firms should be held jointly liable for sanctions along with the firm members who violate Rule 11. Rule 11(d) INAPPLICABILITY TO DISCOVERY. (d) INAPPLICABILITY TO DISCOVERY. or other paper — whether by signing. the specific conduct that allegedly violates Rule 11(b). incurred for disputing the motion. or whose attorneys are. or denial is withdrawn or appropriately corrected within 21 days (safe harbor) after service or within another time the court sets. claim. and attorney has 21 days to pull it w/o getting sanctioned. (6) Requirements for an Order. The sanction may include nonmonetary directives. the court may order an attorney. if imposed on motion and warranted for effective deterrence. 1. or party that violated the rule or is responsible for the violation. filing. 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 may award to the prevailing party the reasonable expenses. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2). o Do not bring nonfrivolous suits What is it? We don’t know. responses. associate. law firm. but it must not be filed or be presented to the court if the challenged paper. (2) Motion for Sanctions. o Can have a plainly frivolous claim. written motion. claim. or employee. or by the party himself if unrepresented 2. the court may impose an appropriate sanction on any attorney. after notice and a reasonable opportunity to respond. If warranted. information. to be sanctioned. contention. (Discovery has its own sanction rules) Motion for Sanctions. or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. a law firm must be held jointly responsible for a violation committed by its partner. law firm. contention. or (B) on its own. but in any event are to be limited to what is necessary to deter repetition of such conduct. (purpose – for deterrence. and belief. If warranted. The motion must be served under Rule 5.(c) SANCTIONS. incurred for the motion. and (iii) The paper factual assertions have evidentiary support. Procedure A party may move for sanctions. 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. responses. Sanctions Imposition of sanctions for violation of Rule 11 is discretionary. not compensation) (1) In General. but must give the non moving party notice and 21 days to withdraw or correct the sanctionable paper. If. Will probably receive a bad reputation. A motion for sanctions must be made separately from any other motion and must describe 4. Certified Requirement: Rule 11 requires that every paper filed in court be signed by an attorney. including attorney’s fees. The court also has to impose sanctions on its own initiative. the court may order an attorney. objections. (5) Limitations on Monetary Sanctions. This rule does not apply to disclosures and discovery requests. This rule does not apply to disclosures and discovery requests. or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge. • 3. defense. Matter Certified by Signature By signing/presenting to the court a pleading. 5. an order to pay a penalty into court. Sanctions can be monetary or nonmonetary. the court determines that Rule 11(b) has been violated. or. (3) On the Court’s Initiative. 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. or party to show cause why conduct specifically described in the order has not violated Rule 11(b). submitting. 10 . objections. and motion under Rules 26 through 37.

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

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

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

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

(1) Timing of the Summons and Complaint. cross-claim for contribution or idemnification. The defendant’s may chose so sue in a separate action if they so choose. 15 . After that the grant of the motion is totally up to the discretion of the court Very liberally granted.o 3. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim 4. and are usually made between defendants. Their claim should have been filed as a compulsory counterclaim in the state court action. A defending party may. assert the claim in an independent action (g) CROSSCLAIM AGAINST A COPARTY. But the third-party plaintiff must. 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. by motion. Inc • • The Podhorns did not file a counterclaim in the state court action. obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer. but the TPP does not have to prove anything (a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY. the defendant may. • 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. • 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. 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. plaintiffs were required to file the instant claims as compulsory counterclaims and their failure to do so bars them from having those claims heard. 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 . These are claims are optional. Paragon Group. it is optional (or permissive) for the defendant to assert them by way of counterclaim. CASE: Compulsory Countercalim .Podhorn v.e.g. Inc – See below (b) PERMISSIVE COUNTERCLAIM. if she chooses. • 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. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.  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. serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it... i. 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. • 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. or if the claim relates to any property that is the subject matter of the original transaction. Accordingly. Is there any logical relation between the claim and counterclaim Podhorn v. Paragon Group. 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. namely plaintiffs' tenancy at defendants' apartment. as third-party plaintiff.

when appropriate. 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. 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. 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).(Can step into the plaintiff's shoes . (5) Third-Party Defendant’s Claim Against a Nonparty. • The court determined that the allegedly speculative nature of the third-party claim did not bar an impleader. to sever it. (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 . When a claim is asserted against a plaintiff. but the TPP does not have to prove anything Contribution (joint tortfeasors)  • To obtain a judgment that the third party is liable to pay the main defendant part of the damages she is so order to pay the plantiff Indemnification . complication of the issues in the main action. a third-party complaint may be in rem. the plaintiff may bring in a third party if this rule would allow a defendant to do so.(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a). In that event. or to try it separately. a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.D admitting or defaulting to P's company steps in and makes the claims for  you) Coleman's insurance co could have gone after the sellers • (3) Plaintiff’s Claims Against a Third-Party Defendant. and potential prejudice to the plaintiff from impleading a sympathetic third party CASE: Gross v. a reference in this rule to the ‘‘summons’ includes the warrant of arrest. (6) Third-Party Complaint In Rem. Sever. and Policy: To prevent collusion between the original parties . the goal is to get everything out there to litigate (4) Motion to Strike. and a reference to the defendant or third-party plaintiff includes. 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 party  Subrogation . If it is within the admiralty or maritime jurisdiction. 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. Policy: • Pros: Efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent judgments • Cons: Delay in seeking impleader. Rule 19: REQUIRED JOINDER of PARTIES 16 . • Once the parties are adverse. Any party may move to strike the third-party claim. (b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. or Try Separately. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a). and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

if the party is "necessary. is the party "necessary" under Fed. the court can still proceed against those before the court  Policy: There is no "substantial prejudice" to the parties before the court that would justify dismissal. so we want everyone there • • • Original parties to a contract when third-party beneficiary sues • • • • • Third-party beneficiary when original party to a contract sues (a)(1)(A): Complete Relief (a)(1)(B)(i): Impairment (a)(1)(B)(ii): Inconsistent Obligations (a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE. 19(a)? 2. (necessary. but generally not indispensable  Joint promisors under a contract (and other joint debtors) should be joined as defendants wherever possible. if one cannot be joined. Where the absentee may be prejudiced by the failure to join 19(a)(1)(B)(i) 3. Necessary Parties • Joint Obligors • o Parties to contracts •  May be necessary. 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. and a joint tortfeasor is not considered a necessary party. 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. R. ordinarily she is not required to do so. P. an action to set aside a contract requires the joinder of all parties to the contract. that the defendant might be subjected to inconsistent obligations in an action brought by the absent obligee. Where the plaintiff cannot get relief from the named party 19(a)(1)(A) 2. ought to be joined if possible) 17 . However.Three situations in which an absentee should be joined: 1." is it also "indispensable" under Rule 19(b)? • as a general rule. Civ. 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. 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.

the action should proceed among the existing parties or should be dismissed. and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. an involuntary plaintiff. 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. or (C) other measures. (3) Venue. 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. in equity and good conscience. This rule is subject to Rule 23. (3) whether a judgment rendered in the person’s absence would be adequate. If a person has not been joined as required. and another court • orders the same party to perform an inconsistent act (2) Joinder by Court Order. When asserting a claim for relief. the court must order that the person be made a party. (B) shaping the relief. 18 . the court cannot accord complete relief among existing parties. the court must dismiss that party. in a proper case. the court must determine whether. (b) WHEN JOINDER IS NOT FEASIBLE. 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. If a joined party objects to venue and the joinder would make venue improper. a party must state: (1) the name. A person who refuses to join as a plaintiff may be made either a defendant or. (c) PLEADING THE REASONS FOR NONJOINDER. if so ordered by • the court. if known. multiple. 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.(1) Required Party. of any person who is required to be joined if feasible but is not joined. 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. 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. If a person who is required to be joined if feasible cannot be joined. (d) EXCEPTION FOR CLASS ACTIONS. (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment. and (2) the reasons for not joining that person. or otherwise inconsistent obligations because of the interest. If a plaintiff seeks a equitable relief that the named defendant cannot alone effect. then the additional • parties need to effect that relief could be necessary parties.

the Court holds that it is not necessary for Daynard to join the Mississippi defendants in this action because they are (or. Synthes Corp. Multiple tortfeasors equals permissive joinder. could be) jointly and severally liable co-obligors. 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). drawing inferences in Daynard's favor.procedure 26(c) Protective Orders 26(e)(1) Supplementing disclosures and responses 37(a) Motion to Compel 37(c)(1) Failure to Disclose. Motley. Richardson & Poole. Loadholdt. • If the Mississippi defendants are not "necessary" under Rule 19(a). which also applied to the Mississippi lawyers. PA • The law professor worked with 2 lawyer groups in litigation against the tobacco industry. Dynard v. to Supplement an earlier response or admit 19 . 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. ∏ 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 finds that joint tortfeasors are permissive rather than indispensable parties. Ness. This is a black-letter rule. – • 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. 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 .CASE: Temple v.

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

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. electronically stored information. condition. unless the use would be solely for impeachment. if known. (iii) COMPUTATION OF DAMAGES. provide to the other parties: (i) WITNESSES the name and. It is sufficient is the information sought appears reasonably calculated to lead to discovery of admissible evidence. and • A party claiming damages should disclose a computation of these damages and produce the documents on which the computation is based. custody. • You can just give the other party of list of what you have if both parties have the same document • i. Unless otherwise limited by court order. without awaiting a discovery request. 26(b) SCOPE OF DISCOVERY and LIMITS (1) Scope in General. 21 . (2) Limitations on Frequency and Extent. • 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. and the type of information that are not directly pertinent to the incident in suit could be relevant to the claims or defenses. including materials bearing on the nature and extent of injuries suffered. and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter). custody. unless the use would be solely for impeachment. . and tangible things that the disclosing party has in its possession. unless privileged or protected from disclosure. such as questioning a witness by using a document. the court may order discovery of any matter relevant to the subject matter involved in the action. a party must. However. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court. Sufficient use even includes certain discovery events. • The determination of whether information is “relevant to the claim or defense of any party. The expected use of a document or witness that mandates disclosure is not limited to use a trial.e. • The court is authorized to expand discovery to any information relevant to the subject matter of the action is good cause is shown. (iv) INSURANCE INFO must produce for inspection and copying as under Rule 34. 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. or control and may use to support its claims or defenses. description.REQUIRED DISCLOSURES 26(a)(1) INITIAL DISCLOSURES (A) In General. on which each computation is based.both parties would have a police report • This is a broad concept of use.” depends on the facts of each case. • Impeachment: very few materials fall into this category. For good cause. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The expectation that a document or witness will be used in connection with any motion or a pretrial conference is sufficient. 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. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). • 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. • Is the info properly requested? → is the info Relevant? • Material does not have to be admissible as proof at trial. a court may hold this exemption inapplicable.. 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. if they are relevant for some purpose other than impeachment. 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. nature.

the quantity of information available from other and more easily accessed sources. • Zubulake set forth an analytical framework for determining whether it is appropriate to shift the costs of • electronic discovery. 2) Availability. The court may specify conditions for the discovery. but some courts still use the Zubulake test. (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. responsive information that cannot be obtained from other. After defendant was ordered to produce the e-mails. 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 . and. and 7) The parties' resources. do we cost shift? • o Should there be Cost shifting? There is no rule for cost shifting. 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. It is a multi factor test. If good cause is shown. 5) predictions as to the importance and usefulness of the further information. • 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 . 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). but also on whether those burdens and costs can be justified in the circumstances of the case. Zubulake identifies seven factors to be considered in determining whether shifting the cost of production is appropriate: • 22 . data that is "inaccessible" is not readily useable and must be restored to an accessible state before the data is usable. The plaintiff in Zubulake was a highly-paid investment banker who accused her employer of gender discrimination and illegal retaliation. Appropriate considerations may include: 1) the specificity of the discovery request. the court may also limit the number of requests under Rule 36. you "Object" in the • response. When information is not reasonably accessible because of undue burden or cost. Judge Scheindlin stated that "cost-shifting should be considered only when electronic discovery imposes an 'undue burden or expense' on the responding party. (B) Specific Limitations on Electronically Stored Information." “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). shifting the costs of producing data from backup tapes may be considered. considering the limitations of Rule 26 that balance the costs and potential benefits of discovery. 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. By order." Data that is "accessible" is stored in a readily usable format that "does need to be restored or otherwise manipulated to be usable. o If the responding party is producing data from inaccessible sources." Conversely.(A) When Permitted. • o Advisory Committee Notes: o Once it is shown that a source of electronically stored information is not reasonably accessible. If that showing is made. 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. By order or local rule. the requesting party may still obtain discovery by showing good cause.they produce • If it is not RA . the court may nonetheless order discovery from such sources if the requesting party shows good cause. o As a threshold matter. considering the limitations of Rule 26(b)(2)(C). thus. the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.has to show why the info is not reasonably accessible. 4) The likelihood of finding relevant. 3) Bad Behavior. 6) The importance of the issues at stake in the litigation.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. more easily accessed sources. Backup tapes are considered an inaccessible format. On motion to compel discovery or for a protective order. the Judge considered whether cost-shifting was merited.

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

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

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

answer. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). (A) To Compel Disclosure. In addition to or instead of this sanction. If the motion is denied. 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. (ii) the opposing party’s nondisclosure. 37(c)(1) FAILURE TO DISCLOSE. a party may move for an order compelling disclosure or discovery. and may impose rule 37 sanctions  Unless the party has substantial justification for its failure to disclose. When taking an oral deposition. after giving an opportunity to be heard. require the movant. or objection was substantially justified. (5) Payment of Expenses. caused by the failure. at a hearing. the attorney filing the motion. 26 . 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. or Response.or incorrect. including attorney’s fees. If the motion is granted in part and denied in part. or both to pay the movant’s reasonable expenses incurred in making the motion. 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. any other party may move to compel disclosure and for appropriate sanctions. or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion. Answer. the party or attorney advising that conduct. If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must. an evasive or incomplete disclosure. • Need to meet and confer before the motion is filed with the court. A motion for an order to a party must be made in the court where the action is pending. the court should usually exclude undisclosed materials from evidence. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. (B) To Compel a Discovery Response. Protective Orders. after giving an opportunity to be heard. (1) Failure to Disclose or Supplement. (4) Evasive or Incomplete Disclosure. the party is not allowed to use that information or witness to supply evidence on a motion. the party asking a question may complete or adjourn the examination before moving for an order. unless the failure was substantially justified or is harmless. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e). SANCTIONS (1) On notice to other parties and all affected persons. on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses. the court may issue any protective order authorized under Rule 26(c) and may. after giving an opportunity to be heard. If a party fails to make a disclosure required by Rule 26(a). or (iii) other circumstances make an award of expenses unjust. 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. or when the failure to disclose was harmless. A party seeking discovery may move for an order compelling an answer. production. answer. or (B) as ordered by the court. TO SUPPLEMENT AN EARLIER RESPONSE. including attorney’s fees. the court. (B) If the Motion Is Denied. or respond. or to supplement disclosures. For purposes of this subdivision (a). require the party or deponent whose conduct necessitated the motion. or inspection. (3) Specific Motions. • If party fails to make disclosures req under 26(a) . or at a trial. OR TO ADMIT. including attorney’s fees. the court may issue any protective order authorized under Rule 26(c) and must. apportion the reasonable expenses for the motion. response. designation. (2) Appropriate Court. and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. 37(a) FAILURE to MAKE DISCLOSURES. or response must be treated as a failure to disclose. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (C) If the Motion Is Granted in Part and Denied in Part.

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

(i) can you find out whether Boris made a statement? Yes 26(b)(3)(c)(i) . But there may be another argument that this was only done as a business purpose and not in anticipation of litigation. you are not entitled to obtain that statement under Rule 26(b)(3)(C). you cannot protect the facts that they uncover. He then made a written report to the directors of B. you must disclose that information to the other side • 3. Hoping to catch them by surprise to see if they lie. (See Rule 26(b)(3)(C)) a. can you obtain a copy of the statement before Boris’s scheduled deposition next month?. What does it take to overcome a claim of work product? How special must the circumstances be? If the material sought was NOT prepared in anticipation of litigation or for trial • If it is a routine report • If the material is of substantial importance to the party seeking discovery • If the party seeking discovery cannot obtain from another source the substantial equivalent of the • information sought • Must show that the material sought is of substantial importance to its case. In the hospital Boris is visited by an investigator for Farm Insurance Co. or after) .if there is a witness that you may use. Frank. 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 . a good friend of Boris. Fortenbaugh interviewed the witnesses and took notes but apparently did not ask the witnesses to write out statements or tape-record the witnesses’ statements. and Yes 26(b)(4)(A) deposition may be conducted only after the report is provided  They should give it to you unless. and the witnesses claimed not to be able to remember events clearly? Argument for: • 28 .. cannot be an oral statement 26(C)(i) & (ii)  Yes. cant be minimally relevant a. 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. …. Yes . Boris thinks he gave a videotaped statement to the investigator and knows that he talked to the investigator about the accident. will testify on his behalf. yes I have to provide the information. they go to the court and say can I wait until after deposition (ask  for a protective order that says. can you find out what he told the investigator? No.” Must B disclose the witness’s name. 26(a) . and they had died before giving their testimony to the agency inquiring into the accident? Yes. including interviews with witnesses and measurements of the accident location. They are only asking for the names of witness •  Just because you hired an investigator. and uncovers another eyewitness to the accident. They are only asking for facts. (iii) if Boris did not give a statement. and B objects on the ground of “trial preparation materials.a. Boris is seriously injured in an automobile accident with Charles.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.because you are trying to impeach the witness.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. What if Fortenbaugh had interviewed the crew members in the hospital. a vice president of B went to the scene and made a full investigation. Preparing for trial. 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. In Hickman. In Boris’s suit against Charles.  Employees' accident reports to claims department are discoverable b. Frank gave a written. signed statement to Charles’s attorney but does not remember what he said. if the court says that this material has been "otherwise adopted or approved" 26(C)(i)  b.witness himself are entitled to a copy of his statement as a matter of right  (ii) if so. B’s lawyer hires a private investigator who runs up $10.000 in fees. What if the crew members were still alive but there had been no public hearing on the accident. As attorney for Boris. Yes. P serves an interrogatory asking for the names of all eyewitnesses. Many lawyers will do so in order to have a basis for subsequent examination or impeachment of the witness.. As the attorney for Boris. but I will give it at the deposition. Immediately after the accident.

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

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

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. with your notes on it.assert work product & attorney-client privilege 1.notes. 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. the company went though hard financial times and laid him off. 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. PROCEEDINGS.Object and say that it is attorney-client privilege or work product 26(c) . she gives you a meaningful look. thoughts. Ask for Redaction Rule 56: SUMMARY JUDGMENT 56(c) SERVING THE MOTION. and came on board in December.” You attach a separate sheet of this special letterhead.. Have to confer first • 1. If the other party makes a motion for it later. I’m sure. “Attorney Work Product.” 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. “Shall I go through it first?” You smile back and say: “I need to know everything. Anything detrimental to our position will be covered by a privilege. Attorney client privilege . Work product . The motion must be served at least 10 days before the day set for the hearing. to each item in Barrie’s file.” Back at your office. sold his house. and says.may move for a protective order (forbid discovery or forbid inquires into certain mattes) Can forbid discovery • 37(a)(1). 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. She adds. You should object . using special firm letterhead on which is preprinted in large capital letters. and interviewed several applicants. you go through the file and make notes on each item in it. theories of the case! a. Was it bad enough to verge over into fraud? Did they misrepresent? Get associate to research this if it becomes relevant. Morris has sued DiChem and its president Eve Barrie. Barrie is a smart cookie. Shortly don’t have to turn this over at this point (Mandatory initial discovery) because you are not using it to help our defense…. 2.” When you ask for Eve Barrie’s complete file on the hiring of the director of Advertising. Eve Barrie tells you that neither she nor anyone else said anything at all about DiChem’s financial situation at the interviews. But we don’t know what our defense is going to be a. alleging that the company should have disclosed the precarious fiscal state to him and had failed to do so. You represent DiChem. Under 26(A) . The judgment sought should be rendered if the pleadings.Client thinks that she is covered by attorney-client privilege so that is why she turned that info over. In the fall of 2006. 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. 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 . but it may be better not to ask her too many more questions until and unless we have to prepare her for deposition. “any management-level employee knows that the job depends on the company’s continued financial viability. It says. “If we ever get into a court fight. the discovery and disclosure materials on file. you may have to produce it b. must decide how much to tell re: black hole—company collapse????” You make the following note: “Item 5—looks like a possible damning admission that company knew they were in danger of collapse. Charles Morris from New Mexico won the job. DiChem advertised nationally to fill the position of Director and Advertising. 1.may move for an order compelling disclosure or discovery.

(Celotex). If the moving party has the burned of proof at trial. In most cases. 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. it has seemed that the courts have become more receptive to deciding cases on summary judgment. If the moving party meets his burden of production. and its place must be taken by the motion for summary judgment. Pointing to cannot be a conclusory assertion that there is no evidence. 2. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut. affidavits are very important. [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. summary judgment can avoid unnecessary delay and expense in deciding the case. 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. If the evidentiary material shows that there is actually no genuine controversy that requires trial. The depositions will create transcripts that you can use as evidence at this stage. Whether any disputed issue of fact exists is for the Court to determine. A motion for summary judgment must be guided by the standard of proof that is required at trial. 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.' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore. that standard of proof is “beyond a preponderance of the evidence. Was the opposing party given notice and an opportunity to respond? If the initial showing was sufficient. SJ cannot be granted if the moving party’s evidence is merely colorable or not sufficiently probative. whether the evidence is such that a reasonable jury might find has been shown with convincing clarity (Liberty Lobby). In addressing a motion for summary judgment. Issues of material fact are those that might affect the outcome of the suit under the governing law. the burden then shifts to the non-moving party. so go for it. “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). If the moving party has not made the required initial showing. he still must make an initial showing of his opponent's lack of proof. there technically is no burden on the opposing party to make any showing in response to the motion. where malice was pleaded.  You might win. 32 . At minimum. The opposing party must come forward with evidentiary material that established the existence of a triable issue. especially if the motion is made early in the case or before there has been substantial discovery. Has the moving party made a sufficient initial showing? If the moving party would have the burden of proof on the issue at trial. that is.” In a case like Liberty Lobby. the opposing party need not submit any opposing proof. A genuine dispute is one which a reasonable jury could resolve against the movant.” The opposing party can call the court’s attention to other material in the record that demonstrates the existence of a genuine issue. he must produce evidence of such strength that no reasonable jury could find for the opposing party. Policy: Summary judgment is a method for getting beyond the allegations of the pleading and examining evidentiary material without holding a full-dress trial. which should be denied. This must be satisfied before the burden shifts to the opposing party. 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). You can also use interrogatories and requests for admissions. I heart SJ: For more than a decade. If the moving party would not have the burden of proof. 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. STEPS OF ANALYSIS: 1. If the initial showing is insufficient. 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. he must initially produce enough evidence to show that no reasonable jury could find for his opponent. 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). 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. its opponent must do more than simply show that there is some metaphysical doubt as to the material facts (Matsushita). Those documents form evidence that you can use at this stage. the standard at the summary judgment stage was a "clear and convincing" evidentiary standard in determining whether a genuine issue fact exists. summary judgment would still be improper unless the opposing party was given notice of the motion and an opportunity to respond. 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. When the moving party has carried its burden under Rule 56(c). Most importantly. A material fact is an essential element of claim of defense. In the language of the Rule. and the motion should be denied.

[FRCP12(b)—on motion to dismiss for failure to state a claim. he must initially produce enough evidence to show that no reasonable jury could find for his opponent. Timing The summary judgment motion can be. b. 33 .3.. Usually. may be immediately appealable if it results in a final judgment. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut. [Celotext Corp. it need not give deference to the trial judge's decision. If the moving party would have the burden of proof on the issue at trial. motion is to be treated as one for summary judgment. 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.I heart SJ For more than a decade.e. it appears that courts are gradually becoming more accepting of summary judgment. and its place must be taken by the motion for summary judgment. it must be clearer to the court that the case can reasonably be decided only one way. Nature of material considered The summary judgment motion is based essentially on pretrial written submissions. Denial of • summary judgment is not immediately appealable. Relevance of pleadings to summary judgment The pleadings delineate what is in controversy in the case. If the initial showing is insufficient. it is said that consideration of any material beyond the face of the complaint is forbidden on a pleadings motion.] a. 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. Thus. the motion should be granted only if the evidence is so strong that a reasonable jury could find only for the moving party. 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. A defendant may move for summary judgment at any time and a plaintiff may do so 20 days after commencement of the action.initial showing requirement (1) Opposing party with burden To obtain summary judgment. only as to some issues or some parties). or such consideration may convert the motion into a motion for summary judgment. 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. Catrett] o But what about the Iqbal/Twombly standard? BURDEN of PRODUCTION . the opposing party need not submit any opposing proof. 2. If the moving party would not have the burden of proof. however. Recall that pleadings motions look only at the face of the pleading an test only its legal sufficiency. 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. which is usually recorded in a deposition transcript or by videotape. However. if certain allegations have been admitted. those admissions may form part of the basis of summary judgment. summary judgment may be based on live testimony from depositions. v.. decided before trial.e. However. 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. Trend Favoring Use of Summary Judgment . it is said that summary judgment is more difficult to obtain than judgment as a matter of law—i. Grant of summary judgment. he still must make an initial showing of his opponent's lack of proof. such a moving party would have to make an initial showing of the insufficiency of the evidence of his opponent's case. and normally is. Summary judgment may be more difficult to obtain In many courts. If the moving party would have the burden of proof at trial.' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore. On review the appellate court has plenary power. Also note that summary judgment may be partial (i. If the moving party would not have the burden of proof at trial. 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. if materials outside pleadings are presented and not excluded by court. and the motion should be denied.

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

speedy and inexpensive determination of every action. v." [Fed. . (2) Moving party without burden of proof If the moving party does not have the burden of proof.  The moving party must produce evidence negating the claim. 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. J.. However.ADICKES Relying on a decision of the Supreme Court [Adickes v. you can do Celotex o I heart summary judgment Summary judgment procedure is properly • regarded not as a disfavored procedural shortcut. 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. which are designed "to secure the just. you can use it at summary judgment) (b) Current view . 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. Kress & Co. supra (White." • the motion to dismiss seldom fulfills the function of striking insufficient claims or defenses any more. P. he must produce evidence of such strength that no reasonable jury could find for the opposing party.  How do you prove a negative?  In Adickes . the exact requirements in this circumstance are unclear. but cannot be a conclusory assertion that there is no evidence • Must affirmatively show the absence • Don’t have to do Adickes.Didn’t foreclose the possibility that the police officers were in the store. Procedure 1.]. but rather as an integral part of the Federal Rules as a whole. R. . and its place has been taken by the motion for summary judgment.H. 1) Mere conclusory assertion It appears that a bald assertion that the opposing party lacks sufficient evidence to support his case is not sufficient.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. Thought is that the evidence must be admissible at the time of summary judgment (Celotex . the matter is more complicated. Catrett. owing to disagreement within the Court on the proper formulation. a. concurring)—"It is not enough to move for summary judgment . Civ. 56(c)] (1) Moving party with burden of proof If the moving party has the burden of proof. 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. S.rejected the early view.CELOTEX Celotex Corp . Initial Showing Analytically. with the conclusory assertion that the plaintiff has no evidence to prove his case"] 35 .says that if  you later believe that the evidence can become admissible. Submit evidence that negates an essential element 2." But with the advent of "notice pleading. [Celotex Corp. (a) Early view .

" (c) 2 Methods of Making showing RULE: There are two methods to make a proper showing for SJ. the students or employees in the store 36 . plaintiff claimed that her husband died due to exposure to asbestos that the defendant manufactured. In deciding Cleotex. but cannot be a • conclusory assertion that there is no evidence • Must affirmatively show the absence Don’t have to do Adickes. 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.. you can do Celotex • To meet the 2nd part of Cleotex. urged that the moving party should have to "make a prima facie showing that it is entitled to summary judgment. The moving party must affirmatively show the absence of the evidence. however. Such a showing invites the argument that the opposing party needs more time to gather facts. Although the defendant properly denied a conspiracy. 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. supra (Brennan. The case arose from the plaintiff's arrest for vagrancy. Catrett.CLEOTEX Case:  In Celotex. All the defendant needed to do was to produce some sort of evidence that the police officer had not been in the store. (1) The moving party can offer affirmative evidence that negates an essential element of the opposing party's claim or defense. the • showing should reliably indicate that." [Celotex Corp. If the thrust of the motion is that the opposing party has no evidence. 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. [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. to negate the conspiracy claim.ADICKES Case:  In Adickes. Thus. 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. Must produce evidence negating the claim or defense of non-movant • 2) Insufficient Evidence . the party must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. creating a genuine dispute of material fact. 1) Affirmative evidence that negates an element . v. dissenting in Celotex. 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. The Supreme Court added another method to make the showing • required under SJ. However it is unclear how much more than a conclusory assertion this is designed to require 3) Prima facie showing Justice Brennan. 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. Submit evidence that negates an essential element 2. "Pointing to" cannot be a conclusory assertion that there is no 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. 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. Defendant moved for summary judgment on ground that there was no evidence in the record linking its products to plaintiff's husband's death. J. 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.

 This ruling is favored for defendants.e. the opposing party is not entitled to advance notice of the court's attitude toward the sufficiency of the moving party's showing Thus. the burden.  However. (2) Insurance Policy . 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. Zenith • The Court implied that summary judgment is proper even when there are equally plausible competing inferences.  If the plaintiff hasn’t had enough time for adequate discovery. which should be denied. Libby o Must grant SJ if there can be but one reasonable conclusion as to the verdict • Dissent: o Made because they judge is weighing evidence Matsushita Electric Industrial Co. to be prudent. (a) No advance determination of sufficiency of initial showing However. 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. v. (2) Initial showing made If the moving party has made the initial showing. (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. Makes the burden for the Plaintiff high. there is no genuine issue for trial Bias Case: . i. there technically is no burden on the opposing party to make any showing in response to the motion.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.• And this is all that is required under discovery • Kreiss still wouldn’t have been able to prevail on SJ b.court granted SJ (1) Drug Use .. the opposing party should submit opposing evidence unless he is absolutely sure of the insufficiency. is on the opposing party to come forward with evidentiary material that establishes the existence of a triable issue. 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. then why are we even in trial? 1.  They should have deposed these witnesses or should nhave provided conflicting evidence from others who would have been at those parties. this evidence failed to contradict the specific evidence that 2 witnesses saw him using drugs. 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.  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.Affirmed • The ∆s provided evidence that every insurance company inquired about drug use for the policy Bias wanted 37 .

Friends/teammates saw him 2. Court Says: a. Not all companies inquire about prior drug use at certain particular stages in the application process. they only provided general evidence b.he is making inferences about habitual drug use. Didn’t create a genuine issue of fact • • Is the judge here deciding fact? Yes .Would any insurance co give a policy to a drug user 1. He may be right. The manufacturer contended that the widow failed to show that the decedent was exposed to any of its products. Prior Drug Use 1. ∆ used Affirmative Evidence for their burden standard a. 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. ∏ 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.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. Specific evidence was marshaled by the ∆'s. An all inferences should be made for the nonmoving party. ∏ should have deposed the witnesses or offered testimony of other friends or teammates of Bias ii. (2) the author of the letter could testify to the facts contained therein. but the ∏'s evidence did not address the specific point. the widow submitted a letter from an executive of decedent's former employer describing decedent's use of a particular asbestos product. the widow listed the executive as a witness. Insurance Policy . Johns-Manville Sales Corportation • The decedent installed asbestos fireproofing products. There was enough here for a jury to decide. they only provided b. the district court properly concluded that there was no genuine issue of material fact as to the insurability of the player. Coach b. but this feels a little fact based. 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. a drug user. ∏ a. Every insurance policy that exist 1986 would at some point would inquire about drug use 2. o In opposition to the motion. Specific evidence was marshaled by the ∆'s. • The estate failed to do more than show that there was some metaphysical doubt as to the material facts. o The estate didn’t rebut the ∆s specific evidence with specific enough evidence of their own 2 factual issues: i. In response to interrogatories. and • • • • 38 . 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. ∆ used Affirmative Evidence for their burden standard a. Court Says: a. but the ∏'s evidence did not address the specific point. Drug results 3.

Hoff will testify 3. Mrs. 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.waived at District Court level Yes . and make available to all.defendant's own admission Yes No No These standards put more pressure on SJ standard. 5. she has 2 yrs… but is that enough when you go up against • SJ is not really rule based anymore.(3) the manufacturer submitted documents recording its sale of the asbestos product to decedent's employer during the period of his employ. 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 . Mr. Workers comp testimony 6.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. C's answer to interrogatory 3. Mr. Type of Evidence 1. Purchase Orders 4. 6. Hoff letter 2. 3. 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. 2. Cleotex is the successor of Panacon Cleotex is liable for all of • Panacon Admissible? 1. . C worked for AJ 2. Celotex answer interrogatory 5. Yes . Insurance Letter Content (what does it prove) 1.waived And admissible if we can see out • way to admissibility Yes .

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

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

Unless you’re alleging a city policy that they only hire negligent people. Andy gets assaulted by Blair.Joinder of parties Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you. though. A defendant. but then you and your friend get hit by an Upper Arlington school bus. but we won’t get into that. The plaintiff says: 42 . 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. and Latco probably said they weren’t. You call a friend who picks you up and takes you to class. RULE 14 Impleader is not to be confused with interpleader or intervention. But it did here. It’s a single cause of action with one plaintiff and multiple defendants. But they said that if they are liable. you would have to do two separate suits. bad steel” is an efficient trial package. There are a lot of tools to sort through the complexities of this rule without litigation. Rule 20(a) isn’t that active a rule in federal litigation today. Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation. 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. Can ITW implead into this case? The court lets them in. really. He thinks it’s defective. Say we have a single plaintiff who buys a car from a dealership. This case talks about who the defendant can bring in. though. 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. Consider the original set of facts. If we erase the defective coop claim and have Latco sue on the unpaid bill as to the plaintiff. Rule 14. or both! These situations are pretty much the same. Is not paying for the chicken coop related to the cause of action for defective production? We look at our logical relationship test. and we usually think of this rule as a defendant’s rule. It’s debatable. 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. and can put on evidence that the other guy did it. Could the farmer turn around and implead the bank for failing to pay the bills? Sure. There are some limits on joinder of claims and parties. You need multiple defendants to be able to testify! Here. This is most often seen in an insurance case. The court can also use Rule 42 to do this: it allows for both consolidation and separate trials. It’s best considered as an efficiency rule. but others will fail due to poor drafting. But maybe “bad chicken coop. There’s nothing fancy about the lawsuit. but a plaintiff can bring in a third party when a counterclaim is asserted against the plaintiff. It’s a very liberal rule that allows you to join people together. Some of these claims will get in under supplemental jurisdiction. the liability goes to the third party. so the counterclaim would probably be okay under Rule 13. There isn’t a lot of litigation over this rule. This is no liability! Blair claims a defense. Blaine should be a co-defendant or alternative defendant. oversight. That’s a perfectly good example of derivative liability. It’s basically just a reciprocal rule. But the court can still choose to sever these cases if they think that’s most fair and efficient. Misjoinder doesn’t lead to the dismissal of the actions. Here. bad nails. and it looks like it’s the same transaction. we had two separate accidents. in Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”. Can Blair implead Blaine under Rule 14? This is not derivative liability. This is unusual. and Blair’s defense is that it wasn’t him that did it. whatever that means. In general.. but Blaine. The key is that you can only implead them under Rule 14 if the liability is derivative. The Court of Appeals doesn’t have to accept the interlocutory appeal. Complex joinder Let’s do some problems to help set the stage for these issues and how they play into the supplemental jurisdiction statute. 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. If you’re responsible for an accident and get sued but you’re insured. doesn’t have a lot of controversy either. it can be done under Rule 14(b)! It’s a lot shorter than 14(a). They don’t want to screw up and then have to try the whole case over again. These transactional tests that were in force in the claim rules are more rigid when we look at the party side. the plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases. There’s a bunch of stuff about Alabama tort law. 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. 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. but rather severing them and then letting them proceed separately. It’s an efficiently rule. The coop isn’t being paid for because it’s defective. The impleader rule. He sues both the dealership and the manufacturer. but you can’t implead him. you’ll implead the insurer.

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

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

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

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

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

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

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

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