Civil Procedure Outline

I.

II.

Choosing a System of Procedure a. Band's Refuse Removal, Inc. v. Borough of Fair Lawn i. Judge took on role of advocate 1. called his own witnesses 2. interrogated witnesses 3. "There is a point at which the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants." 4. prejudicial error resulted in new issues 5. "The function of a trial judge is to serve litigants by determining their disputes and the issues implicated therein in accordance with applicable rules and law...A judge may not initiate or inspire litigation and, by the same token, he may not expand a case before him by adding new issues which come to mind during the trial, without giving the parties affected a full and fair opportunity to meet those issues." 6. cumulative effect of judge's actions are what are problematic- adding new issues b. Kothe v. Smith i. Can the trial judge issue sanctions for an untimely settlement, in effect coercing a settlement? ii. Initial judgment should be vacated because pressure tactics cannot be used to coerce a settlement iii. FRCP 16 The rewards and costs of litigation- of remedies and related matters a. Prejudgment Seizure i. Purpose 1. preserve statute quo 2. form of interim relief 3. assure plaintiff that there would be assets to satisfy the judgment ii. Temporary Restraining Orders iii. Preliminary Injunctions iv. Is a means of ensuring that property will be available for execution in case the plaintiff prevails v. Common law: plaintiff "usually had to wait until the end of the case to get judicial relief, although sometimes it was possible to have property of the defendant seized before trial to coerce the defendant to appear at the trial" vi. Procedural vii. Were abuses viii. Sniadach case 1. "due process clause of the 14th Amendment requires some procedural protections in connection with such remedies

ix. Fuentes v. Shevin 1. issuance of writs ordering state agents to seize a person's possessions, on an ex parte application 2. "If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented." 3. "Due process is afforded only by the kinds of notice and hearing that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property." x. Mitchell case 1. "The question is not whether a debtor's property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had current, real interests in the property." xi. Di-chem case 1. Differentiate from Fuentes: "Because the official seizures [in Fuentes] had been carried out without notice and without opportunity for a hearing or other safeguard against mistaken repossession they were held to be in violation of the 14th amendment." xii. Connecticut v. Doehr 1. test for prejudgment seizure (from Matthews v. Eldridge) a. consideration of the private interest that will be affected by the prejudgment measure b. an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards c. principal attention to the interest of the party seeking the prejudgment remedy b. Post Judgment Remedies i. Damages 1. Carey v. Piphus a. Damages are for compensation of the injury sustained b. "it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress" c. "where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure" 2. notes

a. preliminary injunction: "if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be error, exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error" ii. Equitable Remedies 1. Equity a. Where common law did not prescribe the legal rules b. In which jurisdiction was concurrent in that the substantive legal rules were based on common law but equity would entertain the suit because of some deficiency in the relief afforded at law c. Where equity action was ancillary to an action at law 2. Smith v. Western Electric Co. a. "An injunction may issue to prevent the doing of any legal wrong whatever, whenever the opinion of the court an adequate remedy cannot be afforded by an action for damages...Injunctive relief is unavailable unless irreparable harm is otherwise likely to result, and plaintiff has no adequate remedy at law." b. Notes i. Entitled to injunction if: 1. whether plaintiff ahs actually succeeded on the merits 2. whether he has an adequate remedy at law 3. whether he risks imminent irreparable harm 4. whether the balance of hardships weighs against issuance of an injunction 5. whether an injunction would serve the public interest 6. whether the court can as a practical matter administer the injunction 3. justiciability a. ripeness i. it is "not enough that a controversy might one day erupt; plaintiff must show that it has already done so, thereby presenting a legal issue in a concrete context" b. standing to sue i. plaintiff must show that he is among the injured c. moot ness

i. "the doctrine of standing set in a time frame" d. feigned or collusive cases c. Cost of Litigation i. Venegas v. Mitchell 1. "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs...the aim of this section is to enable civil rights plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail...We have never held that 1988 constrains the freedom of the civil rights plaintiff to become contractually and personally could to pay an attorney a percentage of the recovery, if any, even though such a fee is larger than the statutory fee that the defendant must pay to the plaintiff...We have therefore accepted, at least implicitly, that statutory awards of fees can coexist with private fee arrangements" 2. notes a. American rule- you pay your own attorney b. Lodestar method- multiply the hours worked times the lawyer's hourly rate d. Private ordering through alternatives to litigation i. Negotiation and settlement promotion ii. Third party intervention iii. Arbitration Describing and Defining the Dispute a. Gillespie v. Goodyear Service Stores i. "The liability of a tort grows out of the violation of some legal duty by the defendant, not arising out of contract, and the complaint should state facts sufficient to show such legal duty and its violation, resulting in injury to the plaintiff. What these facts are must depend upon the elements which go to make up the particular tort complained of, under the substantive law." b. Describing and Testing the Plaintiff's Claim i. United States v. Board of Harbor Commissioners ii. Consistency and Honesty in Pleading 1. McCormick v. Kopmann a. Pleading in the alternative 8(e)(2) iii. Certification by signing- rule 11 1. Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania a. Rule 11 b. Notes i. Safe harbor provision: 11(c)(1)(A) iv. Scrutinizing the legal sufficiency of plaintiff's claim 1. Mitchell v. Archibald and Kendall, Inc.

III.

a. "The specious character of the plaintiffs-appellants' argument of procedural irregularity is highlighted by their filing of a notice of appeal. In this litigation originally the court's order merely dismisses the complaint and no final judgment was entered. As noted in the margin this case is presently before us for the second time. When the order dismissing the complaint was entered in the district court, under rule 15(a), as construed by this court, the plaintiff's would have had an absolute right to file an amended complaint embodying the claimed theory that a public street was part of the defendant's premises. By appealing, the plaintiffs-appellants elected to stand on their original complaint and thereby relinquished the legal theory they now assert." v. Heightened Requirements for Specificity 1. Ross v. A.H. Robins Company a. 9(b) 2. Cash Energy, Inc. v. Weiner 3. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit a. Notes i. "Chief Justice says that rule 9(b) is limited to 2 situations and that the rules may not be altered by judicial interpretation but only by the amendment process, which requires a quasi-legislative process leading to review by Congress" vi. The Future of Pleading Practice c. Defendant's Response i. Preanswer motion under 12 1. all but 12(b)(6) are objections of a procedural nature 2. "Filing of a per-answer motion under 12 affects the time periods for filing responsive pleadings. If the defendant files a preanswer motion within the 20 day period following service of the summons and complaint, the deadline for filing an answer is extended. If the court denies the motion or postpones its disposition, the defendant has until 10 days after notice of the court's action to file an answer. If the court grants the motion, plaintiff will usually be granted leave to amend or the suit will be dismissed; however, if a motion for a more definite statement is granted, the defendant has until 10 days after service of an amended complaint containing a more definite statement in which to file his answer."

3. 12(g) - "provides that if a party makes a pre-answer motion, but omits one of the rule 12 defenses than available, it cannot make any further pre-answer motions. Rule 12(h)(1) provides that four disfavored defenses will be waived forever if omitted from a pre-answer motion or, if no motion is made, from the answer. Rule 12(h)(2) provides that three favored defenses can be made in any pleading, or by motion for judgment on the pleadings, or at trial on the merits. 12(h)(3) states that the most favored defense- lack of subject matter jurisdiction- may be made at any time" ii. failure to answer- default 1. Shepard Claims Service, Inc. v. William Darrah & Associates a. 55(c) motion test i. whether the plaintiff will be prejudiced ii. whether the defendant has a meritous defense iii. whether culpable conduct of the defendant led to the default b. "Once a defendant fails to file a responsive answer, he is in default, and an entry of default may be made by either the clerk or the judge. A default judgment can be entered by a clerk only if a claim is liquidated or, if a claim is unliquidated, by the judge after a hearing on damages. A default can be set aside under 55(c) for 'good cause shown,' but a default that has become final as a judgment can be set aside only under the stricter rule 60(b) standards for setting aside final, appealable orders." c. "the conduct of Darrah's counsel, Mark Shreve, was careless and inexcusable. Nevertheless, it is not necessary that conduct be excusable to qualify for relief under the good cause standard of 55(c)...to be treated as culpable, the conduct of a defendant must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings." d. "Where the defaulting party and counsel have not shown disrespect for the court, or has given evidence of respect for the court's process by their haste in acting to set aside the default, the court have been inclined towards leniency...Clearly, however, the court may refuse to set aside a default, where the defaulting party has no meritorious defense, where the default is due to willfulness or bad faith, or where the defendant offers no excuse at all for the default." iii. The Answer

1. admitting or denying averments a. 8(b) requires a defendant, in the answer, to admit or deny averments upon which the adverse party relies b. common law- can make a general denial c. "If the defendant is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial (8(b))." d. David v. Crompton and Knowles, Corp. i. "A party, however, may not deny sufficient information or knowledge with impunity, but is subject to the requirements of honesty in pleading. An averment will be deemed admitted when the matter is obviously one as to which defendant has knowledge or information." ii. Notes 1. "a party should not deny an allegation if knows to be true; but it is not required, simply because it lacks contradictory evidence, to admit an allegation that it believes is not true. If after further investigation or discovery a denial is no longer warranted, the defendant should not continue to insist on that denial" 2. negative pregnant 2. Affirmative Defenses a. "Affirmative defenses are the modern equivalent of the common law plea in confession and avoidance, and rule 8(c) requires them to be set forth affirmatively." b. Additional affirmative defenses i. Act of God ii. Act of war iii. Negligence of the U.S. iv. Act of a third party c. Others may be added by statutory language d. Policy concerns e. Fairness concerns f. Probability 3. Counterclaims a. Wigglesworth v. Teamsters i. "Defendant's counterclaim was filed pursuant to 13 which distinguishes between compulsory and permissive counterclaims. If

the defendant's claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, then, if certain other requisites not here pertinent are met, it is compulsory. By definition, compulsory claims are ancillary to the claim asserted in the complaint and no independent basis of federal jurisdiction is required. Alternatively, if the counterclaim is unconnected with the transaction out of which the primary claim arose, it is permissive, and independent jurisdictional grounds are required." ii. Bose test: whether the same evidence would support or refute the opposing claims, if the same evidence would substantially dispose of the issues raised by the opposing claims, then the counterclaims were compulsory; if not, then they were permissive. iii. Notes 1. interpretations of the same transaction or occurrence: a. are the issues of fact and law raised by the claim and counterclaim largely the same b. would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule c. will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim d. is there any logical relation between the claim and the counterclaim 4. Voluntary Dismissal a. "At common law, a plaintiff's right to a voluntary dismissal or nonsuit without prejudice was absolute at any time before judgment b. 41(a)- limits voluntary dismissal to the early stages of litigation c. "A plaintiff is allowed to dismiss without order of the court by filing a notice of dismissal at any time before service of an answer or of a motion for

summary judgment, whichever first occurs, or a stipulation of dismissal signed by all parties. d. "A dismissal is without prejudice, except when filed by a plaintiff who has once dismissed an action based on or including the same claim e. 41(a)(2)- judicial discretion f. 41(a)(1)(i)- specific time period for allowing a voluntary dismissal without court order- before service of an answer or motion for summary judgment g. 60(b)- a plaintiff who has filed a notice of dismissal may not unilaterally withdraw or amend the notice, but may move to vacate it under this rule 5. Amendments to Pleadings a. 15- liberal approach b. Permission to amend i. David v. Crompton and Knowles Corp. 1. "A court may deny a request to amend if it bases such denial upon a valid ground. Among the reasons commonly cited for denying permission to amend are that the amendment will result in undue prejudice to the other party, or that it has been unduly delayed." 2. "Under the circumstances of this case defendant's motion to amend will be denied. This may be burdensome to defendant and may deny to it an otherwise valid defense, but that is a situation of its own making. To allow the amendment would be to penalize the plaintiff who is without fault and leave him without a possible remedy for very severe injuries." c. Amendments at Trial i. 15(b)- "provides for an automatic amendment of the pleadings when issues not raised by the pleadings are tried by express or implied consent of the parties....also provides that amendment of the pleadings may be made to conform them to the evidence, but failure so to amend does not affect the result of the trial of these issues" d. Supplemental Pleadings

IV.

i. 15(d)- provides for "supplemental pleadings for after-occurring transaction, occurrences, or events." d. Relation back of Amendments i. Swartz v. Gold Dust Casino, Inc. 1. three requirements to 15(c) a. the claim asserted in the amended pleading must have arisen from the conduct, transaction or occurrence set forth in the original pleading b. the new defendant must have received notice of the action within the limitations period c. the new defendant should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him 2. notes a. 13(a) v. 15(c) b. 15(c)(3)- "allows relation back if the amendment changes the party or the naming of the party against whom the claim is asserted" c. "The conclusion of a growing number of courts and commentators is that sufficient notice may be deemed to have occurred where a party who has some reason to expect his potential involvement as a defendant hears of the commencement of the litigation through some informal means." Establishing the Structure and Size of the Dispute a. Proper parties to a suit- should have a sufficient relationship to the dispute that it may appropriately be brought into the litigation i. Real party in interest (17)(a)) 1. 17(a)- "every action shall be prosecuted in the name of the real party in interest" 2. common law: action brought in the name of the person who had legal title to the right being asserted 3. The Field Code- "actions should be prosecuted in the name of the real party in interest" 4. objectives of 17(a) a. "to protect the legitimate interests of the defendant b. "Rule 17 now serves primarily a negative function. It is to enable the defendant to present defenses he has against the real party in interest, to protect the defendant against a subsequent action by the party actually entitled to relief, and to ensure that the judgment will have proper res judicata effect." c. Subrogation- "involves the substitution of one person in the place of another with the substituted person succeeding to the rights of the other"

ii. Fictitious names 1. Southern Methodist University Association of Women Law Students v. Wynne and Jaffe a. Plaintiffs wanted to remain anonymous (Jane Doe), defendants seeked to find out their names b. "Courts have allowed plaintiffs to use fictitious names where the issues involved are matters of a sensitive and highly personal nature" c. "In our view, A-D face no greater threat of retaliation than the typical plaintiff alleging Title VII violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits against large law firms" b. Joinder of Claims (18)(a) i. Common law- plaintiff usually prohibited from joining two different claims against the same defendant unless both claims involved the same form of action ii. 18(a)- "allows a party to join as many claims, legal, equitable, or maritime, as the party has against an opposing party" iii. 42(b)- "court may sever unrelated claims and order separate trials when it would be in furtherance of convenience or to avoid prejudice, or when separate trials would be conducive to expedition and economy" c. Permissive Joinder of Parties (20) i. Common law- "joinder of parties was extremely difficult. Multiple plaintiffs could join in one suit only if they had a joint interest" ii. 20(a)- allows "joinder of multiple persons as parties if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action" iii. Kedra v. City of Philadelphia 1. "Although the events giving rise to plaintiff's claims in this case occurred over a lengthy time period, they all are reasonably related." 2. 20(b)- "the court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him and may order separate trials or make other orders to prevent delay or prejudice" iv. Insolia v. Philip Morris, Inc. 1. "I conclude that plaintiffs' claims do not arise from the same transaction or series of transactions, as they must in order to satisfy rule 20. On an abstract level, dissimilarities in the claims brought by plaintiffs suggest that these claims are not

related logically to one another. Plaintiffs began smoking at different ages; they bought different brands throughout their years as smokers; and they quit for different reasons and under different circumstances" 2. "Defendants are correct that the trial plan proposed by plaintiffs not only fails to address this concern effectively but may actually compound it. Under the plan, a jury would be allowed to decide whether a conspiracy existed, whether cigarettes are unreasonably dangerous and whether defendants intentionally disregarded the rights of plaintiffsall without regard to reliance, contributory negligence, assumption or risk, addiction and medical causation" d. Compulsory Joinder of Parties (19) i. "Whether certain persons not joined as parties have sufficient interests in the suit that they must be joined and whether, if they cannot be joined, the suit will be allowed to proceed without them or must be dismissed" ii. Hazard: "fairly workable necessary party rules" 1. "All persons who are interested in a controversy are necessary parties to a suit involving that controversy, so that a complete disposition of the dispute may be made 2. joinder of necessary parties is excused when it is impossible, impractical, or involves undue complications 3. a person who is not a party, unless represented by one who is a party, is not bound by decree" iii. indispensable party idea 1. 19- necessary and indispensable iv. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc. 1. "FRCP 19 determines when joinder of a particular party is compulsory. A court must first determine whether a party should be joined if feasible under 19(a). If the party should be joined but joinder is not feasible because it would destroy diversity, the court must then determine whether the absent party is indispensable under 19(b). If the party is indispensable, the action therefore cannot go forward." 2. 19(a): "A person shall be joined as a party in the action if in the person's absence complete relief cannot be accorded among those already parties, or the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may as a practical matter impair or impede the person's ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest"

e. Impleader (14)- "the right of a defendant to bring in a new party who may be liable for plaintiff's claim against it, under third party practice" i. Clark v. Associates Commercial Corp. 1. "Thus, because Associates has sued each third party defendant as a person who is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against the third party plaintiff, Associates has properly impleaded third party defendants." 2. notes a. joinder not practical if it would complicate the case unnecessarily b. Klotz v. Superior Electric Products, Corp. v. Butz i. Trichinosis ii. Improper joinder, liability asserted was not derivative f. Counterclaims and Cross claims (13) i. "serve the important interest of fairness by allowing a party to make claims against one who has made claims against him and the interest of economy and efficiency in permitting claims between existing parties in the same suit" ii. 13(a)- sort of rule mandated res judicata, "It has the effect of barring a party from recovering on a claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" iii. 13(b)- liberal permissive counterclaim rule, "allows a party to bring as a counterclaim any claim it has against the opposing party 1. permissive counterclaim- "one that does not arise out of the same transaction or occurrence" iv. 13(g)- allows a claim against a co-party, "limited to claims arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaims therein or relating to any property that is the subject matter of the original action" v. 13(h)- "addition of claims can result in addition of parties if they can be sued as additional parties to the counterclaim or cross claims in accordance with the provisions of 19 and 20." g. Interpleader (22 and 1335) i. Bring all claimants into one proceeding ii. Avoid inconsistent judgments or multiple liability iii. Strict interpleader: 4 technical requirements 1. the same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded 2. all their adverse titles or claims must be dependent on or be derived from a common source 3. the person asking the relief must not have or claim any interest in the subject matter

4. he must have incurred no independent liability to either of the claimants iv. most courts are much more liberal than this v. State Farm Fire and Casualty Co. v. Tashire Diversity Venue Service Rule interpleader Between stakeholders Residence of As under And all claimants All defendants, Rule 4 (complete diversity Or where events occurred (k) Or property located (1391(a)) Statutory interpleader Between two or more Residence of one or Nationwide Claimants More claimants 2361 (minimal diversity) (1394) h. Intervention- "is a device for an outsider who has an interest in a lawsuit to voluntarily join it as a party" i. Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission 1. notes a. Stringfellow case i. Trial court limited intervenors, Supreme Court upheld, in three ways: 1. intervenors could not assert a claim for relief that was not already raised because that would expand an already complex litigation and could jeopardize the possibility of settlement 2. intervenors could not seek a share of the government's recovery of cleanup costs 3. intervenors could not file motions or initiate discovery without first conferring with all the litigants and obtaining permission from at least one of the others ii. The definition of interest in rule 24(a)(2) 1. Cascade case a. "The court found that intervention as of right should have been granted, because the intervenors were so situated as to be adversely affected by a merger that reduces the competitive factor in natural gas available to Californians." (broad interpretation of interest) 2. Donaldson case a. Narrower concept of interest

b. "The court refused intervention, despite an admittedly strong practical interest on the part of the intervenor, because no significantly protectable interest was asserted." 3. Trbovich case a. "The court held that the city had no significantly protectable interest even though the rate-payers clearly had an economic interest in avoiding higher rates. What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. The real party in interest requirement of 17(a) applies to intervenors as well as plaintiffs as does the rule that a party has no standing to assert a right if it is not his own." i. Class Actions (23)- "The modern class action is one of the most versatile an powerful joinder devices, offering enormous savings of judicial resources but also providing a significant potential for abuse." i. The Problem of Representation 1. Hansberry v. Lee a. "It is one thing to say that some members of a class may represent other members in a litigation where the sole and common interest of the class in the litigation, is either to assert a common right or to challenge an asserted obligation. It is quite another to hold that all those who are free alternatively either to assert rights or to challenge them are of a single class, so that any group merely because it is of the class so constituted, may be deemed adequately to represent any others of the class in litigating their interests in either alternative." ii. Standards for Certification 1. (b)(1)(A)- incompatible standards class 2. (b)(1)(B)- applicable when injunctive or declaratory relief is sought 3. (b)(1)(C)- when questions of law or fact common to the class predominate 4. 23(a)- prerequisites: numerosity, commonality, typicality, representativeness 5. Holland v. Steele a. Eisen standard: "a court has no power under 23 to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action" 6. In the Matter of Rhone Poulenc Rorer, Inc. a. Blood solids iii. Problems of Implementation

V.

1. Eisen v. Carlisle and Jacquelin a. "But when notice is a person's due, process which is a mere gesture is not due process" b. "individual notice must be provided those class members who are identifiable through reasonable effort" c. petitioner bears cost of notice Obtaining Information for Trial a. The promise and reality of broad discovery i. Hickman v. Taylor 1. work product immunity 2. "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." ii. In re Convergent Technologies Securities Litigation 1. "when should plaintiff's answer contention interrogatories" 2. "They [attorneys] should strive to be cooperative, practical, ad sensible, and should turn to the courts only in extraordinary situations that implicate truly significant interests." b. Discovery Devices i. Initial Disclosure 1. 26(a)(1)- requires initial disclosure regarding witnesses and documents relevant to disputed facts ii. Document Inspection 1. 34- allows parties to demand an opportunity to inspect and copy documents and other tangible things a. request for production (reasonable particularity), written response specifying what will be made available, b. influence test: "The Supreme Court held that plaintiff had control of the records for purposes of 34 because plaintiff is in a most advantageous position to plead with its own sovereign for relaxation of penal laws" c. also authorizes entry onto property for testing or measuring d. subpoena is required for a nonparty iii. Interrogatories 1. 33- permits a party to send written questions that are to be answered under oath a. but- susceptible to abuse b. can be useful to identify witnesses and discovering the location of documents c. 33(c) allows interrogatories that elicit an opinion d. court may defer answers until after discovery iv. Depositions

1. 30(b)(1)- party can schedule a deposition on reasonable notice in writing 2. 37(d)- sanctions if party fails to appear 3. 30(b)(2)- allows videotape or audiotape recordings, 30(b) (3)- allows a party to designate another recording method at its own expense 4. 31- allows depositions on written interrogatories v. Physical or Mental Examination 1. (35)(a)- stipulation or advance court approval is necessary 2. Schlagenhaul v. Holder a. "The chain of events leading to an ultimate determination on the merits begins with the injury of the plaintiff, an involuntary act on his part. Seeking court redress is just one step in this chain. If the plaintiff is prevented or deterred from this redress, the loss is thereby forced on him to the same extent as if the defendant were prevented or deterred from defending against the action" b. 35- party's condition must be in controversy vi. Discovery Sequence and Tactics 1. complaint 2. pleadings stage 3. initial disclosure 4. formal discovery a. interrogatories b. document requests c. depositions c. Managing the Scope and Burden of Discovery i. Davis v. Ross 1. notes a. Coca Cola case- plaintiff's sought to have Coke turn over its secret recipe to determine if Coke and Diet Coke are one and the same (Coke refused, court proceeded as though it had) ii. Kozlowski v. Sears, Roebuck, and Co. 1. flaming pajamas 2. "It is well established that a private corporation cannot avoid producing documents by an allegation of impossibility if it can obtain the requested information from the sources under its control" d. Exemptions from Discovery i. Hickman v. Taylor 1. work product doctrine ii. Upjohn Co. v. United States 1. "In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or

nonmanagement personnel as well as from top executives. The attorney dealing with a complex legal problem is thus faced with a Hobson's choice. If he interviews employees not having the very highest authority, their communications to him will not be privileged. If, on the other hand, he interviews only those employees with the very highest authority, he may find it extremely difficult, if not impossible, to determine what happened." 2. "The attorney client privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney: the protection of the privilege extends only to communications and not to facts." 3. notes a. "A person asserting the attorney client privilege must satisfy a number of requirements to show that it applies: i. where legal advice of any kind is sought ii. from a professional legal adviser in his capacity as such iii. the communications relating to that purpose iv. made in confidence v. by the client vi. are at this instance permanently protected vii. from disclosure by himself or by the legal adviser viii. except the protection be waived" iii. In re Shell Oil Refinery 1. "The court finds that while discovery of experts expected to testify at trial is premature, the plaintiffs are not entitle to any discovery of experts not expected to testify at trial" e. Investigation- Fact Gathering Without Judicial Assistance i. Corley v. Rosewood Care Center, Inc. f. Enforcing the Discovery Rules- Sanctions i. Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp. 1. "The question before us is whether a grossly negligent failure to obey an order compelling discovery may justify the severest disciplinary measures available under 37. This rule provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for expenses caused by the failure to cooperate. More stringent are orders striking out portions of the pleadings, prohibiting the introduction of evidence on particular points and deeming disputed issues determined adversely to the position of the disobedient party. Harshest of all are orders of dismissal and

VI.

default judgment. These sanctions serve a threefold purpose. Preclusionary orders ensure that a party will not be able to profit from its own failure to comply. They are also specific deterrents...finally, although the most drastic sanctions may be imposed as mere penalties, courts are free to consider the general deterrent effect their orders may have on the instant case and on other litigation, provided that the party on whom they are imposed is at fault." Adjudication Before Trial: Summary Judgment a. "provides an opportunity for either party to win a case prior to trial by demonstrating, in the words of 56(c), that there is no genuine issue as to any material fact and that the moving party is entitle to a judgment as a matter of law" b. 56(a)- motion may be made at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party c. The Nature of the Summary Judgment Device: the Concept of Burden Shifting i. test is preponderance of the evidence ii. burden of production v. burden of persuasion iii. Adickes v. S.H. Kress and Co. 1. "summary judgment must be denied even if no opposing evidentiary matter is presented. Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits" iv. Celotex Corp. v. Catrett 1. "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact" 2. 56(c)- "summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitle to a judgment as a matter of law...The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" d. Meeting the Burden of Production: Determining the Appropriate Standard i. Arnstein v. Porter ii. Dyer v. MacDougall 1. "As the plaintiff has refused to avail himself of the privilege under 56(f) of examining by deposition the witnesses whom the defendants proposed to call at the trial, we must assume

that what they said in their affidavits they would have repeated in their depositions; and that what they would have said in their depositions, they would say at a trial, with one possible exception..."