Civil Procedure II Outline

CIVIL PROCEDURE II OUTLINE

Probably Essay Questions:

Joinder of a Class Action Suit
Attacking a Judgment
Claim/Issue Preclusion

I. Discovery
a. Overview
i. Role of Discovery is broad, which is unique to the American system
1. Pro: lets parties get all facts
2. Con: over-discovery and harassment; under-discovery and stonewalling
3. Permits summary judgment motions
4. Leads to settlement
ii. Appealing a discovery ruling
1. Discovery rulings are rarely immediately appealable
a. Subject to final judgment rule. Court of appeals has appellate jurisdiction over all final decisions of the district courts 28 USC 1291
b. A final judgment ends the case on the merits and leaves nothing for the court but to enter judgment
2. Even if court of appeals agrees that district court erred in ruling, the appellant won’t get relief unless the error affected the substantial rights of the party, i.e., the case would have come out differently. 28 USC 2111
3. Was the decision final? Was the judge wrong? Did error affect outcome?
iii. Limitations on discovery
1. Court can change limits on number of interrogatories and depositions
2. Privileged
a. Attorney-client privilege: Purpose is to promote free and frank discussion between attorney and client.
i. Requirements:
1. Must be attorney-client relation
2. Must be a communication between attorney and client for the purpose of providing legal advice. Attorney can use an agent when necessary.
3. Must be confidential and kept so
4. Upjohn: For corporations, “client” includes not just “control group” but also employees who have the knowledge that the attorney is seeking. Thus, discussions with low level managers or employees may be privileged.
5. Underlying facts are not privileged, so if you can get the same information from somewhere else then the privilege doesn’t apply
b. 5th amendment right against self-incrimination
c. Doctor-patient
d. Priest-penitent
e. Marital privileges
3. Not Relevant
4. 26(d) – cannot do discovery until…
a. 26(f) conference
iv. Relevance, privilege, 26(b)(2) – unreas. Cumulative/duplicative
v. Work Product, information from nontestifying experts
1. Work Product (fact WP protected less than opinion WP)
a. Rule 26(b)(3): a party may obtain documents and things discoverable under 26(b)(1) and prepared in anticipation of litigation
i. by or for another party, or
ii. for that other party’s representative, ONLY
1. Upon a showing of ‘substantial need’ and that are unable without undue hardship to obtain the substantive equivalent by other means
2. The court shall protect against the disclosure of mental impressions, conclusions, legal opinions, or legal theories of attorney or other representative of party
b. Special rules for statements made by person seeking discovery: Written, signed statements prepared previously are obtainable if they pertain to the action at hand or the subject matter of the action. If that party doesn’t give the info, then he can move for a court order.
c. Competing policy: we want lawyers to do their own work and not to just feed off the other party’s hard work and don’t want attorneys to feel they are in a position where they have to not write things down for fear of harming their clients, but we also want that information to be available if there’s no other way to get the information and it’s important information.
2. Experts: 26a2B and 26b4
a. May depose or give interrogatories to experts whose opinions will be presented at trial. 26a2B states what information the opposing attorney must provide about that expert’s opinions, exhibits, work history, qualifications, etc.
b. May not depose or interrogate experts who won’t testify at trial but have been retained by the opposing party without showing exceptional circumstances or that there is no other means for obtaining the same or similar information.
c. Courts are split on whether you have to give a list of the names of all experts, regardless of whether they are testifying
3. Protective Orders: Rule 26c: a motion or request to the judge to not let certain discovery go forward because of lack of relevance, because the party has already had many chances to discover, to avoid annoyance to the party, cost too high, duplicative, other things outlined in 26b2. Moving party must certify that he has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the matter without court action. The kinds of rulings (relief) for protective orders are enumerated 1-8 in 26c. Know that if you apply for an order and it’s denied then the expenses can be awarded to the other side pursuant to 37a4.
a. P428 – distinguish from a conclusory statement
vi. Info relevant to “claim or defense of any party”—Scope
1. Rule 26(b)(1): may obtain information regarding any matter, not priveleged, that is relevant to the claim or defense of any party or, by motion, relevant to the claim or defense of any party
a. Pleadings become important because they form the limit of what is relevant in terms of claims or defenses
b. If not within a claim or defense, the court can order discovery for anything relevant to the subject matter of the case (broader than discovery of claims or defenses only) upon a showing of good cause—it’s not automatic.
c. Relevance doesn’t mean it has to be admissible at trial, but it can be relevant if it leads to something that may be admissible. Must be “reasonably calculated to lead to the discovery of admissible evidence”
i. If not stipulated exactly in complaint, defense will have an argument against relevance because it’s not exactly related to a claim
ii. But also, if not stipulated because of lack of information in complaint, plaintiff may show relevance because he needs to enlighten himself to get that needed information
b. Three tiers
i. Mandatory Disclosures Rule 26(a)
1. 26(a)(1): Initial disclosures. Each party must provide this information without a discovery request.
a. Rule 26(a)(1): things that are related to support of your case, not materials that attack the opposition’s case, and not information that may harm your case. Must be presented at or within 14 days of