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					CIVIL PROCEDURE CLASS 13
          Professor Fischer
      Columbus School of Law
  The Catholic University of America
           October 4, 2001
WRAP-UP OF LAST CLASS
 We discussed rules for joinder of parties and the
  Kedra case (FRCP 19, 20, 21)
 We discussed the rules for adding claims against
  existing parties (cross-claims and counterclaims)
  (FRCP 13)
WHAT WILL WE DO TODAY?

 Do a hypo on compulsory joinder
 As a review of counterclaims and cross-
  claims, we will do Practice Exercise 12
 We will finish learning about impleader
  under FRCP 14
 We will do Practice Exercise 13
 We will begin our unit on discovery by
  learning about relevance and privilege
HYPO
  A & B have the same formal name, Martin
   Smith. Both A and B claim to be the
   beneficiaries of a life insurance policy
   issued by insurance carrier L on the life of
   C, who has died. A sues L. L fears that if
   the court orders L to pay the policy to A, B
   may file another suit against L and L might
   be again ordered to pay the policy amount
   to B. Can A be required to include B in his
   lawsuit vs. L? Why or why not?
PRACTICE EXERCISE 12:
POSSIBLE COUNTERCLAIM
 Shortly after the accident in which Charles
  was killed, Nancy calls a friend who works
  at Raytheon (where Randall is employed)
  and tells her that Randall is an alcoholic.
  Randall is fired from his job. Does Randall
  have a defamation claim against Nancy for
  slander? Would this be a compulsory or
  permissive counterclaim? Would you need
  to do some legal research before you could
  answer this question?
PRACTICE EXERCISE 12:
CROSS-CLAIM
 Assume Nancy’s motion to add Ultimate
  Auto/City of Lowell has been granted and
  amended complaint filed. Also assume you
  represent Randall. Do you have a plausible
  cross-claim? Prove it. Focus on the
  language of Mass R. Civ. P. 13(g) which is
  the same as Fed. R. Civ. P. 13(g). If you do
  have a plausible cross-claim, how many
  counts would it have?
FRCP 14: IMPLEADER
 This governs the procedure whereby the
  court can allow a defendant to bring a third
  party (not already a party) into the action
 This is known as IMPLEADER
 What is the purpose of impleader?
FRCP 14: IMPLEADER
 What is the defendant called? THIRD
  PARTY PLAINTIFF
 What is the third party called? THIRD
  PARTY DEFENDANT
FRCP 14 v. 13
 What is the difference between impleader
  and a counterclaim?
 What is the difference between impleader
  and a cross-claim?
Who can be joined under FRCP
14?
 Persons, not already parties, who, under applicable
  law, may be obligated to reimburse the D
 e.g. tortfeasor seeks contribution or indemnity
  from others who may be liable but who P has not
  sued
 OR someone as acted a a guarantor of a
  transaction
 MUST SUCH PERSONS BE JOINED?
Timing of Impleader Claims
 At what stage of the action can a third -
  party complaint be served?
 When is the leave of court required?
Relation of third-party claims to
original claim
 Can a D make a third-party claim under
  FRCP 14 that is unrelated to the claims
  against that D?
 NOTE THAT LIABILITY OF THIRD-
  PARTY D DEPENDS ON OUTCOME OF
  MAIN CLAIM!
YET MORE PARTIES
 Can a third-party D implead other parties
  and if so, in what circumstances?
 Can this go on and on forever?
 Can a P who is a counterclaim-D implead
  third parties and if so, in what
  circumstances? What provision of the
  FRCP governs this?
HYPOTHETICAL
 Assume the Massachusetts contribution
  statute applies. Souter is involved in a car
  accident with two other drivers, Scalia and
  Rehnquist. Souter sues Scalia for
  negligence. Can Scalia implead Rehnquist
  on the basis that his negligence also caused
  Souter’s injuries?
HYPOTHETICAL
 Assume the Massachusetts contribution
  statute applies. Souter is involved in a car
  accident with two other drivers, Scalia and
  Rehnquist. Souter sues Scalia for
  negligence. Can Scalia implead Rehnquist
  on the basis that it was Rehnquist who was
  negligent, not Scalia?
PLEADING REQUIREMENTS
 A third-party complaint must comply with
  FRCP 8 and 11
SERVICE REQUIREMENTS
 What rule governs service of a third-party
  complaint?
RESPONDING TO A THIRD-
PARTY COMPLAINT
 How does a third-party defendant respond?
 Can a third-party defendant move to
  dismiss?
 What rule governs counterclaims by the
  third-party defendant?
 Can third-party Ds cross-claim against each
  other? If so, which rule governs?
SEPARATE TRIALS
 What provision of FRCP 14 provides for
  separate trials?
PLAINTIFFS AND THIRD-
PARTY Ds
 Can a P sue a person joined as a third party
  D and if so, in what circumstances?
THIRD-PARTY D and
PLAINTIFF
 Can a third-party defendant claim against
  the original plaintiff and if so, in what
  circumstances?
SUMMARY
 3d party D can implead fourth-party D
 3d party D can also counter-claim, cross-claim,
  claim against P (if arises out of same transaction
  or occurrence)
 A P who is a counterclaim-D can implead third
  parties on 3d party claims related to the
  counterclaim under FRCP 14(b).
 P can also sue persons joined as third party d if
  claim arises out of same transaction or occurrence
  – then third party d can counterclaim or cross-
  claim
GROSS V. HANOVER
INSURANCE CO.
 Federal or state court?
 What are the relevant facts?
 What is the procedural issue that the court
  must decide?
 How does the court rule on defendant’s
  motion?
 What is the court’s reasoning?
PRACTICE EXERCISE 13
 Please see your casebook at p. 334
DISCOVERY
 What is discovery? What is the purpose of
  discovery?
 Subrin et al describes the role of discovery
  in the American procedural system as
  “predominant and all-consuming”
 The United States has very BROAD
  discovery rules under the FRCP
A COMPARATIVE LOOK AT
DISCOVERY
 Discovery is not an inevitable part of a
  procedural system
 To what extent is there discovery in the
  German legal system?
 To what extent is there discovery in the
  Japanese legal system?
WHAT MAY BE OBTAINED
THROUGH DISCOVERY?
 What Federal Rule of Civil Procedure
  governs the SCOPE of discovery in most
  civil actions (other than those set out in
  Rule 81)?
WHAT MAY BE OBTAINED
THROUGH DISCOVERY?
 FRCP 26(b): Unless other limits by court
  order, any matter that
 1. Is RELEVANT to the CLAIM OR
  DEFENSE of any party, or (where ordered
  by court FOR GOOD CAUSE, is
  RELEVANT to the SUBJECT MATTER
  involved in the action
WHAT MAY BE OBTAINED
THROUGH DISCOVERY?

 2. Is not “unreasonably cumulative or
  duplicative”, is not available from more
  convenient source, and is not unduly
  burdensome
 3. Is not PRIVILEGED
SUMMARY
 Summary: Can obtain discovery of relevant
  material provided exceptions at
  subparagraphs (2) and (3) do not apply.
RELEVANCE
 Current FRCP 26(b) states: “relevant to the
  subject matter involved in the pending
  action” - what is “relevance”?
RELEVANCE
 what is “relevance”? Undefined in rule
 Pre-2000 amendments was defined very
  broadly as e.g. “germane”
 Post-2000 amendments appear to narrow
  concept of relevance
 Do these changes broaden or narrow the concept
  of relevance?
 Do you think that these changes will have a real
  effect on the scope of discovery?
RELEVANCE AND
ADMISSIBILITY
 Includes written matter, things, ID of
  persons with knowledge of matter,
  information about location of persons with
  knowledge of discoverable materials -
  including investigators

 To be discoverable, must information be
  admissible at trial under applicable rules of
  evidence?
A PROPOSED RULE CHANGE
THAT DID NOT MAKE IT
 In September 1999, one proposed change to
  the FRCP was rejected by the Judicial
  Conference. The proposal would have
  permitted discovery outside the boundaries
  of relevant subject matter if the requesting
  party agreed to bear the cost. The
  Conference decided judges already have
  authority to do that.
LIMITATIONS ON
DISCOVERY OF RELEVANT
MATTER
   A. UNREASONABLY BURDENSOME
    MATERIAL
   B. PRIVILEGED MATERIAL
  
LIMITATIONS ON DISCOVERY
1. UNREASONABLY BURDENSOME

 Discovery is “unreasonably cumulative or
  duplicative”
 Discovery obtainable from more convenient
  source
 Party seeking discovery has had “ample
  opportunity” to obtain matter on discovery
 Burden of discovery outweighs benefits
 (consider needs of case, amount in controversy,
  parties’ resources, importance of issues at stake,
  importance of discovery in resolving issues]
ASSERTING PRIVILEGE
UNDER 26(b)(2)
 Objection to discovery request (e.g.
  interrogatory)
 Motion for a protective order under 26(c)
  accompanied by a certification that parties
  met prior to filing of motion and attempted
  to resolve dispute without intervention by
  the court
 LIMITATIONS ON
 DISCOVERY: 2. PRIVILEGE
 Some materials are protected from
  discovery, e.g.:
 attorney-client privilege
 or work product privilege
 There are other types of legal privilege (e.g.
  priest/penitent, physician/patient.self-
  incrimination, various government
  privileges, spousal privilege]. These
  depend on the applicable rules of evidence)
 Privilege can be waived
 HICKMAN v. TAYLOR (1947)
 What are the key facts of this case?
 What 2 kinds of statements were sought on
  discovery by the Plaintiff from the tug owners?
 Is this material relevant? Privileged under
  attorney-client privilege?
 Why was Fortenbaugh held in contempt by the
  District Court?
 What is the procedural issue for the Supreme
  Court?
 Explain how the Supreme Court differentiates
  between oral and written statements in ruling in
  this case.
HICKMAN v. TAYLOR
 Compare the majority argument in this case
  with the concurrence.
 Which rationale is more persuasive, in your
  view? Why?
WORK PRODUCT PRIVILEGE
FRCP 26(b)(3)
 When Hickman was decided, FRCP did not
  contain any exception to discovery for
  attorney work product
 Work product doctrine in Hickman has been
  codified in FRCP 26(b)(3).
TYPES OF WORK PRODUCT
 1. ORDINARY WORK PRODUCT:
  Documents prepared in anticipation of
  litigation by a party’s representative
 Are these discoverable? If so, in what
  circumstances?
 2. OPINION WORK PRODUCT
  Attorney’s thought processes in preparing a
  case
 Are these discoverable? If so, in what
WORK PRODUCT PRIVILEGE
 Does the work product doctrine in FRCP
  26(b)(3) apply to nonlawyers, such as
  insurance adjusters and investigators?
WRITTEN STATEMENTS BY
PARTIES TO LAWYER
 Are these discoverable? If so, in what
  circumstances?
 NOTE: a party’s statement can always be
  used as direct evidence at trial by an
  opposing party even if the party is not
  testifying
 What about statements made by nonparties?
COMPARING ATTORNEY-
CLIENT AND WORK
PRODUCT PRIVILEGE
 Material privileged under the attorney-client
  privilege is IMMUNE from discovery in
  any circumstances (unless waived)
 Attorney work product may be discoverable
  on a sufficient showing of substantial need
  (or if waived)
HYPO
  Polly was injured when she was struck by a
   bus owned by the Blue Bus Company.
   Polly then sued Blue Bus Co. in federal
   court. Immediately after the accident,
   Miles, a vice-president of Blue Bus Co.,
   went to the scene and made a full
   investigation, including interviews with
   witnesses and measurements of the accident
   location. Miles made a written report to the
   directors of Blue Bus. Can Polly obtain
   Miles’ report?
ANOTHER QUESTION
 Same facts as previous hypo, but through
  the expenditure of more than $10,000, Blue
  Bus Co.’s attorney has uncovered another
  eyewitness to the accident. Polly serves an
  interrogatory asking for the names of all
  eyewitnesses and Blue Bus objects on the
  ground of “trial preparation materials”.
  Must Blue Bus Co. disclose the witness’s
  name?
PRIVILEGE LOGS: FRCP
26(b)(5)
 If a party withholds material from discovery
  on the grounds that it is privileged, that
  party must make a privilege log
 In the log, the party should describe the
  nature of the documents without revealing
  privileged information and also state the
  type of privilege asserted.

				
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