CIV PRO – Sum and Substance and Glannon I. Discovery 16(b) and 26(f) – The court sets a scheduling with the judge 16b, and the parties must meet for a planning conference 26f at least 21 days before the scheduling conference and submit a report to the judge within 14 days after the planning conference, and also must do the initial disclosures within those 14 days as well. A. Scope Very Broad Scope. Principle is that you must give every litigant equal access to all relevant data. Rule 26(b)1 – you may get anything that isn’t privileged that is relevant to the claim or defense of any party. Relevant info should be reasonably calculated to lead to discovery of admissible evidence. Common Hypo: Plaintiff adds punitive damages in claim in order to gain access to D’s bank account info. D tries to get rid of punitive damage claim at the outset to make his wealth inadmissible. A party can seek protective order to protect against “annoyance, embarrassment, oppression or undue burden or expense.” A trial judge has large discretion to issue protective orders to protect against burden and expense of producing the info, the potential for revealing intimate facts which should remain private, the potential for use of discovery to annoy or intimidate an opponent, to protect proprietary business info, or for other reasons. What is privileged? Attorney-Client, Priest-Penitent, Doctor-Patient, Husband-Wife, Psycotherapist-Patient Quasi-Privileged? Qualifiedly Immune – Work Product (Hickman v. Taylor) R. 26(b)(3) – documents and tangible things prepared in anticipation of litigation by party or party’s representative. These are protected unless the other party can show a need for the material and inability to obtain substantially equivalent info through other means. Mental impression, conclusions, opinions or legal theories are always protected. Watch out for facts. Facts are discoverable, sometimes the judge will get the info and take out the facts. Experts – Parties are required to disclose the names of their testifying experts at least 90 days before trial, along with a report of their findings, qualifications, compensation, etc. Testifying experts may be deposed as well. Non-testifying but retained experts need not be disclosed at all. Discovery regarding non-testifying experts may only be sought under a showing of exceptional circumstance (Thompson v. Haskell got the discovery in); (Chiquita did not get it in). Unretained experts are not even mentioned in the rules and there is no need to give any info from those experts simply consulted but not retained. Separate these opinion witnesses from fact witnesses or witnesses not hired in anticipation of litigation. Must allow discovery of the latter two. Rule 37(a)(2)(B) – Moving party must confer with other party in good faith to resolve issues of discovery before going to court to resolve issues.
1
B. Methods Interrogatories (limit 25 questions) – Questions written by counsel to the opposing party. Answers are usually drafted by the opposing counsel after consulting with client. Requests for Production of Documents – The presumption is that virtually any document that fits the broad relevance standard must be produced. The burden is on the refusing party to show good reason to refuse. Responding party may also give access to all files and say you search through them. Requesting party usually pays for this but costs may be added on to losing party. Can get a rule 45 subpoena to get documents from 3 rd parties. Oral Depositions (limit 10, 7 hours each) – Taking of testimony from a witness under oath. The drawback is time and expense. Party may be deposed by sending a notice to all parties. Nonparty must be subpoenaed in order to be deposed. If counsel objects the question usually must be answered anyway, unless the objection is for privilege. Physical or Mental Examinations (Schlagenhauf) – May only be requested of a party, and must obtain a court order by making a motion to the court and showing “good cause.” Must also show that the physical or mental condition is “in controversy.” If obtained a copy of the findings should be sent to examined person, and examined person should send copy findings from his/her examining physician. Request for Admissions – Request the other party to admit something. Narrows the scope of what needs to be proven at trial. Automatic Disclosure (initial disclosures are within 14 days of 26(f) meeting) – At the outset of trial, parties must automatically disclose names and addresses of persons with relevant info, copies or descriptions of relevant documents and tangible evidence, computations of damages with supporting documentation, and copies of insurance contracts covering the claims in suit. Other automatic disclosures that occur as we run up to trial include discoverable information the disclosing party may use to support its claims or defenses, including but not limited to: the names of witnesses to be called at trial, documents and depositions each party expects to offer in evidence at trial, identity and reports of experts to be used at trial, etc. Sanctions – First must try to resolve with informal means. Then file a motion to compel disclosure. Court may order losing party to pay costs. If a judgment to disclose is ignored then the court can impose harsher sanctions. II. Resolution without trial A. Default Judgment B. Failure to Prosecute: Involuntary Dismissal C. Voluntary Dismissal D. Settlement/ADR E. Summary Judgment – Entry of judgment by the court in favor of either the plaintiff or defendant without trial. Affidavit – Sworn statement based on personal knowledge about specific facts.
2
Trial is only there to resolve disputed questions of fact. If no disputed facts, the judge can decide the case as a matter of law. The standard for Summary Judgment is “the moving party is entitled to summary judgment if he can show that there is no genuine issue of material fact.” (Celotex says the moving party does not need to produce evidence, just needs to make a motion and state the basis for the motion) There is a heavy burden of persuasion on the moving party. All inferences or questions about credibility are construed in favor of the non-moving party. The burden on the non-moving party is only to show that he has legally competent evidence upon which a jury could resolve the factual issues in his favor. Visser basically says that the summary judgment standard is much like JNOV, no rational or reasonable jury could find in your favor. III. Judge or Jury – 7th Amendment for civil trials Purely legal issues go to jury. Purely equitable issues go to judge. If there is a mix of legal and equitable issues then we should favor the jury. Constitutional right to jury trial for all actions that existed at common law in 1791. Conditions for Jury trial for actions created after 1791. 1. The right created by congress must be vindicated in a court. 2. The remedy provided by the substantive right must be one traditionally granted by juries in courts of law (damage remedies) – This is the dominant prong (Teamsters) 3. The right created by the statute must be analogous to a right that existed in 1791. What about mixed claims? -- “equitable main claim cannot preclude a jury trial on a legal counterclaim, at least when the counterclaim is compulsory” If you can separate out the claims and separate trials that is one option. If no separation, the jury goes first and determines any questions of facts needed for their part of the trial and then the judge uses the facts that the jury determined plus any additional facts that were not relevant to the jury part. IV. Trial Timeline – After plaintiff presents evidence then D moves for JMOL. Then D presents evidence and either party may move for JMOL. Then the jury returns verdict and either party may renew JMOL within 10 days of final judgment. Also within 10 days losing party may file motion for a new trial. Plaintiff must at least meet burden of production or persuasion? Enough to send it to jury. If the existence of an essential fact is sought to be inferred, points with equal force to two things, one of which renders the defendant liable and the other not, the plaintiff must fail (Reid v. San Pedro). Judgment as a Matter Of Law – The court should consider all the evidence – not just that evidence which supports the non-mover’s case – but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inference point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, grant of the motion is proper. If the plaintiff does not meet his burden of persuasion the judge can take the trial away from the jury (Penn RR) The judge can also exclude improper influences from going to the jury. The judge also gives the jury instructions.
3
A motion for new trial may be granted more easily than JMOL. The new trial motion can not be appealed because it is not a “final decision”. Judge may grant new trial on his own initiative or by motion. Either for flawed procedures: improper instructions or admission of evidence, juror misconduct, etc. If this is appealed it is a de novo standard. Or for because the verdict was against clear weight of the evidence, or the jury has reached a seriously erroneous verdict. For this the judge can consider the credibility of the witnesses, basically he can act like a juror. If this is appealed the standard is abuse of discretion. (The judge in Lind abused his discretion) Judge may also grant partial new trials. Remittitur and additur. The judge may not speak to jury after the case is over, and jury testimony about the process of deliberation can not be used to impeach a jury verdict. (In Peterson the judge improperly used jury testimony after the trial to grant a new trial) VI. Respect for Judgments Res Judicata is a fancy way of saying claim preclusion. The defendant must plead and carry the burden of proof of claim preclusion as an affirmative defense. Final Judgment on the merits Same parties Same Claim – Majority use the transaction or occurrence test. Preclusion turn on the right to join the claim not on whether the claim was actually asserted. (Firer and Martino) The minority uses a core of operative facts test. This may cause a problem with the compulsory counter claim restrictions. In addition to claim preclusion, there is issue preclusion, also called collateral estoppel. The issue in the second case must be the same as the issue in the first. The issue must have been actually litigated. The issue must have been actually decided in the previous action. The issue in the prior action was necessary to the court’s judgment. When the collateral estoppel is non-mutual (not the same two parties as in the first suit) there are other factors to consider. Remember that the party must have had a chance to litigate the issue. Defensive non-mutual collateral estoppel (when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant) is more easily justified. Offensive non-mutual collateral estoppel (when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party) is harder to justify. Party was a defendant in the defendant in the first suit and did not choose forum. The party may not have litigated the issue aggressively in the first suit. Court should consider all factors and determine if the party fully and fairly litigated the issue in the first suit. IV. JOINDER
4
Claim joinder is easy. Federal rules allow permissive joinder of all claims against a party. Remember only claims from the same T&O will get supplemental jurisdiction, other claims can be joined but must meet their own requirements. Party joinder – Can join (permissive) any party that meets the T&O and common question of law or fact test. Compulsory joinder of parties – Who are necessary parties? If you don’t get the outsider in then you can’t grant complete relief to those who are in. This is when you have a contract and you want specific performance, you have to get all the parties to the contract in the case. If you want to subdivide a piece of property you need all the owners of that property. The other type is when the person outside is going to be prejudiced. This is in any case where you are adjudicating the rights to a limited fund. This section does not apply to joint tort feasors. Remember you need to do a SMJ and PJ analysis for the outsider. If you can’t get an indispensable party then pursuant to rule 19(b) the court has authority to shape justice and do the best job it can. Counterclaim – Compulsory counterclaim is in rule 13(a), it is a claim that arises out of the same T&O. You must assert those or lose the right to bring them later. Everything is else is a permissive counterclaim. T&O can be determined by two different methods. One is the logical relation test, the other is a 4 part test. Compulsory claims come under supplemental jurisdiction. The permissive claims do not? Crossclaim – Between co-parties. Third party claim (impleader) – D is adding a party. Must get PJ over the 3 rd party. The rd 3 party will be brought in under supplemental jurisdiction.
5