Civil Dispute Resolution Outline

**[Civil Dispute Resolution Outline]** I. **Complaint** a. Requirements -- Rule 8(a) i. Allegation of jurisdiction -- Rule 8(a)(1) ii. Short and plain statement \[of the claim\] showing that the pleader is entitled to relief -- Rule 8(a)(2) iii. Demand...

**[Civil Dispute Resolution Outline]** I. **Complaint** a. Requirements -- Rule 8(a) i. Allegation of jurisdiction -- Rule 8(a)(1) ii. Short and plain statement \[of the claim\] showing that the pleader is entitled to relief -- Rule 8(a)(2) iii. Demand for judgment (or prayer for relief) b. Notice pleading and cases iv. Notice pleading -- legal procedure that requires parties to state the general issue in the case, and inform the other party, rather than providing detailed facts to support each claim. v. Elements of a claim 1. Duty 2. Breach 3. Causation by the defendant 4. Damages/relief vi. Complaint must be able to sustain Rule 12(b) attack and also 12(e) and 12(f). vii. Cases 5. Conley v. Gibson (1957) a. As long as you have all the elements to support a claim, it cannot be dismissed unless it is impossible to prove facts. 6. Twombly (2007) b. Laid out the plausibility standard 7. Iqbal (2009) c. Replaced notice pleading with plausibility pleading d. Reasonable and likely to occur, not just possible 8. Twombly and Iqbal Two Step Process = 1) strip all legal conclusions and see what facts remain, and 2) apply the plausibility standard to those remaining allegations 9. Notice pleading in federal courts now requires a plaintiff to show plausibility for the claim alleged; judge determines what is plausible 10. Walsh v. U.S. Bank (2014) e. MN is a notice pleading state and does not require the heightened pleading standard that the federal government does. c. Forms of a Complaint viii. 7(a) Pleadings allowed; form of motions and other papers 11. Pleadings only these pleadings are allowed: f. A complaint; g. An answer to a complaint; h. An answer to a counterclaim designed as a counterclaim; i. An answer to a cross-claim; j. A third-party complaint; k. An answer to a third party complaint; and l. If the court orders one, a reply to an answer ix. 7(b)(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers x. 8(d) Pleading to be concise and direct; alternative statements; inconsistency xi. 8(e) Construing pleadings. Pleading must be constructed so as to do justice xii. 10 -- Captions, Paragraphs, and Exhibits d. Contents of Complaint xiii. Rule 8(a) claim for relief. A pleading that states a claim for relief must contain: 12. A short and plain statement of the grounds for the court's jurisdiction, unless already has jurisdiction and the claim needs no new jurisdiction support; 13. A short and plain statement of the claim showing that pleader is entitled to relief; and 14. A demand for the relief sought, which may include relief in the alternative or different types of relief xiv. Rule 9(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a 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. 15. Heightened pleading standard xv. 9(f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading xvi. 9(g) Special Damages. If an item of special damage is claimed, it must be specifically stated. 16. Damages that are unusual for the harm pled by the plaintiff m. Punitive damages -- deter future conduct n. Personal injury -- state each injury (damages that do not naturally flow from the harm alleged) i. Example: boy injured leg in car accident (normal damages: medical bills and physical therapy) Special damages (12 year only aspiring to be a distance runner and asserting damages for future loss earnings. NEED proof to support special damages -- 12-year-old won regional and national competitions also coach's testimony.) 17. U.S. Dominion, Inc. v. Powell o. Corporations cannot claim emotional distress xvii. MUST plead elements of cause of action and meet standard as interpreted by U.S. Supreme Court II. **Motion to Dismiss Complaint** e. One-Shot Rule 12 Motion by the defendant - Optional xviii. Under Rule 12(g)(2) a party that makes a motion under Rule 12 must not make another motion under this rule raising a defense or objection that was available to a party, but omitted from earlier motion. xix. Under Rule 12(h)(1) a party waives any defense listed in Rule 12(b)(2)-(5) (MUST be filed in first defendant filing (either Rule 12 motion or if no Rule 12 motion, then the Answer); if defendant fail to file then those defenses are waived forever. xx. Rule 12(h)(2) these three defenses (failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b) or to state a legal defense to a claim) may be made in pleadings, in a motion under Rule 12(c) or at trial xxi. Rule 12(h)(3) Lack of subject matter jurisdiction by the federal court is NEVER waived f. Rule 12 motion must be filed prior to the deadline for the answer xxii. Rule 12(a)(1)(A)(i) within 21 days od being served with the summons and complaint; or (ii) if the service has been timely waived under Rule 4(d), within 60 days after the request for a waiver was sent. xxiii. Rule 12(a)(4) sets out the deadlines when a motion is filed and the court rules on it 18. Denies or postpones the motion its disposition until trial, the responsive pleading must be served within 14 days. 19. Court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after more definite statement is served. g. Rule 12 Motion Timing xxiv. After the pleadings are closed, the defendant can no longer file a 12(b)(6) motion because Rule 12(b) requires that motion to be filed before the Answer is filed. But the defendant can: 1) include failure to state a claim upon which relief can be granted as a defense in the answer and/or 2) use the 12(c) motion to make the same argument as a defense. xxv. Chronological order 20. 12(b)(6) motion 21. Answer -- include as a defense 22. 12(c) motion -- include as a defense 23. 4^th^ way -- at trial as a defense. Rule 12(h)(2) -- the objection that plaintiff has failed to state a claim for which relief can be granted is really substantive; it goes to the merits and therefore, should not be waived. III. **Litigation Timing** h. Rule 6 Computing and Extending Time; Time for Motion Papers xxvi. Rule 6(a)(1)(A): start the day after the triggering event (waiver request sent on Monday, August 19, start counting August 20 for 60 days to see when the answer is due) xxvii. Rule 6(a)(1)(B): count every day, including Saturdays, Sundays, and legal holidays xxviii. Rule 6(a)(1)(C): include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. xxix. Rule 6(a)(6) "legal holiday" defined IV. **Answer** i. Rule 8(b) requires one of the three responses: admit, deny, or plead insufficient information to respond to the allegation xxx. Should avoid general denial, may use catch-all clause at the end. General denials give no real notice to plaintiff of issues in controversy j. Rule 8(b) Defenses, Admissions, and Denials xxxi. Rule 8(b)(1) In General. In responding to a pleading, a party must: 24. \(A) state in short and plain terms its defenses to each claim asserted against it; and 25. \(B) admit or deny the allegation asserted against it by an opposing party. xxxii. Rule 8(b)(2) Denials -- Responding to the Substance xxxiii. Rule 8(b)(3) General and Specific Denials 26. General denials are risky -- defendant can be held to have admitted everything by not responding to the substance of the allegations xxxiv. Rule 8(b)(4) Denying Part of an Allegation xxxv. Rule 8(b)(5) Lacking Knowledge or Information xxxvi. Rule 8(b)(6) Effect of failing to Deny 27. An allegation -- other than one relating to the amount of damages -- **is admitted** if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required; an allegation is considered denied or avoided. xxxvii. Denial Notes 28. Negative exact sum denial: deny specific about and held to have admitted lesser amount -- one penny less 29. Conjunctive denials: where paragraph contains two linked allegations and defendant denies in the same language; similar to general denial problem, but this one specifically denies in the same language as the complaint. p. Example: defendant denies "made, executed, and delivered its contract for goods to the plaintiff." This denial admits the existence of a contract. k. Affirmative Defenses -- avoid or reduce criminal liability xxxviii. NOT Rule 12(b) 30. Assert a ground with new facts upon which if proved the defendant is not liable to the plaintiff. Affirmative defenses if proven relieve defendant of liability from the legal claims asserted by plaintiff xxxix. Rule 8(c)(1) in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense 31. Failing to plead an affirmative defense -- defendant forfeits any defense that is not properly pled. 32. No catch-all, but it requires a defendant to plead any avoidance or affirmative defense, including the 18 listed defenses (but there is no full list) l. The Reply xl. General rule is that pleadings are limited to two documents = Complaint and Answer 33. Rule 7(a)(7) if the court orders one, a Reply to an Answer (discretionary Reply) if the judge firmly believes that plaintiff cannot honestly refute an affirmative defense in the Answer. 34. Rule 7(a)(3) Reply as a response to a counterclaim -- just like responding to the complaint V. **Amending the Pleadings: Complaint or Answer** m. 15(a)(1) amending as a matter of course -- no need to see permission xli. 15(a)(1)(A) -- a party may amend its pleading once as a matter of course within 21 days after serving it -- complaint or answer xlii. 15(a)(1)(B) -- Complaint -- if the pleadings is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. xliii. Overall, complaint can be amended 21 days after service of the Answer. If Defendant filed a Rule 12(b), (e), or (f), motion, then the Complaint can be amended 21 days after the motion is served. The timelines that is earlier is the one for the amended Complaint -- Complaint should be amended if defective in any way. n. 15(a)(2) After deadlines have passed -- "in other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." o. Timeline for Answer when the Complaint is Amended xliv. Rule 15(a)(3) any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days of service of the amended pleading, whichever is later. 35. Longest and latest timeline controls Rule 4(d) waiver of service xlv. Case 36. Beeck v. Aquaslide 'N' Dive Corp. p. Amendments During and After Trial xlvi. 15(b)(1) Based on Objection at Trial -- party objects to issue and/or evidence raised not in the pleadings and usually receives a continuance to prepare for additional evidence and/or issue raised, other party uses this rule to amend pleadings 37. Object to evidence coming in that was not in pleadings; without it is an implied consent xlvii. 15(b)(2) For Issues Tried by Consent -- party may move to amend pleadings to include issues dealt with during trial 38. Moore v. Moore q. Supplemental Pleadings xlviii. 15(d) -- may allow supplemental pleadings for events that happened after the date of the pleading to be supplemented. 39. Supplemental - Ex. Additional medical problems develop after filed complaint 40. Amended -- things that happened before complaint filed, but were left out or stated improperly. VI. **Rule 11 -- objectively reasonable test (does attorney have something to rely on?)** r. 11(a) Signature s. 11(b) Representations to the Court t. 11(c) Sanctions u. 11(c)(1) law firms must be held liable for any violation by an employed lawyer v. 11(c)(2) "safe harbor" provision w. 11(c)(3) Sua sponte (on the courts own initiative) sanctions xlix. Through a show cause order stating that the party show cause why sanctions should not be imposed. 41. Respond through filing and to request oral argument l. No safe harbor -- cannot withdraw the filing x. 11(c)(4) Types of sanctions y. 11(c)(5) Monetary sanctions li. Rule 11(c)(5)(A) no monetary sanctions against a represented party for violation of Rule 11(b)(2) as the lawyer is responsible for legal assertions lii. Rule 11(c)(5)(B) the court may order monetary sanctions following the show cause order hearing z. 11(c)(6) Rationale for sanctions and conduct sanctions must be stated a. 11(d) the discovery phase has its own requirements under Rule 26 through Rule 37 VII. **Counterclaims -- seeks recovery from plaintiff (in answer)** b. Rule 13(a) Compulsory Counterclaim (1) -- (A) arises out of the transaction or occurrence that is the subject matter of opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction liii. Lose the ability to bring the claim in a subsequent case if compulsory in active case. c. 13(a)(2) Exceptions -- (A)... the claim was the subject of another pleading action d. 13(b) Permissive Counterclaim -- any counterclaim that is not compulsory e. 13(c) Relief Sought in Counterclaim -- can request any type of relief f. 13(e) Maturing Counterclaim VIII. **Crossclaims (in answer)** g. Permissive = no compulsory crossclaims ever h. 13(g) crossclaim against a coparty -- claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim or relating to property that is the subject matter of original action i. 13(h) Joining additional parties. Rule 19 and 20 govern the addition of a person/entity as party to counterclaim or crossclaim. j. Crossclaims are very advantageous to the other side.  IX. **Discovery** k. Time to get the factual matter to prove your case: either your claims against the defendant or your defenses against the plaintiff l. Purpose liv. Preservation of relevant information lv. Identify and isolate issues that are actuallu in controversy lvi. What evidence ans testimony may be available on each of the disputed factual issues lvii. Promotes transparency by uncovering information about government and/or business practices that may be illegal and may provide acess to that information beyond the parties to the lawsuit (filings are public courts unless a protective order has been issued) m. Rule 27 Before an Action is filed lviii. Rule 27(a)(1) file a veried petition in the district court for the district where any adverse party resides lix. 27(a)(2) at least 21 days prior to hearing on petition must serve notice on each expected adverse party with a copy of the petition and details on hearing lx. 27(a)(3) standard of court -- "perpetuating the testimony may prevent a failure or dely justice" lxi. Interpretation by courts -- testimonye must be in imminent danger of being lost because of grave illness or person about to leave the country outside of subpoena power. n. Scope of Discovery lxii. Rule 26(b)(1) lxiii. Not limited by protective order under Rule 26(c) o. Required Disclosures lxiv. 26(a)(1)(A) 42. Disclose names and locations of people who are liebly to have discoverable information that the disclosing party may use to support its claims or defenses 43. Documents or other tanguble things that the disclosing party may use to supoort its claims or defenses 44. Computation of damages claimed and the underlying documents 45. Insurance information (evidence of insurance coverage is usually inadmissable at trial, still must be automatically disclosed.) lxv. 26(a)(3) Pretrial Disclosures 46. Witnesses, depositons, and exhibits/summaries of evidence and items to be offered q. Party does not need to turn over documents or tangible things -- may describe/provide a list p. Timing and Discovery lxvi. 26(d)(2) early Rule 34 requests (production of docuemnts, property, and electornic discovery) may be served after 21 days following the service of the summons and complaint and will be considered served at the first 26(f) discovery conference lxvii. 26(d)(3) parties may stipulate or court may order specified sequence and timing of discovery (rule 29) lxviii. 26(e) must supplement and update disclouses under Rule 26(a) lxix. 26(f) Discovery conference that set the plan and timetable for the completion of disocvery lxx. 16(b) has timeline for judge to issue scheduling order tied to the rule 26(f) conference; 26(f)(2) requires parties to submit within 14 days after the conference a written report to the court outlining the discovery plan. q. The Discovery Plan lxxi. within 90 days of defendant served 16(b)(2) scheduling order is required lxxii. 26(f)(1) discovery conference must be held at least 21 days before 16(b) confernce or scheduling order is due lxxiii. Disclosures must be made at/within 14 days after 26(f) conference 26(a)(1)(C) lxxiv. Rule 29 Stipulations About Disocvery Prodcedure -- parties can agree to change timing, modify limits on certain types of discovery, set sequence of discovery, and ask cout to approve stipulations changing limits in rule 16(b)(2) scheduling order A diagram of a conference Description automatically generated r. Information in the Scope lxxv. Automatic initial disclosures -- Rule 26(a) lxxvi. Early Rule 34 Requests -- Rule 26(d)(2) and Rule 34(b)(2) lxxvii. Interrogatories -- Rule 33 lxxviii. Request for porduction of documents, inspection of property, copies of electornically stored info -- Rule 34 lxxix. Depositons -- Rules 30 and 31 lxxx. Physcial or mental examinations -- Rule 35 lxxxi. Requests to admit -- Rule 36 s. Sanctions for discovery phase lxxxii. 26(g) attorney and pro se client certification of truthfulness in responding to discovery requests, proper purposes of discovery requests, 26(g)(3) may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation lxxxiii. Rule 37 enforcement of Discovery non-compliance, imposes a duty to confer before seeking a motion to compel disocvery or a motion for sanctions against opposing party; review Reul 37(f) failure to participate in framing a discovery plan t. Scope and Depositions lxxxiv. Fassett v. Sears Holdings Corp. 47. Dispute regarding 26(b)(1) proportionality balancing on whether parts or mowers not involved in injurt can be disocverable. Open gas cap products involved in plaintiffs injury. u. [Depositions -- Rule 30 and 31 and 32] lxxxv. Best type of discovery and often expensive lxxxvi. 30(a)(1) any person may be disposed lxxxvii. 30(a)(2) leave of court needed if: 48. \(A) parties have not stipyulated to the depositon and: r. \(i) would result in more than 10 being taken under this rule or Rule 31 by the plaintiffs, defendants or third party defendants; s. \(ii) deponent has already been deposed once; or t. \(iii) party seeks deposition before the 226(f) discovery conference 49. \(B) deponent is confined to prison lxxxviii. 30(b)(3) method of recording and 30(b)(5)9B) requirements on recordings lxxxix. 30(b)(6) Organization must produce proper person for a depotion xc. 30(d)(1) deposition is limited to one day of 7 hours unless otherwuse stipulated xci. 37(a)(1) confer first, motion to compel party to depositon, 37(a)(3)(B)(i) compel answer to deposition question, 37(d)(1)(A)(i) motion for sanctions after following process xcii. 31 Depostions upon written questions rarely used; cannot serve interrogatories on non-parties, therefore would use depositon upon written questions for non-parties xciii. 32(a)(4) unavailable witness may use depositon v. Depositions of Non-Parties (witnesses) xciv. Rule 30 notice to all parties and Rule 45 Subpoena xcv. Rule 45 Subpoena must containg 45(a)(1)(A)(i) court issuing subpoena; 50. \(ii) title of action, court in which action is pending and civil action number; 51. \(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electornically stored information, or tangible things in that person's possession, in custody or control; or permit the inspection of presmises xcvi. 45(a)(1)(B) attend depostions and notice of recording method xcvii. 45(a)(1)(C) may combine commands for production of documents, formate of electorinic information, or tangible things' and request for inspection; with command to attend deposition, hearing or trial xcviii. 45(a)(1)(D) command to produce w. Quashing or Modifying a Subpoena for a Non-Party xcix. The court must quash or modify subpoena if: 52. 45(d)(3)(A)(i) fails to allow a reasonable time to comply (ii) requires person not a party or agent of party to travel more than 100 miles (does not apply to commanding attendance at trial) under Rule 45(d)(3)(A)(iii) requires disclosure of privildged or other proetcetd matter, if no exception or waiver applied; or (iv) subjects a person to undue burden 53. 45(d)(3)(B) details when quashing or modifying may be allowed: (i) disclosing trade secret or toher confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information no requested by a party 54. 45(d)(3)(C) provides a means to overocme 45(d)(3)(B) due to substantial need that cannot be met without undue hardship and provides compensation to non-party x. Failure to Follow Subpoena c. 45(g) Contempt the issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena ci. Under 30(g)(2) if the attorney calling for the depositon fails to subpoena the non-aprty and the non-party fails to show, the attorney may be subject to snactions for expenses to all those who were noticed as to the depostion. y. Objection during depostion cii. Attorney defending deposition thinks question is improper 55. Object Rule 30(c)(2), but testimoney taken subject to objection ciii. When can an attorney instruct witness not to answer 56. Rule 30(c)(2) privilege, to enforce limitation directed by the court under Rule 26(c) or otherwise, to present motion under 30(d)(3) relating to bad faith or harassing depositions and may suspend depositions until court order. civ. 30(d)(3)(B) -- presenting a motion to the court; judge may order deposition is terminated or limited in manner as provided under 26(c). if deposition terminated, what is required to resume it? 57. Judges do not usually enjoy this type of motion. Judges will require several instances of attorney demonstrating bad faith and/or harassing behavior. z. Conducting a deposition cv. Apply Rule 34 procedure and time limits, party has 30 days to respond for each item requested under Rule 34(a)(2)(A) and (B). For non-parties, Rule 34(c) authorizes providing documents or tangible things or inspection under the authority Rule 45. cvi. For a non-party, if you only want documents use 45(a)(1)(C) cvii. Opposing party corporation Rule 30(b)(6) set forth the matters/issues for the subpoena or deposition, then the organization designates representative(s) knowledgeable on those topics or you may name someone 58. If the person has no knowledge to appear is tantamount to a failure to appear under rule 37(d), must confer prior to seeking motion to compel or sanctions. cviii. Polycast Technology Corp. v. Uniroyal, Inc. 59. Seeking protective order 26(c) to halt deposition of its employee and not relevant and duplicative a. Interrogatories -- Rule 33 cix. When to use interrogatories 60. When the thoroughness of a deposition is not required 61. When the information sought is available to a party, but is not necessarily known by the party or any particular person who might be deposed, so that un unduly large number of depositions might be needed 62. When the information sought is technical, statistical, or logistical information, and 63. When the information sought is more likely available to the other party's lawyer than to the party, for example, application of law to fact or the names and information of witnesses. cx. Between parties only cxi. Rule 33 Interrogatories 64. 33(a)(1) no more than 25 written interrogatories, including all discrete subparts (the court may modify this in its scheduling order under rule 16(b)(2) by request of the parties in the discovery plan) 65. 33(b)(2) must respond within 30 days of being served interrogatories (unless stipulated otherwise, also may call opposing counsel and request extension of time) 66. 33(b)(3) answer separately under oath 67. 33(b)(4) may waive objection if not specifically stated that you are objecting to the interrogatory in your response 68. 33(b)(5) lawyers must sign the responses and objections to the interrogatories 69. 33(d) option to produce business records -- where burden is substantial the same -- responding party may direct requesting party to business records where answer can be found and allow for inspection to determine answer to an interrogatory cxii. Difference between interrogatories and depositions 70. Not expensive, can help narrow issues, and receive answers from the opposing lawyer that will be carefully thought out. 71. Names parties only, unlike depositions 72. Responses to interrogatories are by lawyers and cannot easily ask follow up questions, can use prior depositions to narrow down who to depose. 73. Lawyers can object under rule 33(b)(4), but they cannot ignore an interrogatory 74. Depositions are more expensive, can ask follow up questions, deponent does not have time to reflect or consult regarding answers, interrogatories are carefully answered by lawyers 75. During deposition if defending lawyer objects, the deponent must still answer the question. b. Contention Interrogatories -- Rule 33(a)(2) cxiii. Cable & Computer Technology, Inc. v. Lockheed Saunders, Inc. 76. The court held that the plaintiff must answer factual contentions based on information to date and may supplement under rule 26(e) cxiv. Contention interrogatories request the legal basis or the factual basis of a contention asserted by the other party cxv. Contention interrogatories may request the opposing party to respond on whether they are contending a certain legal assertion or fact cxvi. Another type of contention interrogatory requests a party to provide all of the evidence upon which it bases it contention c. Document Production and Property cxvii. 26(d)(2)(B) early rule 34 requests served at to 26(f) conference 77. "subpoena duces tecum" -- under burden to bring with you cxviii. 34(a)(1) allows a party to serve upon any other party a request to "inspect, copy, test, or sample" (A) items listed including documents, electronic information, or (B) tangible things cxix. 34(a)(2) to permit entry onto designed land or other property cxx. 34(b)(2) responses and objections cxxi. E-Discovery 34(b)(2)(D) & (E) must state the form for producing electronic information or responding party may choose the form if not specified. cxxii. 26(b)(2)(B) and (C) unduly burdensome e-discovery cxxiii. Rule 34(c) directs that any production of documents or tangible things or requests for inspection for non-parties should be under the dictates of rule 45 cxxiv. No limit on Rule 34 requests d. E-Discovery Rules cxxv. 26(b)(2)(B) specific limitations on Electronically Store Information (ESI) -- may limit if not reasonably accessible because of undue burden or cost; court mat order from other sources cxxvi. 26(b)(2)(C) discovery request may be limited if the court find (i) the discovery sought is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive cxxvii. 34(a)(1)(A) allows for ESI cxxviii. 34(b)(2)(D) can object to form requested and must state form party intends to use cxxix. 34(b)(2)(E) must produce in the usual manner ESI is kept; produce in a form that is reasonably usable; and need produce in only one form; for rule 45(e) for non-parties cxxx. 37(e) failure to preserve electronically stored information e. Physical and Mental Examinations -- Rule 35 cxxxi. If a party puts their mental, emotional, or physical condition as part of the controversy, then a physical and/or mental examination will be required. If a party does not want to undergo an examination by opposing counsel's doctor, then the party must withdraw the condition from controversy. cxxxii. They can object 78. No contempt sanction available 79. Rule 37(b)(2)(A)(vii) range of options for the court cxxxiii. Rule 35 80. 35(a)(1) court orders for examination by a licensed examiner and this includes a minor or incapacitated person in custody of another when condition is in controversy 81. 35(a)(2) what must the motion and order for examination include 82. 35(b)(1) examiners report must be supplied to other party upon request; 35(b)(2) report must be in writing and set out in detail test results and conclusion; 35(b)(3) party examined must supply all prior reports on condition when requested; 35(b)(4) privilege is waived once examined; 35(b)(5) if report not delivered, then court may exclude all testimony about the examination 83. 37(b)(2)(A) and 37(b)(2)(B) available if party fails to obey a discovery order including under rule 35 cxxxiv. Schlagenhauf v. Holder 84. Requested 9 exams, 4 types 85. The court found that not all of them were relevant to the case at hand 86. Defendant should not be subject to Rule 35 examinations as plaintiff's doctor would be going on a fishing expedition, unlike defendant doctor where limited to claims in controversy; no lawyers are in examining room to limit scope 87. "good cause" f. Request to Admit -- Rule 36 cxxxv. 36(b) requests constitute conclusive evidence, unless withdrawn and cannot be contradicted at trial cxxxvi. Rule 36 used mostly to authenticate documents and facts cxxxvii. 36(a)(1) written requests to admit within rule 26(b)(1) scope of discovery cxxxviii. 36(a)(2) each matter separately stated and to authenticate document must attach the document cxxxix. 36(a)(3) within 30 days of being served requests to admit, must respond with a written answer or objection or the [matter is deemed admitted] cxl. 36(a)(4) if after reasonable inquiry may answer "lack of knowledge or information", may admit, must deny with specific reason cxli. 36(a)(5) must provide grounds for objection cxlii. 36(a)(6) may seek motion to determine sufficiency of response and court may permit withdrawal or amendment and may award reasonable expenses and attorney's fees per Rule 37(a)(5) cxliii. 37(c)(2) if a party fails to admit and later the matter is proven true, then the court may award reasonable expenses including attorney's fees g. Work Product cxliv. Material prepared in anticipation of litigation cxlv. Applied to documents or tangible things produced in anticipation of litigation by a party or party representative; protection is qualified; high threshold to overcome by showing of substantial need, inability to get substantial equivalent without undue hardship cxlvi. Rule 26(b)(3) Trial Preparation Materials 88. Anything prepared because of a lawsuit is considered in anticipation of litigation and is protected as created by the party or party's representative, including the other party's attorney, consultant, surety, indemnitor, insurer, or agent 89. Document created in regular course of business, then it is not created in anticipation of litigation 90. Rule 26(b)(3)(A) may allow discovery of this material, not including draft expert reports or conversations between attorney and expert that do not fall into the 3 categories under Rule 26(b)(4)(C), only upon showing of: u. \(i) within the scope of 26(b)(1) v. \(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means ii. Very high threshold 91. 26(b)(3)(B) provides that iof the showing is made under 26(b)(3)(A) and the court allows discovery of work product, then the court must "protect against disclosures of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation" w. Judge can redact or block out portions of documents turned over pursuant to court order prior to sending the documents to requesting party cxlvii. Protecting Work Product 92. 26(b)(5)(A) asserts that material is subject to protection as trial-preparation (work product), the party must (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner than without revealing information itself privileged or protected, will enable other parties to assess the claim. 93. 26(b)(5)(B) known as the "claw back" provision -- after bring notified a party must promptly return, sequester, or destroy the specified inform and any copies it has; must not disclose the information... x. Don't do this the opposing party will still read it cxlviii. Hickman v. Taylor 94. Issue: whether an attorney must turn over witness statements, his notes and memoranda on witness interviews when he has provided factual information, reflected those material and opposing counsel wants the material to ensure that he hasn't missed anything y. The lawyer refused to answer interrogatory No. 38 and supplemental ones related to the request iii. Statements of crew members and to attach the exact copies of all such statements in writing and if oral set forth in detail z. 3^rd^ Circuit en banc: reversed, found materials to be "work product" and therefore privileged 95. Issue: what is the issue with the Rule 33 and 34 requests a. Rule 33 interrogatories and rule 34 requests to produce are directed at parties, not the lawyers for the parties after the claim has arisen. Rather the lawyer was a non-party under rule 45, but could not force lawyer to produce work product on the case. 96. Issue: what is the issue with asserting attorney-client privilege? b. The written work of the lawyer for a lawsuit is not privileged under attorney-client privileged as this is not a communication to the client, rather this is the work of the lawyer. 97. Lawyer should not have to testify to statements that were made to him. c. "discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary." cxlix. Witness Statements 98. 26(b)(3)(C) previous statement. Any party or other person may, on request and without the requiring showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applied to the award expenses. A previous statement either: d. \(i) a written statement that the person has signed or otherwise adopted or approved; or e. \(ii) a contemporaneous stenographic. Mechanical, electrical, or other recording -- or a transcription of it -- that recites substantially verbatim the persons oral statement 99. Once a person signs a statement, the person can request it and do whatever they would like with it. 100. A person who is recorded, may request the recording and do whatever they want with it. h. Discovery and Privilege cl. Attorney-client privilege: applied to all communication between lawyer and client, in either direction, oral, or written, regardless of likelihood of litigation, that are aimed at securing legal advice; absolute privilege, but client can waive by disclosing to third party (common law doctrine, part of rule 26(b)(1) scope) 101. Holder of privilege is or sought to be a client, 102. Communication made by member of the bar or her subordinate (paralegal, law clerk) and is acting as a lawyer/for lawyer, 103. The communication related to a fact of which the attorney was informed a) by her client, b) without the presence of strangers, c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, not (d) for the purpose of committing a crime or tort; and 104. The privilege has been a) claimed and b) not waived by the client cli. Rule 26(b)(1) parties may obtain discovery regarding any nonprivileged matter 105. Purpose of the privileged is to allow full communication of all information, thoughts, knowledge between client and lawyer for all legal matters and potential representation. The privilege goes with the lawyer to the grave. f. The only limit on the privilege for the lawyer is if the client is committing a crime or tort or tells lawyer of past illegal action to cover it up. 106. A lawyer may seek to limit the privilege in a lawsuit brought by a client against the lawyer known as the "self-defense" exception clii. Upjohn Co. v. U.S. 107. Issue: whether questionnaires filled out by mid-level employees and returned to a corporation's general counsel and notes from general counsels' interviews with employees are protected by attorney-client privilege or work product doctrine? g. One appeal, the 6^th^ circuit court held that attorney-client privilege was not waived and did not apply to control group of company and in footnote rejected work product doctrine as applicable to a tax summons. iv. The privilege protects all communications in the questionnaires and interviews with the lawyers of the corporation v. This court rejects the statement that the work product doctrine is not applicable to a tax summons. 108. Former employees not covered by the attorney client privilege cliii. Purpose of attorney-client privilege 109. Encourage full and frank communication between attorneys and their clients and thereby promote boarder public interests in the observance of law and administration of justice i. Discovery and Experts cliv. Disclose under rule 26(a)(2)(A) must identify the expert and under rule 26(a)(2)(B) provide expert written report which contains specified information; the written report will be due at least 90 days prior to trial rule 26(a)(2)(D)(i) clv. If you hire a non-testifying expert, rule 26(b)(4)(D) governs. Notice that examiners (doctors) under rule 35 must still provide a written report even if not testifying. There is a high standard to overcome to obtain facts and opinions of non-testifying expert. clvi. Identities, written report and other information required under 26(b)(4)(A) for depositions is required through rule 26(e) supplemental answers and for the pre-trial order under 16(e) clvii. If information is not disclosed, but requested, and party seeks to put expert on stand at trial, 37(C0(1) the expert won't be allowed to testify j. Discovery Sanctions and Use at Trial clviii. Judicial Supervision of Discovery 110. Judges have the duty to limit discovery not within the scope of 26(b)(1) and to impose the proportionality requirement on requested discovery to ensure the coasts do not outweigh the benefits or the value of the case. 111. Party may request a court to compel discovery under rule 37. The court may compel and impose attorney's fees. If the party fails to comply with the court's order, the court may impose a sanction under 37(b) 112. 37(d), a party can move for imposition of sanctions, after a good faith effort to confer with the non-compliant party, when there has been a complete failure to comply. 113. 37(e) provides process when a party fails to preserve electronically stored information and has options for a court to impose based on the conduct. 114. The court has the inherent authority to sanction parties. 28 U.S.C. § 1927 Counsel's liability for excessive costs. clix. Use of Discovery at Trial 115. Tatman v. Collins h. Whether district court properly excluded deposition as taken only for discovery purposes and striking the testimony of another doctor relying on the deposition testimony resulting in a directed verdict for the defendant. i. No. The deposition testimony of the treating physician was not properly excluded. Under Rule 32(a)(3) deposition testimony may be introduced at trial, subject to the rules of evidence where deposition was duly noticed and all parties had the opportunity to attend. Under Rule 32(a)(3)(B) the deposition testimony should not have been excluded because the witness was located further than 100 miles of the courthouse, not the border of the district. X. **Case Management** k. F.R.C.P. 16 clx. 16(a) Optional pre-trial conference order by judge, may use to order parties to develop the Discovery Plan under 26(f) clxi. 16(b) Mandatory scheduling order with deadline for judge to issue -- 90 days after the defendant served with the Complaint and Summons; contents of the order 116. Generally not be modified, must show good cause 16(b)(4), party must be diligent in trying to comply and then in seeking modification clxii. 16(c)(2) Matters for Consideration at a Pretrial Conference clxiii. 16(d) Pretrial order following pretrial conference clxiv. 16(e) Final pretrial conference and orders -- formulate trial plan and all issues in controversy 117. Modified only to "prevent manifest injustice" very high standard clxv. 16(f) sanctions l. Nick v. Morgan's Foods, Inc. clxvi. The district imposed sanctions on Defendant for failing to comply with Alternate Dispute Resolution orders and procedures, and in connection with defendant's motion for reconsideration of the order imposing the sanctions. The sanctions were calculated to cover plaintiff's costs and attorneys' fees; additional sanctions payable to the court were also imposed. Defendant appealed the sanctions imposed that were payable to the court. clxvii. Did the district court abuse its discretion in imposing sanctions? clxviii. No. The district court did not err in imposing sanctions on defendant. Rule 16(f) authorizes a judge to impose a sanction in addition to, or in lieu of, reasonable expenses. m. Payne v. S.S. Nabob clxix. Payne's attorney sought to include new issue during trial and present two witnesses not included in pretrial scheduling order; court would not allow new issues or witnesses to testify. On appeal, Payne's attorney argued that the scheduling order is to avoid prejudice at trial. clxx. The purpose of the pretrial scheduling order is to avoid prejudice at trial. clxxi. It is NECESSARY to enforce pretrial order strictly and disallow adding additional claims and defenses after deadline in pretrial order or summary in pretrial order. n. Magistrate Judges clxxii. Lower salary than life-tenured district judge; not bogged down by appointment process and less likely to be embroiled in party politics, appointment by district court judges for 8 years terms. clxxiii. 28 U.S.C. § 631 clxxiv. 72(a) nondispositive matters (discovery disputes) clxxv. Advantage of using magistrate to protect neutrality of trial judge clxxvi. 72(b) Dispositive Motions and Prisoner Petitions (final judgement is dispositive: dismissal or judgement) clxxvii. 73 Magistrate judges: trial by consent; appeal 118. May be removed only for incompetency, misconduct, neglect of duty, or physical/mental disability o. Masters clxxviii. Usually fact-finders, through their reports can be challenged and judge must decide whether to accept; they are almost like expert witnesses for the judge clxxix. Rule 53 details order appointing a master, scope of authority district court judge may set, and compensation to be paid by the parties clxxx. Often appointed in complex litigation or fund distribution cases XI. **Rule 56 Summary Judgement** p. Resolves a lawsuit before trial clxxxi.  q. F.R.C.P. 56 clxxxii. 56(a) provides standard for court to grant motion for summary judgement as 119. "if the movant shows there is no genuine dispute as to any material facts and the movant is entitled to judgement as a matter of law." clxxxiii. 56(b) provides the timing to file the motion -- at any time within (until) 30 days after the close of all discovery) clxxxiv. This is when all information gathered from discovery is used to explain to the court that judgement should be entered in favor of the moving party r. 56(c) Procedures clxxxv. 56(c)(1) a party must support its assertion either that a fact cannot be or is genuinely disputed clxxxvi. 56(c)(1)(A) proving a fact or showing a dispute over a fact requires party to cite to the record (what piece of evidence is available from discovery phase). Party may use any information through depositions, documents, ESI, affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials clxxxvii. 56(c)(1)(B) of asserting party cannot prove some fact, then also cite to the record that there is no statement, document, etc. establishing the fact clxxxviii. Causation is usually the element to be proven s. 56(c)(2)-(4), 56(h) clxxxix. 56(c)(2) party may object that materials cited to are not admissible at trial (failed to disclose, did not admit genuineness of document or ESI, not listed as a witness, etc.) cxc. 56(c)(3) court may consider other material in the record cxci. 56(c)(4) affidavits or declarations must be made on personal knowledge, set out facts that are admissible and show that the affiant or declarant is available to testify cxcii. 56(h) Affidavit Submitted in Bad Faith allows, after fair notice and reasonable time to respond, the payment of attorney's fees and other sanctions. t. 56(d) and 56(e) cxciii. 56(d) a party may request additional time to address questions of fact and court may defer motion, grant time or deny motion cxciv. 56(e) operative part of the rule -- when a party fails to properly support a fact in dispute 120. 56(e)(1) allow party to correct brief to show support of fact 121. 56(e)(2) the court may consider the fact undisputed 122. 56(e)(3) the court may grant summary judgement to the moving party if materials show entitled to grant of motion cxcv. 56(e)(2) and (3) can both be operative u. 56(f) and (g) cxcvi. 56(f) gives the court the option to review the record and after providing notice and time to respond, the court may grant summary judgment for nonmovant; grant the motion on grounds not raised by either party or without a motion consider summary judgement on its own after identifying the facts based on the record that are not in genuine dispute cxcvii. 56(g) the court may choose to not grant summary judgment for all of the claims and may decide that some facts are not in genuine dispute for trial. v. Allocation of Decision-Making Responsibility Between Judge and Jury cxcviii. A table with text on it Description automatically generated w. Purpose of Summary Judgement cxcix. The purpose of trial is to resolve dispute of fact; if there is no dispute of fact, then a trial is not necessary cc. To withstand summary judgment 123. The factual dispute must be genuine 124. Must concern material (important to the case) facts cci. Any party may move for summary judgement ccii. Can be claim specific or entire case cciii. If both (all) parties move for summary judgment, the court will decide for one party or the other and case is resolved by judgement cciv. If one party moves, then opposing party must raise issues of fact to be resolved. If opposing party is successful, then motion denied and proceed to trial x. Summary Judgement Motion Methods ccv. Method 1 125. Submit affirmative evidence that [negates an essential element] of the opposing party's claim or defense, 56(c)(1)(A) 126. Responding to method 1 j. If opposing party offers evidence in support of challenged element of claim or defense, then defeats summary judgement ccvi. Method 2 127. Show that the opposing [party lack sufficient evidence to establish an essential element] of its claim or defense (must affirmatively demonstrate that there is no evidence in the record to support a judgement for the nonmoving party; cannot rest on allegation of insufficiency -- would serve to harass) *[Celotex]*; 56(c)(1)(B) 128. Responding to method 2 k. If opposing party offers evidence in support of challenged element of claim or defense, then defeats summary judgement ccvii. Can be a combination of both methods *[Adickes]* y. Key Points on Summary Judgement ccviii. Party against whom summary judgement is sought can always counter with affidavits, answers to interrogatories, documents from discovery, and depositions of their own. If there is any direct conflict on a material factual issue, that matter will be treated as unresolved and decided at trial. A court cannot weigh or decide on conflicting evidence, even though the strength of one side's material seems much stronger than that of the opponent. (Scott v. Harris, usually need testimony to verify authenticity of videotape) ccix. To avoid summary judgement, a party with the burden of proof must come forward with sufficient evidence to permit a reasonable trier of fact to find in their favor. 56(c)(1) and 56(e) z. Satisfying Burden of Production ccx. Everything collected form discovery available to use for motion ccxi. Check that each document has been submitted through the discovery process (26(a)(3)(A)(iii) initial disclosures required a list of documents party will use to support pleadings) ccxii. For any document, video, photograph, etc., request admission as to genuineness of item to be used at trial through 36(a)(2) -- may include date, time created, and author for hard copy or electronic cop (email, blog entry, online materials, memo, etc.) 129. Failure to respond to admission 36(a)(3) ccxiii. Burden of production is to have some type of evidence for each element of the claim. (Plaintiff claims defendant ruined business reputation -- affidavits from former customers.) For the defendant, the burden of production is to have some type of evidence for an affirmative defense (defendant was a minor -- birth certificate) ccxiv. Preponderance of the evidence a. Affidavits for Summary Judgement Motion ccxv. Affiant must be available for trial (must be listed as a witness in initial disclosures 26(a)(3)(A)(i) mane of all witnesses) ccxvi. Sworn types statement, may be prepared by lawyer, signed by affiant as to the truth of the statements made in the affidavit. b. Adickes v. S.H. Kress & Co. ccxvii. White women freedom school teacher taught summer school and accompanied her Black students to various public locations in efforts to desegregate the town. After attempting to get library cards, the group went to a lunch counter at the local Woolworth's store owned by S.H. Kress & Company. The waitress refused to serve the women but took the order of her students. They left as a group and the women was arrested immediately outside of the restaurant for vagrancy. ccxviii. Store moved for summary judgment ccxix. The store manager and police affidavits failed to meet initial burden which would have then shifted to plaintiff to establish that a policeman was in the store for the conspiracy to take place. ccxx. No evidence was used in the bring of its motion to shift the burden to the plaintiff ccxxi. \*When there are two versions of the facts, this is the province of the jury, not the judge; summary judgement only warranted where there is no genuine dispute as to material facts. Further when the credibility of witnesses is an open question, it is up to the jury or fact-finder to determine credibility at trial. c. Celotex v. Catrett ccxxii. The respondent brought a negligence, breach of warranty, and strict liability lawsuit against 15 named companies including Celotex Corp, claiming that the death of her husband was due to his exposure to products containing asbestos manufactured or distributed by the companies. ccxxiii. Whether summary judgement could be entered against a party who failed to make a showing of any evidence to support an issue of triable fact, of which he or she has the burden of proving. ccxxiv. Yes. The court reasoned that the Court of Appeals was inconsistent with the standard for summary judgement set forth in Rule 56(c). 56(c) mandates that summary judgement must be entered, after adequate time for discovery and upon motion, against a party who failed to show sufficient evidence to establish the existence of an element essential to that party's case and on which the party will bear the burden of proof at trial. ccxxv. Reversed and remanded because Court of Appeals did not address whether plaintiff's evidence was sufficient to carry burden of proof at trial. 130. They could have given a list of the place where all of the product was -- affirmative evidence (that would have shown that their product was installed where he worked though) ccxxvi. Dissent -- Justice Brennan 131. Defendant as moving party for summary judgement motion has two options: 1) may submit affirmative evidence that negates an essential element of the plaintiff's claim (e.g., defendant business did not provide products to employer with a list of all businesses defendant did do business with), or 2) demonstrates that plaintiff's evidence is insufficient to establish an essential element of claim (cannot prove with any evidence causation that the defendant product was in contact with decedent and caused his death). Dissent finds that Celotex should have cited to material in record with motion to meet Rule 56 requirements (for example, cite to interrogatory requestion on what grounds plaintiff asserts Celotex products used in proximity to decedent.) d. Summary Judgement Flow Chart ccxxvii.  e. Anderson v. Liberty Looby, Inc. ccxxviii. Libel claim filed against publication for article about organization on which standard of proof is clear and convincing evidence of actual malice (standard for public figures) ccxxix. Whether the standard of proof at trial is taken into account on defendant's motion for summary judgment when standard of proof is higher than usual preponderance of the evidence? -- Yes! f. A screenshot of a chart Description automatically generated g. Matsushita Electric Industr. Co. v. Zenith Radio Corp. ccxxx. When alleging conspiracy under the Sherman Act (Antitrust/'no monopoly) need some evidence of the agreement to conspire and evidence of the injury to the plaintiffs. h. Scott v. Harris ccxxxi. Claim of excessive force in violation of 4^th^ amendment rights where police officer ended high speed chase by ramming car plaintiff was driving resulting in severe physical injuries to plaintiff, damages sought. ccxxxii. They held that the police officer acted reasonably based on videotape evidence and entitled to summary judgement ccxxxiii. Dissent -- Justice Stevens 132. Jury should determine whether the police officer's decision to use deadly force to bring the chase to an end was reasonable, not the courts role at summary judgement stage. ccxxxiv. Interestingly, a law review article detailing survey addressing reasonableness of officer's use of force found various groups of citizens disagreed after viewing the videotape with majority decision. i. Tolan v. Cotton ccxxxv. There were genuine issues of material fact that made that grant of summary judgement improper j. Rule 56 Summary Judgement Timing and Standard ccxxxvi. Timing of a Rule 56 motion -- within 30 days of the close of discovery; usually set out in district court's 16(b) scheduling order when to file summary judgement motion; and responding nonmoving party can request further time to conduct discovery when the standards set put in rule 56(d) and 56(e)(1) are met ccxxxvii. WHEN SUMMARY JUDGEMENT IS GRANTED THE CASE ENDS AND NO TRIAL