JURISDICTION

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					                              JOINDER AND CLAIMS OF PARTIES (CON’T)
                               RULES: 7, 12, 13, 14*, 17, 18, 19*, 20*, 22, 42, & 82
                                    28 U.S.C. §§ 1335, 1369, 1397, 2361
                                             *MUST BE IN ACCORDANCE WITH § 1367

                                                          INTERVENTION
                                                             RULE 24

   Statutory device where by a person who is not already a party to a lawsuit may enter the suit under intervention b/c the effect fo
    the action may affect them.

   Historically: Direct legal impairment was required – i.e. a person may intervene only if he stands to directly gain or lose a
    particular right or interest by legal action of the judgment

   Modern Intervention Under Rule 24(a): Intervention of Right
        Upon timely application anyone shall be permitted to intervene in an action
               o 1) When a statute of the U.S. confers an unconditional right to intervene; or
               o 2) When the applicant claims an interest relating to the property or transaction which is subject matter of the
                   action and;
                         the applicant is so situated that the disposition of the action may as a practical matter impair or impede
                           the applicant’s ability to protect that interest, unless
                         the applicant’s interest is adequately represented by existing parties

           Application of Rule 24(a):
               o (i) Applicant must have an interest:
                          The person need not show that he has a legal or equitable interest in jeopardy, but must show it had a
                             protectable interest in the litigation’s outcome
               o (ii) The action must impair/impede:
                          as a practical matter
                          The threat of Stare Decisis is sufficient
               o (iii) Applicant must not already have his interests adequately represented:
                          Burden of Proof shifts to ∆ to prove that the interests are adequately protected
                          e.g. 1. no representative at all, 2. applicant & attorney at odds, 3. collusion between opposing parties
                          Inconsistent motives will not suffice
               o (iv) Timely
                          the application must be timely – intervention is rarely allowed after a judgment has been made b/c of
                             fears that it prejudices a parties rights and interferes w/ orderly process of the court

   Modern Intervention Under Rule 24(b): Permissive Intervention
        Upon timely application, anyone may be permitted to intervene in an action:
               o 1) When a statute of the U.S. confers an unconditional right to intervene; or
               o 2) When an applicant’s claim or defense and the main action have a question of law or fact in common
                              Discretion: The Court shall consider whether the intervention will unduly delay or prejudice the
                              adjudication of the rights of the original parties

           Application of Rule 24(b):
               o An applicant may attempt a 24(b) intervention if it cannot show impairment/impediment under 24(a); the only
                    difference is that the decision is w/in the discretion of the court

   Subject Matter Jurisdiction
        Under both 24(a) and 24(b), there must be proper jurisdiction, either independently or via § 1367.
        Under § 1367, a court will not have smj over attempts to intervene by non-diverse applicants.

   Hypothetical
        3 car accident involving π1, π2, and ∆  π1(NJ) sues ∆(MD). π2(MD) wants to intervene under Rule 24.
                o 1) Hard for π2 to show impairment under 24(a)  So maybe 24(b) – common question of law or fact
                o 2) Problem smj:
                       § 1367(a) OK b/c common nucleus of operative facts; but
                       § 1367(b) fails b/c no supp. JD by non-diverse π’s seeking to intervene by Rule 24.


                                                MODERN PLEADING
              “The time to bring the hammer down on a poor pleading is when it obstructs substantial justice”

   It began w/ 19th century field codes – evaluated it the light least favorable to the π:
          Four Goals of the Codes:
                 o 1) Providing Notice of claim or defense
                 o 2) Identifying baseless claims
                 o 3) Setting each party’s view of the facts
                 o 4) Narrowing the issues

   Pleading after the adoption of the Federal Rules of Civil Procedure:
         Most Technical pleading requirements were abandoned
                o Pleading was ill suited to achieve those goals
         Drafters of the Rules content that deterring baseless claims could be achieved w/:
                o Short and Plain statement of the claim (Rule 8); and
                o Certification that the pleadings are truthful (Rule 11)
         Goal of Modern Pleading: To give adequate notice.

   Pleading Requirements under the Codes:
         All major elements of Cause of Action
         All facts evidencing the major elements
         Statutory elements
         Pleading for relief sought by π
                                   PLEADING REQUIREMENTS UNDER THE RULES:

   Requires much less detail to survive a motion to dismiss than is required under the codes to survive demurrer

   Plain Statement:
         Rule 8. General Rules of Pleading
                o (a) Claims for Relief:
                       A pleading which sets forth a claim for relief…shall contain:
                                1. a short and plain statement of the grounds upon which the court’s jurisdiction depends…,
                                    (unless the court already has it)
                                2. a short and plain statement of the claim, showing that the pleader is entitled to relief, and
                                3. a demand for judgment for the relief to which he deems himself entitled (alternative types of
                                    relief may be demanded)
                       See Dioguardi v. Durning, (holding 2 important points from this case: (1) FRCP don’t require a pleading
                          to state facts for a cause of action all that is required is ―a short and plain statement of the claim‖ that
                          will give the Δ fair notice of what the π’s claim is and the grounds upon which it rests. (2) District court
                          should have looked at the pleading in the light most favorable to the π.)

   Motion for a more Definite Statement: Rule 12(e)
         If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be
            required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive
            pleading. The motion shall point out the defects complained of and the details desired…‖
                 o Rule 12(e) motions are disfavored b/c of the liberal notice-pleading standard of Rule 8.
                          If the information sought is available through discovery the motion will be denied.

   Pleading the right to relief: Rule 8(a)(2)
         π must show right to relief by alleging all essential elements of the claim
                o Effect of omission of an essential allegation:
                           Code Pleading – failure to state an essential element of cause of action will leave complaint vulnerable
                               to demurrer
                           Rules Pleading – rarely will an omission constitute sufficient grounds for the court to grant a motion to
                               dismiss the compliant

   Burden of Pleading:
        π has the burden of pleading those matters on which he must introduce evidence at trial
                o rational: if π cannot legitimately allege the existence of each of the basic elements of his claim, it may be
                    assumed that he could not introduce evidence on them at trial.
        π does not have to plead the non existence of defenses.
                o In some jurisdictions π is required to set forth matters that avoid the Δ’s defenses in a 2nd pleading.

           π has the burden of production of evidence at trial on 2 types of issues.
                o (1) π must put forth evidence on certain matters basic to the claim for relief or he cannot prevail
                o (2) if Δ establishes a defense, π will then have a 2nd burden of production, this time to introduce evidence as to
                    facts that will avoid Δ’s defense
   Heightened Standard of Pleading:
         Rule 9. Pleading Special Matters:
               o Federal Rule 9 requires that some claims are alleged w/ Particularity.
               o Example: Fraud, Mistake, Special Damages (i.e. not natural consequence), Time & Place, Reputation, &
                   Nuisance suits
                        Reason for heightened standard: Notice and or Increased Private Interest
                        MV says it is not difficult to plead higher standard
         Fraud
               o Π must specifically allege condition of mind (i.e. malice, intent, knowledge) generally and circumstances
                   constituting fraud w/ particularity.
                        Rule 9(b) gives slightly more notice than Rule 8
               o See Denny v. Barber or Carey, (We find that the complaint [though not a model of perfect pleading] satisfies the
                   requirement of Rule 9(b). Before discovery, any stricter application of Rule 9(b) is especially inappropriate in a
                   case such as this where the matters alleged are peculiarly within the knowledge of Δ’s)

           Civil Rights Cases § 1983
                 o See Leatherman v. Tarrant County Narcotics Intelligence Unit, A unanimous USSC held that a federal court
                     may not apply a more stringent pleading standard in civil rights cases alleging municipal liability under 42
                     U.S.C. § 1983.
                          Supreme Court has held that heightened pleading requirements in civil rights cases are improper and
                             federal courts generally have increasingly reached the same conclusion as to complex cases.
                          Federal Courts and litigants must rely on summary judgment and control of discovery to weed out
                             unmeritorious claims sooner rather than later

           ―The notion that rule 9(b) does not actually require significantly more particularity than Rule 8 seems to be supported by
            the text of official form 13, which contains little more than a general allegation of fraud‖ [See Form 13]

   Employment Discrimination:
        See Swierkiewick v. Sorema N.A., USSC granted certiorari to resolve the split among the courts of appeals concerning
          proper pleading in employment discrimination cases
              o Under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima
                  facie case
              o Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions. Rule 9(b), for
                  example, provides for greater particularity in all averments of fraud or mistake. But not Employment
                  Discrimination.
              o A requirement for greater specificity for particular claims is a result that ―must be obtained by the process of
                  amending the FRCP and not be judicial interpretation

   Pleading w/ Forms: Form 13
         Sets out minimal requirements – sufficient to get past a 12(b)(6) motion. MV says you should strive for more.
                                              PLEADING IN THE ALTERNATIVE

   Early Code Pleading:
         Pleading inconsistent legal theories or facts was fatal to the complaint or answer.

   Virtually all courts today permit inconsistent allegations, whether separately pleaded or not, if they are made in good faith, for
    example, in a situation in which the pleader has been unable to ascertain all the facts prior to filing the complaint or answer.

   Modern Code Pleading:
        A party may plead inconsistent legal theories of recovery or defense as long as each alternative legal theory is set forth
           separately in a separate count of the complaint or answer. No Inconsistent Facts can be Plead.

   Modern Pleading under the Rules:
        Rule 8(e)(2): Inconsistent allegations of fact or law are permitted so long as they are made in good faith.
        Rule 8(f): All pleadings shall be so construed as to do substantial justice.

   Separate Statement Requirement: Rule 10(b) Form of Pleadings; Separate Paragraphs
        Rule 10(b) requires that, as much as possible and practical, each count or paragraph of a pleading be limited to a
           statement of a single set of circumstances or advancement of a single legal theory. Violation may usually be cured by a
           motion to separate.
               o Most state codes based on the Rules have similar requirements, but violation may be grounds for demurrer.

                                                      PLEADING DAMAGES

   Rule 9. Pleading Special Matters
        (g) Special Damage.
                o When items of special damage are claimed, they shall be specifically stated.

   General Damages:
        Those damages that flow expectedly and naturally out of the nature of the cause of action.
        A general summation of the damages is sufficient in the pleading.

   Special Damages:
        Those actual damages that are the natural, but not the necessary and inecitable result of the wrongful act.
        Must be Plead w/ Particularity:
               o Rule 9(g) – prevents unjust surprise
               o See Ziervogel v. Royal Packing Co., If not plead w/ particularity recovery may be denied.
               o Π can also amend the complaint if damages are discovered during discovery Rule 35 ;-)
                      Before trial it is a matter of right
                      After trial the court may consider prejudice
               o Π can use an expert to show what are the general damages
               o Π could plead damages broadly to catchall injuries.

           Medical Expenses: Courts are divided as to whether medical expenses are general or special damages
           Lost Wages: Are general damages
           Punitive Damages: are special damages and must be specifically plead.

   Ad Damnum Clause:
        No limit set to claim in ad damnum clause other than jurisdictional amount and dignity/good faith.

                                                     PRAYER FOR RELIEF

   Rule 8. General Rules of Pleading
        (a) Claims for Relief.
               o A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party
                   claim, shall contain…, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or
                   of several different types may be demanded.

   Rule 54. Judgments; Costs
        (c) Demand for Judgment.
               o A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for
                  judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant
                  the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such
                  relief in the party's pleadings.

           i.e. Jury or Judge is not bound by the plead amount (ad damnum clause)
                 o The limit is a ―shocks the conscience‖ standard.

   Judge or Jury can rely on evidence in awarding more than π pleads.
        But not in a default judgment – that is limited to the ad damnum amount.

                                                     MOTION TO DISMISS

   Common Law Demurrer:
        Was incorporated into the code system: in most code states, a complaint could be dismissed on the pleadings if:
             o Failure to state facts sufficient to constitute a cause of action
             o Absence of smj
             o Deficiencies in the form of the pleading
        Rule 7 abolished the demurrer in Federal System

   Rule 12(b)(6):
        Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-
           party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses
           may at the option of the pleader be made by motion…(6) failure to state a claim upon which relief can be granted

           Application of Rule 12(b)(6):
               o Decided on the pleadings only
                          Usually non-fatal – π can amend complaint per Rule 15
                          Motion will be granted if the claim exists but there is no relief
                                  A Rule 12 (b)(6) defense may be successful only when it appears to a certainty that π would
                                     be entitled to no relief. (See Garcia v. Hilton Hotels) (this was also a defamation case)
                o Effective for testing pure questions of law
                o Viewed in light most favorable to the π, thus
                       (1) Δ admits all fact for duration of motion,
                       (2) can later try case on merits

   Rule 12(c) Motion for Judgment on the Pleadings:
        After the pleadings are closed but w/in such time as not to delay the trial, any party may move for judgment on the
           pleadings…
        NOTE: A motion for judgment on the pleadings, pursuant to Rule 12(c), is a method of attacking the substantive
           sufficiency of an opposing party’s pleading after all the pleadings have been completed

   Rule 12(f) Motion to Strike
        Upon motion, a court may strike from any pleading any insufficient defense or any redundant, immaterial, impertinent, or
           scandalous material.
                o NOTE: Motion to strike, pursuant to Rule 12(f), is the mechanism for challenging the substantive sufficiency of
                    defenses raised in an adversary’s answer or other responsive pleading
                o Drastic Remedy, disfavored and rarely granted.

   Rule 56 Motion for Summary Judgment
        Either party can make a Rule 56 Motion
        The evidence produced by the parties is attached to the complaint

   Rule 12(1) to (5)
        Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-
           party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses
           may at the option of the pleader be made by motion:
                o (1) lack of jurisdiction over the subject matter,
                o (2) lack of jurisdiction over the person,
                o (3) improper venue,
                o (4) insufficiency of process,
                o (5) insufficiency of service of process,

                                               ANSWERING THE COMPLAINT

   Rule 8 requires a Δ to make one of 3 responses to the contents of π’s complaint
         1) Admit
         2) Deny
         3) Plead insufficient information in response to each allegation
   Rule 8(d) provides that all averments to which Δ does not specifically respond are deemed admitted.

   General Denial:
        A Δ under Rule 8 and most state rules also may deny generally the entire complaint,
              o But, general denials tend to defeat the purpose of pleading as a means of narrowing and focusing the issues in
                    controversy.
              o Using a general denial can be risky.
                             If a court decides that a general denial does not ―fairly meet the substance of the averments denied,‖ (&
                              Prejudicial to the opposing party) it may deem Δ to have admitted π’s specific averments.
                             Also, general denial does not put in issue such matters as capacity or condition precedent, which under
                              Rule 9 must be specifically challenged by Δ
                             A general denial is ineffective when at least some of the claims being denied are clearly true and not at
                              issue.

   Technical Pleading Rules
        Example: π alleges $89k  Δ denies  some Jurisdictions call a negative pregnant and treat as if Δ admitted 1 cent
           less.
               o Modernly NP is disfavored – the trend is toward federal pleading rules
               o Absent prejudice (shown by π), courts will not employ technical pleading rules
               o Rule 8(d): party does not have to specifically deny sum – the amount has little evidentiary value

   Forms of Denial
        Denial for Lack of Information – FRCP 8(b) – a party may deny an allegation on the ground that it ―is w/o knowledge and
           information sufficient to form a belief as to the truth‖ of the allegation.
                o Certain situation where the court will not allow a party to deny for lack of information: Where it is peculiarly w/in
                   that parties knowledge or clearly accessible to him:
                         1) e.g. Public Records
                         2) Reasonable investigation is required

           Negative Pregnant Denials – Suppose plaintiff alleges that defendant owes her $89K under a contract. Defendant
            denies ―that he owes plaintiff & 89 K‖ In some state courts this type of denial has been referred to as a ―negative
            pregnant‖, and it results in an admission that defendant owes plaintiff one cent less than the specified $89K

           Conjunctive Denial – aka Evasive denial: Court will not allow this if it is misleading to the defendant. The extent that the
            court will allow this as an admission is dependant upon prejudice

                 o “The time to bring the hammer down on a poor pleading is when it obstructs substantial justice”


                                                       AFFIRMATIVE DEFENSES

   Rule 8 (c) Affirmative Defenses.
        In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award,
            assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud,
            illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations,
            waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly
            designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall
            treat the pleading as if there had been a proper designation.

   In determining whether a particular defense must be raised affirmatively, courts look to statutes in federal question cases, and to
    state practice in diversity cases.
   In general Δ’s must raise affirmatively defenses that do not flow logically from the π’s complaint (e.g. SOF defense in K’s claim)
   If not plead, they are considered waived.
   For a defense to be an affirmative defense under 8(c) it must be of the nature that if not plead to cause ―unfair surprise‖ to the π.
         Also pertinent to the analysis is:
                o The logical relationship test between the defense and the cause of action:
                           (1) whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in the
                              π’s cause of action
                           (2) which party, if either, has better access to relevant evidence; AND
                           (3) policy considerations: should the matter be indulged or disfavored?
         NOTE: ―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.‖

   Damages Cap:
        It is not settle as to whether a damages cap is an affirmative defense
               o 1) Ingraham v. United States – Yes
               o 2) Taylor v. United States – No

                                                             THE REPLY

   Rule 7. Pleadings Allowed; Form of Motions
        (a) Pleadings
                o There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a
                   cross-claim, if the answer contains a across-claim; a 3rd party complaint, if a person who was not an original
                   party is summoned under the provisions of Rule 14; and a 3rd party answer, if a 3rd party complaint is served.
                   No other pleading shall be allowed, except that the court may order a reply to an answer or a 3rd party answer.

           Absent a clear and convincing showing of necessity or other extraordinary circumstances of a compelling nature, courts
            have been reluctant to order π’s to reply to allegation other than counterclaims.
           Also, Rule 7(a)…a reply is required to a counterclaim denominated as such…CC must be denominated as a CC.
                o This is important b/c if there is a CC you a required to respond w/in a certain period and if not in that period
                    then the CC is admitted. Thus, it would lead to shady pleading where CC’s would be disguised as an affirmative
                    defense and then π would not respond and admit; if 7(a) did not require denomination

   Rule 8. General Rules of Pleading
        (d) Effect of Failure To Deny.
               o Averments in a pleading to which a responsive pleading is required, other than those as to the amount of
                   damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no
                   responsive pleading is required or permitted shall be taken as denied or avoided.

           Allegations:
                o to which a reply is not permitted or required are considered avoided or denied and π may controvert them at
                     trial. (See 8(d))
                o requiring a responsive pleading are taken as admitted if not denied in the reply or if a reply is not filed. (See
                     8(d))
                                                          AMENDMENTS
                                      LIBERAL AMENDMENTS – LIMITED BY SUBSTANTIAL JUSTICE

   Rule 15. Amended and Supplemental Pleadings
        (a) Amendments.
               o A party may amend its pleading any time before a response has been served, or w/in 20 days of the service of
                  the original pleading if no response is required. After that, an amending party must obtain the leave of the court
                  or the consent of the opposing party.
        (b) Amendments to Conform to the Evidence.
               o During the trial, parties may amend their pleadings, w/ leave of the court, to conform to issues raised by
                  unexpected evidence.
        (c) Relation Back of Amendments.
               o Mandates that, when an original pleading is amended, the new pleadings ―relate back‖ to the original pleadings.
               o They are considered by the court as if they had been pled in the initial pleading.
               o If the statute of limitations expired between the original pleading and the amendment, the party still may be
                  allowed to raise the claim
        (d) Supplemental Pleadings.
               o Parties may add supplemental pleadings to their original pleadings to cover events that occur after the original
                  pleading

   Rule 15(a) – declares that leave to amend ―shall be freely given when justice so requires‖
         The grant or denial of an opportunity to amend is w/in the discretion of the District Court.
                o In the absence of any apparent or declared reason – such as: undue delay, bad faith or dilatory motive on the part of
                    the movant, repeated failure to cure deficiencies by amendments previously allowed, under prejudice to the opposing
                    party by virtue of allowance of the amendment, futility of amendment, etc. – the leave sought should be ―Freely given‖

   Rule 15(b) Amendments May be Permitted After Trial if the Parties Consent to the Litigation:
         Express Consent to 15(b)
                o If issues not raised in pleadings are tried by express consent of the parties, there can be no question about the
                   propriety of permitting amendment.

           Implied Consent to 15(b)
                o Whether parties recognize that an issue not stated by the pleadings entered the case is determined by
                    searching the trial record for indications that the party contesting the amendment received actual notice of the
                    injection of the unpleaded matters, as well as an adequate opportunity to litigated such matters and to cure any
                    surprise from their introduction.
                          The clearest indications of a party’s implied consent to try an issue lie in
                                   (1) the failure to object to evidence, OR
                                   (2) in the introduction of evidence which is clearly apposite to the new issue but not to other
                                      matters specified in the pleadings.

           Reasons for the Rule 15(b)
               o 1) it is an attempt to favor substance over form – ―to avoid tyranny of formalism‖
               o 2) thus to promote the resolution of cases on their merits by permitting the amendment of pleadings to reflect
                  the actual litigation which transpired.
   Rule 15(c) Amendments Adding Parties:
         Pretrial amendments may add new parties to the action as well as correct oversights in the original pleadings

           Code Pleading:
               o Amendments allowed by will never relate back to the filing of the original action to toll the Statute of Limitations
                   against the new party

           Rules Pleading:
                o An amendment adding a new party may relate back to toll the Statute of Limitations against the new party if,
                    prior to the running of the statute, the new party had actual notice that except for a mistake in identity he/she
                    would have been named in the original complaint.
                         See Worthington, Complaint filed against ―unknown Δ’s‖ does not relate back if the failure to name was
                              b/c of a lack of knowledge rather than a mistake.

   Rule 15(d) Supplemental Pleadings:

           15(d) Supplemental Pleadings.
                o 1. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the
                    party to serve a supplemental pleading setting forth transactions or occurrences or events which have
                    happened since the date of the pleading sought to be supplemented.
                o 2. Permission may be granted even though the original pleading is defective in its statement of a claim for relief
                    or defense.
                o 3. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order,
                    specifying the time therefore.

           Some courts like NY allow for new causes of action to be brought with wide discretion given to the trial court
           Some courts permit the bringing of new claim b/c it has been proposed that rule 15(d) ―promotes the economical and
            speedy disposition of the controversy‖
           Some courts like CA do not allow supp. pleas when they are a ―separate and new cause of action‖; at least when the
            initial case had been finally determined on the merits.

           Rule 13. Counterclaim and Cross-Claim
               o (e) Counterclaim Maturing or Acquired after Pleading
                        A claim which either matured or was acquired by the pleader after serving a pleading may, with the
                           permission of the court be presented as a counterclaim by supplemental pleading.

           See Davis v. Piper Aircraft, So long as the test of 15(c) is met, a supplemental pleading should ordinarily be given the
            same relation back effect as an emended pleading. *** On that basis, our analysis will treat 15(c) as applying to the
            supplemental pleading actually attempted here.

                                PROVISIONS TO ENSURE TRUTHFUL ALLEGATIONS
                                          SANCTIONS RULES 11 & 23

   Rule 11 attempts to curb abuse of the federal pleading rules by imposing affirmative duties on attorneys and by raising the
    possibility of sanctions for failure to discharge them.
   First: Pre 1983: Rule w/o force – Toothless -- (subjective standard)
          So long as attorneys acted in good faith, they were not subject to sanctions even if it later became clear that their legal
             theory was faulty or that the facts did not support their claims. (RELUCTANTLY IMPOSED)

   Second: 1983 Amendments – to Rule 11 (OVERLY IMPOSED)
        made several important changes to overcome the reluctance of courts to impose sanctions and to ensure that attorneys
           would ―stop and think‖ before filing papers.
        The amended Rule replaced the subjective good faith test with an objective standard of reasonableness;
               o Required that attorneys make a reasonable prefiling inquiry into both the facts and the law bearing on the
                   contents of filed papers
               o Made sanctions mandatory for a violation of the Rule; and
               o Gave Judges discretion to impose different types of sanctions and to sanction clients or attorneys.

   Finally: 1993 Amendments – to Rule 11
         Preserved ―stop and think‖
         Eliminated the fee shifting character that Rule 11 had acquired as a result of courts almost routinely imposing monetary
             sanctions for violations of the rule.
         The new Rule is simpler
         Allows more court discretion in the imposition of monetary sanctions, and
         Has added a 21-day ―safe harbor‖ during which the filing party may withdraw the challenged paper w/o censure.
                  o Failure to afford the 21-day safe harbor period provided by rule 11 is the grounds for the the REVERSAL of the
                     sanctions
         Changed the requirement that an attorney must have ―good faith‖ motive for bringing a claim to a requirement that the
             claim must be non frivolous.
         Wider scope as it applies to all representations to the court – requiring the filing party to continue to monitor the validity
             of contents of every signed paper as the case proceeds.
         FINALLY – Rule 11 also allows sanctions against the law firms or parties responsible for violations as well as the
             individual attorney who actually signed the document.

   Verification (signature under oath): Not required under 11(a)
         Rule 23 (class actions) – verification required
                  o Prevent Strike Suits
                  o Inconsistent verified statements – can be cross examined b/c complaint
                  o MV thinks verification is ineffective
                           Unfair
                           Unlikely effective remedy
                           Most factual corroborations occurs at discovery

   Sanctions:
        Historically: 1) Mandatory; 2) Did not have to be financial
        Modernly: Rule 11(c) – (11(c)(2) allows attorneys fees)
                o Discretionary
                o Still possible to have fee shifting as a last resort.
        Other sanctioning provisions available to the federal courts: 1) Private Securities Litigation Reform Act, 2) 28 U.S.C. §
            1927 – ―bad faith,‖ 3) Courts also have an ―inherent power‖ to sanction – In re Chambers.
              “The time to bring the hammer down on a poor pleading is when it obstructs substantial justice”
                           ASCERTAINING THE APPLICABLE LAW
   Issue: Problems arise where we have 2 diverse parties who are in Federal Court under Diversity Jurisdiction. What law should
    be applied to settle their dispute?
   Three types of cases:
         1. Federal Statutes
         2. Federal Judge-made Law / Federal Common Law
         3. Rules - made by Congress and the United States Supreme Court

   28 U.S.C. § 1652 – Rules of Decision Act (RDA) (1789):
         The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress
           otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in
           cases where they apply.

           Swift v. Tyson: the court held that ―laws‖ meant codified & statutory laws
                o Decided in heyday of the common law – idea of ―Devine Law‖
                o Federal Government & Judiciary seeking greater uniformity and stability in interstate commerce

           Erie v. Tompkins: the court overruled Swift and held that
                o (1) ―laws‖ included state decisional law + statutory laws; and
                o (2) No general federal common law
                         No uniformity was created by Swift b/c judges had too much latitude
                         Allowed excessive Forum Shopping
                                  Choice of substantive law b/c access to Federal Court System (See Black & White Taxi v.
                                     Brown & Yellow Taxi, where the π reincorporated in order to create diversity so that π could
                                     bring a suit against the Δ under general law in federal court. And due to Swift v. Tyson this was
                                     almost encouraged. The court wanted to avoid intra-jurisdictional forum shopping.)
                o (3) In dicta, the court noted that Swift’s interpretation of RDA may be unconstitutional
                         1) 10th Amendment – State Sovereignty
                         2) Separation of Powers
                         3) Equal Protection – 14th and 5th
                o (4) Actually 2 Separate Doctrines
                         a. State decisional case law is a ―law of the state‖ w/in the meaning of the RDA
                         b. Federal procedural rules controlled by REA

           Following Erie, the USSC considered the issue of ―choice of laws‖ several more times.
                o 1. Guaranty Trust v. York (1945), Outcome Determinative Test
                         Federal Court must apply the state law if applying Federal Law would produce a significantly different
                             result.
                                  Huge victory for state’s interest
                                  Created uncertainty w/ the word ―significantly‖
                                       ○ Problem: Even a small difference in procedural law would lead to a different result so
                                           state law should be followed in most cases.
                                       ○ Ambiguity in application
                                       ○ FRCP very uncertain at this point
                  o 2. Byrd v. Blue Ridge (1958), Balancing Test – State interest v. Federal interest
                         1) First question to ask is whether the conflict is bound up with state created right?
                                  a. A e.g. of something that was bound up with the state substantive right is the SOL b/c it was
                                     determined by legislature to reflect the importance of the right in the state system. (if it is not
                                     bound up it is form and mode)
                                  b. If the state created the rule/law for administrative convenience then it is form and mode
                                  c. If it has been denoted in legislative history then it will be an integral part of the right
                         2) Second question is weighing the outcome and the likelihood of different results.
                         3) What is the Federal Interest in applying federal law. (i.e. federal interest in uniformity or federal
                            interest in keeping the dignity of there court.)

   28 U.S.C. § 2072 – Rules Enabling Act (REA) (1934):
         a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence
           for cases in the US District Courts (including proceedings before magistrates) and Courts of Appeals
         b) Such rules shall not abridge, enlarge or modify and substantive right. All law in conflict with such rules shall be of no
           further force or effect after such rules have taken effect.
         c) Such rules may define when a ruling of a district court is final for the purposes of appeal under § 1291 of this title

   Erie Analysis – (i.e. conflict of laws problem) the key is to understand the source of the federal rule that conflicts w/ the
    state rule.

            1st Test: Conflict b/t a Federal Rule and a State Rule (i.e. FRCP or state rules) (re: Hanna v. Plumer) (click for info.)
                 o 1. Is the rule sufficiently broad to cause a collision w/ state law?
                             Narrow or broad interpretation of rule?
                             If the Federal rule is not on point, is there a Federal Judge made rule on point? (test 2)
                                    If no then State Law.
                  o 2. If the rule is on point, is there an REA violation?
                          Does the rule ―abridge, enlarge, or modify‖ the substantive right?
                                    Prima facie case that it does not – Rebuttable Presumption that drafters followed REA.
                                           ○ However the presumption has never been able to have been rebutted b/c the drafters
                                                 created the rules w/ the REA in mind thus creating them in accordance w/ REA.
                  o 3. If on point & no REA violation, is the Federal Rule constitutional? – Is there constitutional authority to set up
                    procedural rules conflicting w/ state laws?
                          Article I gives Congress the power to create lower courts.
                          Necessary and Proper clause gives right to set up ―housekeeping rules‖

            2nd Test: Conflict b/t a Federal Judge Made Rule and a State law. (re: Gasperini v. Center for Humanities)
                  o 1. Is there a judge-made rule that conflicts with state law?
                  o 2. If the rule is on point, is the state rule ―bound up‖ w/ state right?
                           Modified Outcome Determinative Test: The outcome determinative test must be reconciled with the
                              twin aims of Erie: Hanna:
                                    Discourage Forum Shopping
                                    Avoid inequitable administration of justice
                                           ○ i.e. unfair results to people who don’t have access to federal courts.
                           MAJOR INQUIRY – Must ask:
                                1) whether the state rule is such that at the time of choosing the forum there were substantial
                                  difference in the law, which would be likely to cause the π to choose the Federal Law over the
                                  state law OR
                                2) whether the failure to apply the state rule would unfairly discriminate against citizens of the
                                  forum state.

                           If there were such reasons at the time of the selection, the failure to enforce the state law in Federal
                            Court would allow forum shopping and inequitable administration of justice. In this case application of
                            Federal Judge made Law would disserve the twin aims of Erie, the District Court should apply state
                            law. (Bound up = no balancing of federal and state interest).

                           If there were no such reasons to forum shop and the application of Federal Judge Made law would not
                            discriminate against citizens of the forum state, the Federal Judge Made rule is a Form & Mode.
                                  Thus must balance State and Federal interests
                                  If Federal interest > State interest then Federal Judge Made law controls and vice versa.

           3rd Test: Conflict b/t Federal Statute and State Law: (re: Stewart Organization v. Ricoh Corp.) (click for info.)
                o 1. Is there a Federal Statute sufficiently broad (on point) to conflict w/ state law?
                        This question involves a straightforward exercise in statutory interpretation to determine if the statute
                           covers the point in dispute.
                                 Explicit Language – how does it apply?
                                 Legislative History – to elucidate on statutory language
                                 How do courts interpret?
                                 IN INTERPRETING STATUTES WE DO NOT NEED TO FIND A ―DIRECT CONFLICT.‖
                                        ○ **If the statute is not on point, the district court must ask whether federal judge made
                                            law would disserve the twin aims of Erie. If Yes  Apply state law

                o 2. If there is a Federal Statute on point, is it constitutional?
                         If federal statute is constitutional and cannot co-exist w/ state law, the Supremacy Clause commands
                            that the Federal Law controls.

   The Problem of Ascertaining State Law
        Determining Which State’s Law Governs:
              o Once it is determined that state law will govern, the district court must decide which state’s law to apply.

                o Klaxon Doctrine: Federal Court must apply conflict of laws rules of the state in which it sits.
                       This promotes uniformity b/t state & federal courts w/in the same state.
                              Prevents intra-jurisdictional forum shopping – different results w/in state
                       Historically, Lex Loci (place where the injury occurred) was the predominant choice of law rule.

                           Exception: § 1404 Transfer of Venue – Law of jurisdiction where action is filed (i.e. Transferor Court)
                            will attach and follow action in transfer.
                                  If § 1406 – Improper Venue – nothing will attach with transfer (Van Dusen v. Barrack)
                                  Applicable when π or Δ changes venue. See Ferrens v. John Deere, holding that rule applies
                                      to π & Δ.
                                        ○ Potential for forum shopping by π
                                        ○ Example: (Lazerus Claim): Dead tort claim in State A filed in State B and transferred
                                          (via § 1404) back to state A. The SOL of State B was applied to the tort claim and
                                          revived the action in State A.

           Determining What the State’s Law is:
               o Once it is determined which state’s law will govern, how is substantive law determined?

                o If there is a recent definitive case, that is what the District Court will follow.
                        Even if there is a case on point the DC must examine to see if the State Supreme Court may be
                            inclined to overturn it.
                o Otherwise, a Federal District Court is not obligated to follow state case law.
                        (1) District Court can predict how the State’s Supreme Court would rule. (re: Mason v. American Emery
                            Wheel Works)
                                  Trends in law considered
                                  Analogous Case law
                                  Dicta
                                  Treatises, restatements, etc…
                        (2) May result in some forum shopping
                                  e.g. Federal Court Judge may gaze into a crystal ball while stiff State Court Judges feel
                                     obligated to follow old precedent.

                o Declaratory Judgment:
                      If there is a new statute or no rule on point (and the court doesn’t want to predict), the District Court can
                          order litigants to go to State (w/ applicable law) and get a declaratory judgment.
                               Problem: not timely – highly criticized

                o Certification:
                       Procedures exist where a court could certify questions to the state (often goes to State Supreme Court)
                                 1. Very efficient
                                 2. Sometime there are applicable state laws concerning certification
                                      ○ absent a state certification law, there is no way to compel the State to answer the
                                          question.

                                               FEDERAL COMMON LAW
   Countervailing arguments supporting the existence of some common law power in federal courts
        1) Congress could have enacted a rule, and may not have done so b/c it lacked time, foresite or political conscience.
        2) Congress by its inaction did not necessarily intend for state laws to apply.

   General points for judging the appropriateness of federal common law:
        There must be a strong need for the formulation of federal common law in order to justify displacing otherwise operative
           state rules.

                o Thus, the decision to formulate federal common law is one of judicial policy,
                            In which a court must find that the advantages of borrowing state law are outweighed by either the
                             need for national uniformity or the inconsistency of state law w/ federal interests

   Federal Common Law has developed in several broad situations:
        Federal common law is used to resolve cases involving important federal interests.
               o 1) When interstate disputes have erupted, federal common law has been adopted where it would be unfair to
                 apply the statutes or decisional law from either state.
                            Hinderlider v. La Plata River & Cherry Creek Ditch (1938) - - (dispute over the apportionment of the
                             water of an interstate stream.) Decided the same year as Erie and was decided by the same justice
                             (Justice Brandies) as decided Erie.
                                    Erie told us there is no general federal common law
                                    But we can find federal common law in certain situations.
                o 2) Federal common law has become firmly established in the admiralty and maritime contexts, b/c the desire
                  for a uniform body of substantive law has long been considered of primary importance
                o 3) Cases implicating the international relations of the united states – including cases involving commercial
                  disputes between US citizens and foreign parties.
                        Foreign policy adds a significant federal interest here and thus federal law will apply over state law.

   Should federal or state law apply when the US is a party bringing an action regarding commercial paper in federal district court?
        See Clearfield Trust v. United States,
               o The rights and duties of the US on commercial paper which it issues are governed by federal rather than local
                    law.
               o In absence of an applicable act of congress it is for the federal courts to fashion the governing rule of law
                    according to their own standards.

                o The authority to issue the check had its origin in the Constitution and the statutes of the US and was in no way
                  dependent of the laws of PA or any other states
                      The issuance of commercial paper by the US is on a vast scale and transactions in that paper from
                         issuance to payment will commonly occur in several states
                               The application of state law, even w/o conflict of laws rules of the forum, would subject the
                                   rights and duties of the US to Exceptional Uncertainty

   Whether federal or state rules should be used for small business administration (SBA) and farmers home administration (FHA)
    loans in order to determine whether the federal government or a private creditor would be able to collect first on a loan?
         See United States v. Kimbell Foods,
                 o There was no need for an independent federal rule. The court should to adopt the state rule as federal law
                      rather than to develop a separate federal rule
                 o The court used a 2 step analysis:
                           1) The court interpreted Clearfield broadly as permitting federal courts to develop federal law for
                               ―questions involving the rights of the US arising under nationwide federal programs.‖
                                    The court held that SBA and FHA perform federal functions w/in the meaning of Clearfield,
                                       thus federal law controls


                            2) Determining the Content of the federal Law.
                                     Whether to adopt state law or fashion a nationwide federal rule Considerations:
                                         ○ i. Necessity of Uniformity
                                         ○ ii. Would state law frustrate federal objectives?
                                         ○ iii. How would the application of federal law disrupt commercial relationships
                                             predicated on state law?

                                          INTERSTITIAL FEDERAL COMMON LAW

   Statutes that express national policy in a particular area leave typically 2 questions:
         1) is the particular statutory gap at issue one that federal courts should fill?
         2) If the answer is yes, on what sources should a federal court rely in order to derive the law?

   Borrowing Rule
         It is the usual rule that when Congress has failed to provide a statute of limitations for a federal cause of action, a court
           "borrows" or "absorbs" the local time limitation most analogous to the case at hand.
                o When Federal Borrowing is Appropriate
                         USSC says ―The rule, however, is not without exception. We have recognized that a state legislature
                             rarely enacts a limitations period with federal interests in mind and when the operation of a state
                             limitations period would frustrate the policies embraced by the federal enactment, this Court has looked
                             to federal law for a suitable period.‖

   Federal Statute Barrowing Rule
        We have described federal borrowing as "a closely circumscribed exception," to be made "only 'when a rule from
            elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at
            stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.'
                o Consideration of state-law alternatives is unnecessary where Congress has provided an express limitations
                    period for correlative remedies w/in the same enactment.

           From these cases we are able to distill a hierarchical inquiry for ascertaining the appropriate limitations period for
            a federal cause of action where Congress has not set the time within which such an action must be brought.
                o 1) The court must determine whether a uniform statute of limitations is to be selected?
                         Where a federal cause of action tends in practice to ―encompass numerous and diverse topics and
                            subtopics,‖ such that a single state limitations period may not be consistently applied w/in a JD.
                o 2) Assuming a uniform limitations period is appropriate, the court must decide whether this period should be
                    derived from a state or a federal source. In making this judgment, the court should accord particular weight to
                    the geographic character of the claim
                o 3) Even where geographic considerations counsel federal borrowing, the aforementioned presumption of state
                    borrowing requires that a court determine that an analogous federal source truly affords a "closer fit" with the
                    cause of action at issue than does any available state-law source.

           The substantive law to apply in suits under s 301(a) is federal law, which the courts must fashion from the policy of
            our national labor laws
                o The Labor Management Relations Act expressly furnishes some substantive law. It points out what the
                     parties may or may not do in certain situations.
                          Federal interpretation of the federal law will govern, not state law.
                                       But state law, if compatible with the purpose of s 301, may be resorted to in order to find the
                                        rule that will best effectuate the federal policy
                                             ○ Any state law applied, however, will be absorbed as federal law and will not be an
                                                 independent source of private rights.

           "The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a
            comprehensive legislative scheme including an integrated system of procedures for enforcement."

           In questions of domestic relations, when there is no federal law and when the subject is largely a matter of state
            concern, it was reasonable to borrow the state standards.

                                            FEDERAL LAW IN THE STATE COURTS

   Typically concurrent Jurisdiction

   When a State Court decides a question based on federal law, Article IV. (Supremecy Clause) requires application of federal law.
        State courts must recognize a federal right of action.

   State Courts will apply Federal Law when:
         1) It is sued on directly (federal question w/ concurrent jurisdiction); or
         2) When it is cross-claimed, counterclaimed, or claimed as a defense; or
         3) When there is a federal interest involved in an otherwise state claim

   Application of Federal Law:
        Reverse Byrd Analysis
                 o 1) Is procedure/rule ―bound up‖ with federal right?
                         See Dice v. Akron, Canton and Youngstown R. Co.,
                                  In applying Federal Statutes, state courts must adhere to Federal Law where the rights are a
                                      basic fundamental feature of out system of jurisprudence.
                                  Holding: that trial by jury is a fundamental feature of Federal Employees Liability Act and the
                                      applicable federal defenses are ―bound up‖ with the federal right
                         A minority of courts allow the state courts to follow state procedure where the right accorded by the
                             federal law is a mere local rule of procedure.

                o 2) Strict local rules of procedure cannot be used to impose unnecessary burdens upon rights of recovery
                  authorized by federal laws.
                       As a general rule, state procedure may infringe upon federal rights only when the state procedure is
                            reasonable or well-known and founded in valid state policy, or not inherently ridiculous
                                  DEPOSITIONS AND DISCOVERY
                                        RULES 26 TO 37
   The General Scope and Discretionary Limits on Discovery.
        Discovery Generally: Federal Rules 26 to 37
               o Largely adopted by a majority of states
               o Three Major Purposes of Discovery:
                        Preservation of Relevant Information
                        Ascertain and isolate those issues in controversy
                        To find out what testimony and evidence is available on each of the disputed factual issues.
               o Problems w/ discovery:
                        Expensive
                        Abuse by wealthy litigants
                                Harassment
                                Not as big an issue now that judges have a more active role in discovery
                        Judicial monitoring is expensive
        Common Types of discovery:
               o Depositions: opportunity for a live witness – advantage – spontaneity
               o Interrogatories: often answers written by clients and attorneys
               o Production of Documents or things or permission to enter upon land or other property for inspection and other
                   purposes
               o Request for admission – similar to interoggatories
               o Physical and mental examinations – limited by privacy interests
        Scope of Discovery:
               o Common law: allowed party only to inquire as to his claim or defense
                        Early case law in line w/ the liberalization of discovery. See Kelly (abandoning rules and holding that
                          discovery was proper if inquiry was: (a) relevant to an issue in the action; (b) did not seek privileged
                          information; and (c) info. would be admissible at trial).
                        Other limitations: information obtained after the incident was exempt
               o Rule 26: General Provision Governing Discovery; Duty to Disclose
               o Rule 27(a)(1): Pre-trial Discovery – very limited – ample opportunity for discovery after filing

                                              PRE-DISCOVERY DISCLOSURE

   Rule 26(a)(1) Automatic Disclosure: Material to be disclosed
        ID of witnesses: name, address, & phone # of any individual with discoverable info.
        Relevant Documents: copy or description of all documents, data compilations, or tangible things in possession,
           custody, or control.
                o Re: Control (Read broadly)- duty to exercise any influence over party in possession. In re Hart v. Wolf
                         Court will enforce private agreements to disclose full documents
                         Summaries/descriptions of documents are sufficient at this stage
        Damages Computation: Computation of damages & relevant evidentiary materials used to compute
           Insurance Agreements: any applicable insurance agreement (with an insurance co.)
                o Rationale: may encourage settlement
                          Pre 1970: privacy concern precluded disclosure.
                o NOTE: Generally, net-worth need not be disclosed (privacy)
                          Exception: punitive damages (need to know net worth in order to punish appropriately)
                                  Disclosing party will file a 26(d) motion-sequencing- in order to force requesting party to prove
                                      a prima facie case
           Exempt from initial disclosure: habeas corpus proceedings, action brought without council, action by U.S. to collect on
            a student loan, etc…

                                                  DISCOVERY DISCLOSURE

   Rule 26(b)(1) Scope of Discovery:
        (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense
           of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or
           other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good
           cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant
           information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
           admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).
                o 2000 changes:
                         Not privileged
                         Relevant to claim or defense
                         Need not be admissible: info. only required to lead to admissible info.
                                  Alternative would be to get a ruling from the court re: admissibility

                o Privileged Information: right to refuse disclosure
                        Rule 26(b)(1) limits discovery to matter that is not privileged and the usual view has been that the same
                           rules of privilege apply to discovery as apply at the trial.
                                A privilege rule gives a person a right to refuse to disclose information that he otherwise would
                                    be required to provide.
                                It also may give a person the right to prevent someone else from disclosing information, or it
                                    may give its possessor a right to refuse to become a witness.

                            Types of privileged information: (communications are privileged the facts or knowledge in those
                             communications are not privileged)
                                 a. Attorney-client (read narrowly)
                                 b. Doctor-patient
                                 c. Husband-wife
                                 d. Priest-penitent
                                 e. 5th Amendment

                            Privilege in federal courts:
                                   Diversity cases: federal court applies the privilege rules of the state in which it sits
                                   Federal question cases: federal court applies the federal privilege rules
                                   Revealing privileged info. may act as a waiver & is embarrassing
                                         ○ 1) If protected information is voluntarily disclosed to 3rd parties, it is considered waived
                                           as to all communications involving that subject matter.
                                         ○ 2) In a supplemental jurisdiction claim you may apply the fed law in one part and the
                                           state law in another part…
                                         ○ 3) b/c this is federal common law states do not need to follow it…

                           Corporations and privileged information: in the corporate context, communications will be found
                            privileged if: (re: Upjohn)
                                  1) It is in the contemplation of legal services
                                  2) It must relate to legal services
                                  3) The info. provider must be an employee, agent, or independent contractor with a significant
                                     relationship to the corp. and the matter in dispute.
                                  4) The privilege may be asserted by the corp. or the info. provider.
                                           ○ Privilege extended from ―control group‖ to lower level employees

                           Attorney Client Privilege:
                                 For privilege to attach to a communication, 4 elements must be present:
                                         ○ 1) The asserted holder of the privilege is or sought to be a client
                                         ○ 2) the person to whom the communication was made
                                                   a) is a member of the bar of a court, or his subordinate AND
                                                   b) in connection w/ this communication is acting as a lawyer
                                         ○ 3) the communication relates to a fact of which the attorney was informed
                                                   a) by his client
                                                   b) w/o the presence of strangers
                                                   c) for the purpose of securing primarily either
                                                           i) an opinion on law or
                                                           ii) legal services
                                                           iii) assistance in some legal proceeding, and not
                                                   d) for the purpose of committing a crime or tort and
                                         ○ 4) the privilege has been
                                                   a) claimed and
                                                   b) not waived by the client.
                                 b/c attorney client privilege results in the suppression of relevant facts, courts tend to construe
                                    it narrowly and to resolve doubtful cases against a finding of privilege.

   Rule 26(b)(2) Limitations on Discovery:
        By order, the court may:
                o (A) alter the limits in these rules on the number of depositions and interrogatories or the length of depositions
                    under Rule 30. By order or local rule, the court may also
                o (B) limit the number of requests under Rule 36.
                o (C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any
                    local rule shall be limited by the court if it determines that:
                         (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other
                             source that is more convenient, less burdensome, or less expensive;
                         (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the
                             information sought; or
                        (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account
                         the *needs of the case, *the amount in controversy (the value of the case v. the cost of
                         discovery), *the parties' resources, *the importance of the issues at stake in the litigation, *and the
                         importance of the proposed discovery in resolving the issues.
                o The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).

   Rule 26(b)(3) Work Product Rule – Trial Preparation Materials:
        Basic Rule: R.26(b)(3) codifies the USSC decision in Hickman v. Taylor which held that a party may not obtain
           documents or tangible things which were prepared in anticipation of trial or for trial by another party or by that other
           party’s attorney, indemnitor, insurer, or agent unless the party seeking discovery has a substantial need of the materials
           in the preparation of his case and the party is unable without undue hardship to obtain the substantial equivalent of the
           materials by other means.

           Requirements:
               o 1. Documents or tangible things:
                       although the words suggest that one could escape the rule by requesting information through
                          interrogatories addressing information learned from witnesses or documents, courts have said no;
                          absent special circumstances.
               o 2. Prepared in anticipation of trial: work protected if done prior to filing or trial?
                       a. Prof. says key is to ask whether the party was expecting a suit to be filed or litigation to ensue when
                          the work was done (e.g. investigation).
                       b. Some courts hold that pre-suit investigation conducted by an insurance company is in the ordinary
                          course of business and is not protected
                       Note: Documents prepared in the ordinary course of business are completely discoverable…
               o 3. Prepared by part’s representative, attorney, consultant, surety, indemnitor, insurer, or agent:
                       also includes party’s investigator
               o 4. Substantial need/necessity: does the lapse of time equal substantial need?
                       i.e. Issue arises when a party wants to access protected work product in the form of interviews, etc…
                          which were taken by the opponent soon after an accident/incident while the witness’ memories were
                          fresh.
                                a. Minority view: Time delay is sufficient to constitute substantial need
                                b. Majority view: insufficient

                o 5. Prejudice will result:
                       party must show a lack of reasonable access; that there are no alternatives that do not produce undue
                          hardship.

           Party’s own statements will always be discoverable:
                o Any information w/in the knowledge of the party will be discoverable even if it contains information from work
                     product however, the work product will not be discoverable

           Protection of mental impressions/opinions:
                o last sentence of 26(b)(3) reads ―in ordering discovery of such materials when the required showing has been
                    made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal
                    theories of an attorney or other representatives of a party concerning this litigation.‖
                            1. Partial opinion laced: all courts agree that if the protected information can be redacted (blacked
                             out), it should be done.
                            2. Complete opinion saturation: courts are split
                                  a. Some courts impose absolute privilege
                                           ○ Problem: attorney could chalk work full of opinions
                                  b. Some courts say that is discoverable
                                  c. Some courts allow discovery if there is a greater showing of need and prejudice. re: Upjohn,
                            3. Work Product based on oral statements is not discoverable simply on a showing of substantial need
                             and undue hardship.

           Main concerns of protecting work product:
               o 1. Disincentive for trial preparation
               o 2. Demoralizing to profession
               o 3. Client and justice not served

           Types of Information:
               o 1. Signed statements – may be discoverable if sufficient showing
               o 2. Summaries/memoranda (mental impressions) – much greater showing required

           Surveillance Video:
                o courts are split over the treatment of video evidence prepared in anticipation of trial.
                         1. Some courts use as impeachment device it is non discoverable
                                 Problems:
                                         ○ 1) no text support
                                         ○ 2) potential for abuse
                                         ○ 3) also applies to damages calculation thus a substantive approach
                         2. Some courts consider video fully discoverable, but will sequence discovery
                         3. Some courts treat as discoverable if used at trial; but only after depositions (re: DiMichel)
                                 Under work product - a reasonable compromise & same result as #2

           Documents prepared by expert witnesses are not within the ambit of the work product doctrine.

   Rule 26(b)(4) Expert Information:
        Rule 26(a)(2) mandates automatic disclosure of all experts that are to be used at trial including a description of views,
           qualifications, compensation, & testifying history.
                o Rule 26(e) imposes a duty to supplement disclosure as to any new experts
                         Witnesses must sign the report
                o Sanctions if no disclosure: monetary or barred from using evidence
        Testifying Expert:
                o Opposing party may depose any person who has been identified as an expert & whose opinions may be
                    presented at trial (deposition only).
                         1. Who is an expert? Anyone with specialized knowledge
                         2. Rule 26(b)(3) is subject to 26(b)(4) which is the limiting provision that states that expert testimony is
                             generally discoverable
                         3. Information that is communicated between an attorney and an expert witness has developed a split
                             in the lower courts
                                    The Majority approach is absolute disclosure or that this material is fully discoverable and that
                                     is supported by Advisory Committee notes to the 1993 amendment.
                                    The Minority approach is to not allow disclosure of expert materials that contain attorney work
                                     product

           Non-testifying Expert:
               o party does not have to disclose non-testifying expert (so log as expert did not see accident) absent special
                    circumstances.
               o The following requirements are mandatory in order for opposing party to obtain expert information:
                          1. Expert must be specially employed or retained in anticipation of trial
                                 Actor viewers subject to normal witness discovery rules
                          2. Must be exceptional circumstances:
                                 protects against disclosure of experts who a party may have consulted but who will not testify
                                   at trial b/c their view is contrary to the case of the party.
                                        ○ Example: Only 1 expert available or
                                        ○ the other party has deposed all experts in the field…
                                        ○ like in DNA tests the evidence destroyed…
                          3. Must be depositions or interrogatories if discoverable.

           Regularly employed experts:
               o 3 views [26(a)(2)(B) may be applicable in this case]
                         1. Not covered by 26(b)(4) b/c not specially employed
                         2. Are covered by 26(b)(4) – MV agrees & Rule seems to suggest
                         3. Not within 26(b)(4), but if the rule does not allow discovery, it won’t be allowed

           2 Approaches to discovery of attorney work product shared with expert:
                o 1. Bright-line rule: full disclosure
                        Cross examination & no violation of WP rule
                o 2. Work product doctrine applies
                        Problem: advisory committee notes suggest that it does not apply

   Rule 26(c) Protective Orders:
        Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant
           has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without
           court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a
           deposition, the court in the district where the deposition is to be taken may make any order which justice requires to
           protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or
           more of the following:
                o (1) that the disclosure or discovery not be had;
                o (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation
                    of the time or place;
                o (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking
                    discovery;
                o (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain
                    matters;
                o (5) that discovery be conducted with no one present except persons designated by the court;
                o (6) that a deposition, after being sealed, be opened only by order of the court;
                o (7) that a trade secret or other confidential research, development, or commercial information not be revealed
                  or be revealed only in a designated way; and
                o (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be
                  opened as directed by the court.

           If the motion for a protective order is denied in whole or in part, the court may order discovery and possibly assess costs
            via 37(a)(4)
                 o Good Cause:
                          Party seeking order must show:
                                   1. Confidential info.
                                   2. Specific harm will flow from disclosure

                o Court may issue protective order for inconvenient place or conduct at deposition

                o Issuance of gag order does not necessarily violate the first amendment
                       1. The party seeking discovery has no right to the information other than broad discovery rules
                       2. Large state’s interest in discovery & 26(c) is a tolerable limitation.
                               you may be hesitant to enter into a voluntary gag order b/c you may want to share the info in
                                  other cases or for other situations also you may discover other incriminating evidence that
                                  shows injuries towards other potential plaintiffs and not be able to share it.

                o Courts often allow the sharing of information to reduce the discovery costs but may impose limits on the party’s
                  use of that info.

                o Modification of protective order:
                      party must show extraordinary circumstances or a compelling need for disclosure.

                o Other alternatives: must balance competing interests and hardships
                      1. In Camera view: allow judge to look at information to determine whether it is discoverable
                      2. Redacted Procedure: black out sensitive information
                      3. Timing of discovery under Rule 26(d); less sensitive information disclosed first

   Rule 26(d) Timing and Sequence of Discovery
        Active role of trial court in sequencing discovery and the like.
        Parties must first confer under 26(f) unless there is an agreement or local rule


   Rule 26(e) Duty to Supplement Responses
        Duty:
                o disclosures and responses to interrogatories, requests for production, and requests for admissions be
                   supplemented ―if the party learns that in some material respect the information disclosed is incomplete or
                   incorrect‖ and if the updated information has not otherwise been made known to the other parties.
        Appropriate sanction for breach of duty:
                o Most courts merely prohibit admission of the undisclosed evidence or prohibit the undisclosed witness from
                   giving testimony.
                o Court also has the option of postponing trial or granting a continuance or recess, so that the other party may
                  complete discovery and prepare to meet any new testimony.

   Rule 26(f) Conference of Parties
        Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered,
           the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a
           scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the
           possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule
           26(a)(1), and to develop a proposed discovery plan that indicates the parties' views and proposals.

   Rule 27 Pre-Trial Discovery
        very limited application b/c ample opportunity later
        Rule allows pre-trial deposition for the purposes of a contemplated action where there is some convincing reason that
           the suit may not be brought.
        Rule does not allow discovery to determine whether cause of action exists
        District court may allow parties to depose witnesses pre-appeal to perpetuate testimony if
               o (1) persons named; and
               o (2) reasons given

   Rule 30 Depositions Upon Oral Examination
        A deposition is an examination of a witness under oath in the presence of a court reporter. All parties have a right to be
           represented by council at a deposition; and council may examine and cross-examine the witness.
               o 1. Showing of good cause is not required
               o 2. Depositions are optional
               o 3. Leave of court must be granted if the witness is in prison.

           Neither party has discovery priority- the depositions can be taken simultaneously
                o In some states, the first party to serve notice has priority

           Must have leave of court to:
               o Take more than 10 depositions
               o Depose a prisoner
               o Depose a person for a 2nd time
               o May file motion to narrow the amount of depositions by 26(b)(2)

           1993 amendment:
               o 10 deposition per side limit (i.e. π’s cumulatively & Δ’s cumulatively); and 1 deposition per witness.
                       1. Limit can be altered by court order, private agreement, or local rule
                       2. Historically there was no limit

           Requirements:
               o notice & reciprocal co-operation between opposing council
                       1. Modernly: attorney serves notice to opposing council
                       2. Adversarial but cooperative: rarely necessary to involve the court.
           Place of deposition:
                o a witness may be required to appear at a deposition at any place within 100 miles of the place where he
                    resides, is employed, or transacts business.
                         Parties can arrange to have the deposition under the circumstances planned.

           Adverse parties:
               o (individual, officer, or managing agent) are compelled to attend deposition so long as timely notice. (sanctions
                   may be imposed if no show)

           Non-parties:
               o subpoena is necessary to compel attendance at deposition (sanctions may be imposed if no show)

           Deposing a Corporation:
               o 1. Historically – use interrogatories directed to narrow to persons with relevant information (can still do, but MV
                   says less effective)
               o 2. Rule 30(b)(6) – Procedure: deposing party describes matters with reasonable particularity & Corporation
                   provides person with information (Possible Rule 37 sanctions if Corporation does not cooperate).
               o 3. Corp. non-parties – governed by Rule 30(a) – rule makes no distinction b/t party & non-party, but must be
                   deposed at place of business to prevent undue burden.

   Rule 31 Depositions Upon Written Questions:
        Modified Deposition Device: very similar to interrogatories in form and procedure
        Well suited to obtain information from non-party witnesses
        Cost saving & time saving
               o Disadvantage: spontaneity & no chance to follow-up on answer.

   Rule 33 Interrogatories to Parties
        Written interrogatories allow one party to send to another a series of questions to be answered under oath within a
           specific time.

           Limit:
                o 25 (including subparts) + any allowed under Rule 26(b)(2)
                       Parties can request more through leave of court.
                       Each District Court can construct complementary rules

           Procedure:
                o Party can object to interrogatory in response, but must state specifically.
                        Party can ask court for a Rule 26(c) protective order.
                        Interrogating party has the option to seek a court order requiring an answer.

           Reasonable Investigation:
               o There is an obligation to do a reasonable investigation.
                        1. Within reason, a party must consult with others if he has no knowledge including agents,
                           employees, lawyer, etc…
                        2. Party must disclose all information regardless of reliability/credibility
                                Not required to disclose sources (although optional).
           Questions of Law:
               o party cannot ask questions of law in interrogatories.

           Non-Parties:
               o non-parties cannot be served interrogatories b/c too burdensome
                         Non-party includes lawyers as well as third persons

           Special Rules -- Business Records:
               o When the answer may be derived from the answering party’s business records, and when it would be just as
                    easy for the requesting party to search those records as it would be for the responding party, then the
                    responding party, instead of the answering, may specify the records from which the answers may be obtained
                    and give the inquiring party a reasonable opportunity to look at them

           Partnerships, Corporations, & Associations:
                o one interrogatory directed to the group covers the information in the hands of all members, agents, employees,
                    etc…

           Equal Opportunity Cases: extensive scope of discovery
               o Limited by relevance and burdensomeness

           Burdensome Interrogatories:
               o answering party has the option of producing business records in lieu of answering, but must specify the records
                   from which the answer can be obtained.

   Objections During Discovery:
        Answering party’s council can object to privileged information by instructing client not to speak or by objecting to a
           question or part of a question in an interrogatory.

           Depositions:
               o questions only required to be reasonably calculated to lead to admissible information even if the answers
                    themselves are not (improper basis for objection)
                         1. Questions involving the application of law to fact are objectionable
                         2. If no objection is made at deposition, party does not lose the right to object at trial. (Exception-
                           privileged matter must be objected to at deposition)

           Interrogatories:
                o answering party need not answer, but requesting party ultimately has the option to ask the court for an order
                    mandating disclosure.
                          1. Proper to object if asked a question of law
                          2. Same ―reasonably calculated‖ standard for questioning as in depositions
                o Note: if you object to the entire set of interrogatories you can file for a 26(c) protective order.
   Rule 34 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
        (a) Scope. Any party may serve on any other party a request
               o (1) to produce and permit the party making the request (or agent) to inspect and copy, any designated
                  documents (including writings, photographs, etc…), or to inspect and copy, test, or sample any tangible things
                  within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the
                  request is served; or
               o (2) to permit entry upon designated land or other property in the possession or control of the party upon whom
                  the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or
                  sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

           (b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected and
            describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making
            the inspection and performing the related acts. Without leave of court or written stipulation, a request may not be served
            before the time specified in Rule 26(d).
                 o party who produces documents for inspection shall produce them as they are kept in the usual course of
                    business or shall organize and label them to correspond with the categories in the request

                o Rule 34(b) amended in 1980 permits the responding party to turn over the documents either in the order that
                  they are kept in the ordinary course of business or in an organized fashion w/ proper labeling to correspond w/
                  the categories set forth in the request.
                       However, this amendment was added to proscribe the practice of some litigants of deliberately mixing
                          critical documents w/ many others in order to obscure significance.
                                 NOTE: A 26(b)(2) motion can be made in a case like this based on an undue burden…

           (c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to
            submit to an inspection as provided in Rule 45. (subpoena)
                 o ―Control‖ is read broadly – must exercise influence re: third party custodians
                 o Rule 34 is the main discovery device

   Rule 35 Physical and Mental Examinations of Persons
        Rule 35 exams are limited to parties (Δ’s & π’s) - no non-parties b/c privacy interests
               o Exception: persons in custody or legal control. (e.g. children or power of attorney)
                        Agents are not compelled to submit to exams.
                               (notions of liberal discovery – are thwarted here the rules drafters set a higher bar in this Rule
                                  b/c of the privacy concerns)
               o Not limited to opposing parties- no hyper-technical reading
                        Coherence & consistency

           Threshold test for exams:
                o 1. Good cause:
                         no other means of establishing evidence (must consider practicalities, unless the party resisting the
                             exam can show a reason why the exam would be a burden); and
                                  It is easier to show good cause for a physical exam rather than a mental exam b/c it is
                                    considered less of an invasion of privacy.
        o 2. In controversy:
               e.g. plead & denied – now the issue is in controversy

                    Requirements for: "in controversy" and "good cause"
                          The "in controversy" and "good cause" requirements of Rule 35 are not met by mere
                              conclusory allegations of the pleadings -- nor by mere relevance to the case -- but require an
                              affirmative showing by the movant that each condition as to which the examination is sought is
                              really and genuinely in controversy and that good cause exists for ordering each particular
                              examination.
                    Situations Where pleadings are sufficient to meet the Requirements
                          There are situations where the pleadings alone are sufficient to meet these requirements. A
                              plaintiff in a negligence action who asserts mental or physical injury
                                   ○ places that mental or physical injury clearly in controversy and provides the defendant
                                         with good cause for an examination to determine the existence and extent of such
                                         asserted injury
                                              This applies equally to a defendant who asserts his mental or physical
                                                 condition as a defense to a claim, such as, for example, where insanity is
                                                 asserted as a defense to a divorce action.

   Courts are unlikely to order broad sweeping exams.
       o Start conservative & if party passes the exam, amend complaint to be more intrusive.

   Once a party requests an exam, the Doctor-Patient privilege is waived and he must disclose all reports
        o There is a mutual obligation to disclose even if the exam was informal.
   Parties can agree to exams (governed by Rule 35 unless stated otherwise)

   Painful exams – if there is no other alternative, the party will have to submit to exam
        o 1. π can drop that item of damages
        o 2. If it really hurts – add the item to damages

   Religious conflicts:
        o party must show that it is a legitimate religion
                 π – deny redress or waive damages
                 Δ? - unclear

   Applies to licensed certified professionals e.g. dentists, occupational therapists, etc…

   The court has the inherent power to order examination of person

   Under Rule 35 if you assert your entitlement to medical records from the other party you waive your right to hold onto
    other documents related to the same condition even privileged documents…Fools rush in where angels fear to tread…
   Rule 36 Requests for Admission
        Function:
               o allows a party to serve a request of admission to an opposing party to admit matters of fact, law, statements or
                  opinions of fact, etc…, the application of law to fact, or the authenticity of documents or other evidence that is to
                  be used at trial

           Effect of Admission:
                o the admission is treated as conclusive evidence and cannot be contradicted at trial.
                         Exception: Admission withdrawn by motion if:
                                  No prejudice to other party (other party fails to show prejudice); and
                                  Adherence with Rule 16 – amendment of pre-trial orders
                o Admissions are only for use at the trail at bar…

           Procedure:
                o Request may be served without court order after parties have conferred in accordance with Rule 26(d).
                o The party receiving the request must respond under oath & in a timely fashion (unless excused by court b/c of a
                   late request), either admitting or denying or providing a detailed explanation why he cannot admit or deny.
                         1. Each matter in the admission must be set forth separately
                         2. The responding party may object if:
                                 a. Improperly phrased (vague, ambiguous, or defectively drafted).
                                 b. The request seeks privileged or protected information
                         3. If the party receiving the request does nothing, it is deemed admitted.
                         4. Court may allow party to modify or withdraw admission.

           Duty to Investigate:
                o party has a duty to investigate to ascertain and disclose information that is not within its personal knowledge but
                     reasonably within its power to obtain.

           If a party serves a denial of the matters in the request to admit and at trial the matter is proved by the party requesting
            admission, then Rule 37(c) provides that the latter may collect from the other party the reasonable expenses incurred in
            making the proof.

   Use of Discovery at Trial – Rule 32 Use of Depositions in Court Proceedings
        Depositions can be used to:
               o 1. Impeach witness or contradict evidence (most common); or
               o 2. Present statements of corporate officers etc; or
               o 3. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court
                  finds:
                        a. Witness is dead
                        b. Witness is more than 100 miles from trial unless absence was procured by party offering the
                           deposition (this may include the deposition of the π or Δ if the burden is great & absence is to their
                           disadvantage).
                        c. Witness cannot come b/c illness, prison, etc…
                        d. Witness is beyond subpoena power.
                        e. Exceptional circumstances (with notice) & it is in the interests of justice to allow its use.
           Depositions taken without leave of court may not be used if the party was without representation.
           Objections can be made at trial to any evidence in deposition based on admissibility
           A party using deposition as evidence who submits supplemental response more favorable to its case will have both
            versions read at trial.
           Use of discovery responses is governed by FRCP & FRE

           You cannot use your own answers to interrogatories at trial b/c there has been no opportunity for cross examination…

   Rule 37 Sanctions
        (a) party may move the court to order more discovery where he has tried to get the other party to comply and there has
           been no cooperation or the opposing party has been evasive, etc..
               o The party forced to make additional discovery must pay costs to the moving party for the expenses incurred in
                   bringing the motion unless the moving party did not make a good faith attempt to cooperate or there are
                   justified reasons for the discovery refusal.
                         If the motion fails, the court can impose costs on the moving party
        (b) failure o comply with the order – court may require a party to obey court order, hold him in contempt of court
           (possibly confine), and impose fees.
        (c) failure to disclose under automatic disclosure R.26(b)(1) may result in:
               o 1. Evidence excluded at trial
               o 2. Pay costs associated with the failure to disclose
        (d) failure to attend deposition, answer interrogatories, or respond to a request to admit, etc… On motion the court may
           make any order it deems just in addition to awarding attorney’s fees.
        (g) failure to attend discovery plan may result in court imposing fees

           Application of Rule 37
               o Courts are hesitant to assess severe penalty b/c it may be unclear as to who is at fault- attorney or client?
               o Severe Penalties: i.e. dismissal (π) & default judgment (Δ)
                          1. The USSC held that severe penalty may be imposed with a showing of fault
                          2. Court draws line at gross negligence (general deterrence). In re Cine
               o Courts are unsettled re: evidentiary hearing before sanction for discovery abuse can be imposed. – at a
                    minimum, notice & opportunity to be heard.

   Application of Discovery Rules and Practicalities
        Discovery Requests get into court in 2 ways
               o 1) a party must seek a protective order under 26(c) or 30(d)
               o 2) A party might refuse so comply and the other party would mover pursuant to 37(a) to compel discovery

           Continued refusal to participate in discovery can lead to sanctions. But only after the parties have attempted to resolve
            the problem themselves

           Sanctions can include: refusal to allow the evidence to be used at trial…or summary judgment…or costs…or directed
            verdict…

           Where the party makes good faith efforts to comply, and is thwarted by circumstances beyond his control for example, a
            foreign criminal statute prohibiting disclosure of the documents at issue an order dismissing the complaint would deprive
            the party of a property interest without due process of law. Societe International…
                 o However where the party makes no good faith efforts or their behavior amounts to gross negligence dismissing
                   the compliant is an acceptable sanction.

           Due Process requires at least prior notice and an opportunity to be heard.
               o This requires at least an oral argument before sanctions are imposed and may require a evidentiary hearing

   Rule 45 Subpoena
        Function: commands attendance at a trial or hearing or mandates production of documents or other things.
        Service: can be served on non-party 18+ years old
        Objections: to a subpoena ordering production of documents:
               o 1. Privilege
               o 2. Undue burden
               o 3. Confidentiality
        What extent should a non party be able successfully to object to a subpoena ordering it to produce items for discovery?
               o RULE 45(c)(3)(A)(iii) Provides that an objection is proper on the ground of privilege, if a lawyer is asked to
                  reveal confidential information received from a client. Another ground for objection is 45(c)(3)(A)(iv) Undue
                  Burden


                                             SUMMARY JUDGMENT
   If a party (π or Δ) to a lawsuit can show that there is no genuine issue of material fact in the lawsuit (relevant to whether a party
    has a claim or defense), he can win the case based on the judge’s decision w/o going to trial.
          Motion for SJ is usually filed by the parties after the pleadings and discovery have been completed.

   1) The moving party has the initial burden of presenting information that clearly establishes that there is no factual dispute
    regarding the matter upon which summary judgment is sought.
         a. This is so even if the adverse party would bear the burden of persuasion on that issue at trial.
   2) If the information presented, taken as true, fails to establish that no factual dispute exists, summary judgment will be denied,
    even if the opposing party has presented no counter-evidence.
   3) If, but only if, the moving party produces information that appears to establish that no factual dispute exists,
         a. then the responding party normally must come forward w/ materials to show that there is a genuine issue of fact or
             summary judgment will be granted
   4) If the responding party does produce information contradicting that of the moving party or otherwise showing that a factual
    dispute exists, summary judgment must be denied.

   Material Fact – is a fact that goes to support or deny the element(s) of the claim.

   Procedure:
         The moving party has the initial burden of presenting information that clearly establishes that there is no factual dispute
           regarding the matter upon which summary judgment is sought – Rule 56(c)
               o Party normally submits outside evidence such as affidavits and witnesses

           If the moving party produces information that appears to establish that no factual dispute exists, the responding party
            normally must come forward w/ materials to show that there is a genuine issue of fact or summary judgment will be
            granted – Rule 56(e)
        o Once there is a motion for SJ parties allegation made in the complaint are insufficient on the rebound

   Critical Analysis Questions for Summary Judgment:
         o 1) Material Fact:
                  Does the fact relate to the essential elements of the claim?
         o 2) Who as the Burden of Proof at Trial?
                  When a party has the burden of proof and he can discredit the other parties witness, this does not
                      entitle him to summary judgment b/c he still must provide evidence to prove elements of claim.
                            i.e. right to cross examine is not enough to get you out of SJ when you have the burden of
                                proof.
         o 3) Burden of Proof for Summary Judgment 56(c)
                  must be supplied by the moving party
         o 4) Refuting Motion for Summary Judgment 56(e)
                  must be supplied by the non moving party only if 56(c) burden had been met.

   See Cross
       o Supplying the rule
               A party opposing summary judgment is entitled to cross examine witnesses and parties at trial where
                 their state of mind is at issue

   See Lundeen
       o Supplying the exception
               When faced w/ evidence showing no factual dispute exists, the party opposing summary judgment
                 must present some evidence to the contrary
                      The right to cross examine will be sufficient if the state of mind of witnesses is at issue…

   Why right to cross examine is insufficient:
       o Exception: Regarding State of Mind, Motive or intent, purpose or the reliance upon an interested party’s
           testimony in the moving parties Rule 56(c) burden

        o See Lundeen v. Cordner, where there is no indication that the affiant was biased, dishonest, mistaken, unaware
          or unsure of the facts, the cases declaring that cross examination is necessary when one of the above is
          present, have no application here.

        o Distinguishing Lundeen and Cross:
                1) Both moving parties had the burden of proof at trial!
                2) In both cases the moving parties have satisfied the 56(c) burden
                3) the distinguishing factor is that in Lundeen there was no indication that the affiant was biased,
                  dishonest, mistaken, unaware or unsure of the facts – Whereas in Cross those values were called into
                  question.

        o Factors to Consider for determining whether cross examine an appropriate means for rejecting SJ:
               1) Affiant Burks appears to be an unbiased witness. He has no financial or personal interest in the
                  outcome of this litigation.
               2) There is no doubt but what his testimony is competent both in regard to his mental capacity and his
                  being in a position to directly observe the facts related in his affidavits.
                           3) his participation in the change of beneficiaries was in the regular course of his duties with Socony.
                           4) both affidavits are positive, internally consistent, unequivocal, and in full accord with the
                            documentary exhibits.
                                 Therefore, even though cross-examination is a trial right which must be carefully protected, in
                                     this case, unlike many others there is no obvious advantage to be gained from a cross-
                                     examination.
                                 If there were, a summary judgment might arguably be improper.

   Where the moving party does not have the Burden of Proof at trial, must they negate the non-moving party’s case to satisfy his
    56(c) burden?
         Early Strict View of SJ – See Addickes v. Kress, moving party must disprove the case of the non moving party.
                o If facts are pleaded then to make a proper motion for summary judgment Δ must directly disprove the facts in
                   order to make a successful motion for SJ
                o This posed to high a burden on the moving party and SJ would rarely be granted.

           Modern View (uncertain):
               o See Celotex v. Catrett, USSC split
                        Majority (4 Justices), Moving party need not negate his opponent claim. He may rely on the pleadings,
                           discovery, etc…to show that there is an absence of evidence to support the non moving parties case.
                        56(a) & (b)
                                provide that claimants and defendants, respectively, may move for summary judgment "with or
                                   without supporting affidavits"
                                Problem:
                                        ○ Potential for harassment
                                        ○ Too easy to get SJ
                                        ○ Allow access to evidence to early
                        Concurrence,
                                Moving party must still show some affirmative evidence that there is no genuine issue of
                                   material fact

                           Dissent, (Brennan)
                                 If moving party has BOP:
                                        ○ he must support motion with credible evidence that would entitle him to a directed
                                            verdict according to R.56(c). The burden then shifts to the non-moving party to show
                                            the existence of a genuine issue of material fact via R.56(e).
                                 If non moving party has BOP:
                                        ○ the moving party may either:
                                                 Allege broadly that opponent’s case is insufficient; and
                                                         Submit evidence that negates an essential element; or
                                                         Demonstrate affirmatively that given the evidence in the record, there
                                                             can be no genuine issue of material fact.
                                 (when you are making a motion for summary judgment it is important that you satisfy the
                                    Brennan standard)

           Standard of Proof:
        o In ruling on SJ, the court must consider the evidentiary standard of proof that would apply at trial and essentially
          determine whether the evidence is sufficient to entitle the moving party to a directed verdict.
        o See Liberty Lobby v. Anderson – requiring a clear and convincing showing to get SJ on fraud claim.

   Material Fact & Genuine Issue:
       o A fact which would affect the outcome of the case, and a material fact raises a genuine issue if a reasonable
            jury could reach different conclusions concerning that fact.
       o Courts look to caliber and quantity of evidence (in light of relevant standard of proof) to decide if it is so one
            sided, no reasonable jury could find otherwise.
       o Heightened Burden of Proof:
                  Clear and Convincing – non moving party will have a tougher burden See Anderson v. Liberty Lobby,

        o i.e. Is the courts role in weighing summary judgment to weigh the evidence?
                 No b/c that is a matter of fact and that is for the jury to do.
                         MV says that based on white’s opinion credibility is an issue for the jury always – i.e. e.g. if you
                             have 100 witnesses on one side saying the light is green and 1 witness on the other side
                             saying the light is red…
                         Jury are more competent to judge credibility and negligence
                                  ○ where as judges are equally competent to make inferences from facts.

   A party cannot create an issue of fact by submitting an affidavit of a witness in direct conflict w/ that witness’ prior sworn
    testimony.
         o Unless there is a reasonable explanation for why the prior testimony was inconsistent w/ the new testimony

   Motive
        o Lack of Motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if
           Δ’s had no rational economic motive to conspire, and if their conduct is consistent w/ other, equally plausible
           explanation, the conduct does not give rise to an inference of conspiracy. (See USSC Decision in Matsushita
           Electric v. Zenith Radio)
                      THE BINDING EFFECT OF PRIOR DECISIONS
                            ISSUE & CLAIM PRECLUSION
   1) Four Common Sense Principals of the Doctrine of Former Adjudication.
        1) ordinarily a party only gets one chance to litigate a claim
        2) ordinarily a party only gets one chance to litigate a fact or legal issue
              o once litigated the party cannot ask the court to decide it differently later
        3) a party is entitle to at least one ―full and fair‖ chance to litigate before being precluded.
        4) preclusion may be waived unless it is claimed at an early stage of the litigation

   2) Res Judicata
        Comprises 2 Doctrines
              o 1) Claim Preclusion or (True Res Judicata)
                     1. It treats a judgment once rendered as the full measure of relief to be accorded between the same
                        parties on the same claim or cause of action
                     2. Merge
                             When a π recovers a judgment in his favor, his claim merges in the judgment and may seek no
                                 further relief on that claim in a separate action
                     3. Extinguishment/Bar
                             When a judgment is rendered in favor of the Δ, the π claim is extinguished; the judgment then
                                 acts as a Bar.
                     4. Under Claim Preclusion the judgment extends to the litigation of all issues relevant to the same
                        claim between parties, whether or not raised at trial

                o 2) Issue Preclusion or (Collateral Estoppel)
                        1. Bars the relitigation of issues actually adjudicated, and essential to the judgment, in a prior litigation
                          between the same parties.

   Three Ways in Which the Adjudication in one action may affect a subsequent lawsuit:
         1. Stare Decisis – binding force of stare Decisis is not absolute, the parties to a later action are free to argue that the
           law announced in an earlier case should be changed.
         2. Claim Preclusion
         3. Issue Preclusion

                                                CLAIM AND DEFENSE PRECLUSION

   Claim Preclusion
         General Form/Rule of Claim Preclusion:
               o the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action.
               o It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not
                   only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any
                   other admissible matter which might have been offered for that purpose

                o Three Elements Must be Present
                   1) Only judgments that are Final, Valid, and On the merits have preclusive effect
                   2) The parties in the subsequent action must be identical to those in the first
                         this is the distinction between claim preclusion and issue preclusion
                   3) The claim in the second suit must involve matters properly considered included in the first action.
                         Basis for decision – You must have been able to bring the claims together in the first suit (i.e.
                             there must have been a prior court of competent jurisdiction in which you could have brought
                             both claims)


   What is a Claim See Rush v. City of Maple Heights,
       o Minority
                 the test is 'whether the same sort of evidence would prove the plaintiff's case in the two actions’
                         i.e. injury to different primary rights…
       o Majority
                 The negligent action of the plaintiff in error constituted but one tort.
                 The injuries to the person and property of the defendant in error were the several results and effects of
                    one wrongful act.
                 A single tort can be the basis of but one action.

        o Claim (note similar to supplemental jurisdiction and compulsory counterclaims)
               Same Transaction or Occurrence
                       refers to a group of facts limited to a single occurrence or transaction without particular
                          reference to the resulting legal rights.
               Common Nucleus of Operative Fact
                       It is the facts surrounding the occurrence which operate to make up the claim, not the legal
                          theory upon which a plaintiff relies.

        o Example: car accident b/t A & B. A suffers injury to car & person. Afterwards, B defames A to onlookers.
          Separate actions for each injury?
              Majority view: common nucleus of facts; no way!
              Minority: different primary rights i.e. reputation, property, & personal safety; yes

   If you are going to invoke claim preclusion one question that is needed to be asked is did the party have the option of
    bringing the claim in the first law suit? MV

   When a Subsequent claim is bared by Claim Preclusion
       o 1) The π having alleged operative facts which state a cause of action because he tells of Δ's misconduct and
           his own harm has had his day in court.
       o 2) He does not get another day after the first lawsuit is concluded by giving a different reason than he gave in
           the first for recovery of damages for the same invasion of his rights.
       o 3) The problem of his rights against the defendant based upon the alleged wrongful acts is fully before the court
           whether all the reasons for recovery were stated to the court or not

   When Prior Judgments have no preclusive effect i.e. Exceptions
       o Fraud
                 NOTE: When the prior judgment is obtained by the use of fraud courts generally will not consider it
                  binding.
        o Defect in Jurisdiction
              NOTE: When there was a clear and fundamental jurisdictional defect that should have prevented the
                  first court from hearing the suit, courts often hold that the judgment has no preclusive effect
        o Federal Rule 60(b)
              Relief From Judgment or Order


   Same Transaction
       o One of the principal tests in determining whether a demand is single and entire, or whether it is several, so as
          to give rise to more than one cause of action, is the identity of facts necessary to maintain the action. If the
          same evidence will support both actions there is but one cause of action.
                Today a bank that makes a car loan that is paid back on periodic payments will have an option that
                   upon default the bank can collect the whole sum or sue on individual defaults…

        o If a transaction is represented by one single and indivisible contract and the breach gives rise to one single
          cause of action, it cannot be split into distinct parts and separate actions maintained for each.
        o On the other hand if the contract is divisible, giving rise to more than one cause of action each may be
          proceeded upon separately.
                 Was the contract here single and indivisible or was it divisible?
                         The note and conditional sales contract constituted one single contract.
                                 ○ The sole purpose of the conditional sales contract was to retain the title in the seller
                                     until the note was paid. When that condition was performed, the contract ended.

        o Separable Promises and Bonds and interest Coupons
              When a debt is secured by a series of notes or when a bond includes a number of interest coupons, an
                 action on one of the notes or coupons, even though others are due, does not bar a subsequent action
                 on those others. (Cf. Nesbit v. Riverside Independent District – holding that each coupon is a separable
                 promise.)
                      This is true despite the fact that the coupons involve the same transaction. MV b/c the court
                         says so this is a law created for the sake of clarity…

        o Scope of a prior judgment pertaining to continuing or renewed conduct
              The Restatement Considerations for determining Same Transaction
                      Whether the facts are related in time, space, origin, or motivation, whether they form a
                         convenient trial unit, and whether their treatment as a unit conforms to the parties expectations
                         or business understanding or usage.
              NOTE: Continuing Trespass is a single transaction.
              NOTE: Each tax year is treated a separately.
                      NOTE: One of the ways the courts treat continuing conduct is the understanding of the parties
                         expectations as to whether it is a separable promise or not…MV

        o Other rules of thumb
              1) if the conduct that is the subject of the first action continues after judgment in the first action,
                       Claim Preclusion would not prevent a second suit
                                    Issue Preclusion may apply, however, to matters of statutes or to issues of fact resolved in the
                                     first action
                            2) When the first judgment is establishing general rules of legality (e.g. declaratory judgment)
                             subsequent claims involving the same conduct are precluded.
                            3) Nuisance
                                  Permanent Nuisances are considered to have full preclusive effect
                                  Temporary Nuisances are not considered to preclude later litigation involving the same
                                     behavior.

                            4) Substantive law will effect preclusion
                                  i.e. Breach of Contract
                                  if the breach is material the π may choose to sue and keep the contract in place if the π does
                                     so she can still sue for subsequent material breaches on the same contract after the judgment

           How to Assert Claim Preclusion
               o Rule 8(c) Preclusion is an Affirmative Defense:
                        parties must raise claim preclusion as an affirmative defense. Otherwise, it is considered waived.
               o 1. It has been suggested that courts should raise in the interests of judicial economy.
               o 2. Prof. says doctrine was disfavored at some time & thus became an affirmative defense.
                        Modernly, favored b/c it ―moves‖ cases.

           Multiple grounds for conclusion:
                o where there are two or more grounds, upon either of which the court may rest its decision, there is no
                     preclusive effect.
                          Exception: some courts will allow preclusion if the court’s opinion is clear as to the effect of each
                             ground – e.g. clear special verdict, although beware of compromise verdicts.

           When an insurer bring the other claim – the holding will not preclude the individual from making another claim

           How to bring a claim for preclusion
               o Rule 56(b) motion is proper rather than 12(b)(6) b/c Preclusion calls for extrinsic evidence as apposed to
                   deciding the case on the pleadings – i.e. documents from the previous trial and judgment…

   Defense Preclusion
        MV…Defense preclusion is a distinct entity from issue and claim preclusion but actually straddles both of them…there is
           not claim preclusion b/c Δ does not bring a claim

           Claim preclusion – if you could have brought it and you didn’t then you are outta luck (if single transaction) (no actually
            litigated standard in claim preclusion)

           Defense Preclusion – claims merge into defenses –
               o arises when Δ asserts a defense in a prior action and later tries to sue on it directly (e.g. defends first action
                   with the defense of payment and then later sues to collect the balance due to him).

           Did facts actually get litigated in as part of your original defense? (As opposed to an opportunity)
                o 1. Default will not have a preclusive effect.
                o 2. Often the precluded claim will be a Rule 13(a) compulsory counter claim
                       Often the broad CCC rules will supercede rules of preclusion

           Defense preclusion does apply to state court systems in which there is no compulsory-counterclaim rules.
               o Moreover, even where there are rules in place, there are often exceptions:
                        1. Claims that are already in a pending suit; or
                        2. No responsive pleading filed b/c action terminated by default, settlement, or dismissal (some
                           courts).

           Defense Preclusion – 2 Competing Views:
               o Defense preclusion should undoubtedly apply when the subsequent action is a suit to enforce the first action; in
                   other kinds of suits, however, the role of defense preclusion is more ambiguous. (Δ may have good reasons for
                   not raising v. π’s sense of repose).
                        1. Mitchell View:
                                 Party cannot defend on a claim in one suit and then later sue directly on the claim in a second
                                     suit. (i.e. use the claim as a shield and then as a sword) See Mitchell v. Federal Intermediate
                                     Credit Bank,
                                          ○ Problem: judicially created compulsory-counterclaim rule (argument recognized by the
                                               Restatement).
                        2. Linderman View:
                                 Party can sue on the same claim which he used as a defense in a prior suit.
                                 Restatement adopts this view b/c it does not create a defacto compulsory counterclaim rule
                                     and thus alleviates separation of powers.

                                                       ISSUE PRECLUSION

   General Principles
        The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, and directly
           determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit
           between the same parties or their privies;
               o and, even if the second suit is for a different cause of action, the right, question, or fact once so determined
                   must, as between the same parties or their privies, be taken as conclusively established, so long as the
                   judgment in the first suit remains unmodified.

           For Issue Preclusion to exist a proceeding must involve the same issue as a previous suit.
                o The term issue, like the term transaction in claim preclusion, is ambiguous

                o 1) The judgment in the first action must have been valid, final and on the merits
                       on the merits does not apply if the issue being precluded is procedural
                o 2) The issue raised in the second suit actually must have been litigated in the first action, and must have been
                  necessarily decided by the first court
                       And determination of that issue must have been necessary to the court’s judgment

           Issue Preclusion can be used in a variety of ways
                o 1) It can be invoked offensively, when the π in the second action seeks to preclude relitigation of an issue that
                    was decided favorable to him in a prior action
                o 2) It can be used defensively, when the Δ in the second suit seeks to preclude relitigation of an issue that was
                  decided in his favor in a prior suit.

   The judgment in the first action must have been valid, final, and on the merits.
        ―on the merits‖ requirement does not apply if purely a procedural issue;

           Default Judgment: Insufficient for IP (only CP effect)

           Sentencing Hearings:
               o IP presumed improper – π has burden to show fairness to Δ, and judicial efficiency in order to get IP.

           Consent Judgments: Courts are Split:
               o Example: π sues Δ for breach of lease K b/c Δ failed to tender the premises. π prays for Specific Performance
                   or damages. Before a judgment is reached, π & Δ file a stipulation (consent judgment) stating that Δ offers and
                   π accepts the premises. π states in stipulation that acceptance was purely for mitigation purposes & he was not
                   waiving damages. π later brings suit for damages.
                        Is there preclusive effect given to the consent judgment? And to what extent?

                                    Some Courts Hold Final Judgment Theory
                                        ○ Treating a consent judgment as the final judgment.

                                    Some Courts Hold Contract Theory
                                        ○ The preclusive effect of a consent judgment must be measured by the intent of the
                                           parties. However, it must be clear that:
                                                1) both parties have agreed to reserve an issue or claim. And,
                                                2) it must be precisely stated what issues or claims are being reserved

                                    Other courts have created a Hybrid approach e.g. IP, but reservation of P’s remedy can be
                                     effective only if:
                                         ○ 1) Reservation incorporated into offer of consent judgment; &
                                         ○ 2) Reservation an inherent part of original complaint.
                                                   This rule will avoid protracted litigation, since it requires πs to reserve a claim
                                                        or issue both in the complaint and in the consent judgment.

                                    Because π’s reservation was not an inherent part of original complaint (i.e. b/c damages
                                     remedy was pleaded in the alternative), his reservation is not effective and the consent
                                     judgment is preclusive.

                                    One way to avoid the problem w/ the contract theory is to amend your complaint before you file
                                     the stipulation…MV says claim preclusion is appropriate for settlements but they are not
                                     appropriate to issue preclusion…unless it is specifically contracted in the stipulation or consent
                                     agreement…

                                    THE BOTTOM LINE is if you are contracting to dismiss a case or settle a case make sure to
                                     stipulate exactly what you want, if you want to to sue later, it better be stated…
           Informal proceedings:
                o absent procedure formalities, no Issue Preclusion effect b/c no confidence in the holding b/c litigants did not
                    have:
                         1) full and fair opportunity or
                         2) incentive to fully litigate.

           Administrative Hearings, Arbitration, & Non-Judicial Tribunals:
               o In the determination of whether to grant IP, the court will consider the quality, extensiveness, and the fairness of
                   the proceedings. If met the IP
               o An administrative decision based on a written record, w/o opportunity for examination or cross examination of
                   live witnesses, for example, is not likely to support preclusion in a subsequent judicial action. (See Griffen)
               o An administrate agencies findings will be able to have preclusive effect if there are procedural in nature so as to
                   give the court confidence in their findings regardless of whether or not the holding was binding or not…

           The Evergreens Doctrine:
               o some courts distinguish b/t ultimate and mediate facts.
               o Only matters constituting ultimate facts i.e. legal conclusions in the second action are subject to IP.
               o Restatement rejects b/c the distinction is confusing.
               o But what we can take from the case is that when there is a significant lack of incentive to litigate facts or issues
                   in the first suit then they should not be given preclusive effect in the second suit… (i.e. facts with lack of
                   incentive would be mediate facts)

           Compromise Verdicts: never Issue Preclusive effect

   Actually Litigated:
        The issue raised in the second suit actually must have been litigated in the first action, and must have been decided by
            the first court; and
                 o Must be the same issue (i.e. same fact, question, or right); merely the same subject matter will not have a
                      preclusive effect.
                 o Actual litigation – Court will look to: pleadings, verdict, damages, extrinsic evidence, etc… to determine whether
                      issue was actually litigated.

   Necessarily Decided:
        Determination of that issue must have been necessary to the court’s judgment.
               o Necessarily decided means that the precise issue must have been decided and that it was essential/material to
                  the first suit.
               o Court will look to: pleadings, verdict, damages, extrinsic evidence, etc… to determine whether issue was
                  necessarily decided.

   Opportunity & incentive to litigate
        Factors such as the convenience of the forum, procedural opportunities, the remedy sought (e.g. amount of damages)
           are all important considerations.
   Co-Parties
        Majority Rule: a judgment does not act as collateral estoppel between coparties unless they are adversaries, and they
           are considered adversaries only if there is a claim for relief by one coparty against the other
        Minority Rule: Yes if opportunity, actually litigated, and if antagonistic interplay in the first action(efficiency purposes).
               o Additional requirements for minority courts: (1) Issue must be important; and (2) Mutuality i.e. both parties
                   would be bound.

   Issues Decided not Necessary to the Holding
         Some Courts hold that: Certain findings not strictly essential to the final judgment in the prior action may be relied upon
           if it is clear that the issues underlying them were treated as essential to the prior case by the court and the party to be
           bound – the key here is confidence (See Home Owners Federal Savings v. Northwestern)

   Criminal prosecution and issue preclusion:
        when the state or federal government initiates a criminal prosecution against Δ, the decision may have preclusive effect
           in a subsequent civil action, depending on the outcome.
                o 1. Acquittal: no preclusive effect
                o 2. No Contest: no preclusive effect; shields Δ from liability
                o 3. Guilty verdict/Plea bargain: split
                        Some courts will not impose preclusive effect if it was not actually litigated. (Court looks to fairness
                           factors)
                        Restatement view: no preclusive effect unless actually litigated, but evidentiary value.
                        Some courts give guilty pleas preclusive effect.
                o Conviction: will be given preclusive effect.

   Alternative Holdings: JD split
         1. Some JD’s give preclusive effect b/c efficiency;
         2. Some JD’s do not b/c uncertainty (Restatement takes this approach).

   Defining and Characterizing the issue:
         i.e. how to determine if subsequent facts concerns facts that are separable from those of the first suit

           1. Traditional View:
                o a fact, question, or right distinctly adjudged in the original action cannot be disputed in a subsequent action,
                    even though the determination was reached on an erroneous view or by an erroneous application of the law.

                o Exception:

                            It does not apply to unmixed questions of law (i.e. pure questions of law). See U.S. v. Moser,
                                   mixed questions of law
                                          ○ is when the law has been applied to the facts and a judgment rendered
                                   In all of these cases the important question is was it actually litigated or necessarily decided?
                                          ○ Even if those are answered affirmatively, yet there are reasons that issue preclusion
                                               would not apply…fairness and efficiency…
                           Problem: what is a question of law? Of fact? – Difficult to define.
                                Restatement View: if the claims in the two actions between the same parties are the same or
                                   are closely related, the distinction is immaterial. It is unfair to the winning party and an
                                   unnecessary burden on the courts to repeated litigation of the same controversy. See
                                   Restatement of Judgments § 28 – (for an explanation of reconciling Moser and Sunnen)

          2. Modern View:
               o limits issue preclusion to identical issues (i.e. fact, question, or right); taking into account whether the issue
                  was isolated in time and the possible ramifications of giving the prior decision preclusive effect.

               o 1) Of course, where a question of fact essential to the judgment is actually litigated and determined in the first
                 tax proceeding, the parties are bound by that determination in a subsequent proceeding even though the cause
                 of action is different.
                      if the relevant facts in the two cases are separable, even though they be similar or identical, collateral
                          estoppel does not govern the legal issues which recur in the second case (See IRS Commissioner v.
                          Sunnen)
               o 2) BLAIR V. COMMISSIONER
                      a judicial declaration intervening between the two proceedings may so change the legal atmosphere as
                          to render the rule of collateral estoppel inapplicable

          NOTE: There are 2 polices that need to be weighed in cases such as Moser and Sunnen – 1) fairness to the
           individual party and 2) need for consistent results for the sake of all society...

   Mutuality
        Courts are Split
              o Federal Courts adhere to non mutuality rule as does CA

          Mutuality Rule
              o some state’s require that the party invoking the preclusion would have been bound by an unfavorable judgment
                   in the first suit (though this requirement is largely disregarded).
              o Inquiry for Mutuality:
                         1) Was the issue decided in the prior adjudication identical with the one presented in the action in
                             question?
                         2) Was there a final judgment on the merits?
                         3) Had the first lawsuit come out the opposite way, would the party asserting IP have been bound in
                             this lawsuit? (See Ralph Wolff & Sons v. New Zealand Ins. Co.)

               o Indemnity Circle Exception:
                      Example:
                              B is a Contractor for City.
                              A is injured on the worksite.
                              A sues B for negligence and loses.
                              In the second lawsuit, A sues C.
                                     ○ It would appear that C could not assert IP b/c no mutuality.
                                              Problem - if A wins suit against C, C will sue B for indemnity
                                                      (1) If C wins, B deprived of earlier victory; or
                                                    (2) If B wins, C gets completely screwed
                                            Solution – IP allowed for C in A v. C lawsuit even without privy b/t C and the
                                             first action. (See City of Anderson v. Fleming)

        o Privy (def.):
               there may be such a contractual relationship that a party becomes bound under certain conditions by
                  the action of another in regard to the matter involved in a suit or by the judgment, such as where he is
                  responsible over, as a warrantor, or as an indemnitor, or as a surety

        o Party (def.):
               one who is directly interested in the subject matter, and had a right to make defense, or to control the
                  proceeding, and to appeal from the judgment.

   Non Mutuality Rule:
       o 3 Questions, To determine validity of Preclusion plea (See CA case: Bernhard v. Bank of America):
                 1) Was the issue decided in the prior adjudication identical with the one presented in the action in
                   question?
                 2) Was there a final judgment on the merits?
                 3) Was the party against whom the plea is asserted a party or in privity with a party to the prior
                   adjudication?

        o Offensive Issue Preclusion v. Defensive Issue Preclusion
               Defensive Preclusion - authorities have been more willing to permit a
                       ∆ in a second suit to invoke an estoppel against a π who lost on the same claim in an earlier
                          suit

                           Defensive Use of Issue Preclusion
                               ○ Defensive use occurs when a ∆ seeks to prevent a π from asserting a claim the π has
                                    previously litigated and lost against another ∆

                   Offensive Preclusion - than they have been to allow (―wait and see‖)
                         π in the second suit to use offensively a judgment obtained by a different π in a prior suit
                           against the same ∆.

                           Offensive Use of Issue Preclusion
                                ○ offensive use of IP occurs when the π seeks to stop the ∆ from litigating an issue the
                                    ∆ has previously litigated unsuccessfully in an action with another party

                           The preferable approach was not to preclude the use of offensive IP, but to grant trial courts
                            broad discretion to determine its application. (See (∆) Parklane Hosiery Co. v. Shore (π))
                                ○ The general rule adopted by the Court was that offensive IP was precluded where π
                                    could have easily joined (intervened) in the earlier action, or where application would
                                    be unfair to a Δ
                                    FAIRNESS (Off. May be unfair to ∆) (Factors)
                                        ○ 1) ∆ may have had little incentive to litigate in the first action particularly if future suits
                                           are not foreseeable
                                        ○ 2) If the precluding judgment is inconsistent with one or more previous judgments in
                                           favor of ∆, thus producing a lack of confidence in the judgments…
                                        ○ 3) Where the 2d action affords ∆ procedural opportunities not available in the 1st
                                                e.g. inconvenient forum, b/c ∆ will likely not have chosen the forum in the 1st
                                                    action.

   Summary of Offensive Issue Preclusion & Issue Preclusion in general:
        Under the judicially-developed doctrine of issue preclusion, once a court has decided an issue of fact or law necessary
         to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to
         the prior litigation.
              o Issue Preclusion serves to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial
                   resources, and, by preventing inconsistent decisions, encourage reliance on adjudication

           Three conditions must be satisfied before a party can use issue preclusion to estop a party from relitigating an identical
            issue previously decided:
                o (1) the issue must have been actually litigated, that is contested by the parties and submitted for determination
                    by the court;
                o (2) the issue must have been actually and necessarily determined by a court of competent jurisdiction in the
                    first trial; and
                o (3) preclusion in the second trial must not work an unfairness

           Under the doctrine of offensive collateral estoppel or issue preclusion, a defendant is precluded from relitigating
            identical issues that the defendant litigated and lost against another plaintiff

                o Collateral estoppel is an equitable doctrine. Offensive collateral estoppel is even a cut above that in the scale of
                  equitable values. It is a doctrine of equitable discretion to be applied only when the alignment of the parties and
                  the legal and factual issues raised warrant it. Its application is controlled by the principles of equity. Fairness to
                  both parties must be considered when it is applied.

                o In cases where a plaintiff could easily have joined in the earlier action or where the application of offensive
                  estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.
                  Fairness to the defendant thus is a critical finding necessary for the application of offensive estoppel. Trial
                  courts should take into account a variety of considerations, all relevant to the ultimate question: would
                  application of offensive estoppel be unfair to the defendant?

                o THIS IS THE TEST FROM PARKLANE for Offensive Issue Preclusion and is applied on a case by case basis
                  for determining OIP: Four examples in which the application of offensive estoppel would be unfair and should
                  not be applied are: (1) where the party asserting it easily could have joined in the action upon which reliance is
                  placed; (2) where the party against whom it is to be applied had no incentive to defend vigorously the first
                  action; (3) where the second action offers procedural opportunities unavailable in the first action; (4) where the
                  judgment relied on is inconsistent with other decisions. These examples do not constitute an exhaustive list.
                                                  BINDING NON-PARTIES

   General Rule:
       o Non Parties are not bound to prior litigation

   Exceptions:
       o Representative Suits
                 The Supreme court held that when nonparties assume control over litigation in which they have a direct
                  financial or pecuniary interest, they may be precluded from subsequently relitigating issues that the earlier
                  suit resolved (MV says that where you have control of the 1st lawsuit you can be bound even as a non
                  party – i.e. a non party in name only) (See Montana v. United States)

        o Test Case Agreement
               Some courts have held that when sufficient evidence of an agreement exists nonparties are precluded from
                 relitigating the claims. These agreements are made before trial and is done by the π b/c of the uncertainty
                 of offensive issue preclusion…

        o Virtual Representation
                A limited number of courts have been willing to permit nonparty preclusion in a narrow rnage of
                   circumstance in which Virtual Representation has occurred.
                         The theory is that once an issue has been adjudicated by a court in an adequate adversarial
                           contest, it should be considered settled once and for all—both as to those who participated in the
                           litigation and as to those who did not.

        o Adequate Representation
              An exception to the general rule when, in certain limited circumstances, a person, although not a party, has
                 his interests adequately represented by someone with the same interests who is a party


   Not Consent Judgments or Settlements
        o A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the
           rights of strangers to those proceedings
        o See Martin v. Wilks, holding that a settlement is only effective between parties to the settlement and does not
           preclude 3rd parties. Furthermore, Stating that the burden of joinder is rightly placed on the parties to the action and
           not on potential additional parties – and that to hold otherwise would be inconsistent with Rules 19 and 24.
                 parties who choose to resolve litigation through settlement may not dispose of the claims of a third party,
                    w/o the 3rd parties consent.
                 A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid
                    claims of non-consenting interveners.
                                              INTERSYSTEM PRECLUSION

   U.S. Constitution: Article IV Section 1.
        o Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every
           other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and
           Proceedings shall be proved, and the Effect thereof.

   28 U.S.C. § 1738. State and Territorial statutes and judicial proceedings; full faith and credit
        o Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and
           credit in every court within the United States and its Territories and Possessions as they have by law or usage in
           the courts of such State, Territory or Possession from which they are taken.

   Interstate Preclusion
        o ISSUE: Does FF & Credit require state 2 to follow the mutuality rules of state 1?
                 The majority: of states agree to employing the rules of the rendering court i.e. state 1 – this approach
                    allows the first court the power to limit the effect of its own proceedings…
                 The minority rule: is although a second state cannot reduce the effect of a judgment below the level
                    commanded by the law of the judgment state, it can expand the effect…this means that you can give
                    mutuality a broader preclusive effect…

        o Matrimonial and Custody Law
              Custody Proceeding:
                       Full Faith and Credit – unresolved by USSC
                       Problem: Custody judgments leave the case open because they are always open for relitigation
                          based on the best interests of the child

                   Parental Kidnapping Prevention Act of 1980: 28 U.S.C. § 1738A
                        Not a private right of action
                        Basic Rule:
                                o States must give FF&C to other states acts, records, and judicial proceedings including
                                   custody determinations if:
                                         (1) State A has jurisdiction under its own local law; and
                                         (2) One of the Five conditions stated in the Act are met:
                                                 Conditions authorize a state court to enter a custody decree:
                                                        o 1. if the child’s home is or recently has been in the state;
                                                        o 2. the child has no home state and it would be in the child’s best
                                                            interest to assume jurisdiction
                                                        o 3. If the child is present in the state and has been abandoned or
                                                            abused
                                o If state complies w/ the Act, no other state can exercise concurrent jurisdiction, even if it
                                   would have been empowered to do so in the first instance
   State – Federal Preclusion

       o FF&C only applies to judgments between state courts.
       o § 1738 imposes the same general principles as FF&C on the federal courts to the judgments of state courts
              However, b/c the requirement is statutory and not constitutional, it may be supervened.
                     e.g. Wit of Habeas Corpus
                             o Provides a federal forum in which people who have been convicted of crimes in state court
                                 may litigate constitutional claims arising out of their prosecutions.

       o In enacting § 1983 did congress intend to create an exception to § 1738? No (See Allen v. McMurry)

       o If there is a ―full and fair‖ hearing in state proceedings then federal courts will grant preclusive effect to that
         judgment.
               Congress intends a federal remedy in three circumstances:
                         1) where state substantive law is facially unconstitutional,
                         2) where state procedural law is inadequate to allow full litigation of a constitutional claim, and
                         3) where state procedural law, though adequate in theory, is inadequate in practice.
                                 o The federal courts may step in where the state courts are unable or unwilling to protect
                                       federal rights.

       o Claim Preclusion: (See Migra v. Warren City School District)
              The court found that prior state court adjudication precluded the π from brining a subsequent suit in federal
                court, even thought he later proceeding was based on constitution issues that the π failed to raise, But
                could have raised, in the earlier state action
              Despite the argument by the π that π’s may want to bring state claims in state court and federal claims in
                federal court b/c of relative expertise of both forums.

       o Claim Preclusion involving Exclusive Federal Jurisdiction:
              O’Conner, J. Set forth a 2 step approach for determining the preclusive effect of a state court judgment in
                subsequent suit over which federal courts have exclusive jurisdiction:
                      1) Applying the FF&C statute, the federal court must determine whether state claim preclusion law
                         would preclude the federal suit.
                             o If not, there is no preclusion
                      2) If the state would bar the action the, the federal court must determine whether the relevant
                         federal law contains an implied or explicit exception to § 1738 (e.g. Title VII)

                           In most cases Marrese will prevent preclusion, b/c virtually every state follows the ―Prior
                            Jurisdictional Competency‖ Rule, which prohibits preclusion of a claim beyond the rendering courts
                            jurisdiction.
                                 o Marrese, prohibits federal courts from precluding claims that would not be precluded under
                                      state rules.

                  MV - There can be no preclusive effect where the π brings his claim in state court and there is a related
                   claim that would have preclusive effect, except for exclusive federal jurisdiction…

       o Issue Preclusion involving Exclusive Federal Jurisdiction:
                  The application of state rules of issue preclusion often will effectively eliminate the federal action.
                  Even in a situation where state court could not have heard both claims of federal and state, the federal;
                   court hearing the 2nd claim will grant issue preclusion if the
                        1) there is confidence and
                        2) the state court would allow preclusion (See Murphy v. Gallagher)


   Federal – State Preclusion
       o The general requirement that federal judgments be given FF&C in state courts never has been challenged
           although, the constitution FF&C does not apply and neither does § 1738
                However scholar’s argue that
                        Supremacy clause and
                        Case and Controversy doctrines.

       o Federal Question
             There is almost universal agreement that federal preclusion rules usually apply in a state cout when the
                 prior federal court judgment involved a federal question. – thus states would ask what would federal courts
                 have done? (note federal court are non mutuality jurisdictions)

       o Federal common law governs the claim preclusive effect of a dismissal by a federal court sitting in diversity.
             The law that would be applied by state courts in the State in which the federal diversity courts sits.
             The federal reference to state law will not obtain in situations in which the state law is incompatible federal
                 interests. (See Semtek v. Lockheed Martin)
       o The rule in Semtek requires courts to apply the law of the forum state of the prior action to determine the
         preclusive effect of prior diversity actions

       o NOTE: Gaperini – that a federal rule will shrink in order to give state rules effect when applying the federal rule
         would be a violation of the REA – that the rules shall not abridge, enlarge or modify any substantive right…

   INTERSYSTEM ADMINISTRATIVE PRECLUSION

       o The supreme court has held that § 1738 is limited in scope to the judgments of courts, and does not apply to the
         decisions of administrative agencies
              More and more states are moving toward giving preclusive effect with in the state court system to the
                 decision of state administrative agencies…

       o Two step analysis:
             1) Was there a full and fair opportunity to litigate?
             2) Has there been a federal exclusion?