CIV PRO II ATTACK PLAN DEVLIN 2013

Service of ProcessINTRO: 14th amendment and due process requires giving person notice that claim against them and allow them opportunity to respond. In order to satisfy that requirement, the service most meet both the constitutional and statutory requirements:

1. Constitutional Requirement (challenging notice) a. Mullane test:

i. Reasonable likely to give actual notice? (If yes, done)1. Would you really use this method if you wanted to contact them?2. Green v. Lindsay- if service unreasonable, doesn’t matter if they got it3. Jones v. Flowers: not constitutional if you know they didn’t get it.

ii. (If no) did you do the best you could?1. Form must not be substantially less likely to work than others2. Matters if you know who D is

2. Statutory Requirement (4(c)) (proper service, challenging service)a. 4(b)- File complaint, present summons,

i. Clerk signs, seals and issues it to P for serviceb. (4)(C)(1)-Serve summons with a copy of complaint, within 4(m) limit [120 days of filing or dismissed

under 12(b)(5), w/o prejudice) i. With the following things [4(a)(1)(A)-(G)]

1. Name the court and the parties2. Directed to D3. State name and address of P’s attorney or of P if unrepresented4. State the time within which the D must appear and defend5. Notify D consequences for failure to appear is default judgment6. Signed by clerk7. Bear’s court seal

c. By person i. Who is least 18 and not party to complaint (4)(C)(2)

ii. Or appointed by court 4(C)(3)d. Serving person (4(e))-Not minor, incompetent or waiver

i. IN THE US OR TERRORITY 1. 4(E)(1)-Follow state law where court is located/ service will be made, OR:2. Do any of these:

a. Deliver copies personally to actual person 4(e)(2)(A)i. May use trickey, and they don’t have to always take it. Can put on table

and notify tell themb. Leave copies at “dwelling or usual place of adobe” with someone of “suitable

age” and “discretion” who “resides” there. 4(e)(2)(B)i. Dwelling=domicile sometimes

1. National dev. Co v Triad holding-when person has multiple dwellings, service is proper at house which currently living

2. Koskie- Ny apartment- has furnished it like a house, had maid, was there.

3. First nat. bank & trust Co. V ingerton- hotel room4. Ali v mid Atlantic. - Parental home while kid in college away at

schoolii. Suitable age

1. Cases go both ways, Holmen v. Miller 13 years is not2. Understanding and responsibility- case by case

1

iii. Resides-1. 1 week not enough, must be substantial enough to increase

chance of running into other individual. Need some extended stay

c. Deliver copies to agent authorized by appointment or by law 4(e)(2)(C)ii. OUTSIDE THE US

1. By specific federal law 4(f)(1)2. Waiver 4(f)(2)3. International agreement 4(f)(3)4. Court order 4(f)(4)5. IF THOSE DON’T WORK

a. Foreign law, letters rogatory, personal service/ mail, court order 4(f)(5)-(8)e. Serving Minors and Incompetent-4(g)

i. Inside US1. By state law

ii. Outside US-directs to 4(f)(2)(A), (f)(2)(B), and (f)(3)1. Any manner prescribed by foreign country2. Directed in response to letter of request3. Means court directs

f. Serving corp (4(h))i. In judicial district of US

1. 4(h)(1)- any manner recognized by fed law: OR2. 4(h)(1)(A)-Follow 4(e)(1)- state law in state, OR3. 4(h)(1)(B)-Delivering copies to “an officer, managing agent, or other authorized agent”.

If authorized by state, must mail a copy to each defendant” a. Could ask, “Who do I give these papers to?”b. Business should know who is authorized and who is not to accept servicec. Can even be highest ranking person in office (CASE)

ii. Foreign corps-4(h)(2)1. Any manner available for service 4(f) on foreign except personal

g. Service to Government- 4(i)i. Bring to US DA for that district, and send copy of summons and complaint to the AG, and:

ii. if suing agency or officer, must also serve themh. Over Property –4(n)

i. 4(n)(1)-if allowed by fed statuteii. 4(n)(2)- if can show no IPJ by reasonable efforts, can assert jrusidction over assets in the

district, provided by state law.,

Waiver of Service1. P must request waiver and include: 4(D)(1)

a. In writing, and addressed i. Individual D

ii. Or managing/ general agent/ other authorized for crop or by law. b. Name court where complaint was filedc. Copy of complaint, 2 copies of waiver form, and means for returning formd. Information on consequences of waivere. State date request was sentf. Give D reasonable time to accept, 30 days after if sent in US 4(d)(1)(f) g. Send it by first class mail or other reliable means.

2. If D refuses and loses, court FORCE payment of service cost and reasonable expenses (attorney fee), unless good cause shown for rejection

a. Good cause (form improper under 4(d) can be good cause, that matter of law does not apply- Mosely)

3. Time, if accepts waiver, D gets 60 days after request sent to respond, 90 days if outside US district 4(d)(3)

2

Venue- Claims Brought 1391INTRO: Venue is the third and final requirement in order to determine where a case can and should be brought under the Federal rules. 28 USC 1390 describes the rules and limitations of venue which describe which Federal districts can hear the case in a given state. Unlike IPJ and SMJ, venue is not a constitutional right or an issue of power, but rather is merely a matter of convenience for all involved.

1. First check SMJ and IPJ to insure can be brought in Fed court in that state.2. Venue in General 1391-can brought in Any district where:

a. RESIDENCE-Any D resides, if all Ds are in the same state 1391(b)(1) OR:b. EVENTS-A Substantial (not majority) part of the events or commissions giving rise to claim

occurred, or substantial part of property that is subject to action lies. 1391(b)(2) OR:c. NO WHERE ELSE- any judicial district in which any D is subject to IPJ. 1391(b)(3)

3. If A then: Residency a. Natural person and aliens admitted to US, reside where domiciled. 1391(c)(1)

i. To change:1. Reach new state2. Take up residence in new state3. Intent to remain for foreseeable future/ absence of plans to leave

b. Business 1391(C)(2)-broad reading to apply to all businesses-Corp, Llc, etc. i. P Corp- only where principal place of business

1. Headquarters, Incorporation ii. D Corp-Where subject for personal jurisdiction

1. IPJ for Corpsa. Cause of action arouse of contacts (SIPJ)b. General IPJ

i. Headquarters ii. Place of Incorporation

iii. 1391(d) When multiple districts in a state that a corp could be brought for IPJ:1. Corp is subject to venue in any district that would have IPJ if they were separate

states, OR2. If none would, then district which it has “most significant contacts”

c. Non US resident, any district 1391(c)(3)i. Ignore venue when joining out of state part, any district

Transfer of Venue1404 Proper original venue1. 1404(a) (Can we transfer?)

a. Check fori. Hoffman v. Blaski- can only transfer to jurisdiction where P could have originally filed/

brought unwilling D. Can’t just waive it. ii. Ipj

1. Check New Courts IPJ iii. Venue

1. Fed district where action “might have been brought” iv. Should already have SMJ anyway, but check

2. 1404(a) Discretion (should we?)a. “Interest of justice” b. Convenience of the partiesc. Convenience of the witnesses

3. Law applieda. Van Dusen- When D ask- “A change of venue under 1404(a) generally should be, with respect to state law,

but a change of courtrooms”b. Ferens v. John Deere-even if P request, law stays same

3

1406 improper original venue1406(A) Wrong District= shall dismiss, OR if it be in “interest of justice” transfer such case to any district which it could have been brought because this is just convenience issue, should avoid losing claims over.

1. Can we Transfer?a. where you could bring an unwilling D

i. IPJ- All parties subject to IPJii. VENUE-

1. Can be waived if D does not interpose timely and sufficient objection to venue, but cannot consent to be brought in an improper venue as in 1404 action

2. Interest of Justice (what should we do?)a. Statute of limits? Would dismissing end the caseb. Anything to sway judge- Fairness to parties, Want to keep case going, DO YOUR JOB

3. Law applieda. Law and procedure does change-apply the court it is transferred into/ transferee’s choice of law.

4. 1631- Transfer to cure want of jurisdictiona. Goldlawr- Court can transfer case, even if original court lacks IPJ for efficiency and speed up process

Forum non Conveniens PURPOSE is when there is no court that it can be transferred to, but there is a proper court somewhere. Normally in Fed Court, such proper court is in a Foreign Country. In state court, could be just another state court. 1. CAN we?

a. Is there another place to transfer? Determine if other court is adequate:i. Is established system of law/Forum to handle claim (can still be dismissed even if no where else

to hear it Islamic Republic)ii. It does not mean it has to equal the same relief you would receive in US, just that you can have

claim heardiii. Piper Aircraft v. Reyno-Fact that alternative forum’s law is less advantageous does not bar

dismissal, unless forum court provides no remedy at all2. SHOULD WE?

a. Interest of Partiesb. Availability of witnessesc. Burden on Courtd. If our court may not unfairly judge the case, consider

i. Public interest-Piper – 1. Having case in forum that is at home with the law that must govern2. local interest in having local controversies at home3. Unfairness of burdening citizens in an unrelated forum with jury duty4. Avoidance of conflicts of law, or in app to foreign citizens

ii. Private interest- Piper- cost, location of witnesses, access to proof, cost getting people there.1. Relative ease of access of proof2. Availability of compulsory process for attendance of unwilling.3. Practical problems that make trial easier, expeditious and inexpensive if in this forum

4

PleadingsINTRO: Pleadings are the method by which a claim is begun and responded to in the court system. In the federal system, we have very strict rules regarding pleadings and what is necessary to meet the requirements. General 1. R7- Pleadings allowed

a. Complaintb. Answer to complaint, c. Answer to counterclaim designated as counter claim, d. Answer crossclaime. Third party complaintf. Answer to third party complaintg. If court orders one, a reply to an answer

2. Form of pleadings-R.10a. Caption, name of parties

i. Caption=Court names, title, file number, rile 7(a) designation. ii. Title= name of both parties, title of other pleadings, refer to others generally

b. Paragraphs-numbered c. 10C- can attach documents for reference

3. Attorney representation to courta. Every pleading, written motion, and other paper MUST BE SIGNED by at least one attorney of record

11(a).ii. Certifies that to best of “person knowledge”, that information, and belief, formed after an inquiry

reasonable under the circumstances-11 (b)1. Not being presented for improper purpose-11 (b)(1)2. Contentions have warranted basis of existing law, or non-frivolous for modifying existing

law or establishing new one- 11(b)(2)3. Factual contentions have evidentiary support or will likely have such support- 11(b)(3)

a. Can’t just trust clients word, do research4. Denials of factual contentions are warranted on evidence 11(b)(4)

ii. Sanctions may be imposed 11(c)1. Must give attorney notice and chance to fix2. Must wait 21 days after serving attorney before filling motion under 11(c)(2)3. Zuk v Eastern Pennsylvania- Rule 11 appropriate when council fails to make adequate

inquiry into both law and facts, which is reasonable under circumstances Complaint and Answer1. Complaint

a. Must contain:i. 8(a)(1)- short and plain statement of the grounds for the court’s jurisdiction, unless court

already has jurisdiction and the claim needs no new showing1. only SMJ, and you can show venue-no need to show IPJ

ii. 8(a)(2)- short and plaint statement of the claim showing that the pleader is entitled to relief; and

1. Twombly- Pleadings must contain more than statement of facts that merely creates a suspicion of a legally cognizable right of action. “enough facts to raise a reasonable expectation that discovery will reveal evidence”

a. Iqbal-“nudge his claims” of invidious discrimination “across the line from conceivable to plausible”. Influenced greatly by context-Show elements of the claim

2. Twombly- court accepts as true all allegation contained in complainta. Iqbal- The tenant that a court must accept as true all of the allegations contained

in a complain is inapplicable to legal conclusions- Conclusions do not get assumptions of truth as do facts.

3. McCormick v. Kopman- Rule 8(e)/(d) allows up to plead in alternative

5

a. Can only do if lawyer is genuinely in doubt as to what the facts are and what evidence will show

4. Exceptions to pleading generally-ADD TELLAPS a. If pleading fraud or mistakes

i. 9(b)-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.

ii. Elements of Fraud (puffery and opinions not fraud)1. False statement of material fact2. Knowledge that statement is false3. Intent to deceive/deprive4. Justifiable reliance5. Injury

b. Actions against city or Officer-1983/ Tellaps i. Gov. officials can only be held liable if they themselves acted on account

of a constitutionally protected characteristic- Iqbalii. Municipality can be sued under 1983, but cannot be held liable unless

municipal policy or custom caused the constitutional injury. iii. 8(a)(3)- a demand for relief sought, which may include relief in the alternative or different

types of relief1. Must show if trying to prove amount in controversy –St.paul mercury 2. Amount of damage may be determined by the court3. Not limited to what you ask for: 54(c)

a. Exception, if there is a default, you get what you ask for4. Special damages- must be specifically stated 9(g) items that could not be anticipated as

consequences to the claimed facts.a. If you don’t plead, you can’t bring up at trial

5. 8(d)(2) Plead in alternative a. Can plead two things that cannot both be true

iv. INCLUDE COPY OF COMPLAINT2. Answer

a. Time to respond- 12(a) i. 21 days after being served; OR (i)

ii. if waiver- 60 after request sent, or 90 if out of US (ii)b. If counter claim or cross claim 12(b)

i. 21 days served pleadings that state itc. serve response to answer 12(c)

i. 21 days after being served with order to replyd. 8(C)-Affirmative defense (must be stated in response, or lose right to raise), if raised during trial and

party objects go to 15(b)(1) . i. Accord and satisfaction,

ii. Arbitration and awardiii. Assumption of riskiv. Contributory negligencev. Duress

vi. Estoppelvii. Failure of consideration

viii. Fraudix. Illegality

x. Injury by fellow servantxi. Laches

xii. Licensexiii. Paymentxiv. Releasexv. Res judicate

xvi. Statute of fraudsxvii. Statute of limitations

xviii. Waiverxix. If any misstated between counterclaim or defense construe for justice- 8(c)(2)

e. Defense/ Reasons to dismiss:i. 12(b)(1) – lack of SMJ

ii. 12(b)(2)- lack of IPJ

6

iii. (3)-improper venueiv. (4)- insufficient process (technical defect- court disfavors dismissal and can overlook technical

details)v. (5)- insufficient service of process; (delivery not accomplished or past 120 days)

vi. (6)- failure to state a claim upon which relief can be granted (not enough to create liability) If facts alleged even if true would not be illegal- (8a2 failure)

vii. (7)- failure to join a party under rule 19f. If you do not put affirmative defenses from b2-5, you risk waving them

i. 12b2-5 If not raised in 1st response then waivedii. 12b6-7- can be brought up until eve of trial

iii. 12b1- can be brought up anytimeg. Three possible answers for each claim 8(b)(1)-(6)

i. Admitii. Deny

1. General-deny everything2. Specific-deny specific paragraphs or sentences3. Zielinksi v. Philadelphia- Claims not specifically denied are taken as true

a. Cannot have a general denial, unless, in good faith, counsel actually intends to deny whole complaint.

iii. Claim to have insufficient knowledge to admit or deny-acts like denial COPY OF ANWSER

Amended Pleadings1. Before trial then 15A

a. May amend freely: i. 21 days after serving it 15(a)(1)(A)

ii. If response required, 21 days after service or 21 days after other party tries to say your claim is lacking something or too vague/ response [12(b)(e) &(f)], 15(a)(1)(B)

b. Other wise, only written consent of opposing part or court’s leave. Court should freely grant when justice so requires 15(a)(2)

1. Courts generally allow liberal amendments. Fed rules embody preference for deciding cases on merits, not technicalities. Need bigger reason than will change character of the action

2. Will not allow unreasonable delay, bad faith, or prejudice. How close to trial? 3. Foman v Davis- unless apparent or declared reason [such as “undue delay, bad faith or

dilatory motive on part of motioner; repeated failure to cure deficiencies by amendments allowed, undue prejudice to the opposing party, futility of amendment etc.] leave sought should be “freely given”

a. Beeck v. Aquaslide-Burden is on part opposing amendment to pleading to show prejudice

4. Alexander v. Fujitsu- Responsive pleading as used in R.15, must be defined by reference to R 7(a), and does not include motion to dismiss. Pleadings may be amended thereafter as matter of course.

5. Amending does not affect time left for other party to respond, unless less than 14 days, than other party has 14 additional days to respond 15(a)(3)

2. During and After Trial then 15 (B)a. BASED ON OBJECTION: When a party objects to new evidence, court may allow other party to amend

pleadings. Court should freely permit an amendment if “aid in advancing merits” and objecting party fails to show how it “prejudices them”. Court may grant continuance. 15(b)(1)

i. Variance- presentation of evidence on a point not covered in a pleadingii. Should court let them amend?

1. It would add to merits2. It might prejudice other party since they didn’t prepare for it

iii. Should court allow continuance? (give time for a period to gain information)

7

1. Can P quickly come up with counter evidence? What would it be?b. When tried by party’s express or implied consent, it is treated as if raised in the pleadings. Party may

move at any time to have pleadings later amended 15(b)(2)c. Relation back

i. Amendment goes back to original date if1. Law says so 15(c)(1)(A) 2. Amendment asserts a claim or defense that arouse out of “Conduct, transaction or

occurrence of original pleading” 15(c)(1)(B)a. Same time, place, people, actions, logicalb. Marsh v. Coleman Company- D should have reason to anticipate from reading

the original complaint that it should prepare to defend a case based on the amended acts.

3. Amendment changes party name if 15(c)(1)(b) is satisfied with in 4(m) time period, and party to be brought in.15(c)(1)(C)

a. Received notice of action such that it would not be prejudiced in defending on merits

b. And knew or should’ve known action would have been brought against them but for a mistake concerning the proper parties ID

c. Krupski v. Costa Crociere- definition of mistakei. Defendant knew or should have known during 4m period that it would

have been named as D by for an error1. Not the Plaintiff

ii. Worthington v. Wilson-Plaintiff actually made a mistake, not didn’t know who it was.

d. If joining parties or claims through amendment, start with 15, and then use rule applicable to joining such as 20 or 18.

3. Supplemental pleadings-events occurring after a pleading is filed 15(D)- (for new information, not mistakes)i. On motion and reasonable notice, court may, on just terms, permit a party to serve a

supplemental pleading arising out of any “transaction, occurrence, or event” that happened after the date of pleading to be supplemented. Can allow even if original pleading is defective. Court may order opposing party to plead to the supplemental pleading within a specific time

1. Courts freely grant leave to supplement, unless there is undead delay, prejudice, or bad faith.

4. After rule 16(e) final pretrial meeting- only to prevent injustice

8

9

MOTIONS/JUDGMENT1. Motion to dismiss under rule 12b-

a. Motion 7(b) a request for a court order must be made by a motionb. Attacks “legal basis of claim”c. Can be made on grounds of 12(b)(1)-(7) (add these)

i. Lack of SMJii. Lack IPJ

iii. Improper venueiv. Insufficient processv. Insufficient service of process

vi. Failure to state a claim upon which relief can be grantedvii. Failure to join a required party

d. Only one motion for all claims under this 12(g)(2)e. 56a -Either party can motion for summary judgment and can pertain to only certain issuesf. Must be made before answer, or wavied except for 12(b)(1)(6)(7)

2. Motion for Summary Judgment FRCP 56a. FRCP 56a-“Court shall grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact and that movant is entitled to judgment as matter of law”i. No genuine dispute=

1. Anderson- demand more than a “mere scintilla”. Must show that there is enough evidence that a reasonable juror might find for the opposing party to survive.

a. Standard for summary judgment will depend on standard for which the claim must be proved

b. Brenan dislikes this since it means judge has to answer the question by weighing the evidence himself (makes him less independent).

ii. Material Fact=1. supports rules or requirements of under lying claim/ will effect outcome2. Material facts= ANDERSON facts that will affect the outcome of the case, factual

elements that have to be established to prove a claim that you are making.3. Celotex- Movant in a motion must show absence of factual dispute, movant not required

specifically to negate any aspect.a. Moving party had to comb record and give court reason, but only show that

other party lacks evidence.iii. No controversy=nothing for court/jury to do

b. Procedure:i. Support with facts: Part asserting that a fact is not genuinely disputed must:

1. Cite the record to prove-(letters, documents, all introduced through affidavit) 56c1A or2. Show that party cannot produce evidence to support claims 56c1B

ii. If moving party succeeds, then burden shifts to other party to prove wrongiii. 56d- if facts can be found, but have not been found yet, judge may give the D more time to find

them. Have to show you could find something.c. 56b- must be filed anytime until 30 days after close of discoveryd. What if SJ takes away piece that jurisdiction rested on?

i. Gibbs- they allowed itii. Court will reconsider SUpp

iii. Becomes a question of discretioniv. Probably constitutional

3. Motion for Judgmenta. 12(c) after pleadings are closed, but early enough not to delay trialb. 12(c) looks to all assertion. 12b looks just to the pleadingsc. 12(c)- have to motion to dismiss but you need to go into discovery to have the proof

4. Voluntary dismissala. 41(a)

10

i. By P 41(a)(1)-1. notice of dismissal before D replies2. stipulation signed by all parties3. 42(a)(1)(b) without prejudice

ii. By Court 41(a)(2)1. This is without prejudice

5. Involuntary dismissala. 41(b)

i. Failure to prosecute- have to be actively engaged in getting the case on the calendar. ii. With prejudice

6. Default Judgmenta. When a party against whom a judgment for affirmative relief is sought ahs failed to plead or otherwise

defend, clerk must enter the party’s default 55(a). b. Rule 54- can get more than what you ask for.

11

JOINDER OF CLAIMSIntro: 42B-judge is master, can splitFIRST DETERMINE RULE AUTHORIZATION:

1. RULE 18 Permissive Claims: -a. Party seeking relief against another party may assert any claims, counter claims, cross claims, or third

party claimsb. Must own basis of jurisdiction

2. RULE 13 Counter Claims -a party on one side has claim against party opposing partya. COMPULSORY? (Lose it if don’t plead)-13a

i. Does counterclaim arise out of same transaction or occurrence (13a1A) 1. STOO= three tests:

a. Same Facts, evidence, witnessb. Same Event-Unity of time and placec. Logical relationship.

ii. Does not require adding another party the court does not have jurisdiction over (13a1B)?1. 13H- Adding party? See 19/20

iii. Yes, it is compulsory and must be added under 13a, or party loses their opportunity to raise claim

1. Exception-a. Claim is already pending somewhere else- 13a2Ab. Court cannot exert jurisdiction, and person does not exert counterclaim 13a2B

b. PERMISSIVE otherwise under rule 13b. These claims do not have to be raised, if they are, they might be separated into a separate trial under 42b since they do not promote efficiency.

c. Other considerationsi. Dido v. Whitney-courts have discretion over whether they can hear a claim that should have

been pled as counterclaim, but never heard in court because of settledii. Carteret Savings and loan assn. v. Jackson- there is no discretion to hear a claim that should

have been brought as counterclaim when default judgement.3. RULE 13: CROSS CLAIMS - does a party on one side of the suit have a claim against a party on the SAME side?

a. Always Permissive: “MAY state”i. Does the claim arise out of the” same transaction or occurrence” as the original claim or is

related to property that is subject of original claim? 13g1. STOO= three part test

a. Same facts, evidence, witnessesb. Unities of time and placec. Logical Relationship

ii. Yes= cross claim allowed under 13g (not compulsory)1. “May include a claim that co-party is or may be liable to cross-claimant for all or part of

a claim asserted in the action against the cross-claimant” 13ga. Not compulsory because we do not want them fighting each other/ want

common defenseb. Jones v. Ford Motor= Claims will need own independent form of jurisdiction, if

doesn’t meet STOO, most likely wont meet Same Common Nucleaus. iii. No=cross claim not allowediv. 13H-Add party must sastify under 19/20

NEXT CHECK JURISDICTION (CLAIM BY CLAIM)

1. SUBJECT MATTER JURISDICTIONa. 1332-diversity?b. 1331-Federal question?

12

2. 28 U.S.C. 1367 When District courts have original jurisdiction, the court shall have supplemental over all other claims that are so related to claims in action that they form part of SAME CASE AND CONTROVERSY under art III of constitution. Includes joinder and Intervention

a. CAN WE (requires)i. Pending case with Original Jurisdiction

ii. Claim must be so related to form same” constitutional case”-1367a1. Same case and controversy under art 3 of const (codifies Gibbs)

a. Case= anything that would ordinarily be brought togetherb. UMW v. Gibbs- “common nucleus of operative fact”.

i. Would Claims “ordinarily be expected to try them all in once judicial proceedings?” (Similar to same transaction, but different)

ii. Operative facts= who, what, how, whyiii. If you pass R-20’s “common transaction or occurrence, court will mostly

likely pass under Gibbs common nucleuses of operative fact”c. Applies to Ds and Ps

iii. Founded solely on diversity? (Codification of Owen v. Kroger) 1367b1. If yes- NO SUPP JURISDICTION on

a. Claims By Ps against persons made parties under R.14, R.19, R.20, R.24i. Inconsistent with the jurisdictional requirement of 1332

1. Amount in contrevsory is okay someone else has. you are ok as long as one person along the line meets it-Allapatha

b. Claims By Peron who would be joined as P’s under rule 19 or seeking to intervene as P under 24

2. Such cases would be against Strawbridge 3. ANALYSIS:

a. Is Independent jurisdiction? Yes, than Supp doesn’t matterb. Original Jurisdiction based on Diversity ? If not, then stopc. Claim by P? d. Claim against persons added under 14,19,20,24

i. If yes, does it destroy complete diversty? 1. Yes=barred2. No=move on

e. Would party be added as P under 19 or 24i. If yes, destroy diversity?

1. Yes: barred2. No=all good

4. Fairview Park v. Al Monzo- Even if 1st claim dismissed, Supp can go on, unless dismissed for SMJ grounds- at least for crossclaim/ can maybe argue for counter

b. SHOULD WE? (Courts may decline to join if 1367c)i. Complex or novel issue of state law

ii. Claim would dominate other claim (lot more evidence, or lot more money)iii. Court have dismissed all claims over which it has original jurisdictioniv. Exceptional circumstances with compelling reasons.

13

Joinder of PartiesFIRST DETERMINE RULE AUTHORIZATION

a. OVERAL JOINDER OF PARTIESv. Joining someone through amendment=15c1C (pleadings)

vi. Failure to join a party could result in dismissal: 12b7vii. For all parties: treated as an original pleading= needed service under 4 and must respond under

121. RULE 19 -COMPULSORY PARTIES

a. MUST WE?i. Person subject to service (IPJ) and will not deprive court of SMJ must be joined if 19A1

1. 19a1A-Without them, court can’t give complete relief among existing parties ORa. In LA for torts, court can only hold person to his share, no tubb. Temple- not all tortfeasors required, even without them court didn’t dismiss.

i. In Common law, than can get full amount2. 19a1B-Person has an interest relating to the subject matter and without them:

a. Bi-It will impede or impair their ability to protect the interest, orb. Bii-Leave an existing party subject to double, multiple, of inconsistent liabilityc. Hezlberg Diamonds v. Valley- Should be taken on case by case analysis, even if

not joined, they still have all rights no matter the outcome. ii. If required person not joined, court must order that person be made party, if person refuses to

join as O, made me made a D or involuntary P- 19A2iii. If joined party objects to venue and joinder would make venue improper, court must dismiss

party-19a3iv. If not required go to R20.

2. RULE 20 -PERMISSIVE PARTIES a. Persons who may join or be joined:

i. May join Ps if: 20a11. 20a1A-Assert relief jointly, severally, or in the alternative with respect to or arising our

of “same transaction, occurrence, or series of transactions or occurrences” (event, overlap, of facts and witness, or logically connected), and

2. 20a1B-Any question of law or fact in common to Psii. May join Ds if: 20a2

1. 20a2A-Assert relief jointly, severally, or in alternative with respect to or arising out of “same transaction, occurrence, or series of T or O”: and

2. 20A2B-Any question of law or fact in common to all D’s will ariseiii. STOO test=

1. Same facts, evidence, witnesses2. Same event, time and place3. Logical relationship4. Kedra v. Philadelphia- Cops beating people, helps us to look for these factors

iv. Parties need only be interested in portion of reliefv. Consider judicial efficiency

DETERMINE POWER/ FEASIBLEa. CAN WE? If required, is it feasible?

vi. Check SMJ1. Can’t destroy complete diversity under Strawbridge for rule 19 or 20 if claim by p2. Can’t use supp if original action is based solely on Diversity and claim by a P would

destroy complete diversityvii. Check IPJ

14

b. DO WE GO ON? If its not feasible, but required? – 19Bviii. “In equity and good conscience” court has to choose between dismissing case or going on

without them. Will likely dismiss under 41. Helzberg Diamonds1. 19b- Factors to be considered

a. Will a judgment render in that person’s absence prejudice that person or existing party. 19b1

b. Can prejudice be lessened or avoided -19b2i. 2A-protective provisions

ii. 2B-shaping the reliefiii. 2C other measures

c. Would judgment rendered in person’s absence be adequate? B3d. P has an adequate remedy if it was dismissed? Other venue B4

2. Shields v. Barrow- indispensable parties are persons who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. DID WE READ?

15

RULE 14 IMPLEADERIs a party adding a claim to get reimbursed if the party is found guilty? Cannot be a claim stating that the current D holds no guilt or shouldn’t be being sued. In that case, we trust the court to figure out the error and that the P will lose.

FIRST DETERMINE RULE AUTHORIZATIONa. 14a-When a defending party may bring 3rd party

a. 14a1- D may bring as 3rd party P, on a non party who is or may be liable to it for all or part of claim against it. Must be within 14 days after serving original answer or else will need courts leave

i. “Is or may be liable” party is not required to bring in third party 14a11. Doesn’t work in LA for tort/ every tub

b. 14a2- 3rd party Di. (a) Must assert any defense against 3rd party P’s claim under rule 12

ii. (b)-Must assert any counterclaim against 3rd party P under Rule 13(a), and MAY assert any counterclaim against 3rd party P under rule 13(b) or any cross claim against another 3rd party D under 13g

iii. (c)- may assert against original P any defense that the 3rd party P has to the P’c claimiv. (d)- May also assert against the P any claim arising out of STOO that is the subject matter of the

P’s claim against 3rd party Plaintiffc. 14a(3)- Original P:

i. May assert against the 3rd party D any claim arising out of the STOO that is the subject matter of the P’s claim against the 3rd party P.

d. 14a(5)-3rd part D against non-partyi. May proceed under this rule against a nonparty who is or may be liable to 3rd party D for all or

part of any claim against it (4th party)b. 14b-When P may bring in a 3rd party

a. When a claim is asserted against a P, the P may bring in 3rd party if this rule would allow a D to do so. (go back to test)

b. Can 2 3rd party D on different claims bring a claim against each other? i. Make a new claim all together, use 1404 to get into the same venue and than 42 to consolidate.

c. If no contract look to local tort law to see if reimbursement is allowedi. In la only get what that person owes, harder to use impleader

DETERMINE POWER TO BRING IT a. SMJ

a. 1331b. 1332c. 1367

i. For Diversity 1. 3rd party P can bring in whomever he wants

a. But P cannot make a claim against the 3rd party D if that would destroy complete diversity

2. P could not implead non-diverse third party D in order to get around complete diversity3. Banks v. City of Emeryville- do not need independent SMJ for impleader of 3rd party, but

do for claims brought against them by P. b. IPJ

16

RULE 24 INTERVENTIONFIRST RULE AUTHORIZATION 1. As a right (not same as compulsory) 24a

a. Court must permit anyone to intervene whoi. statute give an unconditional right to intervene 24a1 Or

ii. Claims to have a interest to the transaction where his right to protect his interest would be impaired or impeded (practical matter) if not allowed to intervene? 24a2

1. Unless an existing party accurately represents interest. 24a2a. Motives do not matter

2. Permissive 24ba. Court may permit anyone to intervene who:

i. Has a conditional right to intervene by fed statute 24b1A orii. Has a claim or Def that shares with the main action(one trying to intervene in) a common

question of law or fact. 24b1B1. Atlantis v. US- Can intervene when part has interest in same property or transaction

and decision in favor of adverse party would require courts to rule against potential intervener because of State Decisis

2. Bustop v Superior Court- Any party can intervene who before litigation has an interest in the success of either of the parties

a. Here bustop found that since bustop had interest, cause all parents have interest where children go to school.

b. Government officer or Agency- 24b2i. On timely motion, court may permit a fed or state governmental officer or agency to intervene if

a party’s claim or defense is based on:1. Statute or executive order administered by the officer or agency; OR 2. Any regulation, order, or agreement issued or made under that statute or executive

order. c. Courts discretion-24b3- Consider whether would unduly delay or prejudice the adjudication or original

parties. i. Closer to trial=less chance of intervention.

CHECK JURISDICTION/ POWER1. SMj

a. As a right- i. Can get it goes closely related enough to show common nucleus

b. Permissivei. Must likely not close enough related to get it, otherwise it would be as a right

c. Diversity i. Intervene as non-diverse P based on diversity-no supp

ii. Intervene as non-diverse D based on diversity-supp available2. IPJ/venue- waiving them by joining.

17

INTERPLEADERRULE 22- RULE INTERPLEADER Stakeholder wants court to bring parties together to decide whom they have to pay

a. Authorization first i. By a Plaintiff

1. Possible exposure to double or multiple liability 22a1a. Claims must total more than value of the fund-

2. Proper even thougha. Claim lacks a common origin or are adverse and independent- 22a1Ab. P denies liability in whole or in part 22a1B

ii. As A Defendant 22a21. D may bring an interpleader claim by means of cross claim or counter claim and then

join any necessary claimants in the action (19,20)b. Then Jurisdiction

i. Ipj- normalii. SMJ-normal

iii. VENUE 139128 USC 1335-STATUTORY INTERPLEADER (allows injunctions, rule doesn’t) CHECK AUTHORIZATION

a. DC shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corp, association, or society. Must have money, property, note, bond, etc with vale of over $500. IF:

a. Two or more Adverse claimants, or diverse citizenship as defined in 1332 are claiming or may claim to be entitled to that money or any benefit that arises by virtue of it; AND IF

i. Only claimants have to be diverse b. P has deposited the money or property or has paid loan into the registry of the courtc. Doesn’t matter if the claims have no common origin or are adverse

i. Classic interpleader- disinterested, just wants to know who to payii. In the nature of interpleader-stakeholder also has a claim

CHECK POWER1. SMJ

a. 1335- own standards for diversityi. $500 or more

ii. Minimal diverse citizenship amount claimants (not the stakeholder)iii. Deposited money with court

2. IPJa. 2361- Fed court may commit national wide service and injunctions for helping to determine

interpleader disputes 3. VENUE

a. 1397- In any district where one or more of the claimants reside

18

Class actionsRULE AUTHORIZATION

1. Rule 23: Class Actiona. One or more members of a class may sue or be sued as representatives on behalf of all members:

i. Requirements that you must have: 23(a)1. (a)(1)-Class is so numerous that joinder of all members is impractical2. (a)(2)- questions of law or fact common to the class3. (a)(3)-claims or defenses of representative parties are typical of the claims or

defenses of the class, AND4. (a)(4) Representative will fairly and adequately represent interest of class

a. Devlin- representative parties also goes to attorneysb. Hansberry v lee- Must be adequate representation of members of a class, or

judgment will not be binding on the parties not adequately representedi. Racist case, 95% didn’t want black people in the neighborhood, black

guy came back and court found that his interests were not adequately represented.

b. May be maintained if: 23(b)i. 23b(1)- Prosecuting separate actions by or against individual class members would create

risk of:1. (a) Inconsistent or varying adjudications with respect to individual class members

that would establish incompatible standards of conduct for the party of opposing class;

OR

2. (b) Adjudications with respect to individual class members would be dispositive of the interest of other members not parties to the individual adjudications or would substantially impair or impede ability to protect interest

a. Class members claim interest to a limited fund (indian fishing case)b. Does not extend to money in general

ii. 23b2- Party opposing class has acted or refused to act on grounds that apply generally to class, so that final injunctive relief is appropriate respecting the class as a whole; OR

1. Only when single injunction or declaratory judgment-not individual awards2. Meant for civil right

iii. 23b3-Court finds that the questions of law or facts common to the class members predominate over any questions affecting individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Matter pertinent to these findings include

1. Class members interest in individually controlling the prosecution or defense of separate actions

2. Extent and nature of any litigation concerning the controversy already begun by or against class

3. Desirability or undesirability of concentrating the litigation of the claims in the particular forum

4. Likely difficulties in managing a class action5. Notice is mandatory and class members must be afforded the right to opt out 23c2b6. Not mandatory to join 23c2b-more rules about this

iv. Injunctive/declaratory relief (most common)v. Common questions predominate the suit

1. Class action would be superior to other methodsc. 23(c)-(h)= procedure

POWER/ JURISDICTION 1. SMJ- 1332(d)

19

a. (d)(2)- DC shall have original jurisdiction over any civil action in which amount in controversy exceeds the sum or value of $5,000,000, exclusive or interest and costs, and is a class action in which-

i. (d)(2)(A)- any member of a class of P’s is citizen of a state different from any defendantii. (d)(2)(b)-Any member of a class of P is a foreign state or citizen or subject of a foreign state

AND any defendant is a citizen of a state; ORiii. (d)(2)(c)- Any member of class of P is a citizen of a state AND any D is a foreign state or a

citizen or subject of a foreign state. b. D(3)- DC MAY REFUSE IF 1/3-2/3 ARE FROM SAME STATE AND PRIMARY D ARES

2. WHAT ABOUT IPJ?a. Normal if people have ability to drop out before hand. If not, were not sure.

20

SMJ and IPJSUBJECT MATTER JURISDICTION 1. SUBJECT MATTER JURISDICTION-Article 3 §2, courts have jurisdiction over certain disputes

a. 1332-diversity?i. Need Complete diversity

1. 1332(a)-Citizenship of people=Domicile (US/ Permanent resident)a. Changes if move/ arrive and intend to remain indefinitely or foreseeable future-

no plans to leaveb. Start with last known place move forward

2. 1332©(1)-Of Corporations= hertz= incorporated + headquarters 3. Partnerships= all states partners are domiciled in. -Belleville

ii. $75,0011. good faith2. One P v. One D- Can aggregate for different Claims (not for Diff theories for same claim)3. One P v Multiple D-

a. Can aggregate for single claim (trying to establish who has to pay)b. Can’t for different claims

4. Multi P v Multi Da. Can aggr individual claims, cannot join their claims

b. 1331-Federal question ?i. Fed law must create P’s claim (cause and remedy)

ii. Case must turn on issue of interpretation of federal law1. Smith= federal issue on face stated by P2. Grable= congress wants case in fed court

a. Number of cases effectedb. Desirability of the forum

c. 28 U.S.C. 1367 When District courts have original jurisdiction, the court shall have supplemental over all other claims that are so related to claims in action that they form part of SAME CASE AND CONTROVERSY under art III of constitution. Includes joinder and Intervention

i. CAN WE (requires)1. Pending case with Original Jurisdiction2. Claim must be so related to form same” constitutional case”-1367a

a. Same case and controversy under art 3 of const (codifies Gibbs)i. Case= anything that would ordinarily be brought together

ii. UMW v. Gibbs- “common nucleus of operative fact”. 1. Would Claims “ordinarily be expected to try them all in once

judicial proceedings?” (Similar to same transaction, but different)

2. Operative facts= who, what, how, why3. If you pass R-20’s “common transaction or occurrence, court will

mostly likely pass under Gibbs common nucleuses of operative fact”

iii. Applies to Ds and Ps3. Founded solely on diversity? (Codification of Owen v. Kroger) 1367b

a. If yes- NO SUPP JURISDICTION oni. Claims By Ps against persons made parties under R.14, R.19, R.20, R.24

1. Inconsistent with the jurisdictional requirement of 1332a. Amount in contrevsory is okay someone else has. you are

ok as long as one person along the line meets it-Allapatha

ii. Claims By Peron who would be joined as P’s under rule 19 or seeking to intervene as P under 24

21

b. Such cases would be against Strawbridge c. ANALYSIS:

i. Is Independent jurisdiction? Yes, than Supp doesn’t matterii. Original Jurisdiction based on Diversity ? If not, then stop

iii. Claim by P? 1. Claim against persons added under 14,19,20,24

a. If yes, does it destroy complete diversty? i. Yes=barred

ii. No=move oniv. Would party be added as P under 19 or 24

1. If yes, destroy diversity?a. Yes: barredb. No=all good

4. Fairview Park v. Al Monzo- Even if 1st claim dismissed, Supp can go on, unless dismissed for SMJ grounds- at least for crossclaim/ can maybe argue for counter

ii. SHOULD WE? (Courts may decline to join if 1367c)1. Complex or novel issue of state law2. Claim would dominate other claim (lot more evidence, or lot more money)3. Court have dismissed all claims over which it has original jurisdiction4. Exceptional circumstances with compelling reasons.

InPERSOM JURISDICTION1. Territorial- Pennoyer

a. Domicile, Consent, presence, Appearance2. Specific

a. Action arises out of contact w/ forum state 3. General

a. Goodyear-continuous and systematic so as to feel at home4. Quasi/in rem

a. Property attach

22

GENERAL DISCOVERY RULES1. Pretrial conference FRCP 16- ADD 16 A- can’t edit unless manifest error2. First step is to plan how discovery will take place 26 F

a. Meet with other attorney at least 21 days before scheduling conference under rule 16, 26(f)(1)i. 26a(1)(b)-cannot begin seeking discovery until meeting, unless authorized by rules,

stipulation, or by court order.b. Discovery plan

i. 26f3 discover plan must state the views on1. 26f3A- Automatic disclosures- should any changes be made in the timing, form, or

requirement2. 26f3B- Discover scope and schedule- subjects on which discovery may be needed, how

long it will take, and if it should be limited3. 26f3C- electronic information- issues about the disclosure of electronic information4. 26f3D- privilege issues- any claim about claims of privilege or protection of trial prep5. 26f3E-discovery limits- should changes be made to the limitations on discovery6. 26f3F- any other order the court should consider

3. Signed/Served and sanctionsa. 26a4-all disclosures must be signed/servedb. Broader discovery related sanctions 26G

i. Rule 11 type sanctions-a lot less harsh than 37ii. 26g2- strike it,

4. Duty to supplementa. 26e1-requires that attorney continuously supplement the documents they hand over

5. Court can alter the amount of depositions and interrogatories-26b2A

REQUIRED DISCOVERY

1) Initial required disclosures (info that must be given to the other side before the other party makes discovery request) 26a

a. Time limits for required initial discoveryi. With 14 days of the 26f conference- 26a1C

b. MUST GIVEi. 26a1Ai-Each person likely to have discoverable information that may be used to support

the disclosing party’s claims or defenses, and:1. Their name (not really bad witnesses, only ones that might support your claim or

defenses)2. Their address and telephone if known3. The subject of information they may have

ii. Aii-Copy or descriptions (location and category) of all documents, electronically stored information, and tangible things that may be used to support the disclosing party’s claims or defenses,

iii. Aiii – Computation of the damages sought by disclosing party and documents used for that computation

iv. Aiv- any insurance agreement under which an insurance business may be liablec. Time limits for required disclosures for additional parties after conference

1. 30 days after being served or joined 26a1D2) Required disclosures about expert witnesses-26a2

a. What Must You doi. Party must disclose the identity of any expert witness it may use at trial-26a2A

1. Witness can only testify to what the saw or heard. Expert can testify and give an opinion

23

a. Experts must prepare and sign a report containing- 26a2Bi. All the opinions witness will express and the reasons for expressing

them-2Biii. Facts and data considered by the expert in forming those- 2Bii

iii. Exhibits the expert may use- 2Biiiiv. Qualifications of the expert and list of all publications in last 10 years-

2Bivv. Other cases in the last 4 year expert has testified for- 2Bv

vi. How much expert will be paid- 2Bvi b. Can depose, after report is doc. How to define “retained or specially” employed-ager

i. Case by case1. Manner in which consultation was initiated2. Nature type and extent of information or material provided or

determined by expert in connection with his review3. Duration and intensity of the consultation4. Terms of consolation if any (pay, terms, etc)

b. Limitsi. Time to disclose

1. 90 days before trial 26a2Dii. Trial prep experts 26b4A (see below)

1. Protected trial prep expertsa. Drafts of the report 26b4B are protected under trial prep matb. Communications between the attorney and the expert 26b4C

2. Non-testimonial experts 26b4Da. Is protected from interrogatories and depositions

i. Unless exception circumstances as in Trial prep1. EX: Data no longer available otherwise

3) Pretrial Disclosures a. What you have to do- 26a3a

i. 30 days before trial, provide other party and promptly file about evidence unless used for impeachment solely:

1. Name, address, and telephone (if not previously provided) of witnesses separated bya. Those it expects to callb. Those it will call if needed c. Designation of which witness’s testimony will be used by depositions and

transcript of the important parts2. All documents and exhibits

a. Those expect to useb. Those use if need arises

b. Limiting disclosures 26a3bi. Must limit disclosures shortly before trial (30 days before trial 26a3B).

REQUEST DISCOVERY ATTACK PLAN

FIRST DETERMINE SCOPE: a. Discoverable information/ scope

a. Anything relevant that is or could lead to the uncovering of admissible evidence at trial 26(b)(1)

b. Relevant=federal rules of evidence- anything to make the claim more or less likelyc. Connect facts to the rule for the claim to show it is relevant

SECOND DETERMINE WHAT METHOD YOU ARE USING

24

Rule 26D- Can use any method in any order1) Interrogatories-R33

a. What is does? i. You ask a question and get an answer from the opposing party that the side is

committed to that is highly filtered and carefully phrased.ii. Best for information that may require a little research and that no one person would

know off the top of their headb. Limits

i. Only 25 allowed under 33a1, more can be granted by court or agreementii. Look to 26(b) Scope 33a2

1. 33a2- interrogatories MAY not need be answered until compilation is completea. Done by motion for protective order 26c until specified time

2. 30 days to respond 33b2 3. It is okay to hand over a bunch of unsorted files as long as it is no more difficult

for the party receiving the files to find the answer to the interrogatories than the party that sent them. R33d

c. Questions that are not answerable yet- say what you cani. 26e- Duty to supplement later on

2) Depositions-R30-1 day 7a. What it does-

i. Unfiltered/Oral testimony under oath that is transferred into words, or video tapes- prevents people from changing story

ii. Can be used for impeachment during trialiii. Same as calling witnesses in court, good way to see what witness or party for other side

will say.b. General Requirements- 30b

i. Must give written notice to all other parties1. Must state time, and place of deposition2. If known, name and address of the deponent’s name, otherwise description of

them. Or class of them3. 30b3- Method of recording must be stated

a. may add on another method afterwards with additional notice

c. Limitsi. 10 of them- 30a2Ai

ii. If not a party, need subpoena under 45 to deposeiii. Deposition of Expert- If person requires report, then can only depose after report-

26b4Aiv. Other party can have lawyer present, and question must be within scopev. Leave needed when:

1. Going over 102. Deposing a person more than once-30a2Aii3. Take it before conferring in discovery conference 30a2Aiii4. Person is in jail 30a2B

3) Productions of documents 34a. What It is/ does

i. Allows you to request-Any writings, drawings, graphs, charts, photos, sound recordings, or other date compilations stored in ANY MEDIUM- 34a1A

ii. Allowed to go on to land to inspect, measure, survey, photograph, or sample 34a2iii. Can be a Document from 26a2-parties have to list all documents they may use

b. Limitsi. Scope under 26(b)- 34

ii. Must describe with reasonable particularity the item -34b1A1. Must specify reasonable time If going to see something-34b1B

25

iii. Per 45- if they are from a nonparty, have to request by the way of a subpoena- 34c1. Duces Tecum- come and bring it

c. Time Framei. 30 days to respond unless otherwise agreed or by court order-34b2a

4) Physical and mental examinations 35a. What it is?

i. Chance to have a party, whose mental or physical condition is in controversy examined by physical and mental expert to provide evidence

b. Limitsi. Must be done by way of motion, for good cause, and with notice sent to all parties and

person to be examined- 35a2A 1. Vinson-need to balance Discoverer’s right to discovery v. other parties’ right to

Privacy/ must be in controversy a. Can’t inquire into past sexual historyb. No right to have attorney present

ii. Health must be in controversy and related-scope/ in question?iii. Must specify the time, place, scope of exam and who will perform it- 35a2b

c. Court May order for person under legal control or custody 5) Request for admission 36

a. What is iti. A party can request that another party admit the truth of any matter that fall within

26b1 (non-privileged and relevant) relating to1. Facts, that application of law to fact, or opinions about either and 36a1A2. The genuineness of any described document. 36a1b

a. Have to send a copy of document with the request 36a2ii. 36b- If admitted= conclusively established under court.

b. Limitsi. Court May allow withdrawal- 36(b)

c. Timei. Have 30 days to respond 36a3, can be extended/ shortened per 29

ii. Don’t answer=have to pay reasonable cost of attorney fees to disprove! 37c2

THIRD ASK IF ANY EXPECTIONS APPLY1. GENERAL EXCEPTIONS-Exceptions court or parties can use (discretion) 26b2C

a. Discovery would be unreasonably duplicative or could be obtained from a more convenient, less burdensome, or less expensive source. 26b2Ci

b. The party seeking had ample opportunity to obtain the information by his discovery 26b2Ciic. The burden or the expense of the discovery outweighs the benefit 26b2Ciii

2. 26c-protective order- an order from the court saying you don’t have to do something.a. Mover must have good faith and attempted to fix issue without court first

3. Privileged material 26(b)(1)a. Parties can only obtain discovery regarding non-privileged material

i. Attorney-client, priest-pennant, and husband-wife1. Slightly being extended to doctor-patient when it extends to that person mind

ii. UPJOHN includes top line corporate managers but we don’t know how far1. Reports between attorney and board are privileged2. Case by case: who has power to make decisions3. In this case, extended it to surveys. Who is talking to lawyer as a lawyer

iii. Privilege protects the communication, not the underlying evidence. 1. Look at purpose

a. Legal purpose (advice) protected, business people not protectediv. Hickman v Taylor- Questions regarding the extent to which a party may inquire into oral

and written statements fo witnesses secured by adverse party’s counsel

26

1. AC privilege Does not extend to information that secures from witness acting for his client, unless info is product of the lawyer and peers into his head.

b. 26(b)(5)-Procedure for stating a privilege or protected trial materialsi. Must expressly claim privilege

ii. Must describe the nature thing4. Electronic discovery-undue burden or cost-26b2B

a. Party need not provide electronic information that it identifies as not reasonably accessiblei. Data is encrypted and stored in larger volumes

b. If motion, party from who ED is sought, must prove burdeni. Court can still force it, if requesting party shows good cause

c. Litigation hold- communication issued as a result of current or reasonably anticipated litigation that suspends normal disposition or processing of records

i. Company issue litigation hold periodically to keep fresh in employees mindsii. Communication to key partners duty to preserve

iii. Instruct all employees to produce electronic copies of their relevant files1. Back ups

d. Zubulake-does it apply to all discovery?i. Presumption that responding party must bear the expense of complying with discovery

requests, but it may invoke the district courts discretion under 26(c) to grant orders protesting under undue burden

ii. Developed new Rowe Test-Cost shifting balance:1. Extent to which the request is specifically tailored to discover relevant

information2. Availability of such information from other sources3. Total cost of production compared to amount in controversy4. Total cost of production, compared to resources available to each party5. Relative ability of each party to control costs and its incentive to do so6. The importance of the issues at stake in the litigation; and7. The relative benefits to the parties of obtaining the information

iii. This isn’t a check list, but rather factors.5. Trial Prep Materials 26b3

a. Attorney cannot request information prepared by opposing council or representative-i. Hickman- cannot ask for material that would improperly peer into the opposing

attorney’s head (core Principle)1. Witness statements may be allowed, but couldn’t get notes about it or anything

that goes to far into head.ii. Must meet following elements:

1. Documents or tangible things2. Prepared in anticipation of litigation (difficult part)

a. Summaries for interrogatories would not countb. Stuff in regular business would not count

3. Prepared by or for another partyiii. UNLESS:- 26b3Ai-ii

1. They are discoverable in scope; AND2. Party shows substantial need for the material for its cases and that without

undue hardship, can not obtain equivalenta. Substantial need-party diedb. Undue hardship- really expensive

3. UNLESS- 26B3Ba. Materials reveal attorney’s thought processes, impressions, conclusions

or legal theories6. Protected expert witnesses material: 26b4

a. Depose if may present at trialb. Drafts of the report 26b4B

27

c. Communications between the attorney and the expert witnesses 26b4Ci. Exception-Ci-iii

1. Related to Compensation for testimony 2. Data or facts that the party’s attorney provided and that expert considered in

forming opinions3. Identify assumptions that the party’s attorney provided and that the expert

relied on in forming the opinions to be expressedd. Communication between attorney and non-testimonial experts. 26b4d

1. Normally cannot use Interrogatories or depositions to discover facts from expert who has specially employer or retained by is not expected to be called as a witness

2. Exceptionsa. Medical examinations b. Exceptional circumstances under which is impracticable for party to obtain facts

i. -few experts in a field-date ii. no longer available

3. Informally contacted expertsa. Ager- if you can get nothing from a retained non-testimonial than you can get

nothing from a non-retained non-testimonial expert. b. How to define “retained or specially” employed-ager

i. Case by case1. Manner in which consultation was initiated2. Nature type and extent of information or material provided or

determined by expert in connection with his review3. Duration and intensity of the consultation4. Terms of consolation if any (pay, terms, etc)

IF THEY REFUSE / ARE ASSHOLES1. Motion to compel- MEANT TO DEAL WITH NON-DISCLOSURE

a. 37a-motion to compel -court telling the recipient of the discovery request you must complyi. 37a3a- for initial

ii. 37a3b- for failure to respond. 1. Even if opponent hasn’t given yours

b. 37(c)- fails to tell you witness required under rule 26 at beginning, lose that witnessc. In order to do it

1. Try and contact person first and resolve in good faith2. If doesn’t work, then must make a motion with an affidavit that says you made a

good faith effort to resolve problem firstii. If fail to comply 37b2 or 26g

1. Non-partya. Contempt of court to proceedings-could go to jail until fix violation

2. Partya. Barring defenses, striking pleadings, default judgment, dismissal, MUST

attorney fees2. Rule 26(g) Sanctions- meant to deal with oppressive use, false info etc.

a. Attorney has to sign every discovery request and response, so they represent certain thingsb. Rule 11 does not apply to discovery since we have rule 26

28