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RESPONDING TO THE COMPLAINT AFFIRMATIVE DEFENSES Listed in Rule

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					RESPONDING TO THE COMPLAINT: AFFIRMATIVE DEFENSES Listed in Rule 8C, several more listed on p.
376
     WHERE: They are made in the ANSWER or the PRE-ANSWER MOTION TO DISMISS (to be safe they should
      SAY that the motion to dismiss is based on the defense so as not to waive it just in case)
     WHEN: If no Rule 12 motion is made, a defendant who was formally served with a summons and complaint must
      present an answer within 20 days after service, a defendant to whom the complaint was mailed and who waives
      formal services must answer within 60 days after the request for waiver was mailed to her. (Rule 12(a)(1)(A)(i)
      and (ii))
     WHAT: If not listed in Rule 8C how to determine that it is an Affirmative Defense: (P. 376 Ingraham v. United
      States): (NON BINDING—these factors may be persuasive)
           o 1) NECESSARY OR EXTRINSIC: Whether the matter at issue constitutes a necessary or extrinsic
                element in the plaintiff’s cause of action? (Necessary goes to the core of the plaintiff’s —more likely to
                be affirmative defense) extrinsic shouldn’t be a defense at all bc its not really an affirmative defense
           o 2) INFORMATIONAL ASSYMETRY: which party has the relevant information-Where is it fair to put
                the burden? This matters because a pleading technicality shouldn’t keep a claim out of court. If defendant
                has all the information, it should be an affirmative defense (so plaintiff does not have to plead it, but the
                defendant has burden) (**shouldn’t write an opinion that depends on this because it matters less since
                TWOMBLY**)
           o 3) DISFAVORED? should the matter be indulged or disfavored?
                      Disfavored? What does society want to BAR from court or let in court. If you’re all the way to
                          trial and they try to add assert something, court may call it an AD if they want to keep plaintiffs
                          claim in court. [because it is disfavored, because notice would have been better for P, lets call it
                          an AD] If it is disfavored then we want heightened pleading for defendant and WANT it to be
                          an affirmative defense
                                 example: State of limitations—dismissed not on merits of case but a technicality,
                                    truth/slander
                                 Pleading with particularity—YES I did it. . .but….
                      Indulged? Yes go ahead at trial (Not an AD)
           o 4) UNFAIR SURPRISE?
     WHY does it matter if it is an affirmative defense?
           o WAIVEABLE: Affirmative defenses are waiveable if not made in the answer (because the purpose is to
                avoid unfair surprise to the other party)—although Rule 8 does not explicitly say this courts have
                construed it this way
                      Ingraham v. United States: Defendant (United States Physicians) were sued by several
                          individuals for malpractice. Once an adverse judgment was rendered against them, they moved
                          for relief from the judgment to the extent that the damages exceeded the limit imposed on
                          medical malpractice awards by the Medical Liability and Insurance Act of Texas. The Court
                          held that this was an affirmative defense and must have been pleaded in the answer so as to
                          avoid unfair surprise. (Had they known, the plaintiffs would have put more evidence forward to
                          prove medical damages that were not affected by the statute)
           o Sometimes if waived—they can still bring it up again at trial
                      Lucas v. United States p. 377: The limitation of damages had not been pleaded, but it was
                          raised at trial. The court held that the trial court was within its discretion to permit the defendant
                          to effectively amend its pleadings and advance the defense. Because ―where an affirmative
                          defense is raised in the trial court in a manner that does not result in unfair surprise, technical
                          failure to comply with Rule 8(c) is not fatal‖
     BURDEN? Gomez v. Toledo p. 371: Defendant has burden of proof to Prove Affirmative Defense
           o holding that qualified immunity was an affirmative defense and therefore the defendant has the burden of
                proof to show he didn’t act in bad faith (to state a claim/survive 12b6 motion he didn’t have to plead bad
                faith). He didn’t have the information so he couldn’t have plead that. We’ll call it an AD so defendant
                has burden and then the plaintiff didn’t have to plead bad faith to state a claim. [keeps the door open to a
                meritorious claim]
                      Qualified Immunity: It is the existence of reasonable grounds for the belief formed at the time
                          and in light of all circumstances, coupled with good faith belief that affords a basis for qualified
                          immunity of executive officers for acts performed in the course of official conduct
         o How do you balance ―notice‖ without giving too much away to the other side?
AMENDMENTS—RULE 15 (See Rule Chart)
   AMENDMENTS AFTER STATUTE OF LIMITATIONS has run (RELATION BACK): (Applies if the
     original complaint was filed BEFORE the statute of limitations had run)
         o 15(c)(1)(A): If the statute of limitations law allows relation back AND
         o 15(c)(1)(B): The amendment will RELATE BACK to the date that the original pleading was filed, if the
              amended claim arises from the same transaction or occurrence as that described in the original pleading
              or attempted to be set forth in the original pleading (the opponent had adequate notice within the
              applicable statute of limitations because it is factually related to the claim first described)
                    To determine if something is sufficiently related to the original claim is NOT concrete—
                       context matters!
                             Were they on notice?
                             If court gave permission to file amended complaint, but they wait a VERY long time
                                 makes them look bad [court may use its equitable power of Laches and bar them from
                                 bringing the amendment—―slept on their rights‖
                             Do they have to re-depose? (Barcume)
                             More information on same issue OKAY to add
                             New Legal Theory on SAME FACTS OKAY to add
                             Different conduct/act/event NOT OKAY
                                      o In an action against a union for refusal to file a grievance on behalf of an
                                           employee, the plaintiff-employee may not amend the complaint to add a claim
                                           that the union refused on a second occasion to file a grievance on the
                                           employee’s behalf (Gomes v. Avco Corp). DOES NOT RELATE BACK p.
                                           387
                                      o Barcume v. City of Flint: 13 female law enforcement officers employed or
                                           previously employed by the Flint Police Department filed a civil rights action
                                           against the defendant City of flint alleging discriminatory practices in hiring.
                                           After the statute of limitations had run, they amended their complaint to
                                           include claims of sexual harassment. The court held that the claims of sexual
                                           harassment in terms of conditions of employment DID NOT RELATE BACK
                                           to the other hiring decisions alleged in the first complaint. The sexual
                                           harassment claim was a new different claim—Flint Police Department was not
                                           on notice because it was a substantively different claim—they would have had
                                           to re-depose about new issues. DID NOT ARRISE OUT OF SAME
                                           CONDUCT/TRANSACTION OR OCCURANCES
                    Ways to GAME this concept:
                             Had the plaintiffs originally used vague/broad allegations in the original complaint,
                                 they could have maybe added the sexual harassment claim
                             Defense attorney could take poor depositions because they know there is something
                                 else so by keeping it tight during depositions, later they can pretend they were SO
                                 surprised about the added issue and are going to have to REDEPOSE
         o 15(c)(1)(C): CHANGE PARTIES after statute of limitations has run:
                             CAN DO IT IF:
                                      o 1) Rule 15(c)(1)(B) is met
                                      o 2) If within 120 days after the filing of the complaint the party to be brought
                                           in by the amendment…[Rule 4m]
                                      o 3) has received such notice of the action that she will not be prejudiced in
                                           maintaining her defense on the merits and…
                                      o 4) knew or should have known that but for a mistake concerning the proper
                                           party’s identity, the action would have been brought against her
   REGULAR AMENDMENTS (NO STATUTE OF LIMITATIONS RUN)
         o Just follow 15a-b (Want to allow amendments as people learn more about their case but at a certain point
              amendments jeopardize efficiency and fair notice to opponents)
         o Can add a party after the case has gone all the way tot final judgment a long as Rule 15 is strictly
              observed (Nelson v Adams)
                         12(a)(1)(a) MUST FILE AN ANSWER TO A PLEADING. IF YOU AMEND A COMPLAINT
                          TO ADD A PARTY, RULE 15 + 12 REQUIRE THAT THEY HAVE AN OPPORTUNITY TO
                          RESPOND [if they never receive an amended complaint, they cannot respond]
                               Nelson v. Adams p. 389: OCP sued Adams claiming patent infringement. The district
                                   court dismissed OCP’s claim and ordered OCP to pay Adams’ costs and attorney fees.
                                   Adams feared that OCP might be unable to pay the fee and sought to recover from
                                   Nelson (president and sole shareholder of OCP) in his individual capacity. Adams
                                   moved under Rule 15 to amend its pleading and add Nelson as a party. Adams also
                                   asked the court to amend the fee award. The district court granted the motion (making
                                   him a party and granting judgment against him at the same time). Supreme Court
                                   reversed and held that the district court erred in amending the judgment—Rule 15
                                   requires that Nelson be given an opportunity to respond and contest his personal
                                   liability—STRICT ADHERENCE TO THE RULE. Doesn’t matter that he KNEW—
                                   he wasn’t ever served with the pleading.

POLICING THE PLEADINGS--SANCTIONS—RULE 11
    RULE 11(a) SCOPE? EVERY pleading, written motion or other paper (Every paper except discovery) (and
      every party of the paper, every fact, every claim is subject to this rule) must be SIGNED by at least one attorney
    RULE 11(b): CAN THE COURT RELY ON THE SIGNATURE? By presenting to the court a pleading,
      written motion, or other paper, whether by signing, filing, submitting or later advocating it, the attorney certifies
      that to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the
      circumstances assert that the following 4 things are true (GOOD FAITH assertion):
           o “INQUIRY REASONABLE UNDER THE CIRCUMSTANCES” (11b)
                      FACTORS TO CONSIDER:
                                Who has the information? (did you make a reasonable inquiry because you can’t get
                                   the information without discovery because the other side has it all?
                                   INFORMATIONAL ASSYMETRY)
                                        o Kraemer court relied on this, but now Twombly is around so although
                                            Twombly does not apply to Rule 11 the opinion should not rely
                                            COMPLETELY on this
                                        o It is not necessary that an investigation into the facts be carried out to the
                                            point of absolute certainty. (just reasonable in circumstances)
                                Cannot consider OUTSIDE of the scope conduct like the court may have done in
                                   Mattel
                                Whether the signer of the documents had sufficient time for investigation
                                        o Business Guides—may have been able to argue that they were rushed because
                                            they were losing money
                                        o Intamin v. Magnetar p. 422: What if no time limit? Circuit court did not
                                            impose sanctions in a patent infringement case involving competing brake
                                            systems for roller coasters for not obtaining and physically cutting open the
                                            metal casing on the magnets in the brake system because the technology
                                            presented the patentee with unreasonable obstacles to any effort to obtain a
                                            sample of the amusement ride break, let along the difficulty of opening the
                                            casing.
                                The extent to which the attorney had to rely on his or her client for the factual
                                   foundation underlying the pleading
                                        o Kraemer v. Business Guides: In Kraemer, the attorney did all that he could do.
                                            In business guides, if they had looked at all, they would have found out more.
                                The complexity of the facts and the attorneys ability to do a sufficient pre filing
                                   investigation
                                        o Mattel: Clearly didn’t do a reasonable inquiry because if he had, he would
                                            have noticed that it couldn’t be a copyright infringement because the dolls
                                            were made in reverse order (wasn’t complex issue)
                                Whether discovery would have been beneficial to the development of the underlying
                                   facts
             Business Guides p. 406: (Under the 1983 Rules) Plaintiffs filed an application for a temporary
              restraining order against a competitor, claiming that Chromatic was copying from Business
              Guides’ trade directory. To support this, they filed signed affidavits identifying ten false
              directory listings. The company did not specify the false information that it had planted in the
              seeds. Lawyers were asked to specify the false data, they asked their clients and then withdrew 3
              of the statements. The district judge did its own investigation and found that 9/10 had no
              inaccuracies. It was clear that they had just heard what their clients said and filed the action
              without doing their own investigation. Sanctions were imposed. (this outcome would probably
              be the same under the new rule)
o   11(b)(1): IMPROPER PURPOSE: It is not being presented for any improper purpose, such as to
    harass, cause unnecessary delay, or needlessly increase the cost of litigation:
          Is a case of political protest supposed to be in the court?
                    Saltany v. Bush: 55 Libyan citizens and residents filed suit in the district court seeking
                        damages for injuries, death, and property loss sustained in the 1986 United States air
                        strike on Libya.
          Deliberately seeking to embarrass the other side:
                    Whitehead v. Food Max of Mississippi p. 433: After winning a jury verdict against
                        Kmart, plaintiffs lawyer used a handwritten request to obtain a writ of execution from
                        the clerk of the court before Kmart had a chance to appeal. He then notified the media
                        and went to the Kmart w two federal Marshalls in order to seize money from the cash
                        registers. The lawyer proceeded to give statements to the media about Kmart’s
                        outrageous and arrogant actions. The district court fined the attorney reasoning that the
                        shameless self-promotion and deliberately seeking to embarrass Kmart were improper
                        purposes within the meaning of Rule 11(b)(1). (makes it looks like the paper was filed
                        to harass in the first place)
          Needlessly increase cost of litigation:
                    FDIC v. Maxxam p. 432: Plaintiff would violate Rule 11 if it filed a case that it
                        reasonably thought had merit but pursued it in a manner calculated to increase the costs
                        of defense. Rejecting the view that the filing of a paper for an improper purpose is
                        immunized from Rule 11 sanctions simply because it is well grounded in fact and law.
          First move is expediated discovery:
                    Arista Records: Just because the first move in the suit was to move for expatiated
                        discovery, does not make their purpose improper (plaintiffs do not violate 11(b)(1) by
                        merely engaging the judicial machinery in pursuit of a necessary and proper remedy,
                        otherwise out of reach, whether by expedited discovery order or other preliminary
                        relief)
o   11(b)(2): WARRANTED BY EXISTING LAW: The claims, defenses, and other legal contentions are
    warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing
    existing law or for establishing new law
          WARRANTED BY EXISTING LAW:
                    Frantz v. U.S. Powerlifting Federation p. 434: Complaint charged the International
                        power lifting federation and its American affiliate the United States power lifting
                        Federation and president with conspiring to monopolize the sport of weight lifting. The
                        complaint was dismissed for failure to state a claim. Lower court ordered sanctions
                        because there was no plausible argument that the president had conspired with its
                        company since corporate officers cannot conspire with their corporations under
                        antitrust law.
                    NOT warranted by existing law There was no PLAUSIBLE argument about how
                        they could have conspired with their own officers. They didn’t have to plead facts in
                        the complaint, but they had to KNOW facts after a reasonable investigation that made
                        it reasonable to go onto discovery (In this case w the facts, there still wasn’t a cause of
                        action)
          NONFRIVILOUS ARGUMENT FOR EXTENSION?
                    JUSTICE WALD’S DISSENT IN SALTANT v. BUSH: There is a difference between a
                        hopeless case and a frivolous case
        o 11(b)(3): FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT: Factual contentions
          have evidentiary support or, if specifically so identified, will likely have evidentiary support after a
          reasonable opportunity for further investigation or discovery
                Arista Records v. Does 1-27 (p. 438): Students were uploading songs onto a peer-to-peer
                   website (distribution and reproduction file sharing network) at the University of Maine.
                   Licensees claimed that those unknown students infringed their rights in copyrighted songs. All
                   the students were joined under 20(a)(2) and they asserted that there wasn’t enough evidence that
                   they acted in concert and so the plaintiffs should be sanctioned for making a fact allegation
                   without evidentiary support. Courts says that the allegations suffice.
                Young v. City of Providence p. 448: Court moved to have the attorneys sanctioned because in a
                   motion they seemed to indicate that the court forced them to agree to the defendant’s stipulation.
                   The Supreme Court held that by looking at the document as a whole, it wasn’t saying the judge
                   had forced them to do anything. A ―misrepresentation‖ must be taken in context—a clear lie
                   cannot be justified, but a statement that may seem to be sanctionable at first may not be when
                   examined in light of the circumstances.
                HOW TO WORK THIS PART: When writing a pleading, make factual claims ambiguous
                   (we think that upon discovery….), so that if you’re wrong, you won’t be sanctioned
       o 11(b)(4) DENIALS OF FACTUAL CONTENTIONS: The denials of factual contentions are warranted
          on the evidence or if specifically identified, are reasonable based on belief or a lack of information.
   RULE 11(c) IF A VIOLATION CAN IMPOSE SANCTIONS
       o HOW DOES A RULE 11 SANCTION GET IMPOSED?
                Court’s Initiative: A court on its own initiative may enter into an order describing the matter
                   that appears to violate Rule 11 and direct the proponent to show cause why sanctions should not
                   be imposed
                Party’s Motion: A party who believes that his opponent has presented a paper in violation of
                   Rule 11 may serve a motion for sanctions on the party. Party has 21 day safe-harbor to withdraw
                   or correct the matter, before the moving party may then file the motion for sanctions with the
                   court
       o WHAT CAN THE SANCTION BE? Whatever is sufficient to deter that conduct (Rule 11(c)(4)),
          ―Appropriate‖ sanction (Rule 11(c)(1))
                Judge can refer the attorney to the Bar disciplinary committee
                Suggestion of non monetary sanctions by the advisory committee:
                         Striking the offending paper, issuing an admonition, reprimand, censure, requiring
                            participation in seminars or other educational programs, ordering a fine payable to the
                            court, referring the matter to disciplinary authorities.
   HISTORY OF RULE 11?
       o Used as a gatekeeper because Rule 8 made complaints so easy to bring (to avoid litigation abuse)
       o 1983: Rule 11 Amended:
                to require that attorneys certify that they had made a reasonable inquiry before filing a
                   complaint (was not reasonable under the circumstances—just objectively reasonable)
                added monetary sanctions
                made sanctions mandatory if there was a rule 11 violation found
                had a chilling affect on many plaintiffs—scared to bring suits
       o 1993: Rule 11 amended:
                increased discretion to impose sanctions (wasn’t mandatory anymore)
                added the 21 day safe harbor
                de-emphasized monetary sanctions
                added ―later advocating‖
                11(b)(3)—lowered the standard a little by adding that it allowed facts that will likely have
                   support in discovery
                added 11(b)(4)
                must add signers email and phone #
                11(b)(6) Must be an Order imposing the sanction and it must and it must describe the sanctioned
                   conduct and explain basis for sanction (on notice and requires judge to truly think through what
                   to do)
   EFFECTS OF RULE 11?
o   Safe Harbor: Could potentially be abused—an attorney could throw anything out there and then just
    take it back during the 21 days
o   How do Rule 8 and Rule 11 relate?
          Rule 8 can bar a claim from getting in the door at the front end of the process
          Rule 11 doesn’t necessary keep a claim out of court on merits, but attorneys have to make a
              reasonable inquiry to support the facts they allege in rule 8 pleadings.
          Because rule 8 is now changed with Twombly, it lifts the bar for pleadings—the facts have to be
              plausible. So if the judge thinks allegations are not plausible, they can go the next step and say
              that it was unreasonable to even bring the claim---the inquiry wasn’t reasonable and sanction the
              attorney. Together, this can keep people out of court.
          Can limit due process—people can be ―scared out‖ of filing complaint for fear of being
              sanctioned (frivolous v. innovative)
          An attorney may be confronted with a new exciting claim to change the law but the law isn’t
              there yet and the lawyer wants to bring it in good faith, but may be chilled out of it
          Kraemer Attorney said he would ―never ever file a civil rights suit again‖ (informational
              asymmetry)
          Effectively creates a higher pleading standard—must show facts to show that this IS going
              somewhere
DISCOVERY—―Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation‖ –
Hickman v. Taylor
     OVERVIEW:
            o PURPOSE: promote reasonable settlements and allow cases to be shaped for summary judgment,
                prevent trials from becoming sporting events where each side tries to surprise the other, make sure case is
                decided on merits and not a technicality
            o ATTACK PLAN:
                     What is being requested? ***
                     Is it properly requested under the rules?
                                Compelled initial disclosure 37(a)
                                Depositions by oral examination 30
                                Depositions by written Questions 31
                                Interrogatories to Parties 33
                                Requests for Production 34
                                Physical and mental examinations 35
                                Requests for admission 36
                     Is it within the scope of discovery? (26b1)
                                Any matter not privilege that is relevant to claim or defense
                                For good cause: court can order anything relevant to subject matter (old standard)
                                       o this information was reasonably calculated to lead to discovery of admissible
                                            evidence (Blank)
                     Does a privilege apply?
                                Attorney Client?
                                26b3a—ordinary work product
                                26b3b—opinion work product
                                Was it waived?
                                Make a privilege log? 26b5
                     Is a protective order appropriate? 26c
            o DISCOVERY TOOLS:
                     Interrogatories: written questions to identify peoples, docs, etc. (responses are under oath)
                                Foundation of the case—use in depositions to decide what to ask/who to ask
                                Determine the existence/location of documents
                                Learnt he identify of persons with knowledge relevant to the litigation
                     Requests for admission: if one side is clearly ―caught‖ on one certain point—may be good to
                         just agree on that issue to save time at litigation
                                Narrow issues
                                Can help to avoid unnecessary areas of discovery and pretrial preparation
                     Depositions
                                Secure admissions and impeachment evidence from an adverse party
                                Learn what witnesses know about the issues and ―lock‖ them into facts
                                Allow for spontaneous answers (unlike ROGS)
                                Observe the demeanor
            o DISCOVERY ABUSES:
                     Types of abuses:
                                Questions that are in bad faith—outside the scope so that you know you don’t need the
                                   answers
                                Asserting privilege all the time
                                Sending TOO many documents
                                       o This may or may not be a discovery violation: p. 486 United States ex rel.
                                            Bradford Hunt v. Merck Medco Managed Care: Defendants objected to
                                            plaintiffs initial disclosures of 3,900 names. Defendants sought to have
                                            plaintiffs make judgments about the importance/relevance of the listed names.
                                            Court sided with the plaintiffs holding that the sheer volume cannot by itself
                                            constitute a violation of 26(a). The volume will vary depending on the case
                                      and its complexity. In addition, the court accused the defendants of trying to
                                      get the plaintiffs ―thoughts‖.
                          Trying to confuse/ambiguous
                          Inventing issues
                          Stalling
                          Fraud—lying, misleading, destroying/creating evidence
               Trying to fix them:
                          1980 Amendments: added Rule 26(f)(1) Discovery Conference (brought judge into
                            picture)
                          1983: specific sanctions for refusing to cooperate with discovery (Rule 37)
                          1993: Mandatory initial disclosures Rule 26(a)(1) (A)
   REQUIRED DISCLOSURES—Rule 26
       o INITIAL DISCLOSURES Rule 26(a)(1)
               PROS:
                          important because it helps with informational asymmetry (helps get the ball rolling if
                            you’re not sure what to ask)
                          Saves money, time (efficient)
                          Levels the playing field (fairness)
                          Intentional effort to put emphasis on truth finding/equity and not on the adversarial
                            aspect
                          Purpose: ―to streamline discovery and…avoid the practice of serving multiple,
                            boilerplate interrogatories and document requests, which themselves bring into play a
                            concomitant set of delays and costs‖ –Chalick
                          Can focus on the merits of the case early on
                          Revealing information to correct the other side’s false optimism creates an advantage
                            in settlement bargaining for the disclosing party
               CONS:
                          Encourages the lazy lawyer (the ―good lawyer‖ who has to hand over arguments)
                                 o Opposing counsel should have to do the work!
                          Makes process more adversarial (argue about what you HAVE to disclose)
               WHAT?
                          “Solely for Impeachment”—can withhold from initial disclosures because NOT
                            unfair surprise
                                 o there to remind the court that all discovery is subject to the limitations
                                      imposed by rule 26(b)(2)(c)—the court must apply a cost benefit analysis to
                                      control excessive discovery
                                 o It’s not unfair surprise to spring information that would undermine their
                                      witness (impeach witness). It’s considered FAIR because trying to get truth
                                      out and if the document is there to expose a lie then you can keep it out of
                                      discovery because you’re promoting truth/fairness
                                 o ―INTENDED‖ to be used for impeachment (good faith standard)
                          Chalick v. Cooper Hospital, p. 479: Example of a violation
                                 o In a medical malpractice suit, the defendants listed one of the doctors who had
                                      seen the patient but did not list the information that he knew or his address.
                                      Because of this failure, the plaintiffs did not know to add him as a party until
                                      depositions/after the statute of limitations had run. Court noted that especially
                                      in a case where all the information is with one party the mandatory initial
                                      disclosures are important—defendants had the responsibility to tell the
                                      plaintiff who did what, and when with regard to plaintiff’s care and treatment.
       o DISCLOSURE OF EXPERT TESTIMONY rule 26(a)(2)
               SEE EXPERT SECTION BELOW
   DISCOVERY SCOPE AND LIMITS 26(b)
       o 26(b)(1) SCOPE IN GENERAL A party may obtain discovery regarding any NONPRIVILEGED
          matter that is RELEVANT to any party’s claim or defense. The court, upon cause, can order the
    discovery of any material relevant to subject matter in suit. RELEVANT doesn’t have to be admissible at
    trial but can be relevant if it appears reasonably calculated to lead to the discovery of admissible evidence
o   “Relevant to CLAIM OR DEFENSE”
           Blank v. Sullivan & Cromwell p. 489: Plaintiffs sued alleging sexual discrimination in hiring
               practices at a law firm. Plaintiffs filed a rule 37 motion to get the defendants to respond to
               interrogatories about the firm’s practices of making woman partners. The defendants tried to
               argue that this information wasn’t relevant so therefore not within the scope of discovery that
               the plaintiffs were entitled to. But court held that this information was reasonable calculated to
               lead to discovery of admissible evidence (general information on defendant’s labor hierarchy
               may be reflective of restrictive or exclusionary hiring practices)
           The standard ―relevant to subject matter‖ was the old standard but now this is only the standard
               if the judge shows good cause. Without that the scope is limited to that which relates to a claim
               or defense.
                              o Some say YES: Limits the scope—gets the court more involved in regulating
                                   the breadth
                              o Some say NO: Herbert v. lando p. 493: there is no indication that the change
                                   in focus from relevance in relation to subject matter to relevance in relation to
                                   claims and defenses marks a substantial departure from the traditional liberal
                                   construction of the term, which is designed to assure access to the information
                                   necessary for the achievement of justice and fair trials
o    “Any matter not privileged”—privileged material is not discoverable
           Self-critical analysis privilege:
                     1) the information must result from a critical self-analysis undertaken by the party
                         seeing protection
                     2) the public must have a strong interest in preserving the free flow of the type of
                         information sought
                     3) the information must be the type whose flow would be curtailed if discovery were
                         allowed
                     4) no document will be accorded privilege unless it was prepared with the expectation
                         that it would be kept confidential and has in fact been kept confidential
           ATTORNEY CLIENT PRIVILEGE:
                     ELEMENTS:
                              o 1) a communication
                              o 2) from the client to the lawyer
                              o 3) without the presence of others (i.e. with expectation of confidentiality)
                              o 4) for the purpose of seeking legal advice
                     DOES NOT INCLUDE:
                              o Memo, briefs, communications and other writings prepared by counsel for his
                                   own use in prosecuting his client’s case
                              o Mental impressions of attorney
                              o Underlying facts not privileged!
                     POLICY:
                              o Upjohn: To encourage full and frank communication between attorneys and
                                   their clients and thereby promote broader public interests in the observance of
                                   law and administration of justice. The privilege recognizes that sound legal
                                   advice or advocacy serves public ends and that such advice or advocacy
                                   depends on the lawyer being fully informed by the client.
                     CORPORATE CONTEXT:
                              o Still applies even when client is a corporation—when the client is a person the
                                   person with the information and the person who acts on the attorney’s advice
                                   are the same person. But not necessarily true in the corporate context.
                              o Privilege extends to communication between counsel to a corporation and
                                   lower level employees
                                         UPJOHN: Privileged communication extends beyond the control
                                             group when the information, not available to upper level
                           management was needed to supply a basis for legal advice
                           concerning compliance with laws or potential litigation.
            o The privilege protects the communication only and not the underlying facts:
                 the client cannot be compelled to answer ―what did you say or write to the
                 attorney‖ but they may not refuse to disclose any relevant fact within his
                 knowledge merely because he incorporated a statement of such fact into his
                 communication to his attorney.
            o Policy: want to encourage corporations to get legal advice, get all facts, so
                 they can comply with laws, act ethically
       EXTENDS BEYOND THE GRAVE:
            o Swindler & Berlin v. United States, p. 515: Knowing that communications
                 will remain confidential even after death encourages the client to
                 communicate fully and frankly with counsel.
       WAIVING THE PRIVILEGE:
            o Exception 1-Where legal advice is used in furtherance of crime or fraud
                       Party must show that the client was engaged in or planning a criminal
                           or fraudulent scheme when it sought the advice of counsel to further
                           the scheme, and must demonstrate that the attorney client
                           communications for which production is sought are sufficiently
                           related to and were made in furtherance of the intended, present, or
                           continuing illegality
            o Exception 2—Convos about or implementation of document destruction
                 policy to eliminate evidence in anticipation of litigation
            o Exception 3--confidential communications are disclosed to adversaries or
                 other third parties—the privileged needn’t protect secrets the client is careless
                 about keeping
                       Exception to the exception: where the services of an agent are use din
                           order to assist the lawyer in giving legal advice to the client,
                           communications between the agent, the client and the lawyer are
                           covered by the privilege as long as they relate to issues on which the
                           legal advice is sought (example p. 524)
            o Exception 4—failure to comply with the requirement that claims of privilege
                 be explicit and describe the nature of the documents, communications, etc.
            o Exception 5—if the client assert as part of a claim or defense that she relied
                 on the advice of counsel
            o Exception 6—―self defense’ allow attorneys to conduct discovery against their
                 own client in an effort to prove they were not involved in the deception
                 (Qualcomm)
   WORK PRODUCT (Hickman/26b3):
       Policy reasons
            o Hickman: an attorney’s thoughts would not be his own so inefficiency,
                 unfairness would inevitably develop in the giving of legal advice and in the
                 preparation of cases for trial. Interest of clients and the cause of justice would
                 be poorly served.
            o Hickman: Making the attorney repeat or write out all that witnesses have told
                 him and to deliver the account to his adversary serves no legitimate purpose
            o Concerns about liberal discovery not being compatible with the adversary
                 system
       26(b)(3)(A): ORDINARY WORK PRODUCT (ANTICIPATION OF
         LITIGATION):
            o RULE: may not discover documents and tangible things that are prepared in
                 anticipation of litigation or for trial (by or for its party or representative) , but
                 subject to 26b4, those materials may be discovered if:
                       i: they are discoverable under 26b1 (as long as its reasonably within
                           scope) AND
                                               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
                                 o “In anticipation of litigation”: The MAJORITY standard is—a document
                                      should be deemed prepared in anticipation of litigation if in light of the nature
                                      of the document and the factual situation in the particular case, the document
                                      can be fairly said to have been prepared or obtained because of the prospect of
                                      litigation (Doesn’t have to be a particular lawsuit). Other courts have
                                      construed it narrower or broader p. 507
                           Opinion work product vs. Ordinary work product? Can opinion work product
                            EVER be overcome like ordinary work product can? (SUPREME COURT HAS
                            NOT SAID YET)
                                 o Holmgren v. State Farm Mutual Automobile Insurance Co. p. 520: Plaintiff
                                      sought and obtained production of a memo prepared during a personal injury
                                      suit by the insurer’s adjuster, in which the adjuster set for the a range of
                                      potential liability for plaintiff’s claims. The insurer argued that the memo was
                                      opinion work product under 26b3 and thus entitled to absolute protection.
                                      Court held THERE WAS NO ABSOLUTE protection for opinion work
                                      product and in this case it was discoverable (**they had a weaker argument
                                      here because it wasn’t the attorney’s views but the insurance company’s
                                      views**)
                                 o Duplan p. 522: plaintiffs sought discovery of lawyer opinion material
                                      prepared for use in an earlier lawsuit against the same defendant. The material
                                      sought included the opinions of the defendant’s attorns about dealing with the
                                      patent office, which were subject matter of the pending litigation. Court held it
                                      was not discoverable (**mental impressions of the attorney are at issue—
                                      greater likelihood that the privilege will last beyond the case (into next case)
                                 o Hickman seemed to imply that work product based on oral statements by
                                      witnesses was never discoverable
                           26(b)(3)(B): OPINION WORK PRODUCT
                                 o RULE: EVEN if you have to turn over something under ordinary work
                                      product, don’t have to turn over mental impressions, conclusions, opinions or
                                      legal theories of a party’s attorney or other representative concerning the
                                      litigation
                                 o EXAMPLES:
                                            When selecting documents from a lot of documents is considered
                                                work product p. 509
                                            If you’ve IDed witnesses that work for your client (you chose 4 for
                                                strategic reasons) then could argue its opinion work product
                                            if the ROG asks you to describe interview w witness this is
                                            your notes from an interview
                                 o ***remember when you get here, you’re already turning over something form
                                      the ordinary work product section so they still get UNDERLYING
                                      FACTS***
                           CONSTRUCTION: recognizing that other social values outweigh the needs and
                            interest of the civil litigation system. However because of the strong interest in the
                            disclosure of relevant facts, all privileges are generally construed narrowly and care
                            must be taken not to waive it
   SANCTIONS: Rule 37
       o FAILURE TO DISCLOSE 37(c)(1):
             Automatic sanction if violation (not allowed to use that witness, or information later) UNLESS
                can show that the failure was justified or harmless
             Judge has discretion to pick an appropriate sanction for failure to DISCLOSE information from
                26(a) or (e) (To curb gamesmanship)
                      Judge can also pick other sanctions instead of the one listed:
                                    o   Chalick: for failure to disclose the court did not allow the defendants to use
                                        the defense of 15(c) that the added defendant in the amendment wasn’t on
                                        notice of the lawsuit
       o SPOLIATION: Lawyers and their clients have an affirmative duty to preserve documents and other
          things that ma be relevant to pending and anticipated litigation
                Definition: willful destruction of documents (lawyers are bound by Rule 26(e) to help ensure
                    their clients appropriately supplement their initial disclosure and avoid spoliation).
                    ―ZUBULAKE DUTY‖
                Consequences: potential criminal liability for obstruction of justice, sanctions (which can
                    range from shifting costs of discovery to that party or instructing the jury that it can draw an
                    adverse inference against the offending party that the evidence destroyed was harmful to that
                    party and favorable to the adversary)
                Picking the Sanction: Want to put the other party in as good a position had the violation not
                    happened
                          Zubulake v. USB Warburg: Although lawyers for UBS instructed them to preserve the
                              documents once Zubulake filed an administrative charge, UBS employees lost or failed
                              to retain backup records of emails between Zubulake and human resources. Zubulake
                              filed a motion for sanctions. The court reasoned that UBS had a duty to preserve
                              relevant evidence once it reasonably anticipated that she may sue. As a sanction the
                              court moved the discovery costs to them (not imposing the adverse inference bc court
                              thought it would be too harsh). Two years later it was discovered that MORE
                              documents had been deleted. This time the court sanctioned with an adverse inference
                              because their conduct was willful.
       o 37a(5)(A): If a party files a motion to compel and the court grants it—the court must grant the other side
          the attorneys fees from filing the motion UNLESS (certain exceptions listed)
       o 26(g): Each document must be signed by the attorney and there are sanctions for improper certification
          26(g)(3) (on the attorney or the party or both)
                designed to discourage discovery abuse
   DIGITAL DATA AND THE PROBLEM OF ELECTRONIC DISCOVERY
       o GENERAL RULE: 26b2B—a party need not provide discovery of electronically stored information
          from sources that the party identifies as not reasonably accessible because of undue burden or cost (and if
          the party can prove undue cost, the adverse party still may be able to show good cause to compel)
       o Qualcomm v. Broadcom p. 531: Q sued B for patent infringement. Kept insisting that they had not been
          involved in the international organization until AFTER they made the standard. B used ROGS and
          depositions, requests for production etc and Q said they would respond in good faith. In actuality, they
          did not disclose tons of emails, did not prepare their ―lead‖ people on the substantive issues and even
          after they discovered the emails, they didn’t produce them right away. Did not discover them right away
          but didn’t really LOOK for them on the computer (could have done a simple search—―reasonable
          inquire‖). These emails indicated that they HAD been involved.
                Duty to go through electronic docs. Attorneys must have known they were hiding something
                    because afterwards they found 46000 docs. (attorneys seemed to turn a blind eye to the fact that
                    the documents were there)
                If you ask your client and they say ―can’t afford to go through them!‖
                          Make a record of this conversation
                          Make overall searches (broad) at least because at least something may reveal
                              dishonesty (minor searches online don’t waste money or time)
                          If client doesn’t want to show you—don’t take that client
                When more than one attorney working on different parts of the case—need to bring yourself up
                    to speed!
                          RULE: if Qualcomms in-house lawyers assured outside counsel that they would take
                              care of providing relevant company docs and witnesses themselves in respond to
                              discovery the outside attorneys are not within their rights to rely on that assurance. (not
                              when contradictions appear in the record and a reasonable attorney would inquire)
   EXPERT WITNESSES 26(b)(4) and 26(a)(2)
       o 26(a)(2) INITIAL DISCLOSURES
         Need to turn over the names/report of ones you’re going to use for trial (see rule chart)
o   26(b)(4) TRIAL PREPARATION: EXPERTS
         26b4B—do not need to disclose facts/opinions of experts NOT to be used at trial who was
             obtained in preparation of litigation EXCEPT
                   i as provided in rule 35b OR
                   ii on showing EXCEPTIONAL circumstances under which it is impracticable for the
                      party to obtain facts or opinions on the same subject by other means
         26(b)(4)(C)(ii)—if you insist on deposing other party’s expert in the previous section you need
             to compensate the expert otherwise the side that tracked them down first is the only one who has
             to pay)
o   DOWNSIDES:
         Only have to disclose the names of the experts you WILL BE USING AT TRIAL—if you’ve
             been shopping for witnesses you don’t have to disclose all 30 just the one.
o   How do these disclosures help opposing party?
         Notice function—what will the be talking about so they can prepare to respond
         Could take their deposition but maybe initial disclosure is so thorough you don’t have to
o   Instead of hiding the experts documents—if you don’t like what they say Berkey Photo v. Eastman
    Kodak p. 554:
         Don’t call them at trial
         Have them make oral reports until they’re sure
                   Problem: final report may not be that well defined, looks like you’re coaching them
         Protective order—embarrassment for expert AND may be able to argue that it’s ―critical self
             analysis‖-they recognize it for legal opinion so maybe for an expert also
         Turn them over—it may make you look good if you disclose adverse documents (credibility)
o   Can the expert change sides in the middle of case? (Cordy—not binding bc not a Supreme Court
    Case)
         TEST:
                   Was it objectively reasonable for the first part who retained the expert to believe that a
                      confidential relationship had existed?
                           o If there are enough ―contacts‖ then probably reasonable to assume that
                                      Cordy: retained, entered into written K, learned litigation strategy,
                                          was paid, oral opinion was given, sent him confidential information
                                          (investigation facts), interviewed him
                   Did that party disclose any confidential information to the expert?
                           o Cordy: heard theory of the case
                   Policy objectives—
                           o Favoring disqualification: preventing conflicts of interest and maintaining the
                                integrity of the judicial process
                           o Mitigating against disqualification: ensuring access to expert witnesses who
                                possess specialized knowledge and allowing experts to pursue their
                                professional calling
         Why would we want them to switch?
                   If he sincerely changed his opinion—in the interest of justice he wanted to change
                      sides them to make him stay on the other side seems unjust
         Why would we not want them to switch?
                   May bias jury—see him switching
o   SHOPPING FOR EXPERTS
         Judge appointed experts
                   706 Federal Rule of Evidence: judge can appoint a neutral expert (if there is a problem
                      with expert shopping)
                   parties divide costs evenly, can each interview him, can still have their own expert
         Coates p. 562:
                   Tissue samples were taken and sent to both plaintiff and defendant’s experts, to avoid
                      shopping, the judge made them write down who they sent the tissue to. The plaintiff
                      sought to depose some experts that the defendant retained in preparation for litigation
                    but not for trial. Court held that to avoid shopping (once a expert is retained it cannot
                    be retained by other party ALWAYS or if you DO CORDY TEST?) they would
                    require both parties to write and send results, written reports, diagnoses, etc. of each
                    expert to other party.
       The judge could make them share experts
       Judge can make them stipulate that there’s a controversy between experts
o   WHY are they so important?
       Can make the case
       If you disclose that your expert is very strong, then it may encourage settlement
SETTLEMENT—90% of cases settle
    CONS:
        o Can’t go to a jury (but that may be beneficial to you if you have sympathetic case)
        o underlying issue does not get heard—no developing law about it
        o clients don’t get their day in court
        o does not dispose of the case in the same way that a trial does (cannot appeal)—instead the PARTIES get
           all the information and prepare for a settlement discussion and weigh it and decide (instead of judge or
           jury weighing and deciding) (Yeazell p. 601)
        o depending on what they’re willing to offer—may not get what you actually need
    PROS:
        o May increase party’s satisfaction with the outcome (and thus compliance)
        o Saves court’s costs and efficient (per Rule 1)
        o Avoids going to trial (risk of
        o May save the client money
        o If you settle
                  then you don’t have to go to trial
                          Judge—risky/bias but recusal
                          Jury—Curtis, Markman, picking jurors
                          Deal with expert testimony
                          More likely to get a sanction—more opportunity—later advocating
                  D’s may move for SJ
                          Heightened burden now
                          Could get a sanction also if they think you didn’t state a claim (no existing law, etc).
        o Incentive to settle—Mchesney
    HOW IT WORKS:
        o Try to figure out what the interests are of each side—try to craft a win-win situation and try to sell this
           idea to the parties (don’t try to squeeze/beat the other side)
        o What are the qualities of a litigator vs someone who can make a good settlement (isn’t about
           WINNING) doesn’t work the same as trial!
    RULE 68: PROMOTES SETTLEMENT!
        o Rule 68(d) If the judgment that the offeree finally obtains is not more favorable than an unaccepted
           (settlement) offer, the offeree must pay the costs incurred after the offer was made.
                  Incentive to settle:
                          Makes you focus on risk of NOT taking the settlement offer
                          Evaluate risk and costs of litigation and balance them against the likelihood of success
                               at trial on merits
                  Problem:
                          Harsh—once offer is accepted it cannot be rescinded unless through Rule 60(b)
                  What are “COSTS”?
                          Marek v. Chesney:
                                     o Held that police officer defendants were not liable for attorney fees incurred
                                          by plaintiff after officers' pretrial offer of settlement, where plaintiff recovered
                                          judgment less than offer. (Statute: 42 U.S.C § 1988)
                                     o FACTS: Plaintiff prevails at trial under § 1988—which provides that
                                          plaintiff who prevails can cover reasonable attorneys fees (to encourage this
                                          type of civil rights litigation—otherwise no one would take the cases and
                                          they’re important to develop). WITHOUT rule 68d plaintiff would have
                                          gotten reasonable attorneys fees
                                      o  RULE: the term ―costs‖ means all costs properly awardable under the
                                         relevant substantive statute or other authority. [§ 1988 included attorneys fees
                                         as costs so ―costs‖ under rule 68 also included attorneys fees which meant
                                         they were DENIED attorneys fees incurred after the settlement offer]
                             Reconciling 54d(1) with 68d
                                     o 68d now negates 54(d)(1) because it provides that costs OTHER THAN
                                         attorneys fees can go to prevailing party unless there’s a statute so as to
                                         encourage that type of case (that DOES award attorneys fees)
                                     o Even though 54d says that costs do not include attorneys fees, now it MAY
                                         but it depends on the substantive statute If statute says ―attorneys fees as
                                         costs‖ then cancel out fees, but if it says ―fees AND costs‖ then fees aren’t
                                         cancelled
                             PROBLEMS:
                                     o No evidence legislature had this in mind when they crafted these statutes—it
                                         seems like they actually intended these prevailing plaintiffs to GET attorneys
                                         fees but simply how it is stated means that these cases are filtered out
                                     o Procedure is supposed to be consistent and this makes ―costs‖ depend on what
                                         the substantive law says (some put them together and some do not)
                                     o Defendant could give low ball offer early on before discovery and then it
                                         looms over the plaintiff (the threat of winning at trial but getting less) and they
                                         have no way to tell if it’s reasonable offer/strength of their case
                                     o Another barrier to entry in civil rights cases—should they settle or tried? (now
                                         they may settle out of fear but it’s the TYPE of case that should go to trial)
           o   What can be included in Settlement offer?
                   Evans v. Jeff D.: An offer for settlement MAY include a waiver of any claim for fees and costs
                       (including attorneys fees) as a condition of acceptance [even though it seems like an ethical
                       dilemma—want to accept bc best for client, but need to get paid]
                             Because: if the parties aren’t allowed to negotiate then settlement will be discouraged
                             Problem: this will discourage attorneys from taking these types of cases (attorneys
                                won’t get paid so they will be reluctant to take the case in the first place)
                             EXPLAIN to client:
                                     o Must bring all settlement offers to the client
                                     o Say we should consider refusing this settlement offer that waives fees (weird
                                         power situation—want them to do what’s best for them but want to get paid)
                                     o Make a written-fee agreement early on when retaining client. (if the attorney
                                         in Jeff D. had a fee agreement and told the defendants, and the defendants
                                         kept pushing for a settlement without fees, this might be construed as tortuous
                                         interference with contract)
                                               Tension—takes advantage of power situation—when you retain them
                                                   you have the power

SUMMARY JUDGMENT: Pretrial disposition but you still get a judgment (unlike settlement)
    GENERAL
        o Summary judgment pierces the pleadings
              Pleadings (Conley) you’re supposed to take on its face but Summary Judgment goes BEYOND
                the face and sees what pleadings are based on (usually some discovery has taken place)
                      JUDGE decides (is it unconstitutional to let the judge decide the facts?)
                      Tool to eliminate the costs/burdens of trial when not enough evidence to justify the
                          case
              Used a lot because it is the last procedural hurdle before trial
        o Why motion for summary judgment even if you think it’s unlikely to win?
              Get facts/theory of other side (they will motion to oppose)
              Educates the judge—look critically at other side’s case
                      If you’re the defendant, you really have nothing to lose [more of a defendant’s tool because if
                       you’re the plaintiff and you’re haling them into court and summary judgment right away seems
                       unfair because you want to give the defendant a chance to respond)
                   Put facts on record—judge can say yes on certain issues
                   Summary judgment gets rid of the case but it’s easier to stomach than Rule 12b6 motion
                       because some discovery has happened.
          o When there’s a motion for SJ, Judge has three options
                   Grant (part or all)
                   Deny (part or all)
                   Call for more discovery 56(f)(2) (a party can say—wait give me more time!)
   STANDARD—56 (C)(2) Judgment should be rendered if the pleadings, discovery and disclosure materials on
    file and any affidavits “show” that there is no genuine issues as to any material fact and that the movant is entitled
    to judgment as a matter of law.
          o ADICKES p. 635: MOVANT has burden to establish that there is no issue of material fact and that
              they should win as a matter of law
                   Moving party has heavy burden (must show positively) and as long as non-moving party could
                       produce ANY evidence after the motion, they could get to court [moving party has burden to
                       prove initially and then the burden shifts to the non moving party to show genuine issue]
                             This case reflects skepticism of summary judgment
                             Do not want to CUT someone’s MERITORIOUS case off
                             Although it seemed like the moving party had the stronger evidence but the non
                                moving party had SOME and the court is supposed to look at evidence in light most
                                favorable to the non movant (supposed to assume that hearsay evidence will turn into
                                sworn statements at trial)
          o SUPREME COURT TRILOGY
                   CELOTEX: SJ is proper after adequate time for discovery against a party who fails to show
                       enough to establish part of the case (if that party has burden at trial to show that). If the moving
                       party can point out problem/hole in the evidence of other side THEN burden is shifted to non-
                       movant party to make a case on paper [defendant does not have to support with affidavit]—
                       (HOLE)
                   MATSUSHITA: POSITIVE SHOWING THAT THEY CAN PREVAIL—THAT
                       REASONABLE JURY COULD DISAGREE (HEIGHTENED STANDARD FOR NON
                       MOVANT)
                             Evidence they DID have: D’s had conspired to keep high prices in Japan (but this
                                didn’t harm US plaintiffs so wasn’t directly on point), had check-price agreement and 5
                                company rule
                   ANDERSON p. 664: Court MUST take BOP at trial into account by the judge when they
                       determine whether there’s a genuine issue (BURDEN AT PROOF AT TRIAL MUST BE
                       CONSIDERED!)
                   PROBLEMS:
                             Summary judgment used to be disfavored but Supreme Court made it okay to use
                                summary judgment Attempt to compensate the liberal, broad conley standard (but now
                                that iqbal and twombly should these cases still apply??)
                             Rule 1!!!
                             Summary judgment puts pressure on discovery—spend $ and time and not even sure if
                                you’re going to trial. But want to get all sorts of information right off the bat in case
                                someone files Motion for Summary Judgment
                             it’s like having a trial before the trial. Now in Libel cases there is an 82% chance of
                                winning on SJ. This is like the judge decides on the merits!  going to come out
                                different every time!
                             Suja Thomas: why summary judgment is unconstitutional—denied 7th amendment
                                right to a jury trial (because judge decides on the merits)
DECISIONMAKERS
    JUDGES CAN HAVE DIFFERENT PERSPECTIVES:
        o Formalism v. Realism:
                Formalism: judges are like robots just apply the law to the facts and get results (legislature has
                    the job of changing the law)
                          Problem: legislature can develop laws for large areas but judge are needed on a small
                             scale for the two people in front of them, is formalism even possible?
                          Plain meaning arguments
                          Professionalism: I’m already doing that! (don’t need to acknowledge and try to
                             compensate)
                Realism: looks to intent (words do not suffice)—acknowledgement that formalist doesn’t really
                    work. Realistically people interpret things differently
                          Professionalism—own up to the fact that you may have past experiences that bias you
                             but try to compensate for that
        o Positivist v. Moralist:
                Positivist: Law and morality are distinct. It’s possible to feel that the legal system is working
                    well but its not moral (death penalty)
                Moralist: Unjust law is no law at all. Truly legal system is a moral system.
    RECUSAL (restrictions on judges seem to make sense in light of all the powers they have)
        o 2 statutes govern the disqualification of judges in federal cases
                28 USC section 144: permits a party to file a timely and sufficient affidavit alleging that the
                    judge is either biased against that party or in favor of an opponent (such a challenge may be
                    made only once in each case and the judge can DENY the motion and remain on the case)
                          CON: they can say NO—so then you’re stuck with a judge you tried to kick out
                28 USC section 455: mandates that a judge ―shall disqualify himself in any proceeding in which
                    his impartiality might reasonably be questioned‖
        o Bias v. Experience:
                Bias: commitment to an OUTCOME (before you even hear facts. This is improper in law!
                          Judicial rulings alone hardly ever qualify as bias (must be from an extra-judicial
                             source)
                          Personal relationships? P. 696
                          Even appearance of propriety matters:
                                  o Haines v. Liggett: He was ―bias‖ for relying on his notions/experience to get
                                       an image of what’s going on and not legal analysis. Except he was really just
                                       saying common knowledge about the tobacco industry. Had he used more
                                       sensitive language they wouldn’t have said he was bias.
                                  o If you want to use your OWN moral compass in your opinion—be open about
                                       it so at least the world knows that was the basis for your decision and then
                                       legislature can supersede etc. (Extraordinary writ)
                          Too emotionally involved (Hatahley)
                Experience: OPEN to being persuaded differently. we need experiences because it strengthens
                    authority of decisions (not missing something). The decision is stronger bc more perspectives
                    converging on same result.
    THE JUDGE’S POWERS
            o   Injunctions and Contempt: judge has the power to issue a preliminary injunctive relief, and the power to
                hold in contempt one who disobeys a court order
                     Walker v City of Birmingham p. 697:
                              Must obey injunctions unless reversed on direct appeal: Judge issued an ex parte
                                 temporary restraining order to enjoin the defendants from gathering/marching during
                                 the civil rights movement. The defendants violated the injunction [felt like they could
                                 violate it because it was so clearly unconstitutional—vague and applied unfairly, solely
                                 for the purpose of not allowing the civil rights marchers to gather, if you don’t violate
                                 it—may not have standing to sue] and the city officials moved to have them held in
                                 contempt. Although the defendants bring up all these substantive issues the court holds
                                 that
                                      o Main point of dissent: when unconstitutional statues creates force of law
                                           because of a ―procedural technicality‖ then procedure is NOT used properly
                     Judge can order something and then back in up with contempt
                              If the contempt fines are civil in nature (and not criminal) then they can be imposed
                                 without the extra criminal procedural protections
                              How to tell if they are criminal or civil?
                                      o If they seek one of two purposes
                                                 1) coercion—to get the party to comply with the injunction
                                                 2) compensation—where the conduct caused injury to the beneficiary
                                                    of the court’s order
                                      o Coercive?
                                                 If they have an extra purge provision—under which the party can
                                                    avoid both contempt and the penalties if they obey the injunction
                                                    and/or do something else then this is evidence of a coercive purpose
                                      o Compensation?
                                                 If the fines are extremely large and not ―calibrated to damages
                                                    caused by the activities violating injunction‖ then that is evidence of
                                                    NOT compensation but punitive (these don’t matter if the purpose is
                                                    coercive)
                                                 If calibrated=compensation
                              New York States National Organization for Women v. Terry: Women's organizations,
                                 health care clinics, and abortion providers brought suit in state court against anti-
                                 abortion organization, its leader, and anti-abortion protestors. The United States
                                 District Court fined defendants for contempt, and awarded attorney fees. The District
                                 Court, reinstated contempt findings and noncompensatory fines, subject to purge
                                 provision, and reinstated awards of attorney fees to plaintiffs for prosecuting contempt
                                 motions and for prevailing on their civil rights claims. The Court of Appeals, held that
                                 contempts were civil and therefore FINE (the purge provision) (because criminal
                                 contempt you need more procedure)
                                      o Purge: promise had to be published (a little coercion ok)
                     Rule 65 Injunctions and Restraining Orders
                              A) Preliminary injunction
                              B) Temporary Restraining Order

JURY—7th AMENDMENT RIGHT “In suits at common law where the value in controversy shall exceed $20, the
right of trial by jury shall be preserved”
     RIGHT TO A JURY
              o 38 Right to Jury Trial
                        38(a) preserves the jury right
                        but 38(b) and (d) make it easy to waive (if you don’t demand it—you waive it!)
              o “PRESERVES” the right to a jury—to KEEP IT if the 7th Amendment or a Statute provides for it
                        If the statute says it—can have it
                        If the statute does not say it—DO CURTIS TEST
                                 CURTIS TEST:
        o PRONG 1: CAUSE OF ACTION—WAS IT LEGAL OR EQUITTABLE
          AT COMMON LAW [this prong is becoming less helpful and many courts
          just skip over it. Because the law has changed and there are many issues that
          were never considered at common law that are at issue today you can sort of
          fit cause of action into either]
                 EQUITABLE:
                           The issue/case is heard by the JUDGE
                           Laches
                           Specific performance
                           Reformation of K
                           Enjoining continuation of nuisance
                 LEGAL
                           The issue/case goes to the JURY
                           Statute of limitations
                           Nuisance
                           K damages
                           Restore possession of property (akin to common law
                              replevin)
                           Ejectment from property (akin to common law writ of
                              ejectment)
                           Remedies that tend to punish are legal (Tull)
        o PRONG 2: REMEDY
                 Helps a lot with the mess of the first prong because any causes of
                    action provide the remedy
                 Damages—goes to jury
                 Injunction—goes to judge
                 Beacon illustrates 2nd prong of Curtis (look at remedies to decide jury
                    trial)
                 Tended to act on the person
   EXAMPLES OF CURTIS TEST APPLIED
        o Curits v. Loether: Plaintiff was trying to rent an apartment and was trying o
          get injunctive relief, compensatory damages and punitive damages under the
          fair housing act. He demanded jury trial. Court held that the remedy sought
          was legal and the cause of action was traditionally legal (analogous to tort
          actions).
        o Tull v. United States p. 732: The U.S. charged Tull with dumping fill in
          wetlands in violation of the Clean Water Act, which authorizes both an
          injunction and a civil penalty of up to $10,000 for day while the violation is
          occurring. Tull was denied jury trial. Judge found violations and fined him.
          Supreme Court held that Tull had a right to a jury on liability but the amount
          of penalties was up the judge. Act on the person!
        o Chauffuers Local No. 391 v. Terry p. 733: Plaintiffs were employees of a
          trucking company who were represented by the chauffeurs union. Union
          declined to refer to a grievance committee the plaintiffs charges concerning
          the company’s layoffs and recall policies, the employees sought injunctive
          relief and money damages for the alleged breach of the unions duty of fair
          representation. The damages sought was compensation for lost wages and
          health benefits (the injunctive relief was dismissed). They demanded a jury
          trial. The first prong left them in equipise. Then the court reasoned that the
          remedy was compensatory damages which is essentially a legal relief and the
          money damages were central to the claim.
   IF PRONG 1 OF CURITS CLEARLY INDICATES IT CAN GO TO A JURY
    DOES EVERY ISSUE WITHIN THAT CAUSE OF ACTION HAVE TO GO TO
    THE JURY?
                  o  NOT NECESSARILY. If the cause of action clearly indicates that it should
                     go to the jury (patent infringement), the attorney can bring up the fact that
                     they want a subissue to go to the judge—may be able to argue that it is TOO
                     complex for the jury to decide and can have a ―Markman hearing‖ for the
                     judge to decide that issue while the broader issue goes to the jury (39(a)(2)).
                o ANALYSIS:
                            1) Was the ―subissue‖ dealt with at common law? If so did it usually
                                 go to jury or judge? (if that clears it up you can stop, if not go to
                                 next)
                            2) Functional analysis—is the judge or jury in a better position to
                                 make the decision? [look to the common everyday duties of the
                                 judge, are they more likely to be experienced in this task?—i.e. they
                                 frequently have to interpret all sorts of instruments so the judge is in
                                 a better position to decide an issue of patent interpretation.]
                o This complexity exception was created in Markman but the holding was
                     limited to patent infringement. SOME courts have extended it to other
                     complex things and some have REFUSED TO
                            3rd circuit expanded Markman
                                        In Re Japanese Electronic Products Antitrust Litigation: a
                                           jury cannot understand the evidence and legal rule. And we
                                           have a due process interest in limiting erroneous decisions
                            9th circuit rejected an expansion of Markman
                                        In re U.S. Financial Securities Litigation: it’s the attorney’s
                                           job to make it so the jury can understand.
                o Downside of Markman:
                            Slippery slope—what else can we take away from the jury?
                            2 trials now—one to decide the judge’s issue and one the bigger
                                 cause of action (Rule 1—its supposed to be efficient)
                            it’s the attorneys job to make the issues easier to undestand!
                o Facts of Markman: Court found that patent infringement went to the jury
                     because at common law it did. But decided that the sub issue—interpreting the
                     instrument should go to the judge. Markman argued that since there were
                     experts in the patent infringement case, the jury should decide the patent
                     issues. Court disagreed! (see above)
   50: Judgment as a matter of law in Jury Trial
         (b) if the court gets a motion for judgment as a matter of law the judge can reserve the
            decision till after the issue goes to a jury and then decide as a matter of law.
                o WHY? Let jury decide some facts and judge can decide law, another tool the
                     judge has  ANOTHER showing of Judge’s powers
   THE ORDER OF THE TRIALS MATTERS IN DETERMINING WHETHER THE
    RIGHT TO JURY HAS BEEN PRESERVED!
         42(b) Judge can order a separate trial on issues but when ORDERING THEM has to
            make sure the right to the jury is preserved.
                o judge cannot use COMPLETE discretion for the ORDER of how to try
                     claims. If there is a legal issue (declaratory relief issue) and equity issue (jury
                     damages issue), IT MUST TRY JURY ISSUE FIRST (equity issue) if that’s
                     what it takes not to let it get thrown out altogether (cancels out possibility of
                     reaching the jury on the legal issue)
                            problem with 42(b) in BEACON: if judge decided declaratory issue
                                 first and found that fox is not liable, then jury doesn’t decide
                                 damages at all (the substantive equity claim). So they are deprived of
                                 their right to a jury trial. Declaratory relief (57) DOES NOT expand
                                 or limit the right to a jury trial—if the underlying substantive claim is
                                 one with a legal remedy then that right is preserved
                o So why do we have it? So that a party knowing another party may sue them
                     can file a claim for declaratory relief for CERTAINTY so they don’t have to
                                 wait around and they can know whether their business practices violate the
                                 law
                       IF a judge uses 42(b) to deprive a party to their right to a jury trial, the party CAN file a
                        writ of mandamus to order the judge to give jury trial
                             o Because an order by a judge under 42(b) for separate trials is not a final order,
                                 a party cannot appeal in the normal way and must file a writ of mandamus
                                 (when a higher court makes a lower court DO something)
                             o FINAL ORDER=final disposition of a case in front of a court (write your
                                 opinion about it). Cannot appeal until you have a final order.
   SELECTING THE JURY
       o THE PROCESS:
             Initial List/Pool (courts rely on voter registration list, may use DMV list, taxes, etc.)
                       Want this to be as broad as possible for more diversity of opinion. The verdict is
                        stronger. Forces us to integrate.
                       Cannot exclude an entire class of people from the jury pool (Thiel)
                             o Can challenge the jury pool and claim that it is not a representative cross
                                 section of the community
                             o Thiel—district court systematically excluded poor people from the jury
                                 selection because they thought that they were likely to have an excuse anyway
                                 (undue financial burden for having to miss work). Supreme Court held that
                                 jury competence was an individual matter not a group matter—cannot exclude
                                 groups!
             Venire (people who are summoned to be on jury and didn’t make a personal excuse to get out
                of it)
                       Voir Dire: ask questions/make jury fill out survey (don’t want to ask questions that
                        seem to offend because you want them to like you) –47(a)
                             o How to pick a jury – what would you ask for voir dire once you have
                                 your pool?
                                 •     Think about:
                                       (1) The jurors sensitivity to power asymmetry and inequality
                                       (2) Do you want someone similarly situated?
                                       (3) While in voir dire, you don’t know who is actually going to be on
                                           your jury, so it is the job of counsel to make sure not to offend them.
                                       (4) Try to establish a rapport with then.
                                       (5) Try to figure out where someone is coming form.
                             o For cause: Can move to have a juror removed for cause (47(c))—explain to
                                 the judge that they aren’t open minded, they have a bias and are set in their
                                 conclusion about a certain issue
                             o Peremptory challenge (47(b)): attorneys can exclude a juror and do not have
                                 to give a reason
                                       Race based peremptory challenges are illegal in civil cases and if it
                                           appears that this is happening must give another reason for why
                                           excluding them (Edmonson—construction worker sued concrete
                                           company for negligence and the Company used peremptory
                                           challenges to strike black people from the jury. Plaintiff motion for
                                           an explanation. Court reasoned that the Jurors right to be a juror was
                                           violated)
                                       Gender based peremptory challenges are illegal in civil cases and if it
                                           appears this is happening must give another reason for why
                                           excluding (J.E.B—paternity suit against J.E.B. and state used its
                                           challenges to strike the men from the jury.)
                                       ―Giving another reason‖ the attorney can really just procedurally say
                                           ―it’s a reason other than race‖ and get the person stricken because
                                           peremptory challenges are supposed to be given without reasons)
                                       National origin not protected! Religion not protected!
             Voir Dire leads to the actual jury who are selected
o   47: Selecting Jurors
         (a) Examining jurors. The court may permit the parties or their attorneys to examine prospective
             jurors or may itself do so. If the court examines the jurors, it must permit the parties or their
             attorneys to make any further inquiry it considers proper, or must itself ask any of their
             additional questions it considers proper
         (b) Peremptory challenges—court must allow the number of peremptory challenges permitted
             by 28 USC § 1870
         (c) Judge can excuse a juror for good cause during trial or deliberation
o   48: Number of Jurors; Verdict:
         Jury does not have to be 12 (at least 6 and no more than 12)
         Must be unanimous verdict unless the parties stipulate otherwise (agree to it)
         STATE: state juries are all different because 7th Amendment not incorporated—one thing to
             consider when deciding federal or state court

				
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