Professional Documents
Culture Documents
Civ Pro (Fall 2017)
Civ Pro (Fall 2017)
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I. Procedural due process
A. United States Constitution 14th Amendment Section 1: Due Process
1. Due Process: 14th Amendment requires that when the state or federal government acts in
such as way that denies a citizen of a life, liberty, or property interest, the person must
be given notice and an opportunity to be heard.
a.Guarantees rights of Due Process
i. Sniadach v. Family Finance Corp.: opened all forms of prejudgment seizure of
property to attack if the associated procedures were deficient and the D is debtor
● clerk of the court issued summons for wage garnishment; P deprived of her sole
income
ii. Goldberg v. Kelly: termination of P aid pending resolution of a controversy over
eligibility may deprive P of means to live w/o opportunity to be heard after trying to
visit agent two to be heard.
iii. Mathews v. Eldridge: Similar to above, but SS benefits. No hearing needed before
cutting Soc. Sec. benefits
A. Consider THREE factors BALANCING TEST:
1. Private interest
- how the individual will be affected
2. Risk of error
- Risk of false deprivation of interests vs. probable value of add.
safeguards
3. The gov’ts interest (i.e. function, fiscal/administrative burden)
vi. Lassiter v. Department of Social Services: the gov’ts interest in a quick and
economically efficient method for adjudicating these cases is balanced against
both parties’ interest in a fair proceeding through which the truth may be
ascertained.
● In Lassiter’s case, there were no complex evidentiary or legal issues, and the
clear weight of the evidence suggested that Lassiter and her mother were
unable or unwilling to care for the child;
HYPO: Pharmacist facing revocation of license for 3 months until final judgment issues
“Extraordinary Situations” Test for pre judgment seizure exception to proceed w/o notice
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Fuentes v. Shelvin: P property seized w/o notice or opportunity to be heard; D actions wrong but test
established when no need for notice
a. necessary to secure
b. important governmental or public interest (general)
c. special need for prompt action
● gov’t official responsible for determining
● under standards of narrowly drawn statute
○ ex. Nat’l Security, under investigation, DV
B. Mitchell v. W.T. Grant Co.
- Fuentes v. Shevin (1972) does not apply to a state statute that requires
a clear showing of the nature of the claim and the grounds relied upon
for the issuance of the writ of sequestration.
- Judge
vii. Adversarial (American) Justice System:
A. Neutral and passive decision maker
1. Ensures appearance of fairness
B. Party presentation of evidence
1. Insulates judge from involvement
2. Allows judge to see what each party thinks is important
3. Focuses litigation to issues most important to the parties
C. Highly structured discovery procedure
1. Produces a climactic confrontation
2. Ensures fairness through equal opportunity to make a case
Attorneys must (1) zealously represent client while (2) trying to find the truth
B. Notice
Rule 4: Summons
A. Contents; Amendments
1. Contents
name of the court parties
a. directed to the D
b. name and address of P attorney
c. state the time w/in D must appear and defend
2. Amendments
B. Issuance: summons must be properly completed, the clerk must sign, seal, and issue it to the P
for service on the D
C. Service
D. Waiving Service
(1) D may waive service. Benefit:By accepting a waiver of personal service, you get 60
days, as opposed to 21 days, to file a motion. and to avoid paying fees
(2) Failure to Waive: can be done by mail
(a) expenses later incurred in making service; and
(b) reasonable expenses, including attys fees, of any motion to college those
service fees
(5) Jurisdiction and Venue not Waived: waiving service of a summons doesn’t waive any
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objection to PJ or venue
E. Domestic delivery options:
1. Give to D personally
2. Leave at D’s residence w/ someone of
suitable age, and discretion who resides there
3. Deliver to an authorized agent; officer or
managing and general agent
4e1----> could be email
G. Serving a corporation:
1. Delivery to an officer or other authorized
agent and mailing to each D
H. Service is sufficient for personal jurisdiction IF:
1. The forum district’s state laws allow it OR
2. The D is a joined party and is served
within 100 miles from where the summons was issued OR
3. It is authorized by a U.S. statute
I. If D not subject to the Jurisdiction of ANY state, service establishes PJ IF:
1. D is not subject to jurisdiction of ANY
state AND
2. Exercise of jurisdiction is Constitutional
AND
3. The claim arises under Federal Law
J. Service must be made within 120 days of complaint
Rule 12: Defenses and Objections: When and How Presented; Motion for Judgement on
the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearings
1. In General
a. D must serve an answer:
i. w/in 21 days after being served w/ summons and complaint; or
ii. if it is timely waived service of process under Rule 4(d) then w/in 60
days after the request for waiver sent or 90 days after it was sent to the
D outside the US
b. party must serve an answer to a counterclaim or crossclaim w/in 21 days after
being served w/ the pleading that states the counterclaim or crossclaim.
Constitutional Standard: notice must be reasonably calculated under all the circumstances to
apprise the party of the proceeding.
Mullane v. Central Hannover Bank (test from Mullane applied in Greene).
If the P knows that the D didn’t get the notice then P must seek an alternative measures.
Application of Rules of notice: Serving someone in person in the state creates personal
jurisdiction there.
A. State is required to use alternative methods when they are feasible and customary and more
likely to lead to actual notice. See Greene v. Lindsey (door posting ineffective b/c sheriff
knew door posted noticed ripped off)
B. State is required to use alternative methods when they know that their chosen method has
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failed. See Jones v. Flowers (notice sent by certified mail returned multiple times)
C. Newspaper – generally least effective method. See Mullane v. Central Hanover Bank (NY
trust fund published appointment of representatives of investors)
D. Certified mail – generally ok. See Dusenberry
b. General Jurisdiction
i. Systematic, substantial, and continuous contacts within the state.
A. The person is subject to ANY case against them in that state. Does NOT have to
arise out of those contacts
International Shoe Co. v. Washington: Shoe company sued in WA, but incorporated elsewhere. A D
cannot be brought before a court of a particular state UNLESS that person has minimum contacts.
i. Jurisdiction is appropriate if (minimum contacts requirements) doesn’t
offend “fair play and substantial justice”:
A. Engaged in substantial activities in the state, and
B. Enjoyed the benefits and protections of the state, and
C. Had access to the state’s courts to resolve its disputes.
ii. Long-Arm Statutes: A state’s definition of the circumstances under which they
would attempt to exercise jurisdiction over nonresident defendants.
World-Wide Volkswagen Corp. v. Woodson: Car sold by D in NY blows up in forum state. Merely
placing an item into the stream of commerce IS NOT sufficient connections. P unilateral
activity is reason car ended up in forum state. D did not meet test of Int’l Shoe.
i. physical presence
ii. benefit of the state
iii. purposeful availment
iv. Foreseeability of being called into a state court by itself has never been sufficient
for personal jurisdiction.
Dissent (Brennan)
- witness injury treatment all occurred in OK
- automobile is intended for interstate travel
- there is no difference in how stream of commerce occurs
Dissent (Marshall)
- it was a deliberate decision to be apart of the network
- need for interstate commerce
Hanson v. Deckla
- purposeful availment: D must have sufficient
Note- Keeton v. Hustler Magazine, Inc.
- P sued a magazine, an OH corporation, headquartered in CA for libel in NH
- regular circulation of magazine in the forum state is sufficient to support assertion of
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jurisdiction in a libel action based on contents
- sold 10k to 15k issues per year in forum state so PJ meet minimum contacts test
- interest of the state in litigation
Asahi Metal Industry Co. v. Superior Court: Faulty valve made by Japanese company causes damage
in CA. taiwanese O’Connor: Must be clear evidence that the D sought to serve the market in the
particular state (Stream of Commerce Plus). (PLURALITY COURT)
(Manufacturer)
Zucher v. Cheng Shin Taiwan
v.
Ashai Metal Japan
(manufacturer of the Valve Assembly)
i. Reasonableness depends on an evaluation of several factors:
A. The burden on the defendant (Burger King)
B. The interests of the Forum State
C. The plaintiff’s interest in obtaining relief
- personal burden
- location of evidence
- Joinder
D. The interstate judicial system’s interest in obtaining the
most efficient resolution of controversies
E. The shared interest of the several States in furthering
fundamental substantive social policies.
Burger King Corp. v. Rudzewicz: MI businessman is sued in FL by Burger King. There was a forum
selection clause in the franchise contract stipulating that any disputes would be adjudicated under FL
law
● Confirms that there are two factors from Ashai.
○ Must have Minimum Contacts before Fairness
● burden of the D to show that the forum is so gravely inconvenient that it has a
disadvantage for litigation
In considering whether a contract creates a contact, there are four factors to be considered:
A. The nature of prior negotiations between the parties
B. The “contemplated future consequences” of entering
into the contract
C. The terms of the contract
D. The course of dealing between the parties
Zippo Mfg. Co. v. Zippo Dot Com: case of copyright infringement on of lighter company who shared
the same name with adult site
Test for determining specific personal jurisdiction over nonresident defendant:
(1) the defendant must have minimum contacts with the forum state;
(2) the claim asserted must arise out of those contacts; and
(3) the exercise of jurisdiction must be reasonable.
Sliding Scale Test: the nature and quality of commercial activity that the entity
conducts on the internet based on the interactivity and business that results
- Active Website: doing business over the internet
- Passive site:does little more than make information available to those who are
interested in it is not grounds for the exercise of personal jurisdiction
D had an interactive website where the provided services to PA residence, solicited to PA residence
Jackson v. California
- didnt cause effect in the forum state, Unlike the Calder Effect, this online magazine was
targeted to a specific region in CA. No purposeful availment or affect on the P career or
personal life, Not foreseeable D brought into court in IL.
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Analytical Framework for Statutory Inquiry for PJ
● Every state has statute for the traditional forms of P
● Also every state has non-resident motor act
● Every state also has a long arm statute – allows you to sue a non-resident and usually have a
laundry list of things that non-resident can do in the forum that would subject them to
jurisdiction; however, all long arms are unique and different (need to analyze text – also
same language may be interested in different ways)
● Long arm statutes are for specific jurisdiction because act was committed in the forum
● Long arm statutes sometime involve tort, but various interpretations of where tort happens,
either occurs where injury happens, or tort is where company is
HYPO: Personal Jurisdiction in-class problem: accident occurred on a chartered boat in Costa Rica,
that the hotel promoted. The hotel website offered a toll-free number and call resort from US. How
can we have personal Jurisdiction over the resort.
iii. Sheehan v. Gustafson: D was domiciled in NV, even though he had substantial ties
to MN, because he lived in NV and intended to remain there indefinitely. Burden of
proof is on the plaintiff to prove domicile.
A. Two-part test for domicile:
1. Presence in the purported state of domicile.
2. Intention to remain there indefinitely.
b. Federal Question
i. 28 U.S.C. § 1331
A. Federal courts may hear a case IF the federal law has a SUBSTANTIAL and
DIRECT bearing on the case.
B. Just because a federal statute is involved does NOT mean that one MUST litigate
in federal court, although they may retain the option to do so.
C. Many courts have held that whether the presence of federal law in a case is
enough to “federalize” it under §1331 is a MATTER OF DEGREE.
ii. The Declaratory Judgment Act (28 U.S.C. §2201)
A. Allows potential defendants to become plaintiffs instead and test whether they are
excused from a particular act.
1. Ex: R.R. can test whether or not they are excused from renewing passes like
those granted to the Mottleys.
B. Does NOT alter the jurisdiction of the federal courts. If Ps could not plead “well”
in the federal courts, neither could the defendants.
C. Parties, such as a R.R., probably don’t want to wait to be sued before determining
the constitutionality and viability of their potential defenses. This act allows them
to “test the waters.”
vi. Louisville & Nashville R.R. Co. v. Mottley: D gave P passes for free rides for life. D
then revoked the passes. Court held that a suit arises under federal question
jurisdiction ONLY if the original statement of the P’s cause of action shows that it is
based on the Constitution or federal statutes. (A federal court can’t have jurisdiction
just because the defendant might use a federal law or the Constitution to defend
himself.)
c. Tribal Courts
i. Tribal Courts have exclusive jurisdiction over (the following cases are for illustration.
USE THIS GUIDELINE):
A. A suit by any person against an Indian for a claim arising in Indian Country.
B. Disputes between tribal members arising on the reservation.
C. PROBABLY, claims against tribal members domiciled or present within their
territory even though those claims arose outside of Indian country.
1. Many tribes have chosen not to exercise this jurisdiction.
D. Many tribes have revised their codes to permit jurisdiction over non-Indians for
reservation-based claims.
ii. A party seeking in federal court to challenge a tribal court’s jurisdiction must FIRST
exhaust tribal remedies.
iii. Williams v. Lee: Non-Indian storeowner (on tribal land) sues Indian couple for
nonpayment of layaway goods. Court held that a STATE may not exercise
jurisdiction over civil suits brought by non-Indians against Indians, when the action
arises on an Indian reservation.
iv. United States v. McBratney: State laws extend to Indian reservations insofar as they
relate to crimes by NON-INDIANS against NON-INDIANS.
v. Montana v. United States: The inherent sovereign powers of an Indian tribe do not extend
to the activities of nonmembers of the tribe. Also, a tribal court has no jurisdiction
over litigation between nonmembers arising out of a vehicle accident on a state
highway within the reservation. EXCEPTIONS:
A. Tribe CAN regulate activities of nonmembers who enter consensual
relationships with the tribe or its members.
B. Tribe CAN exercise civil authority over the conduct of non-Indians on fee lands
within its reservation WHEN that conduct threatens or has some direct effect on
the political integrity, the economic security, or the health or welfare of the tribe.
Venue/Removal
i. 28 U.S.C. § 1391
A. (a) If juris. is only on diversity, case may be brought only in:
1. District where any D resides, if all D reside in the same state
2. District where a sub. part of the events/omissions of the claim occurred, or a
sub. part of the property that is the subject is situated.
3. District where any D is subject to personal juris. at the time the action is
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started, if no district in which the action may otherwise be brought.
B. (b) If juris. is NOT only on diversity, then may be brought only in:
1. District where any D resides, if all D reside in the same state
2. District where a sub. part of the events/omissions of the claim occurred, or a
sub. part of the property that is the subject is situated.
3. A district where any D may be found, if there is no district in which the action
may otherwise be brought.
C. Corporations reside in any district in which it is subject to personal juris.
D. An alien may be sued in any district.
ii. 28 U.S.C. § 1441 (Removal Statute):
A. Requirements:
1. The action could have originally been brought in federal court.
2. All Ds must join in the petition for removal.
3. The D cannot remove if the basis for federal juris. is ONLY diversity AND
the D is a citizen of the state in which the original action was filed.
-Based on the notion that a resident D has no reason to fear bias by his or
her own home courts.
4. The D must remove BEFORE taking substantial steps to defend the action in
the state court.
B. Removal of a trial is ONLY moving a state court hearing to a federal court.
C. Venue is a statutory matter, not mandated by the Constitution.
D. Venue is waivable by the defendant.
E. For purposes of venue, a corporation resides in any judicial district in which it
would be subject to personal jurisdiction.
iv. Conley v. Gibson: Railway workers were fired because of their race, but equal right
laws did not exist yet, so no cause of action for this. So this case ends up being about
whether the union violated its duty to its members by not giving the black railway
workers the full protection of union membership. The Supreme Court says that the
claimant does not need to set out in detail the facts upon which he bases his claim.
A. All Rule 8 requires is “a short and plain statement of the claim.
b. Bell Atlantic case and notes that follow
i. Bell Atlantic v. Twombly:
A. The respondants, a class action group (herein “Twombly”), brought suit against
petitioners, Bell Atlantic, alleging collusion.
B. Supreme Court dismissed, holding that in order to adequately submit a complaint
in an antitrust suit, the plaintiff must supply enough evidence to make their claims
PLAUSIBLE, as opposed to merely conceivable.
1. In this case, also collusion could have been a reason for the actions of the Ds,
it was more likely that there was an honest explanation.
c. Case planning
i. Immediate concern: Whether there are factual and legal predicates to support a
claim or defense on behalf of the new client.
A. Consider pretrial litigation in the context of the particular court/judge
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B. Important to figure out which actions not to pursue.
C. Develop a chronology of important events and highlight information that isn’t yet
known.
D. Conduct preliminary legal research.
E. Make a list of possible witnesses, documents, physical items needed to establish
your case.
ii. Determine:
A. The factual information that should be sought.
B. The source from which to seek the information.
C. The person to whom the request for information should be directed.
D. How to seek the information.
E. When the information should be sought.
iii. No need to inform opposing party of informal discovery.
d. Ethics
i. Rule 11(b):
A. A signature implies that the pleading is:
1. Made with proper purpose (not to harass or cause unnecessary cost/delay)
2. Warranted by existing law (or non-frivolous argument to change the law)
3. Well grounded in fact
4. Based on evidence
h. Supplemental Jurisdiction
i. 28 U.S.C. § 1367(a)(b)(c)
A. (a) If the original claim has Federal jurisdiction, then you can add other non-
federal claim/party as long as their involvement comes from the common (same)
nucleus of operative facts.
B. (b) Applies to Diversity jurisdiction cases ONLY. Fed. court cannot hear the
additional claims of parties made party under compulsory joinder (Rule 19),
impleader, permissive joinder, or intervention (Rule 24) if exercising
supplemental jurisdiction would OFFEND DIVERSITY JURISDICTION.
1. APPLIES ONLY TO CLAIMS BY PLAINTIFFS AGAINST NEW
DEFENDANTS.
C. (c) The district courts may decline (discretionary) to exercise supplemental
jurisdiction over a claim if:
1. The claim raises a novel or complex issue of State law,
2. The claim substantially predominates over the claim(s) over which the district
court has original jurisdiction,
3. The district court has dismissed all claims over which it has original
jurisdiction, or
4. In exceptional circumstances, there are other compelling reasons for declining
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jurisdiction.
ii. Exxon Mobile v. Allapattah Services, Inc.: So long as one of the plaintiffs in a suit
satisfied the amount-in-controversy requirement, federal district courts may exercise
supplemental jurisdiction to hear the claims of other plaintiffs that do not
independently satisfy the requirement (must be joined under Rule 20).
i. The Erie doctrine: state law in federal court
i. Eerie R. Co. v. Tompkins: The Federal Rules govern procedural matters while state
law (statutory and decisional) covers substantive issues.
A. A substantive rule is one that characteristically and reasonably affects people’s
conduct at the stage of primary activity outside the context of litigation. It is a
rule with a purpose other than that of assuring the fairness or efficiency of
litigation.
B. A procedural rule is one that is designed to make the process of dispute resolution
a fair and efficient mechanism for resolving legal controversies.
C. Twin aims of Eerie:
1. Reduce forum shopping.
2. Avoid inequitable application of the law.
ii. THERE IS NO FEDERAL GENERAL COMMON LAW (Problem with pre-Eerie
was that there was a basic, misstatement of what law is, that law is transcendental and
innate. It isn’t.)
iii. In Eerie, the Court held that there was no general federal common law and mandated
that state law apply in diversity suits.
A. Assuming no one is forum shopping, the problem is that with diversity of
citizenship, the case can be brought into a different court. The defendant decides
this, unless the federal court is in the D’s home state. This gives the D a lot of
power of forum choice.
iv. Rule 30(a)(1)(2) (When a Deposition May be Taken) (A deposition may be taken
of ANYBODY, even non-parties. You can request that a party to be deposed
bring certain documents to the deposition)
A. A deposition may normally be taken of anyone without leave of court
B. Leave of court is only required IF:
1. The deposition will result in more than 10 depositions by a party OR
2. The person to be examined has already been deposed OR
3. A party requests to take a deposition before a Rule 26(f) discovery meeting
(UNLESS the witness is leaving the country and will not be available after)
OR
4. The person to be deposed is in prison
v. Rule 30(b)(1)(2)(6) (Notice of Deposition; Other Formal Requirements)
A. Notice must be given to every other party of:
1. The time and place the deposition is to be held
2. The name and address of each person to be examined
3. If name is not known, a general description is sufficient
B. Method of Recording:
1. The notice shall state the method of recording
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2. Depositions may be recorded by sound, video, or stenograph
3. The party taking the deposition shall bear the cost of recording
4. Any party may request a transcript of a deposition
C. Depositions of Organizations:
1. A party may name a corporation or business as a deponent and reasonably
describe the matters to be examined
2. The organization MUST:
-Designate one or more officers to testify on its behalf
-Describe what each deponent will testify about
3. A subpoena is used to notify a non-party organization
4. An organization’s rep. shall testify to all matters know or reasonably available
to the organization.
vi. Rule 30(c) (Examination and Cross Examination; Record of the Examination;
Objections; Written Questions)
A. The officer should put the witness under oath and record the testimony
B. All objections must be made in a non-argumentative and non-suggestive manner.
A person MAY instruct a deponent not to answer ONLY WHEN NECESSARY
TO PROTECT A PRIVILEGE OR ENFORCE A COURT-ORDERED
LIMITATION. All objections regarding the following shall be noted on the
record, but the examination STILL PROCEEDS:
1. To the officer’s qualifications
2. The manner of the recording
3. The evidence presented
4. Any other aspect of the examination proceeding
C. If written depositions are used, the answers shall be given to the officer, who t hen
records them.
vii. Rule 30(d)(1)(2)(3) (Duration; Sanction; Motion to Terminate or Limit)
A. Duration:
1. A deposition is limited to ONE day of SEVEN hours
2. The court or parties may change the time limit.
3. Extra time MUST be allowed if:
-Extra time is needed for a fair examination OR
-The deponent (or some other person/circumstance) impedes or delays
the examination
B. Sanction:
1. The court may impose a sanction on a person who impedes, delays, or
frustrates the fair examination of the deponent.
C. Motion to Terminate Examination:
1. At any time during a deposition, a party or deponent may move to terminate
the examination or change its scope.
2. Grounds for motion:
-The deposition is being conducted in bad faith
-The deposition is unreasonably embarrassing, annoying, or oppressive
3. The court has discretion to make changes or terminate the deposition.
4. The deposition is then suspended until the court reviews the motion.
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viii.Rule 33 (Interrogatories to Parties) (Interrogatories may only be served on other
parties to the dispute)
A. (a) Availability
1. Interrogatories may be served to any party after service of process
2. A party may not serve more than 25 interrogatories
3. Leave of court is needed IF:
-A party wants to serve more than 25 interrogatories OR
-A party wants to serve interrogatories early.
B. (b) Answers and Objections
1. Each question, unless it is objected to, must be answered:
-Separately, Fully, In writing, Under oath
2. If questions are objected to, the objecting party shall state the reasons for the
objection and answer those questions that are not objectionable.
3. Signatures:
-Answers: must be signed by the person writing them
-Objections: must be signed by the attorney making them
4. Time Limitation
-Must return interrogatories within 30 days after they were served
-The court/parties may change this
5. Objections:
-Grounds for objections must be stated with specificity
-Any objection not timely stated is waived unless good cause is shown
6. The party submitting interrogatories may move for sanctions to any
objection/failure to answer an interrogatory.
C. (d) Option to Produce Business Records: The answering party may opt to allow a
questioning party to see records and get an answer himself.
D. Contention Interrogatories: EX: Does the D contend that…?”
1. Court may order that these need not be answered until AFTER designated
discovery OR until a pre-trial conference or other later time.
2. May not extend to issues of pure law.
E. Benefits of Early Interrogatories:
1. Discover organizational structure of a party-opponent
2. Discover dates of meetings and conversations, disclosures, and people with
knowledge of relevant matters.
F. Disadvantages of Interrogatories:
1. Reviewed by opposing counsel before answered
2. No opportunity for immediate follow up.
3. Opposing party may learn things about your case
4. May alert counsel to topics that will be pursued in later depositions
G. AVOID AMBIGUITY IN QUESTIONS (can include definitional section)
vix.Rule 34(a) (Producing Documents/Electronically stored data/tangible
things/entering onto land for inspection and other purposes)
A. Scope: A party may request another party to:
1. Produce any document or information in its custody (not protected)
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2. Permit entry for inspection and surveying (as long as not protected)
x. Rule 34(c) (Nonparties)
A. May be compelled to produce documents and tangible things or to permit an
inspection (Under Rule 45).
xi. Rule 35(a) (Physical and Mental Examinations)
A. Order of Examination:
1. Procedure:
-Obtain a court order (by motion)
-Show GOOD CAUSE for the physical or mental examination
-Show that it is a MATERIAL matter in controversy.
2. Must give notice to all parties, specifying the:
-Examiner
-Time and place of exam
-Scope of examination
xii. Rule 36(a) (Requests for Admission)
A. A party may serve upon any other party a written request for an admission
regarding statement of opinion or fact, the applicability of law to fact, and the
truth of opinions, authenticity of documents, etc.
B. If no answer or object is received within 30 days of the request for admission, a
party is considered to admit the allegation.
C. If an objection is made, the reasons shall be stated in detail
D. Admissions and denials must be specific to the related questions
E. A party may not give “lack of knowledge and information” as a reason for not
answering a request UNLESS:
1. The party made a reasonable inquiry AND
2. There is not enough information to enable the party to admit or deny
F. If court does not like an objection it can order that an answer be made.
G. Leave of court is needed for early questions.
b. Scope of Discovery and Limitations. Protective Orders and Sanctions
i. Rule 26(b)(1)(2) (Scope and Limits of Discovery)
A. A party may obtain discovery regarding any matter that is:
1. Not privileged AND
2. Relevant to the claim or defense of any party
UNLESS GOOD CAUSE CAN BE SHOWN FOR SUCH DISCOVERY
B. Relevant information need only appear REASONABLY calculated to lead to the
discovery of admissible evidence; it does not necessarily have to be admissible
itself.
C. Relevant information can include information about:
1. Books, documents, or other tangible things OR
2. The identity of people with knowledge of any discoverable matter.
D. The court may also order discovery of any matter “relevant to the subject matter
involved in the lawsuit,” but only for good cause.
E. Local Rules or Courts may change these rules by setting limits on the number of
requests for admissions, but only Courts (not local rules) can set limits on the
length and number of depositions and interrogatories.
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F. Discovery shall be limited if the court determines that:
1. The discovery sought is:
-Unreasonably cumulative or duplicative OR
-Obtainable from a more convenient or less expensive source
2. OR the party seeking discovery had ample opportunity to obtain the
information sought
3. OR such discovery would be unduly burdensome or expensive in comparison
to:
-The needs of the case
-The amount in controversy
-The limitations on the parties’ resources
-The importance of the issues at stake in the litigation
-The likely benefit of discovery
G. Court may act on its own OR pursuant to a motion to limit discovery.
H. The greater the burden and expense of producing discovery, the more important
the information sought must be for it to be discoverable.
ii. Rule 26(c) (Protective Orders) (Parties should always try to settle disputes
between themselves before involving the court)
A. Requirements for requesting a protective order:
1. Motion for protection must be made
2. Showing good cause
3. Certification of good-faith effort or attempt to settle the matter w/o court
B. A court may make any order which justice requires to protect any party from:
1. Annoyance OR
2. Embarrassment OR
3. Oppression OR
4. Undue burden or expense
C. Controls which court may use to protect parties include ONE OR MORE of the
following:
1. That disclosure or discovery is not to be had
2. Disclosure or discovery may be had only on SPECIFIED terms/conditions
3. Discovery be had by a CERTAIN METHOD
4. Discovery scope be limited to CERTAIN MATTERS, prohibiting inquiry into
other matters
5. Discovery be conducted in the privacy of a court designee
6. Sealed depositions only to be opened by court order
7. Trade secrets or confidentiality not to be revealed, or to be revealed in a
specified manner.
8. Parties file simultaneous specified documents and information in sealed
envelopes to be opened with a court order.
iii. Rule 37 (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions)
A. (a) Motion for Order Compelling Disclosure of Discovery
1. Appropriate Court:
-Where action pending: motion required where deponent is a party
-Where deposition is pending: motion required if deponent is not a party
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2. Motion:
-If failure to disclose, the court may grant a motion to compel disclosure, upon
showing a good faith effort to obtain w/o the court’s help
-If a deponent refuses to answer, a party may make a motion for an order
compelling an answer. if the court denies the motion, the deponent may be
granted a protective order (under Rule 26(c)).
3. Evasive or Incomplete Answer: Considered a failure to answer.
4. Expenses and Sanctions:
-If the motion is granted, or disclosure is made after the motion is filed, the
party/deponent must pay reasonable fees spent to make the motion
-If the motion is denied, and not substantially justified, the party making the
motion must pay reasonable fees spent to oppose the motion.
-If the motion is denied in part and granted in part, expenses may be
reasonably approportioned.
-All sanctions will be determined by a court hearing.
B. (b) Failure to Comply With Order
1. Sanctions by court in district where deposition is taken: Failure to be sworn or
provide an answer is considered contempt of court
2. Sanctions by court in district where action is pending: The Court may:
-Conclude that matters sought to be discovered by a party are to be found in
that party’s favor
-Refuse to allow the disobedient party to support or oppose designated claims
or defenses
-Render a default judgment or strike a pleading
-Hold the disobedient person in contempt of court
-Require the opposing party to pay reasonable attorney’s fees resulting from
his disobedience, UNLESS the court finds the disobedience substantially
justified.
C. (c) Failure to Disclose
1. Penalty for a party that does not disclose information (i.e. mandatory
disclosures):
-The non-disclosing party is not allowed to use the undisclosed information as
evidence at trial or at a hearing
2. Sanctions may be imposed if:
-There is no substantial justification not to disclose the information AND
-The failure to disclose was harmful
3. This applies to a failure to disclose, and also to a failure to amend a prior
response
4. The court may also impose other sanctions, including:
-Payment of reasonable expenses and/or attorney’s fees caused by failure
-Informing the jury of the failure to disclose
iv. Blank v. Sullivan & Cromwell: Historical information regarding D’s employees at a
law firm who became partners was deemed to be related to P’s claim that women at
the firm were discriminated against by D on account of their sex. Court held that the
information might be proof of an illegal pattern in hiring.
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c. Privilege/Trial Preparation Materials
i. Rule 26(b)(3)(5) (Trial Prep: Materials [Work Product]; Claiming Privilege or
Protecting Trial-Prep Materials)
A. Disclosure: A party may obtain discovery gathered by another party only upon a
showing that he:
1. Has substantial need for the materials to prepare his case AND
2. He cannot obtain the substantial equivalent w/o undue hardship
B. Disclosure is limited to materials themselves. Courts will protect another party’s
work product (mental impressions, conclusions, opinions, legal theories of a
party’s attorney or representation)
C. If a party “previously made a statement” concerning the action or subject matter,
he does not have to present a new one when obtaining another party’s materials.
1. If the other party denies materials: The party seeking discovery may:
-Move for a court order to obtain the other party’s materials AND
-Apply for expenses incurred in relation to the motion.
2. A “previously made statement” is:
-A written statement signed or adopted by the person making it
-A recorded transcript or recording of an oral statement by the person making
the showing
D. In order to claim materials as “privileged” or to classify them as “trial preparation
material” a party must:
1. Expressly claim the reason for protection AND
2. Describe the nature of the documents and communications specifically
enough to allow court to assess the applicability of the privilege or protection
ii. Privilege
A. 5th Amendment privilege against self-incrimination applies in civil litigation
ONLY if the witness faces a serious threat of CRIMINAL prosecution
B. ONLY documents prepared with the expectation that it would be kept confidential
will be accorded privilege.
C. Main elements of Attorney-Client Privilege:
1. Communication
2. From the client to the lawyer
3. Without the presence of others
4. For the purpose of seeking legal advice
D. Work-product protection extends to documents created for the primary purpose of
informing a business decision where the business decision is influenced by
anticipated litigation.
E. If a document was prepared based on an actual subjective and objectively
reasonable belief that litigation was a real possibility, or prepared for a specific
case, it will be protected by the work-product privilege
F. “Dual-purpose” documents (created both in preparation of litigation AND for
independent purposes) ARE protected by work-product privilege.
iii. A PARTY HAS AN OBLIGATION to preserve relevant evidence once is is
reasonably anticipated that litigation may occur.
A. Once litigation is likely, counsel must:
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1. Issue a litigation hold.
2. Communicate directly with the key players in the litigation
3. Instruct employees to produce electronic copies of relevant active files.
iv. Hickman v. Taylor: Opposing counsel wanted access to other lawyer’s notes on
witness testimony. Court denied, holding that a document is privileged IF:
A. Document or thing (not just factual information) AND
B. Prepared in anticipation of litigation or trial AND
C. By party or representative
THEN NOT DISCOVERABLE, UNLESS:
D. Substantial need AND
E. Can’t obtain substantial equivalent w/o undue hardship
d. Appealability of Discovery Orders
i. Discovery orders themselves are not appealable right away, because they are not a
FINAL JUDGMENT.
ii. Parties may settle or suffer dismissal rather than disclose under what they view as a
wrong but ruinous discovery order.
iii. A lawyer can refuse, be held in contempt, and then appeal the contempt order.
iv. Only extraordinary paths are available to gain review of discovery orders and it is rare
for discovery issues to survive beyond a final order in the case.
e. Constitutional Right to Trial by Jury
i. Constitution Amendment VII
A. At common law, there is a right to trial by jury.
B. Does NOT apply to state courts. Most state courts have dealt with issues
regarding the reach of the jury trial right under state constitutions/statutes
C. Construed liberally by the Supreme Court, finding the right in new statutes/
ii. This right is WAIVABLE by the D.
iii. Historically, the test is whether the claim would be tried on the law (remedy by
money), versus equity (remedy by special performance, injunctions, equitable
remedy, etc), side of English courts of law.
iv. Curtis v. Loether: P claimed that D refused to rent her an apartment b/c she was
black, in violation of federal code. Question of whether or not this required a jury
trial. Court held that the 7th amendment DOES apply to actions enforcing statutory
rights and requires a jury trial upon demand.
f. Jury selection/Race and Gender Bias
i. Process:
A. Each potential juror has a chance to offer a personal excuse
B. Judge then questions/excuses potential jurors for cause (ex: friendship with one of
the lawyers)
C. Lawyers from each side can pre-emptorily strike other jurors
ii. Edmonson v. Leesville Concrete Co.: Court held under the equal protection
component of the 5th Amendment’s Due Process Clause, that a lawyer may not
exclude jurors based solely on their race.
iii. J.E.B. v. Alabama ex rel. T.B.: Court held that under the Equal Protection Clause of
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the 14th Amendment, a lawyer may not exclude jurors based solely on their sex.
VI. Pre-trial Disposition
a. Summary judgment (SJ)
i. Rule 56 (Summary Judgment)
A. (a) For P: A party may move for SJ, with or without supporting affidavits,
AFTER either:
1. 20 days from commencement of the action OR
2. Service of a motion for SJ by the adverse party.
B. (b) For D: May move for SJ at ANY TIME, with or without supporting affidavits
C. (c) Motions and Proceedings:
1. A motion for SJ must be served to the adverse party at last 10 days before the
scheduled hearings.
2. Adverse party may serve affidavits AT ANY TIME before the hearing.
3. SJ must be based upon:
-Pleadings
-Depositions
-Interrogatories
-Admissions
-Affidavits
4. SJ shall be rendered if, based on the above:
-NO genuine issue of ANY material fact shown (discretionary) AND
-The moving party is entitled to judgment as a matter of law
D. (d) Case Not Fully Adjudicated on the Motion:
1. If only part of the case is adjudicated, the court shall determine which facts
remain at issue for trial.
2. The Judge shall file an order establishing the “adjudicated facts” and how they
affect the amount in controversy.
E. (e) Defending Motion for SJ:
1. Requirements for Affidavits:
-Must include personal knowledge of facts
-Shall show that the affiant is competent to testify
-The court may permit the affidavit to be supplemented by depositions,
interrogatories, or other affidavits.
2. Responding to a Motion for SJ:
-The adverse party must set forth SPECIFIC facts showing that there IS a
genuine issue for trial (cannot rely on the pleadings)
-If the adverse party cannot show that there is a genuine issue, SJ shall be
granted IF APPROPRIATE (given an opportunity for discovery).
F. (f) When Affidavits are Unavailable:
1. If a party opposing a motion for SJ can show in its affidavit that it cannot
obtain affidavits containing facts ESSENTIAL to justify it’s opposition to SJ,
then the court may:
-Refuse the application for SJ OR
-Order a continuance to permit affidavits to be obtained (or other depositions
or discovery to be had) OR
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-Make such order as it deems just
G. (g) Affidavits Submitted in Bad Faith (to delay the proceeding):
1. A party making an improper affidavit shall pay the other party’s reasonable
expenses associated with the motion for SJ.
2. Offending party or attorney may be guilty of contempt.
ii. Adickes v. S. H. Kress & Co.: P was refused lunch service at D’s lunch counter. P
alleged collusion between D and local police to prevent her service, because she was
white and the people she was with were black. D moved for SJ. It was denied
because D had burden to PROVE that a policeman WAS NOT in the store at the time
of the refusal, which a jury MIGHT find to be evidence of collusion.
iii. Celotex Corp v. Catrett: P alleged that D’s asbestos caused her husband’s death. D
moved for SJ. Court held that D had to prove that the P CAN’T prove a connection
between the D’s asbestos and the P. They could ask the P, “What is your evidence
that your husband ever had contact with our asbestos?” D must make some
affirmative showing that there was no contact with the D’s asbestos. But if there isn’t
anything to point to, D must still point to the lack of connection somehow (lack of
evidence), so the D must do some discovery of its own (unless it can accomplish this
through affidavits).
iv. BIG ISSUE: Whether reasonable jurors would be able to find for the plaintiff. Must
be evidence upon which the jury could REASONABLY find for the P.
VII. Trial and Beyond
a. Alternative Dispute Resolution
i. 28 U.S.C. § 651(a)(b) (Authorization of Alternate Dispute Resolution)
A. (a) ADR is:
1. Any process or procedure
2. In which a neutral 3rd party participates
3. To assist in the resolution of issues
4. Through processes such as early neutral evaluation, mediation, mini-trial, and
arbitration.
B. (b) Each United States district court shall devise/implement its own ADR program,
by local rule, to encourage and promote the use of ADR in its district.
ii. 28 U.S.C. § 652(a)(b)
A. (a) Each district court shall require that litigants in all civil cases CONSIDER the
use of an ADR process at an appropriate stage in litigation. Any district court that
elects to REQUIRE the use of ADR in certain cases may only do so with respect
to:
1. Mediation
2. Early neutral evaluation
3. Arbitration
B. (b) Each district court may exempt from these requirements specific cases or
categories of cases in which the use of ADR would not be appropriate.
iii. Categories of ADR:
A. Private judges:
1. “Rent-A-Judge.” A private judge that parties can hire to decide a case. Can be
one or a panel. Can be binding.
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B. Arbitration:
1. Arbitrator can be someone who has expertise on the subject. Can be one or a
panel. Usually binding.
C. Mediation:
1. Less formal/expensive than arbitration. Facilitator helps parties reach their
own agreement. Does not issue a decision.
D. Negotiation:
1. The parties negotiate among themselves for a settlement.
E. Court-Annexed Arbitration:
1. Required as an alternative to, or prerequisite to, judicial consideration.
F. Summary Jury Trials and Mini-Trials
1. Judicial proceedings whose goal is to facilitate the private settlement of civil
actions. In a Sum. Jur. Trial, the lawyers are given a limited amount of time
to summarize their case ON THEIR OWN. In Mini-Trials, there can be more
evidence (also can be expert testimony).
G. Judicial Mediation and Settlement Facilitation
1. See above. Different b/c it is required.
iv. Strandell v. Jackson County, Illinois: A court cannot require summary jury trials.
Most courts do not find this persuasive and CAN REQUIRE summary jury trials.
v. Gilmer v. Interstate/Johnson Lane Corp.: A court can subject a claim, under the Age
Discrimination in Employment Act, to compulsory arbitration pursuant to an
arbitration agreement.
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