Civ Pro II Outline

Civ Pro II Outline

I. Preparing for trial

A. Discovery

1. Scope

i. Before FRs

New standard- party can discover info from regular activities of other party, but NOT info the party has exclusively devoted to proving its own case (work-product privilege). Kelly.

Relevance- common-sense judgment.

Concern shifting costs to Ps will block meritorious suits.

ii. FR 26

Party can discover:

1) Any matter relevant to claim or defense of any party (narrower than FR 34)

You must request (FR 34) docs party doesn’t plan to use (if you want)

Only requires description until you ask (FR 34) for production

2) IF it is not privileged (see FR 26b1)

3) Reasonably calculated to lead to admissible evidence. FR 26b1.

FR 26 (a)(1)(d)- mandatory disclosures

A party has 14 days after FR 26f conference with other side to turn over to other side:

1) names of people likely to have relevant info

2) copies or descriptions of documents that support its claim or defense

3) any computation of damages (usually part of #2)

4) any insurance policy or agreement relevant to the case.

NOTE- this is without being asked.

FR 26 (b)(1) “not privileged”- FR 26 (b)(3) Work-product privilege

1) Work product privilege applies to materials prepared in anticipation of

litigation.

2) Can be discoverable on showing of substantial need or undue hardship

Party can’t get info w/o substantial need or undue hardship. Also how important the info is to the case.

3) BUT even with #2, a party can never get the mental impressions/strategy of

the other side. Hickman Part II. Core work product.

FR 26 (b)(1) scope- “any matter not privileged” means absolute privilege.

Most privileges have an exception, but not as explicit as WP, a qualified privlege.

FR 26 (b)(4) Experts

a) Party can depose any person ID’d as an expert whose opinions may be used at

trial.

b) If A rteains an expert but does not plan to use him at trial, B can depose him

under FR 35 (b) or by showing exceptional circumstances- impractical for B to get same ev by other method.

c) B may have to pay A rsnbl expenses and fees for getting that.

FR 26 (b)(5)

If a party claims privilege, it must describe material and why it is priviliged.

FR 26 (b)(2)- Proportionality requirement in scope of discovery.

Court can limit discovery if:

1) it would be duplicative

2) OR party seeking discovery already had ample opportunity to disc. the info.

3) OR likely gain of discovery is low relative to cost.

FR 26c- protective orders

Court can prohibit disclosure

Movant must show:

1) good cause

2) good-faith effort to confer with other side first

3) not particularly embarrassing or burdensome

FR 26d- party must confer w/ other party before requesting discovery from court.

FR 26f- party must confer w/ other party to develop plan for discovery.

2. Mechanics

1) Oral deposition

2) Deposition on written questions. Can be served on nonparties.

3) Interrogatories. Only for parties. Limit = 25.

4) Docs/prop

5) Exam

6) Requests to admit

FR 30a Party can depose anyone.

Party doesn’t have to subpoena a non-party deponent, but if it does not, it cannot require his presence.

BUT if a party does not subpoena a non-party, and he doesn’t show up, but the other party does, party seeking deposition can be forced to pay costs of other party’s attendance.

FR 30c- Deposition rules = evidence rules.

CAN ask a deponent anything that may be within his knowledge.

CAN’T ask for hearsay.

Opposing lawyer must object on record for right to object at trial.

Witness still has to answer over an objection.

UNLESS: lawyer for witness finds deposition is being done in bad faith. He must take that matter to the judge.

FR 31- service. All parties to a case must be notified of and are allowed to be

present at any deposition.

A party can’t do more than 10 depositions.

You can’t depose one person twice without permission.

FR 33 Interrogatories

Question or series of questions.

Only parties.

Party must do research to find and provide answers available to it.

FR 33 d- business records. Party can respond by turning over all records BUT must give directions as to where to find requested info.

FR 34 Requests for production of documents or property

Applies to nonparties. Broader than FR 26. Cummings.

Ask for docs by subject matter, category, limit by time (etc.)

Problem- petitioner often unable to limit request enough.

Also a party can avoid discovery because request was too specific.

Courts tend to read requests liberally to prevent parties from hiding relevant info.

Fishing expedition- claim that a party is requesting info too broadly, solely to inflict cost or recover irrelevant info.

FR 35 Physical exam- requesting party must get court order.

When P puts his phys condition in issue, court will grant order. Schlagenhauf.

Requesting party must show clear relevance and usefulness of exam.

FR 35b- if court grants request for phys exam, and patient wants to see the report, he must waive doctor-patient privilege and submit any other doctor’s reports that are relevant. FR 35a- When injury happened to someone not competent to bring a lawsuit, other side can get exam of the person alleged to be injured.

FR 36 Requests for admission- party can demand other side answer yes-no or

admit-deny questions. Used to streamline info that will be used in trial.

FR 37 Consequences for actions in discovery. 37c- failure to disclose, false or misleading disclosure, failure to admit. You don’t have to admit something you don’t think the other side will be able to prove.

Respondent has duty to find answer. Kelly. Duty to correct errors- supplement prior responses if you find mistakes or learn more info.- a continuing obligation to fulfill discovery requests. Only depositions don’t continue.

Non-party options to avoid costly discovery request

FR 26b2, FR 26c. FR 45- court can quash a subpoena to limit exposure of a nonparty.

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II. Finding the applicable law

EXAM- consider the state law very carefully to see possible conflict w/ fed law.

1. Unlikely for a court to find an FR is not consistent w/ REA or Constitution bc this

means SCOTUS, Congress, and rules advisory committee were all wrong. (see Burlington)

2. Theory, bc Walker was not perfectly on this track.

3. Byrd is an outlier. It can be invoked, but the argument will be hard to win,

particularly if the “countervailing fed interest” is something different that 7th Am. jury trials.

Hardest question is often the first- is there a codified fed law on point?

Walker- fed rule looked obviously on point, yet court rejected.

Stewart- fed rule (statute) ruled not on point, but there was strong counterargument. (AL CL- No effect gvn 2 fm selection clauses.

Fed stat-courts may transfer a case=discretion-so arg it doesn’t have to be on point/directly conflict.

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Hyp. New FR that personal injury claims don’t accrue until P discovers.

First- Is there a codified fed rule on point (sufficiently broad to control or directly conflicts).

Here- hard to argue the new FR does not govern SOL.

Second- is it consistent w/ REA? (relate to enforcement of rights, not substance of rights).

D can argue it affects his substantive right to only have to worry about a suit for so long. Also can be seen to redefine causation and injury.

Third- Consistent w/ Constitution? (arguably procedural).- same counterargument.

SO- string argument against applying this fed rule.

A. Cases

“Procedural”- REA and Const tests

Tightest case- Burlington- AL law allowed penalty when a D appealed lost. FRAP 38 allows some sanction charges for frivolous appeals. Why can’t a fed court apply both? A fed judge could charge penalties but less than 10% of judgment. FRAP 38 allows penalty only for frivolous suits, and thus can’t penalize non-frivolous appeals, AL rule would, so conflict. FRAP 38 constitutional bc it is at least arguably procedural.

Consistent w/ REA bc it affects process of enforcing rights, not the rights themselves.

Forum shopping

A SOL can be outcome-determinative, in which case fed ct shd apply state SOL to

maintain uniformity. York.

McKenna problem

OH law was in flux, unclear on SOL for medical malpractice claims. Apparently conflicting SCOH decisions.

Option- certify question to SCOH.

Option- Prof. Clark- if state law is unclear, P must lose bc he obviously can’t carry burden of proof of what law should be applied.

Slight difference btwn federal and state rules of service (personal vs. leave at D’s home) is

not a sufficient incentive for Ps to choose one court or another. Hannah.

B. How Fed Court applies state law

1. Straight application of a clear rule.

2. Prediction of state court’s decision

When decisions of a state's highest ct are very old or non-existent, fed ct may turn to either lower court decisions or try to declare state law as it predicts highest state ct would rule if it considered the issue. Klaxon.

3. Federal court may certify the issue to highest state ct, but rare. (dicta in McKenna)

III. Adjudication without completing a trial

A. Attacks based on the Pleadings

1. Motion to dismiss FR 12(b)(6)

FR 12(b)(6) Motion to dismiss on grounds that P fails to state a claim

(a) Take all facts true in best possible light for pleader: If ANY set of facts could lead to a

valid cause of action, then 12(b)(6) will be denied.

(b) Courts will not dismiss a pleading bc it contains invalid claims mixed w/ valid

Claims. Nurses.

Court may allow party to amend pleading if misstated claim

(c) Success is rare, but it is considered adjudication on the merits- further

actions same claim are barred.

Court must carefully consider what P alleged AND what it can be inferred P could allege.

Sufficient complaint- time and place of incident, parties involved, injury resulting, relief sought.

When defect is legal- court can dismiss.

When defect is factual- court can order P to amend, or dismiss. Nurses.

12b6- can be converted to FR 56 SJ motion if there’s an affidavit attached, or if D

answers w/ matter outside the pleadings. McKenna.

2. Judgment on the pleadings FR 12(c)

a. Can be granted where D fails to adequately deny the complaint

b. Can be granted where P fails to adequately deny counterclaims/defenses

c. Dealt with in the same way as 12 b6, looks at facts most favorable to pleader being

challenged.

B. Resolution by the judge based on evidence from discovery

1. Summary Judgment (most common) FR 56

One party can move, based on pleadings, depositions, answers to interrogatories, and admissions for SJ.

Standard- if all evidence at trial were same as at time of SJ motion, could a reasonable jury find for the nonmoving party? If so, no SJ. SJ granted when no genuine issue of material fact, so no evidence to support NMP’s claim.

FR 56c- u can respond to or file a motion for SJ w/ affidavits, deposition, etc.

Depositions are more persuasive bc it is done before an officer of the court. Further, cross-examination is at least allowed (whether it happened or not).

FR 56f- court will grant more time to party resisting SJ motion to find evidence

General Applications

Desire to cross-examine witness insufficient to defeat SJ (objective witness whose affidavit is objectively verifiable). Lundeen.

BUT Cross- Gov desire to cross-examine a witness is sufficient to defeat SJ.

How to reconcile? Lundeen witness was clearly unbiased, where Cross witness is actually a party. Context- Lundeen witness affidavit supported by other documents=less likely to be refuted. Type of issue- in Lundeen it was whether a decedent had done certain acts. Intent of witness was irrelevant. Cross- intent to spend the money for educational purpose is key. Can’t grant SJ when "personal motives, intent or feeling" key to case. Cross (P's self-interested affidavit not sufficient affirmative evidence). Intent issue is more relevant to cross-examination.

i.Does evidence offered have to be admissible at trial?

Basic rule: only consider admissible evidence in SJ motions, BUT if evidence submitted can lead to admissible evidence, may be admissible

ii.Burdens

Burden of production- to show sufficient ev to allow rsnbl fact-finder to rule for party.

Burden of persuasion- the degree to which this ev must prove the party’s claim.

a. Burden on motion itself

MP bears burden of demonstrating there is no issue of material fact

b. Burden of production

(1) If P has burden and is MP to win he must show: (Cross)

1. Affirmative evidence to support his claim

2. AND must demonstrate D's evidence doesn't create relevant dispute

P can't just attack cred of D's witnesses

If P's burden heightened by nature of suit = heightened burden to prove SJ. Anderson (defamation = clear/convincing evidence)

(2) When D is MP he can win by:

1. Showing affirmative evidence disproving P's claim. Lundeen- D had

much evidence that P didn't dispute) Desire to cross-examine witness insufficient to defeat SJ (when objective witness whose affidavit is objectively verifiable). Lundeen. Different when witness biased or actual party (will not meet initial bdn or production). Cross.