Goals of Civil Procedure:

-Accuracy:

  • Resolve disputes correctly and justly

-Fairness:

  • Decisions based on merits of the case is the ultimate goal – not formalities.

-Consistency:

  • Govern every case with these federal rule.

-Efficiency:

  • Avoid wasting resources, but also need to be balanced, fair, and uniform.

-Finality:

  • Resolve a case and have a final decision on which parties can rely.

DISCOVERY

Policies:

-Purpose of Discovery:

  • 1. Preserve relevant information that might not be available at trial.
  • 2. To ascertain and isolate those issues that are actually in controversy between the parties.
  • 3. To find out what testimony and other evidence is available on each of the disputer factual issues.
  • 4. Widespread/broad discovery before trial eliminates unfair surprise.

-Consistency:

  • Rules provide for consistent means of obtaining information, thus treating the litigants consistently and fairly.

-Efficiency:

  • Fine tune and narrow the issues.
  • Eliminate bogus claims.
  • Promotes settlement through full disclosure  clears the docket.

-Accuracy:

  • Takes surprise and drama out.
  • Promotes exchange of proper and relevant information.
  • Enables a decision based on the merits.

-Fairness:

  • The most accurate decision possible.

-SCOPE: 26(b)(1)

  • Broad discovery allowed.
  • Parties may obtain discovery of any information that is:
  • 1. Not privileged AND
  • Attorney-Client privilegeprotects the source of the information but not the underlying facts. (Upjohn)
  • Can still figure out the facts that a client told and attorney  privilege says that you cannot simply ask “what did you tell your attorney?”
  • In order to be privileged:
  • Must be confidential communication between the client and the attorney for the purposes of obtaining legal advice.
  • Corporate Clients = privilege applies only where communication was needed to supply a basis for legal advice, concerning matters within the scope of the employee’s duties, and was treated as confidential within the corporation.
  • Party needs to be employed by corporation.
  • Party needs to have engaged in work related to the company.
  • Party needs to have info / need to receive info relevant to the legal issue.
  • Privilege is WAIVED if disclosed to 3rd party.
  • Must specify to the court the privilege you are claiming and summarize the materials that you are claiming privilege over.
  • 2. Relevant to the claim or defense of either party AND
  • Non-privileged matter must pertain to the claim or defense, not simply to the subject matter of the case
  • Any info that has a tendency to make the existence of a fact more or less probable is relevant. (United Oil)
  • Does NOT need to be admissible, but must be likely to lead to admissible evidence.
  • Hearsay is discoverable!
  • TEST FOR RELEVANCE:
  • Look at what the claim is  look at what the party must prove in to support claim/defense.
  • Issues you may need information on:
  • Same or similar claims
  • Same or similar product
  • Same or similar injury
  • 3. Not limited by 26(b)(2-4) AND
  • LIMITS  (also see privileged materials above)
  • 26(b)(2)(a)-(b): Don’t need to disclose electronic materials that would be too burdensome / unduly costly
  • BUT  if other party can show good cause, then the court can order the materials delivered.
  • 26(b)(2): Unreasonably cumulativeor duplicative OR can be obtained in a less burdensome/costly or more convenient way.
  • 26(b)(2)(b): Requesting party has had ample opportunity to obtain the information.
  • 26(b)(2)(c): Cost/inconvenience of discovery outweighs the likely benefit considering:
  • i. the needs of the case.
  • ii. the amount in controversy.
  • iii. the parties’ resources.
  • iv. the importance of the issues
  • v. the importance of discovery in resolving the case.
  • 26(b)(3) TRIAL PREPARATION MATERIALS
  • 26(b)(3) is a codification of Hickman.
  • RULE: Where a document was created because of anticipated litigation and would not have been prepared in substantially similar form but for the prospect of litigation, it falls within the scope of 26(b)(3) protected work product. (Adlman)
  • ELEMENTS:
  • 1. Information must be a tangible thing/document.
  • 2. Must be prepared in anticipation for litigation.
  • “Because of litigation”:
  • In light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.  Ct accepts.
  • EXCEPTION: if the document would have been produced in the ordinary course of business or the same thing would have been done without prospect of litigation.
  • “Primarily to assist in litigation”:
  • Primary motivating purpose behind creation of the doc was to aid in possible litigation  Ct rejects.
  • 3. By a party or that party’s representative.
  • 4. If it’s in that category meeting those elements then only discoverable if the requesting party can show the substantial need for the discovery and would suffer undue hardship without it.
  • MENTAL IMPRESSIONS AND LEGAL THEORIES ARE NEVER DISCOVERABLE.
  • 26(b)(4)TRIAL PREPARATION EXPERTS
  • 1. Is this person an expert?
  • Expert = someone who testifies to their opinion.
  • 2. Look at factors and determine whether the expert was retained or informally consulted?
  • Retained = paid
  • Informally consulted = Consider factors from Ager
  • Manner of initiation of consultation
  • Nature, time, and extent of information provided to or determined by expert
  • Duration and intensity
  • Terms of consultation
  • 3. Is the expert testifying or not testifying?
  • 4. Look at 26(b)(4) to determine which rules govern which type of expert!
  • Retained and testifying Lot of discovery:26(a)(2) disclosures and 26(b)(4)(A)
  • Have to identify names of all testifying experts 90 days before trial.
  • Retained and not-testifying26(b)(4)(d)(ii) discovery OK uponon a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
  • Informally consulted and not testifying do not have to disclose anything about them at all.
  • (likely no one would be informally consulted and testifying)
  • 4. Reasonably calculated to lead to discoverable evidence.
  • Showing good cause can lead to expanded discovery  BUT will likely still only get relevant material.

-PROTECTIVE ORDERS: 26(c)

  • A party may motion for a protective order to shield itself from annoyance, embarrassment, oppression, or undue burden, assuming that they have tried to resolve the problem in good faith with the other side before resorting to court action.
  • Trade secrets also often seek protective orders.
  • Court uses its discretion in balancing the nature of the hardships to the parties and the effect of its magnitude. This gives more weight to interests that have more social value than to purely private interests.
  • Court must consider the possibility of reconciling the competitive interests through a carefully crafted protected order.
  • 1. Party seeking not to disclose must show good cause to prove that discovery procedures are not being abused.
  • Specify how each piece of information would hurt them.
  • 2. Non-disclosing party may waive protection if they disclose some partial information and do not object during the conference.
  • 3. Court may look at the evidence in camera for sensitive information if that would be a way of accessing the documents

-SPOLIATION:

  • Destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
  • Basic duty to preserve evidence.
  • Attorney’s duties  locate evidence, retain it, and produce it if subject to a valid and appropriate request.
  • Suspend routine document destruction practices.
  • Litigation hold.
  • Communicate directly to key players in the litigation and make sure that they preserverelevant information and organize and identify information so that when you receive a request, you can easily figure out what needs to go in.
  • Instruct all employees to produce electronic copies of their relevant active files.
  • ELEMENTS: (from Zubulake)
  • 1. Party having control over the evidence had an obligation to preserve it at the time it was destroyed.
  • Pending or reasonably foreseeable litigation.
  • 2. That the records were destroyed with a culpable state of mind.
  • Ordinary negligence counts  doesn’t need to be malicious.
  • 3. That the destroyed evidence was relevant to the party’s claims or defenses such that a reasonable trier of fact could find that it would suppose that claim.
  • 4. If elements are met  SANCTIONS.
  • Sanctions can be against lawyer, party, or both.
  • Sanction will often be an “adverse inference” instruction tell the jury to assume that the evidence that the party failed to produce will be unfavorable to D.

-STAGES OF DISCOVERY:

  • Stage 1  Discovery Plan (Conference of the Parties)
  • 26(f) Conference Timing:Parties must confer as soon as practicable – and in any event, at least 21 days before a scheduling conference is to be held or a scheduling order is due under 16(b).
  • 26(f) Conference Content:
  • Parties must consider the nature and basis of their claims and defenses and the possibility of promptly setting or resolving the case.
  • Arrange for disclosures under 26(a)(1).
  • Discuss issues regarding evidence preservation.
  • Develop a proposed discovery plan.
  • MUST SUBMIT WRITTEN REPORT, OUTLINING THE PLAN, TO THE COURT WITHIN 14 DAYS OF CONFERENCE.
  • Additional Notes:
  • Parties are required to submit names of their testifying experts at least 90 days before the trial, along with a report of their qualifications, opinions, and compensation.
  • Parties are required to submit names of witnesses it expects to use at trial at least 20 days before the trial.
  • IF PARTY DOES NOT DISCLOSE REQUIRED INFO UNDER 26(g)  SANCTIONS MUST BE IMPOSED AND CANNOT USE THAT INFO AT TRIAL. (other party may also file for Rule 37 sanctions).
  • Stage 2  Mandatory Disclosures Under 26(a)
  • Parties are required to disclose any documents andinformation they will use to support their own case.
  • MUST disclose  names/identifying information for witnesses and documents.
  • For documents, only need to describe the documents (other party can request the actual documents via normal discovery).
  • If P  MUST disclose information concerning the damages you’re seeking.
  • If D  MUST disclose information concerning any insurance policies that will be used to satisfy the judgment.
  • When?  Disclosures must be made within 14 days after 26(f) conference.
  • Duty to supplement  If party finds additional information, has to supplement previous answer.
  • IF YOU DON’T DISCLOSE  YOU LOSE IT AT TRIAL.
  • Stage 3  Requests for Information (appear in the order you would typically use them)
  • Interrogatories: Rule 33
  • WHY? Used to get the ground stuff out of the way. Have to answer correctly even if it goes against your case. (Usually will ask the same things that were required in initial disclosures).
  • Useful for factual or statistical information.
  • WHO? Limited to parties in case: “party may serve on any other party…”
  • HOW MANY? 25 total
  • METHOD?Can be done by mail - no court order or officer needed.
  • All interrogatories must be signed.
  • If answers to interrogatories are found in business records and the burden for finding the information would be substantially the same for either party, then the responding party can specify enough detail to allow the requesting party to locate them OR give the requesting party enough time to examine, copy, etc.
  • WHEN? All answers and objections must be served within 30 days of reception or service. (Court may direct longer or shorter time and parties can agree to another time on their own.)
  • OBJECTIONS?:
  • If a party objects  need to state reasons for objection and still answer to the extent that it is not objectionable.
  • All grounds for objection need to be stated specifically or objection is waived.
  • Document Requests: Rule 34
  • Purpose of Rule 34: Scope of 26(a) only covers the documents that support each sides claim or defense  if party has information that is helpful to the other side, there is no duty to disclose under 26(a), thus Rule 34 is where party can get that information.
  • Scope: any party may serve on any other party a request to:
  • 1. Produce or permit party to inspect any documents or to inspect and test any things that are in possession of the party and that fall under 26(b).
  • 2. Permit entry onto party’s land to inspect/measure any designated object
  • Procedure: the request shall specify the item, reasonable, time, place and manner of making the inspection.
  • Party on whom the request is served must respond within 30 days.
  • Response must indicate, with respect to each item, either permission or denial. If denial  must give reasons why.
  • Non-Parties: may be compelled under this rule pursuant to Rule 45 by subpoena.
  • Waiver: by disclosing a privileged document (even accidentally) you have waived the privilege and it can be used at trial.
  • Depositions: Rule 30
  • Can be written or oral  oral are much more useful because you can assess the credibility.
  • Most expensive because have to pay both attorneys and the court reporter.
  • WHAT? Any party can depose any other person (party or non-party).
  • HOW MANY?  Up to 10
  • METHOD?  Can be videotaped.
  • LENGTH?  1 day, 7 hours per deponent.
  • 30(c)? General Rule: Person being deposed must answer all questions. Can object and objections will be noted for the record, but examination will proceed because attorney needs to ask follow-up questions.
  • If you don’t object during deposition  waive your right to object to the admissibility of that evidence.
  • EXCEPTION A person may instruct the deponent not to answer only to protect a privilege, enforce a court limitation, or to present a motion under 30(d)(4).
  • 30(d)(4) = if deposition is being conducted in bad faith or to unreasonably embarrass, annoy, or oppress the deponent or a party, court can order the deposition stopped.
  • Medical Examinations: Rule 35
  • Need a court order for health exams of a party.
  • Most commonly used by D’s to confirm P’s claim for damages.
  • Can only be a party.
  • Need to demonstrate good cause.
  • Weigh the pain, danger, and intrusiveness of the medical examination against the requesting party’s need for the information.
  • Condition needs to be in controversy.
  • Some evidence must be present showing that the condition could be in controversy  cannot make unfounded allegation.

-Enforcing the Rules of Discovery: SANCTIONS!

  • Rule 11  No application to discovery.
  • Only deals with documents submitted to the courts and expressly exempts discovery violations.
  • Rule 26(g)  Signature and certifications requirements.
  • “Reasonable inquiry under the circumstances.”
  • Signature verifies that:
  • The request/response is consistent with the rules and is warranted by existing laws.
  • The discovery was conducted for a proper purpose .
  • The request/response you’re producing is not unreasonably burdensome given the needs of the case.
  • IF NOT MET  court MUST impose reasonable sanction unless the party has substantial reason for violation.
  • Sanctions can be against attorney or party.
  • Can be raised sua sponte.
  • Rule 37 Can apply in discovery, but has to fall into one of the subsections!
  • Applies when one party refuses to comply with the request, but has made no protective order motion.
  • 37(a): Motion to Compel Disclosure or Discovery
  • Motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure in an effort to obtain it without court action.
  • 37(b): Failure to comply with a court order
  • 37(c): Failure to disclose, to supplement an earlier response, or to admit
  • 37(d): Party’s failure to attend its own deposition serve answers to interrogatories, or respond to request for inspection.
  • 37(e): Failure to provide electronically stored information.
  • 37(f): Failure to participate in framing a discovery plan.
  • IF VIOLATED  COURT MAY IMPOSE “JUST” SANCTIONS
  • Failure to disclose means that that party is barred from using the information at trial.
  • Reviewed for an abuse of discretion.

RIGHT TO JURY TRIALRULE 38 & 39

-Whether there is a right to a jury depends on whether the claim/remedy would have been brought/awarded ina court of law or a court of equity before the union of the courts. Based on the 7th Amendment stating that the right to a jury shall be preserved in a court of law (not equity) in the United States.

-7th Amendment juries for civil suits in “common law” where amount in controversy is over $20.00 (No right to jury in courts of equity).

  • If you had a right to a jury in 1791, you have one now because that right is “preserved” via the 7th Amendment.
  • 7th Amendment not incorporated to apply to the states so would need to look at the state constitution and statutes to know.

-First Check for a timely jury request:

  • Must demand a jury no later than 10 days after the last pleading on the issue is served.
  • Failure to request a jury = waiver.

-Second Test to determine if there is a right to a jury:

  • What kinds of cases ended up in courts of law (as opposed to courts of equity) in 1791?
  • Legal Claims  claims that asked for money damages
  • Restitution, even though asking for money, is an equitable claim.
  • Claims asking for non-monetary damages went to the court of equity.
  • If claim existed in 1791 and was a legal claim  then there is a right to a jury.
  • If claim existed in 1791 and was an equitable claim  then there is no right to a jury.
  • What do we do with claims that didn’t exist in 1791? (3-Step Test)
  • STEP 1: Look to see if statute shows explicit or implicit right to a jury in the language.
  • Have to look at how the statute thought about the remedy.
  • Will usually address legal vs. equitable relief to get a sense of what was intended.
  • Consider legislative intent, if available.
  • If purpose of the remedy is to deter/punish  legal.
  • If purpose of the remedy is to restore status quo  equitable.
  • If legal jury / if equitable  no jury
  • If nothing in statute to tell you whether or not jury was intended, move to step 2.
  • STEP 2: 7th Amendment analysis?BALANCE THE NATURE OF THE CLAIM AND THE REMEDY. (remedy is more important)
  • What is the nature of the claim being brought?
  • Analyze the nature of the claim/issue based on the best analogous claim from 1791:
  • Legal claims: tort, breach of contract, property, antitrust
  • Equitable claims: breach of fiduciary duty, breach of trustee/beneficiary relationship
  • Terry case: try to analogize the relationship of the parties if no obviously analogous claim.
  • REMEMBER: even if the claim is legal, if the remedy is entirely equitable, then there will be no right to jury.
  • Ex. Breach of contract is a legal claim, but party is seeking only equitable relief, then no right to jury.
  • What is the nature of the remedy being sought?
  • Are compensatory or punitive money damages being sought?
  • Yes Jury
  • Are equitable remedies such as injunction, specific performance, restitution, back pay, etc. being sought?
  • Yes  no jury
  • If both legal and equitable remedies are being asked for in the claim:
  • Right to jury to decide the legal remedy issue
  • Judge will decide the equitable remedies.
  • If both the claims and the remedies are mixed, move to step 3.
  • STEP 3: Legal issues will be decided first, with a jury and equitable issues will be decided after by the judge. (Beacon Theaters)
  • 1. First check to see that the factual issues are particular to each claim  one can be tried to jury and other to the judge.
  • 2. Where factual issues are common, the legal claims must be heard first to ensure the right to jury on those claims.
  • 3. In rare situations, the equitable claims may be heard first, but only if the party asserting the equitable claims would be irreparably harmed by the delay.

-THIRD  Consider the procedures in place now that weren’t in 1791(Dairy Queen v. Wood)