CIVIL PROCEDURE OUTLINE:

CIVIL PROCEDURE OUTLINE:

I. INTRODUCTION TO THE CIVIL PROCESS: Civil procedure provides the mechanism through which disputes are resolved, when persons involved in disputes cannot follow the usual process of resolving disputes Substantive law (rights, duties, & obligations) vs. procedural law (rules that govern rights, duties, & obligations; provides a mechanism for applying substantive laws to concrete disputes) Adversarial process: the litigants themselves carry the burden of presenting the facts Study of civil procedure: study of how substantive law is enforced THE JUDGES ROLE: Bands Refuse Removal, Inc. v. Borough of Fair Lawn (1960): Facts: Carpassos entered into contract w/ Borough for garbage collection. Borough required permit to collect garbage, and denied permit. Procedural Facts: Judge communicated w/ s attorney before trial and discussed production of witnesses. Judge secured files & documents from prosecutors office & sifted them in advance; called witnesses on his own motion or had amicus (friend of the court who acts for one party in brief) to do so. Judge produced a large number of witnesses and added their testimony into evidence. Judge created new issues never mentioned in pre-trial order. Rule: Trial judges must behave reasonably and exercise only limited power in calling witnesses and presenting new issues. Amicus in this situation acts as a proxy. Judges are typically unprepared & ignorant in our system, so when they get overly involved they often make mistakes. Judge must give parties affected by new issues full & fair opportunity to meet those issues. Carpassos should have been given reasonably time to answer cross-claims from Substantive justice vs. procedural due process: fairness of process is important b/c the losing party will be more likely to accept the outcome Kothe v. Smith (1985): Facts: Judge directed counsel for parties to conduct settlement negotiations. Judge recommends the case to be settled for between $20,000-$30,000, and states that if it goes to trial and then the parties settle, he will sanction the parties (either one or both). s tell judge they would settle for as low as $20,000; however, their lowest communicated offer to s was $50,000. The parties settle one day after trial. Rule: Although judges can encourage settlement negotiations, the imposition of a sanction, especially on only one party, is excessive. Rule 16-c(9): At any conference under this rule consideration may be given, and the court may take appropriate action, w/ respect to9.] settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule. [encouragement of pre-trial settlement discussion] Rule 16(f): sanctions if party is unprepared or fails to participate in good faith had no indication that party would settle in the vicinity of $20,000 Sanctions: not related to liability SETTLEMENTS: act as benchmarks, but they fail to provide precedents (no rule is established) Pros: allows more cases to go through court system Cons: Not the same sense of vindication. Confidential: nobody will know what case settled for -> people dont know what their rights cost Court recognizes a gap b/w substantive rights & outcome of litigation (being in the right is not always sufficient to receive your due in the system: this raises questions about the meaning of the legal process. How confident are you in your ability to persuade others about the truth? Litigation forces people to contemplate settlement: more information is revealed; more pressure from judges

II. STAKES OF LITIGATION DAMAGES: *MONETARY DAMAGES [COMPENSATORY/PUNITIVE]: COMPENSATORY: Medical expenses, lost wages, pain and suffering Value of lost property: FMV/sentimental value PUNITIVE [non-compensatory]: intended to deter; when there is evil motive or intent 1.] Outrageousness of the conduct 2.] Wealth of the 3.] Limited by: Fairness Subject to review by judge - Remititor of Damages: judge reviews and determines whether number is right (pain and suffering, etc.); Additor of Damages: judge reviews & escalates damages Non-punitive damages: handed down to deter constitutional violations Carey v. Piphus (1978): Facts: Two students suspended from schools w/o procedural due process. Complaints sought declaratory & injunctive relief, along w/ punitive damages. Holding: Nominal damages of one dollar awarded. Rule: In the event does not put on evidence of injury due to denial of due process, in most situations he will be awarded only nominal damages but no compensatory (non-punitive) damages. Application of tort principles to come up w/ damages in this case does not really work What is lost? accuracy of outcome; feeling that the government has treated you fairly Judge has to determine what the outcome would have been if Piphus had been able to state his case. **EQUITABLE RELIEF (SPECIFIC PERFORMANCE, INJUNCTION, ETC.) Smith v. Western Electric Co. (1982): Facts: shares office w/ other employees who smoke & suffers from severe adverse reaction. told not to submit any more complaints through anonymous complaint procedure. NIOSH recommended smoking policy which was not followed by . eventually given the choice b/w respirator or demotion. Holding: has stated a claim upon which relief can be granted; he should be given opportunity to prove allegations. Rule: The criteria for granting a permanent injunction include: 1.] whether has actually succeeded on the merits; 2.] whether has an adequate remedy at law; 3.] whether risks imminent irreparable harm; 4.] whether the balance of hardships weighs against issuance of injunction; 5.] whether injunction would serve public interest; 6.] whether the court can, as a practical matter, issue the injunction. Balancing the hardships in this case: If Smith is free to smoke, then the company will suffer. (employees will be unhappy) Requirements for a Preliminary Injuction: 1.] strong likelihood of success on the merits 2.] likelihood of irreparable harm 3.] balance of harm 4.] Advancing of public interest Temporary Restraining Orders (obtained in ex-parte basis proceedings in which the other side is not in front of the judge; cannot last for more than ten days) vs. Preliminary Injunctions (issued after both sides have notice and opportunity to be heard and served; last much longer and can eventually turn into permanent injunctions) NON-COMPLIANCE W/ AN INJUNCTION: Walker v. City of Birmingham (1967): Facts: BHAM officials received temporary injunction of petitioners from participating in parade demonstrations w/o a permit. Petitioners had made request for permits but were denied. Petitioners violated injunction and paraded, the second of which resulted in violence on Easter Day. Motion to dismiss injunction filed after parades. Petitioners found in contempt of court. Rule: In the fair administration of justice, no man can be the judge of his own case. CONSEQUENCES: 1.] Criminal contempt: violation of court order is prosecuted as a crime; violation must be proved beyond a reasonable doubt; has right to jury trial if he faces prison sentence longer than 6 months 2.] Compensatory civil contempt: court orders to pay in amount to compensate for s violation of equitable decree 3.] Coercive civil contempt: impose punishment on in order to ensure future compliance; if you comply, the punishment will stop under these circumstances makes no sense: petitioners are probably happy to comply in the near future since they probably dont have any marches planned 4.] Collateral Bar rule: In a show cause hearing, the target of the hearing cant challenge the validity of the underlying decree. The only issues that can be raised are 1.] whether there was an order and 2.] whether you knowingly violated it. Challenging the order should be done by motion to dissolve the injunction before violation of the injunction. Validity of underlying merits can be challenged at some other proceeding -> you should not be the judge of your own case *1.] BHAM parade ordinance: Had the petitioners attempted to apply to AL courts for an authoritative construction of the ordinance, courts have given licensing authority granted in ordinance a narrow & precise scope. *2.] Injunction: Petitioners should have applied to AL courts to have injunction modified or dissolved in order to raise constitutionality question. *3.] Administration of parade ordinance: Had petitioners applied for a permit to the commission or any commissioner after the injunction was issued, and the permit was refused, the claim of arbitrary/discriminatory administration would have been considered by state circuit court upon motion to dissolve injunction. MLKs theory: If judge articulates an unjust law, then I dont have to abide by it The judicial order (injunction) is more sacred than the law (ordinance) JUSTICIABILITY: requirement under federal law that a case be definite & concrete, that the parties have real and adverse legal interests, and the dispute itself is admitting of specific legal relief through a decree of conclusive character. Doctrines: 1.] ripeness: controversy has already erupted; the legal issue is in a concrete context Imminence is necessary: Society should not be reactionary but should wait for harm to have occurred Waiting for full-blown injury means you dont have to engage in worst case scenario prediction 2.] standing: whether or not has demonstrated that he/she is among the injured. 3.] mootness: you have to have standing which continues for the duration of the lawsuit 4.] requirement to avoid feigned or collusive cases: must actually desire to assert interest; no test/hypothetical cases ***COSTS OF LITIGATION: Attorneys fees Rule 54: loser pays winners litigation costs under certain circumstances Certain costs: transportation of witnesses, filing fees, photocopying, etc. English rule: fee shifting; encourages lavish spending; exonerated should not be impoverished by the cost of mounting a successful defense; if knows they are bringing a frivolous lawsuit, he wont bring dubious claims; problem: poor people are discouraged from filing lawsuits American rule: parties bear their own cost of litigation and attorney fees; encourages conservative spending; encourages settlement; contingent fee mechanism allows poor people to bring suits. Venegas v. Mitchell (1990): Facts: in the suit and attorney agreed on a contingency fee contract of 40%. Contract allowed attorney to apply for and collect any attorney fee award made by the court, prohibited from waiving attorneys right to court-awarded attorneys fees, and allowed attorney to intervene to protect interest in fee award. Rule: A civil rights is obligated to pay the contractually obligated contingency fee, even if the attorney receives a statutory award. Purpose of 1988: for civil rights to secure competent counsel -> depriving s of option of promising to pay more than statutory fee would not further the statutes purpose Concept of reasonable attorneys fee is elastic: in this case they used the lodestar method (reasonable rate * hours worked; doubled b/c of competent work by the attorney) American system: lawsuit must be frivolous in order for the fee-shifting to occur.

III. PLEADING: describing & defining the nature of the dispute between parties HISTORICAL EVOLUTION OF PLEADING: Single Issue Fetish: A case was postured for resolution once the parties were deemed to be at issue. One could challenge technical sufficiency of the complaint (demurrer) or deny substance of allegation (traverse) Lawyer back in the day would try to keep the case at pleading and look for technical deficiencies -> cases turned on lawyerly manipulation rather than merits of the case Lawyers would sometimes bet wrong and challenge case on technical rather than substantive merits Writs: One had to fit the case into a specific form of action; choose writ carefully at the outset Common Law Pleading: Abolishes writ system & eliminates the distinction b/w law and equity Other side must be given notice FIELD CODE: exists at the state, not federal level -> courts fetishize facts & avoid need for excess facts Gillespie v. Goodyear Service Stores (1963): Facts: alleged in complaint strespassed upon the premises occupied by s residenceassaulted the and placed her in great fearcaused her to be seized and exhibited to the public as a prisoner. Rule: A demurrer will be sustained if s complaint does not state facts sufficient to constitute any cause of action. Complaint alleges legal conclusions, not facts -> Other side must have adequate notice of the nature of the lawsuit Complaint needs: what occurred, when it occurred, where it occurred, who did what, relationship b/w and or of s inter se. Fact-specificity: meant to prevent frivolous lawsuits; its hard to prevent stating things in a conclusory manner Lawyers screwed up the complaint: dont want to replead b/c they dont want to admit to that FEDERAL RULES which govern modern pleading: Rule 4: civil action is commenced w/ filling of complaint Rule 7: defines pleading pleadings consist of a complaint, an answer, and a reply; everything else is a motion Rule 8: outlines general rules of pleading 8(a)(2): A pleading which sets forth a claim for reliefshall contain a short and plain statement of the claim showing that the pleader is entitled to relief. Requirements for specificity in pleading depends on the theory of the case -> more specificity if the legal theory is in question. Generality is beneficial b/c you may not know every legal argument that supports your case until you go through discovery; leaves room for the case to grow. Discovery encourages less specific statement of case. Rule 10: describes form of pleading SPECIFICITY [Rule 12]: United States v. Board of Harbor Commissioners (1977): Facts: Government states in complaint, the s, and each of them, own and operate offshore facilitiesfrom which oil was discharged into the Delaware Riveror the s, and each of them, took actions which caused such oil to be discharged. s filed Rule 12(e) motion for a more definite statement. Rule: It is improper to use a Rule 12(e) motion to obtain admissions from a claimant in the hopes of clearing the way for a later Rule 12 (b)(6) motion to dismiss for a failure to state a claim. Government sues everyone who owns a company on the water -> s say this is not specific enough s need more information before filing Rule 8 (b) [requires to admit or deny averments upon which the adverse party relies]; s are trying to find out what the government knows b/c they dont know if they were the ones caught this time around s motion for a more definite statement is an effort to flesh out the governments case Affirmative defense: Act of God caused oil leakage 12 (e): court does not allow it b/c it is harassing to s and wastes time. Mitchell v. Archibald & Kendall (1978): Facts: shot sitting in his truck after being directed to park truck across the street from the s loading dock. alleges loading dock was an extension to s premises. Rule: Where the refuses to file a Rule 15 motion to amend the complaint, and instead elects to stand on a flawed original complaint, he has relinquished any alternative legal theory on appeal. s fail on the question of law regardless of how it is plead: according to ALI, premises limited to actual property possessed by business Court will not supply w/ alternative legal theory; he must supply it himself Sufficiency of a complaint rests on the sufficiency of some legal theory: s duty to supply a legal theory. ( could have suggested extended premises theory; instead, set forth a new theory of liability) Pleading specifically: if attorney is working on contingent fee basis, he will know sooner rather than later whether legal theory will be tossed Pleading generally: force the other side to do more research & delay the case Litigation is organic: you dont know all the details or what the winning argument is up front RULE 9: HEIGHTENED REQUIREMENTS FOR SPECIFICITY Rule 8 sets out general rules -> Rule 9 creates exceptions Rule 9(b): In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated w/ particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally Rule 9 encourages 1.] innovation & investment in innovation; absent some sort of check, 2.] lawsuits hurt investors in a corporation; 3.] reputation interests Rule 9 tries to limit the in terrorem value of lawsuits: the court wants to throw out frivolous lawsuits; it doesnt like the idea of shareholders being able to cripple companies Ross v. A.H. Robins Company (1979): Facts: s purchased common stock of company. Prior to close of class period, disseminated statements to investing public detailing safety, efficiency, etc. of Dalkon Shield. s charge that s knew or recklessly disregarded the fact that there were serious questions as to safety and efficiency of Dalkon Shield during class period. s point to study during class period discussing negative side effects. Rule: Where s aver actual knowledge, must specifically plead a factual basis for their conclusory allegations regarding that knowledge, giving a proper timeline. needs to bridge the connection b/w s and negative report; fail to indicate when s came into possession of safety information. Ruling is inconsistent w/ Rule 9, which says knowledge only needs to be plead generally. could have plead: Manufacturer such as has an R&D department; they should have known that there were some risks associated w/ it [Gabriellson maybe contacted them] Cash Energy, Inc. v. Weiner (1991): Facts: s alleged environmental contamination of property by corporations. s allege in complaint that at all relevant times, these four actually participated in and exercised control over the affairs of one or more of the corporate s. Rule: Despite the wording in Rule 8(a) in regards to pleading, particularity in pleading which involves an outline or summary of facts, is necessary in todays courtroom. Rule 8(a)(2): A pleading which sets forth a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8(f): All pleadings shall be so construed as to do substantial justice. - requires judges to exercise some degree of discretion Environmental violation: consequences could be severe; defense against a non-meritorious claim can be very expensive Keaton: rules of pleading have become less generous over the years (9(b), 8(f), 12(e)); s essentially wont know the rules of the game until they try to plead Judges are shaping policy at the pleading stage -> using procedure to shape substance Rules are not supposed to be case specific; judges shouldnt be allowed to make procedural decisions on the fly Leatherman v. Tarant County Narcotics (1993): Facts: Two separate incidents involving execution of search warrants by local law enforcement officers. Rule: Unless enumerated by the Federal Rules (Rule 9), the court can only enforce the notice pleading standard. The Federal Rules have already enumerated the situations in which there is a need for particularity. For now, Federal Courts must rely on summary judgment and control of discovery to weed out unmeritorious claims. Rule 9(b) does not mention civil rights actions -> should be able to say specifically I dont know but this is what happened to me Court seeks clarity in pleading requirements Rule 7(a): court may order a reply to an answer; the court can then require greater specificity on answer CONSISTENCY & HONESTY IN PLEADING: Rule 11: authorizes the sanctioning of counsel for bad faith in filings of pleadings or motions (pleading: representation by council that all facts were made in good faith) 1983 Amendment: required council to investigate all claims and investigations; presented a problem for many types of lawsuits especially civil rights s since much of the evidence was in the hands of the 1993 Amendment: changes standard from good faith -> reasonableness under the circumstances; now sanctions are to be tailored to the specifics of the case to ensure that particular types of lawsuits (civil rights) are not to be deterred; monetary sanctions discouraged 11 (b)(1): harassing & causing unnecessary delay 11 (b)(2): adequate legal inquiry 11 (b)(3): adequate factual inquiry Monetary sanctions are discretionary (limited by the nature of the remand) Non-monetary sanctions: referred to Bars committee for misconduct; banned from courtroom; very public reprimand reputation sanctions Zuk v. Eastern Penn. (1996): Facts: Zuk, psychologist, had two family session taped by EPPI. EPPI duplicated films and rented them through their library. Zuk demanded film back. Zuks attorney filed lawsuit based on copyright infringement, which he had weak grasp of. Zuk had no factual evidence other than conjecture. Holding: Sanctions proper under Rule 11 (b)(2) and (3). Rule: When imposing sanctions under Rule 11, the court must take into count the s & attorneys investigations into both fact and law, and should consider a wide range of possible sanctions to offer minimum punishment. Discovery: not intended to permit speculative pleading of a case first and then purse discovery to support it 11 (c)(1)(a): safe-harbor provision sanctions may only be imposed if the violator has been warned and given an opportunity to desist (21 day grace period); in this case, the attorney waived his 21 day period b/c he stated he wouldnt withdraw in oral arguments [only applicable w/ motions brought by one party, not by courts own initiative (c)(1)(b)] Rule 11 (3): the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. McCormick v. Kopmann (1959): Facts: McCormick killed when truck operated by Kopmann collided w/ him. McCormicks wife brought suit, pleading in the alternative in two counts. Count I alleged Kopmann was negligent and drove his car over center line. Count IV alleged Huls sold McCormick too many beverages which rendered him intoxicated, causing him to drive his car into Kopmann. Rule: Where the does not know which of the inconsistent averments is true and which is false, the alternative counts are allowed. Policy reason: controversies settled and complete justice in single action , in good faith, does not know which of the averments is true and which is false; key witness is deceased. If the suits were joined, there is the possibility of inconsistent results; furthermore, each party would blame the other. Good for in this case, b/c jury will perceive its role as having to decide b/w the two, or possibly even both. s PRE-ANSWER MOTIONS [RULE 12] pre-answer motions can file before answering complaint: Rule 12 (b)(1): claim that a court lacks subject matter jurisdiction over a particular lawsuit classification of case Federal Question Jurisdiction & Diversity of Citizenship Jurisdiction Rule 12 (b)(2): personal jurisdiction of ; as a , you are objecting to courts authority to enter judgment against you; whether court has authority to bind you Rule 12 (b)(3): venue objection to geographical location as to where the suit is being litigated Rule 12 (b)(4): service of process of ; technical violation Rule 12 (b)(5): (same) Rule 12 (b)(6): failure to state a claim Rule 12 (b)(7): defense that a necessary party be joined; answer does not need to be filed until that party is properly joined Pre-answer motions: point out that /lawyer did something wrong -> why not sit back and watch s screw up Rule 12 (g) [consolidation provision]: if a party has filed a pre-answer motion and omits Rule 12 pre-answer motions that are available, party may be barred from any more pre-answer motions Rule 12 (h): established waiver regime of Rule 12 Rule 12 (h)(1): category of disfavored defenses (Rule 12 (b)(2-5)): these defenses are going to be waived forever if they are omitted from pre-answer motion Rule 12 (h)(2): category of favored defenses (Rule 12 (b)(6,7)): these defenses can be asserted in pleading if they are not asserted in pre-answer motion [can also be made at motion for judgment on pleadings; trial on merits] Rule 12 (h)(3): category of most-favored defenses; includes 12 (b)(1) motion challenging subject matter jurisdiction (can be made whenever, including on appeal) ***When has filed a complaint and has not responded will seek 1.] entry of default, and then seek to reduce default to 2.] judgment. s DEFAULT: Rule 55 failure to answer Default: forecloses further litigation about s liability, but leaves open how much liability 55 (b)(1): [circumstances where an entry of default can be reduced to a judgment on the same day] clerk can enter judgment if the claim if for sum certain -> if you can say specify amount, clerk can grant judgment Shepards Claim Service v. William Darrah & Associates (1986): Facts: s attorney involved in mix-up w/ secretary. Attorney thinks that extension of 45 days is tacked onto the 30 days given to file answer. seeks default. Rule: Where there is no evidence of culpable conduct on behalf of , the court leans on the side of leniency in assessing whether to grant default. Holding represents uneasiness about granting actual relief in a non-adversarial setting -> this is about people fighting for the truth System compensates by asking judge to take a more active role in scrutinizing the claim judicial activism protects -> conflicts w/ supposed neutrality of judges files formal notice of appearance to contest s damages: He is entitled to three days notice before the hearing on a default judgment by the judge Three factors in deciding whether or not to set aside default: 1.] whether it will prejudice [in this case there has been no preparation prejudice] 2.] does have a meritorious defense [want to have case resolved on merits rather than technical issues; do you have a decent defense?] 3.] culpable conduct of [lawyers conduct was careless and inexcusable; still, this is an ambiguous standard court does not want to have dispositive standard] Bottom line: client should not be punished for lawyers screw-up s ANSWER: Requirements when answering complaint: Rule 8 (b) you have to admit or deny the averment; if you are w/o particular knowledge to admit, you should deny based on insufficient knowledge may want to assert additional matters to defeat s claim, assert his claim against (counter-claim), bring another party into the litigation (cross-claim/third-party claim) Rule 11: when you sign pleading, you are saying that you have written your response in good faith; you must at least engage in a preliminary factual inquiry so that at least your denials are in good faith s averment treated as true after files an answer David v. Crompton & Knowles Corp. (1973): Facts: averred that it was w/o sufficient knowledge or information to admit or deny the allegation later discovered it was not liable for the machine; information was w/in its control the whole time. Rule: Where knowledge is peculiarly w/in control and knowledge of , an averment in complaint stating it is w/o sufficient knowledge or information is deemed admitted. Court is unsure what to do in this situation; better response: file a 12(b) motion for a more definite statement clean up averment to respond better General way to respond to complaints: deny everything that you possible can; admit only what you cannot in good faith deny Affirmative Defense: Gomez v. Toledo (1980): Rule: Where qualified immunity benefits the , he has the burden of raising the affirmative defense. Affirmative Defense: even if the allegation is proven, there is an excuse that is recognized under the law 1.] policy avoid fishing expeditions; 2.] fairness (does it seem right to impose burden of pleading affirmative defense on ); 3.] probability (in the normal lawsuit, what is typically plead) If does not assert affirmative defense, it has been waived -> can be raised in an amended answer though s COUNTERCLAIMS: Rule 13: If the s claim arises out of the transaction or occurrence that is the subject matter of the opposing partys claims, then if certain other requisites not here pertinent are met, it is compulsory. Compulsory claims: claims ancillary to the claim asserted in the complaint and no independent basis of federal jurisdiction is required. [must be filed w/ original claim] Used for consistency of outcome Common sense approach to deciding whether claim is compulsory: similarity of events 1.] There must be a logical relationship (flexible standard) -> same transaction or occurrence 2.] Bose test: same evidence standard -> If you have to use different evidence to support counterclaim as to primary claim, it is permissive Rule 13 (g): there is no such thing as a compulsory cross-claim -> court does not want to put s in position of weakening each others cases for the benefit of the Indemnity: insured sues insurer for indemnification; only time a cross claim b/w insured and insurer occurs is when the s claim against the insured is going to succeed Permissive claims: counterclaim is unconnected w/ transaction out of which primary claim arose & independent jurisdictional grounds are required [not required to be filed w/ original claim of ] is required to assert independent basis for subject matter jurisdiction Does not arise out of same transaction or occurrence Set off: is not seeking affirmative relief but instead to reduce s recovery Damages must be liquidated and grow out of contract/judgment Wigglesworth v. Teamsters (1975): Facts: alleges union and president violated certain of his rights protected by Act, as he was prevented from exercising his right to free speech at union meetings and was denied request to have union membership informed of their rights. Rule: Where the same evidence cannot support or refute the opposing claims, the counterclaim is deemed permissive. Furthermore, the set off rule does not apply to the permissive counterclaim if damages are not liquidated and grow out of contract or judgment. Subject matter jurisdiction on s claim: it is a federal question; s counterclaims are not federal claims they arise under state common laws [tort] Logical relationship: Bracey uses a but for test but for the first event, the second event would not have occurred s counterclaim divided into two parts: 1.] technical aspect of abuse of process (separate evidence); 2.] malicious motive (there is an overlap) Abuse of process: using the law wrongly; asserting a malicious claim w/ bad motives Issue is not whether the underlying suit has merit, but whether process is used for some collateral purpose -> Malicious prosecution relies on the same evidence VOLUNTARY DISMISSAL: RULE 41 Rule 41: places limits on circumstances where can dismiss his/her own lawsuit 41 (a): voluntary dismissal (i) allowed before answer or motion for summary judgment [must be signed by all parties or court order] 41 (b): involuntary dismissal 41 (c): counter, cross, & third party claims 41 (d): recycle claim Reasons for Rule 41: 1.] court becomes invested & we do not want to waste judicial resources 2.] If judge invests some energy, it seems wasteful for to pull case 3.] s should not be able to shop around for most sympathetic judge 4.] Acknowledge that being is burden of some experience Systems approach to voluntary dismissal: system does not care about s ability to abort a lawsuit except to the extent that the system has been invested in the lawsuit Structural biases against once expenses in the litigation process rise Only one dismissal by notice, second is considered w/ prejudice D.C. Electronics, Inc. v. Nartron Corp. (1975): Facts: Upon filing suit, obtained TRO and scheduled hearing for preliminary injunction. After TRO was dissolved, withdrew its request for a preliminary injunction and thereafter gave notice of voluntary dismissal. Rule: The courts decision on a TRO has no impact on a motion for voluntary dismissal. Harvey: preliminary injunction hearing had been held; court stated could not abort lawsuit; judicial expenses in litigation [merits were reached since preliminary injunction was denied] Rule 41(a)(i): clear and ambiguous; no room for judicial ambiguity according to the court Merits in this case were not reached can protect himself by filing answer or motion for summary judgment AMENDMENTS TO PLEADING: Rule 15(a): A party may amend the partys pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time w/in 20 days after it is served. Otherwise, a party may amend the partys pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Strong presumption created that amendments should be allowed -> up to the discretion of the judge Rule 15 motions are going to be granted b/c system wants resolution on the merits Jacobs: action filed before statute ran, but amendment was filed after statute ran There must be an excuse as to why you didnt plead accurately at time of pleading; if not, you cant amend Rule 15(b): Amendments to conform to the evidence -> if we are going to resolve all the dispute on the merits, we should exhaust all of the claims of liabilities David v. Crompton Knowles Corp. (1973): Facts: s denied on grounds of lack of knowledge of s allegation that it designed, manufactured, and sold machine. now seeks to amend pleading. Rule: Where the would suffer prejudice from an amended complaint, including a barring from instituting an action against another party, and the has been lead to believe the s pleadings, an amended complaint will not be granted. Prejudice Arguments: Statute of limitations: delay would result in s statute of limitations running, prohibiting from instituting action against another party cannot be considered negligent for not discovering s alleged defense -> if had given indication of defense earlier, would have been given sufficient time to investigate relationship b/w and Hunter cannot get to evidence which is no longer available Substantial preparation costs for some issues Passing of time: prejudice per se; memories fail, recollections weaken Possibility: Hunter could determine from face of complaint that wanted to sue it -> should be allowed to make an amendment to relation back Rule 15 (c) [relation back]: 1.] amended pleading arose of same conduct transaction, occurrence in original pleading ; 2.] party will not be prejudiced in maintaining defense on merits; 3.] knew or should have known that, but for a mistake concerning identity of proper party, action would have been brought against party RULE 15 (c): Swartz v. Gold Dust Casino, Inc. (1981) [Liberal Interpretation]: Facts: injured in fall of staircase. s listed in complaint included Gold Dust and Does I V. alleged that negligently permitted staircase to become tread bare, worn, and slippery. After hiring engineering consultant and finding out that stairway did not conform w/ local building code, prayed to amend complaint and substitute Cavanaugh for Doe I. [After statute of limitations has passed] Rule: For a relation back of amendments to be brought, 1.] the claim asserted in the amended pleading must have arisen from the conduct, transaction, or occurrence set forth in the original pleading; 2.] the new must have received notice of the action w/in the limitations period; 3.] the new should have known that but for the mistake concerning the identity of a proper party, the action would have been brought against him. Court looks to prejudice, not delay Same transaction/occurrence: Broader test than the one used in counterclaims -> it includes conduct/duty; from s perspective test, she looks to occurrence (I fell, what difference does it make how I did it); if the test is same evidence, she loses Court applies violation of same obligation test same basic injury but different mode in breach of duty of care (Blair) Notice: In CA, if you knew anything about the lawsuit at all, that was enough; potential should be able to rest easy if statute of limitations has run -> prejudice results from lost evidence Foster flexibility in pleading as long as it does not jeopardize the purpose of the statute of limitations, which are: 1.] Notice: want parties to have fair notice of the nature of the suit/breach 2.] Avoid prejudice that occurs b/c of destruction of time sensitive evidence Restrictive rules of relation back: 1.] Someone who knows identity and something about additional party is denied relation back 2.] If mistake is a result of deficit of actual knowledge and not identification, there is no relation back.

ESTABLISHING STRUCTURE & SIZE OF DISPUTE: Rule 17 (a): every action must be prosecuted by real party in interest Party must be entitled to benefits in action and must be substantially interested in action Protects the interests of the : works to ensure that the is not wasting his time w/ a particular lawsuit Res judicata: claim or issue preclusion -> once lawsuit is resolved, that is it Rule 18 [JOINDER OF CLAIMS]: bring all types of unrelated claims against single in single lawsuit Policy reason: efficiency -> why not let all claims be resolved at once There is no guarantee that there is going to be a single trial for all at once -> the court has the power to sever claims tried [Rule 42: court can sever a claim if it is convenient & it avoids undue prejudice towards the ] PERMISSIVE JOINDER OF PARTIES: Rule 20 (a): relief jointly, severally, or in respect of arising out of the same transaction, occurrence, series of transactions or occurrences There must be a sense of relatedness Kedra v. City of Philadelphia (1978): Facts: Series of brutal acts committed by Philadelphia policemen against s. allege s as City of Philadelphia, Police Commissioner, and various police officer and officers. One specific event might involve different actors then the others. Rule: Where the events which give rise to s claim arise out of the same transaction yet may cause prejudice to some of the s involved, the judge may wait until after discovery to decide whether to separate trials or make other orders. Transaction test: events occur in systematic pattern -> this can extend over a long period of time Judges may be more liberal in civil rights cases -> concrete evidence of abuse, however (claims are reasonably related) Insolia v. Phillip Morris (1999): s claim that there was a tobacco industry-wide conspiracy to defraud consumers about the addictiveness of cigarettes. The allegations are well supported by facts. Rule: Where there are multiple s, the events spanned over a long period of time, and different facts are needed to prove different cases, s claims should be separated. [is this really different from Kedra?] Advantage to s of severed claims: s wanted joinder to pool litigation costs; if they are split up, they have to bear litigation costs fully Protective orders: isolate s informationally s conspiracy claims look more suspicious if they are brought individually Court is concerned about trial management: Judicial resources would be wasted b/c of juror confusion. COMPULSORY JOINDER OF PARTIES: Rule 19: someone not a party to the lawsuit SHOULD be joined Janney Montgomery Scott v. Shepard Niles (1993): Facts: , an i-banking corporation organized under Penn law, files a federal court claim against Shepard Niles, which is incorporated under NY law. District Court granted Niles Rule 12 (c) motion for judgment on pleadings for failure to join Underwood. Janney & Underwood entered into i-banking agreement; Janney served as advisor to Underwood and its subsidiaries, including Niles. Rule: Steps to Rule 19: 1.] Ask whether the party is necessary: 19 (a)(1) [in the persons absence complete relief cannot be accorded among those already parties.] -> Contract b/w Underwood/Niles looks like joint and several liability 19 (a)(2): or the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the persons absence may... (i) [disposition of the action in parties absence may impair or impede the absent persons ability to protect that interest] -> 1.] Court says it is possible Niles might not even be held liable in federal action; 2.] stare decisis there may be persuasive but no mandatory effect [courts argument doesnt make sense b/c federal law is typically precedent over state law] 3.] only portion of contract (breach) would be resolved; 4.] there is no risk of double liability -> issue preclusion only applies to parties in privity or persons in private action If Underwood wanted to, it could seek to intervene under Rule 24 and argue that it wants to intervene to protect its interest -> supplemental jurisdiction (ii) [leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest] -> Presumably, Niles can sue Underwood after judgment for contribution; question is whether Niles will be found liable in federal action, then liable again in state action 2.] Ask whether the party is indispensable: nonseverable and failure to join means action is dimissed IMPLEADER: -> -> 3rd party Rule 14(a): Impleader is proper only if third party is or may be liable to for all or part of the s claim against the . Clarke v. Associates Commercial Corp. (1993): Facts: s property and body assumed damages arising out of s agents repossession by force, of a tractor. alleges it hired, Howard, who subcontracted w/ Clark to repossess unit. s filed third-party complaint seeking indemnity from its employee and two parties who assisted in repossession. Holding: Indemnity to third-party s is allowed. Rule: For a to implead a third party , there must be similar transactions or occurrences between the original action and third-party suit. Third party claim does not need to be based on the same theory as the main claim s allowed to plead in alternative [Rule 8]: 1.] there is no agency b/w them and 3rd party -> we are not liable for them; 2.] they are our agents Connection b/w original action & third party action: derivative liability suit -> one event gives rise to subsequent cascading liability (3rd party is responsible for the tortious conduct that gave rise to the original suit and the is being held vicariously liable for actions of the 3rd party ) Does the relationship b/w the three parties make a convenient trial package? Can file plea for damages against third-party s even though the claim is unrelated to claim giving rise to 3rd party claims -> Rule 18: once you bring someone into the courtroom , you can bring whatever you want Could file suit for diminished value against 3rd party -> Rule 20 INTERPLEADER: mechanism through which , who is potentially subject to multiple claims of recovery from a limited liability pool, can require all potential claimants to join in a single action State Farm Fire & Casualty Co. v. Tashire (1967): Rule 22: requires interpleading party to show that there is a risk of multiple liability -> in this case, State Farm has a suit w/ -1 from CA seeking $20,000 and a suit w/ -II from OR seeking $20,000, so State Farm could have to pay twice In reality, State Farm probably does not have this risk b/c it has limited liability capped at $20,000. Nevertheless, it needs to file this interpleader or otherwise spend the litigation costs defending itself in 35 other claims. Interpleader action does protect the shares of the claimants -> claimants here are sufficiently adverse (each wants a piece of $20,000) State Farm does not have to wait for claims to be reduced to judgment before brining interpleader action -> first claimant to obtain judgment would appropriate all or disproportionate share Greyhound: switched sides in case; initially wanted some money from State Farm; now wants everyone to sue them now given their specific amount of money (argument rejected) Passengers cannot be treated as Rule 19 compulsory parties: Canadians arent held under American Federal Jurisdiction Interpleader does not function as a bill of peace: pro-rata share would be unfair for s w/ larger damages; INTERVENTION: litigation devise employed by an outsider who has an interest in a lawsuit and wants to voluntarily join as a party [Rule 24] Rule 24: anyone shall be permitted to intervene in an action: 1.] when a statute of the United State confers an unconditional right to intervene Natural Resources Defense Council v. U.S. Nuclear Regulatory Comm. (1978): Facts: Federal statute requires impact statements for issuance of licenses for operation of uranium mills by NRC. NRC, however, does not prepare such licenses when it has agreement w/ state. s want application of federal regulations in full force. NRC has agreement w/ New Mexico, who issued license to U. S. Nuclear w/o need for impact license. American Mining Congress & Kerr-McGee, two other uranium mills in NM seek to intervene. Rule: When granting an applicants motion to intervene, the court looks to 1.] whether the applicant has an interest which would be impaired by the outcome,2.] the chance of the impairment, and 3.] whether one of the parties adequately represents the applicant. Rule 24 (use of property or transaction; interpreted broader even though grammatically it should be interpreted more narrowly) vs. Rule 19 Economic interest captures the courts attention: Kerr-McGee has a general interest (Court makes a tacit judgment about who the real players are) Allard v. Frizell: general interest of the public in protecting birds is not a protectable interest Profit motive: valid; environmental concern: invalid Amicus curiae: brief by intervenor cant bring issues before the court; only speak when spoken to Impairments [Rule 24 (a)(ii): the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest, unless the applicants interest is adequately represented by existing parties.] United: license was being held up in litigation Kerr-McGee: concerned w/ general requirements 1.] interests: KM concerned about how business is going to change -> requirement of license; termination of agreement b/w NRC & state 2.] chance of impairment: There might not be a stare decisis affect: the case might be settled, but NM might be forced to change legislation as a result; considerations in the future for requirements of environmental impact situation might be relatively the same 3.] Inadequate representation: United could settle case for 25 year license; licenses could be issued prospectively CLASS ACTIONS: Rule 23 Basic inquiry is comparable to a decision as to whether a party is necessary; class action inquiries are much more factual (difficult to make generalizations about type of cases) Denial of certification results in suit continuing on individual basis Benefits to : 1.] cheaper; 2.] easier to litigate; 3.] finality Disadvantages to : 1.] might not only be liable for damages, but attorney fees as well; 2.] Atmospherics: looks bad if there are bunch of people accusing you of something; 3.] Fighting class certification is itself a delay tactic Hansberry v. Lee: Facts: s bought and moved into home in Chicago, covered by racially restrictive covenant. Owners of neighboring homes brought suit to oust s. Trial court stated they were bound by previous decision in Burke, which held that restrictive covenant was enforceable. s in Burke stipulated that proper number of signatures had been received on covenant, but changed circumstances made sale legal. Rule: For members of a class to represent others, they must first be designated a class and have the same interests as others. Hansberry s (long term purchase of property) and Burke s (short term rental) did not have same interests s in Burke Benefit of class action to : can foreclose and bind parties that do not participate in litigation; comparatively, litigation is typically binding only on the people who participated in the litigation Burke s mistakenly said that 95% of owners in the area signed the covenant -> this objection can always be raised by future members of the class action (must not allow mistakes to be the basis for disallowing representation b/c it undercuts the very purpose of class action litigation) Rule 23 (e): Courts should scrutinize all class action settlements to prevent unfairness Court is looking out for the class as whole Bands Refuse: shouldnt judges by detached umpires and not get into the business of forcing settlement or even making sure settlement is fair Holland v. Steele (1981): Facts: Civil rights action. , GA jailhouse, restricted s access to counsel and to courts in civil matters. filed class action pursuant to Rule 23(a) and Rule 23(b)(2); seeks to have certified as a class all persons who are/will be detained by . argues class certification is inappropriate, b/c jail is composed of both pre-trial detainees and sentencees. Rule 23(a) Prerequisites of Class Action lawsuit: 1.] class is so numerous that joinder of all members is impracticable [is there a good reason to depart from case-to-case litigation/Numerosity] There are unidentifiable inmates at class certification -> joinder of unknown individuals is impracticable 2.] there are questions of law or fact common to the class Common factual questions: acts, omissions, policies of s in denying access to counsel Common questions of law: violations of 6th, 14th Amendments & GA Constitution Link of similarity analysis w/ concern over judicial economy 3.] the claims or defenses of the representative parties are typical of the claims or defenses of the class [are the individual class s the right structure for the litigation] Possibility if there is not sufficient typicality: break class up into sub-classes s policy applied across the board 4.] the representative parties will fairly and adequately protect the interests of the class s representative is statewide legal program Rule 23(b)(1): most concerned about s -> might be subject to multiple liability/lawsuits Rule 23(b)(2): the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief w/ respect to the class as a whole. Rights pertain to both detainees and sentencees Smith v. Western Electric: probably could not have brought suit under this, b/c seemed more effected by the smoke Rule 23(b)(3): money Eisen v. Carlisle & Jacquelin (1974): Facts: , odd lot trader, filed class action lawsuit on behalf of himself and other odd-lot traders on NYSE, a class of roughly 6 million. Holding: Individual notice is required to be sent to all class members who can be identified w/ reasonable effort. Petitioner must bear cost of notice to this class. Rule 23 (c)(2): requires individual notice to all members who can be identified through reasonable effort. -> notice is not a discretionary consideration Court cannot conduct a preliminary inquiry into merits of suit and assign costs of notice Contrary to Rule 23 (c)(1): court must determine whether a suit dominated class action may be maintained as such as soon as practicable after commencement of the action. Little difference b/w assigning costs and TRO or preliminary injunction; costs are arguably higher to s in those situations Bottom line: Courts impose burdens on s w/ peak at merits Notice: provides potential claimants the opportunity to opt-out if they dont want to be part of the class Intervention: may be tough to intervene; representation has already been found to be adequate cutting against the second factor of Rule 24 (1.] parties themselves do not adequately represent you; 2.] judicial review does not sufficiently represent your claim) Bracey: lawsuit like this should be allowed to be brought -> we dont want to create a system which immunizes wrongdoers from liability Court typically peaks at merits anyways -> usually court is going to determine prior to class certification whether states a claim

DISCOVERY Assuming the case cannot be dismissed, claims of parties have been identified, and structure of litigation has been set up -> move to discovery Purposes: 1.] obtain a certain amount of pre-trial disclosure of evidence (parties have deeper understanding of nature of litigation) -> this eliminates surprise Risk of surprise is a catalyst which precipitates the truth; it will put subtle pressures on witnesses to come clean 2.] Preservation of evidence that might be lost before trial -> we can keep everything such that we may need it at trial . 3.] provides a mechanism for narrowing the issues of the dispute Expected value of litigation: Probable value discounted by likelihood of judgment minus costs E = (P*J) C. [discovery facilitates chances of reaching expected value] How it works: 1.] scrutinize the complaint -> give enough information to put him on notice, nothing more Manage discovery in what you expose Other side, try to get a peek at it 2.] Initial disclosure: comes before anything else [Rule 26] Dont have to turn over facts harmful to the case, but you have to disclose relevant material Rule 37 (c)(1): failure to disclose in the initial disclosure prevents ability to use evidence later Rule 26 (e): duty to supplement -> constantly give things up Jumpstart the litigation: whose needed to get the litigation going Give over any piece of information that supports your case -> determined by facts and circumstances of the case 3.] Documents first: they dont lie & they are easy to destroy: Document retention policy: keeping any class of documents away for a certain period of time Try to describe documents by categories -> a lot of the time you dont know what you even looking for Subject matter related Types of documents: reimbursements Helpful documents: calendars, expense reimbursements, things which can pinpoint a person at a particular place Rule 11: file when you dont get any documents Opponent must give you ever document which supports the substance of their pleadings Responding party needs to provide a written response of what will be provided and what will not be provided Assemble and review your documents before they are distributed: Document review: cull out privileged material & what may not be responsive to request 4.] Seek interrogatories: write questions and answer questions from the other side 5.] Depositions Offer no additional information 6.] Admissions: once you have nailed the other side nailed down, you send other side document saying you are going to admit to this Clarifies the issue before trial Unlike Rule 8, a party may only make claim of insufficient knowledge after a reasonable inquiry MANAGING SCOPE & BURDEN: Davis v. Ross (1985): Facts: seeks information concerning s net worth & annual income, documents reflecting billing of law firms (how much attorney is getting paid to testify), and list of employees who have complained to and nature of their complaint. seeks discovery of s treatment w/ psychiatrist. Holding: 1.] must obtain special verdict that is entitled to punitive damages against before he is allowed to obtain information regarding personal net worth and annual income. 2.] Where a witness entire livelihood derives from employment by the party for whom he testifies, courts still decline to infer bias from the mere fact of employment -> deny motion to compel discovery of legal fees. 3.] When the mental or physical condition of is an issue, the physician-patient privilege is waived and cannot be invoked to foreclose discovery of relevant evidence. Inquiry to decide whether Net Worth/Income is relevant: 1.] see what issues are raised in pleading; 2.] ask whether the information which is sought relates to facts that are a consequence to resolving those issues [common-sense approach] Might be relevant in the fact that judge when assessing punitive damages must assess the s ability to pay could amend issue and stick in theory that wealthy people disregard the well-being of the lower class Collateral purpose problem: people seek discovery for collateral purposes (extort settlement out of someone) Insurance coverage for defamation claim: now required on initial disclosure Theory: wealthy people tend to disregard the rights of other people which is relevant to a claim of defamation Rupert standard: court might be concerned w/ information effecting jurys decision suffers from poor lawyering -> should have articulated a way to information she seeks to complaint (Ross personal desires are relevant) s lawyer could just have asked for names of people that she has fired in the past Payment to Attorney: Information seems relevant b/c attorney is going to testify that Ross was good and Davis was bad Psychiatrist Report: signals to other parties who have not yet filed defamation suits that they are going to be in trouble -> information becomes public knowledge once privilege is waived; may be able to sue for something said in psychiatric reports Privileged information: more relevant than information in trial Protective Order: other side signs an agreement that it will not use information outside of scope of litigation Kozlowski v. Sears, Roebuck, & Co (1976): Facts: severely burned when pajamas manufactured & marketed by was caused to ignite. filed interrogatory seeking record of all complaints & communications concerning personal injuries or death allegedly caused by burning of childrens night-ware manufactured by . Rule: Where compliance w/ a Request for Production would be costly or time-consuming, and this is a product of the deficiency of the , there is not sufficient reason for granting of protective order. Rule 33 (d): allows you to produce all your documents; bury important documents and shift the burden to the to find what they want [inefficient, b/c should bear burden] -> option produce documents when answering an interrogatory must show that burden is comparable b/w and Possible Objections by Sears: 1.] Time frame: procure a time frame 2.] narrow scope of products requested 3.] complaint should be limited to people claiming serious injury 4.] geographic: Sears is a multi-national, which Sears are we talking about? 5.] Manufacturer is not Sears Court doesnt like Sears challenge of impossibility: court will most likely challenge them to show that it is impossible Type of Discovery would not work in negligence case: negligence is concerned w/ one particular case; selling defective product to multiple people does not prove that the product sold to you was defective Procedure might overcome substantive law [case wont be decided on the merits]: cost of producing data is so outrageous that it is far too expensive when balanced against the benefit the other party will get; will say if they are required to produce documents, they will just settle Collateral Purpose: Court doesnt want s to use discovery as collateral purpose; court might take a preliminary look at the merits of the case to see if the even has a chance to recover EXEMPTIONS FROM DISCOVERY: Rule 26(b)(3): Hickman v. Taylor (1947): Facts: s attorney privately interviewed survivors and took statements from them w/ eye toward anticipated litigation. Interviewed other people believed to have information & in some cases took memoranda of what they had. Rule: Where relevant and non-privileged facts remain hidden in an attorneys work product and where production of those facts is essential to preparation of ones case, discovery can properly be had once the one who would invade the privacy established adequate reasons to justify production through a subpoena or court order. [opinion work product is protected, regardless] Attorney-client privilege: does not work in this situation the witnesses work for the attorneys client, but they are not the client. Adversarial process: demolished when as in this situation one side does all the work and just gives it up to the other side; the other side can easily obtain the information themselves If this were allowed, attorneys would never write anything down; it might even require you to misrepresent what you have. [outcome of litigation is less efficient and less accurate] There is no cost to protecting work product: get the information through interrogatories Attorney becomes less of an officer & more of a witness 26(b)(3): Work product also applies to insurance adjusters: other people deserve protection could just: 1.] file interrogatory (ask the questions that elicits the facts fo the statements made to the attorney); 2.] ask s to produce written documents & statements upon proper showing; 3.] direct interviews w/ witnesses themselves. Upjohn Co. v. U.S. (1981): Facts: Accountants at discovered subsidiary made illegal payments. conducted an in-house investigation, prepared questionnaires, and interviewed recipients of questionnaires. Rule: 1.] The attorney-client privilege extends to employees other than the upper echelon, such as mid-level employees who have an impact on a companys future legal decisions. 2.] An extremely strong showing of necessity and unavailability must be made before any work-product materials can be discovered. Distinction b/w ordinary work product and opinion work product (mental impressions, conclusions, legal theories) Analysis turns on attorney-client privilege: Court wants to promote candid conversations between client and lawyer; not entirely clear if candor is the real reason to have privilege, since people will probably be honest anyways Lawyers motivations: lawyer must have full internal investigation of matter prevent him from having to testify against client Client can go ahead and be deposed by s attorney himself underlying facts are not privileged Courts definition of client includes everyone who implements advice given by the counsel down to low level management May or may not include former employees Control group test: members of senior management that guide multiple operations are the client; CEOs members of the Board [too narrow according to Court] Good formula: Control group (presumptively included) plus other individuals (presumptively included), provided they meet the following criteria: 1.] information needed to supply factual basis of legal advice 2.] talk to employee about scope of duties 3.] employee knows he is getting questioned for purposes of rendering advice to corporation 4.] employee understands conversation is confidential IN-HOUSE EXPERTS: Rule 26 (b)(4)(a): the facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery on in exceptional circumstances. In re Shell Oil Refinery (1990): Facts: refinery blows up; experts working for Shell take pictures and test the part that explodes; not allowed to discover interviews w/ experts not testifying at trial. Rule: 1.] Where employees are given tasks solely for the preparation of trial/litigation - even if they were not compensated additionally given exclusive assignment, or given tasks which help improve the companys operation/product design, they are still considered specially employed. 2.] Where a party seeks discovery of test results of s expert witness not testifying at trial b/c it is too cheap to run the same tests, Rule 26 (b)(4)(a) does not apply. Policy reason: dont want attorney to build a case off adversary should pay for its own experts Allowance of some discovery of expert witness so that can cross-examination of expert can take place Rule 26(a)(2): requires expert to set out entire direct testimony that they intend to give out at trial. [exhibits have to be disclosed; list of publications written in last ten years by expert; list of cases expert has testified in last four years] b/c lawyers dont know what experts are going to say in their reports, they arent named until the lawyer has seen the report Rule 26(b)(4)(a): deposition of experts Rule 26(b)(4)(b): applies to witnesses retained, but non-testifying Non-testifying experts in this case help s attorney figure out how to litigate case -> similar to work-product Retain a non-testifying expert b/c if an expert is going to testify against you, you want to retain them and make it harder on the other side since they wont be able to use the expert Courts sanction shopping of experts Attorneys should be allowed the flexibility to change experts By going in-house, Shell saves money; court likes that it is economical Rule 45 [unaffiliated experts]: 1.] party may quash a subpoena of an expert working in the area if that expert does not want to be called as an expert; 2.] being an expert does not give you immunity from testifying as a witness -> if an accident reconstructionist sees an accident, he can be called as an ordinary witness, but he cant be called as an expert witness INFORMAL DISCOVERY [Rule 26(b)(3) Investigation/Fact Gathering w/o Judicial Assistance] Corley v. Rosewood Care Center (1998): Facts: conducted interviews w/ non-party witnesses under oath & w/ court reporter present. Court held nothing in Federal Rules restricts counsels private inquiry into facts underlying clients claim. Rule: The Federal Rules of Civil Procedure do not prohibit parties from conducting interviews w/ non-party witnesses; instead, they only concern whether statements are discoverable and w/ which the uses they may be put to trial. Informal discovery w/o written record is the best Informal discovery becomes work product -> underlying facts are discoverable, however Con: informal discovery cannot be used as evidence at trial; potentially harmful in that it can be discovered by other side First session w/ witness is unreliable -> witnesses dont remember things properly Dont want to formalize discovery of your own witnesses b/c witnesses get better the more times they talk to a lawyer If you want to nail down other side to a particular decision, formal discovery restricts the ability of a witness to change his testimony at trial MANDATORY DISCLOSURE & PROTECTIVE ORDERS [Federal Rule 26(c)]: Rule 26(a)(1)(c): requires to serve computation of damages Rule 37: Authorizes severe sanction in cases of willfulness, bad faith, and fault First step to secure sanctions: meet & confer w/ the other party; if the other party continues to be dilatory , then you can go to the court to seek motion to compel Rule 37(a): second step to secure sanctions against opposition -> motion for an order to compel discovery 37(a)(3): evasive or incomplete answers constitute a failure to respond Rule 37 (b): cannot get these sanctions if responds Rule 37 (c): allows further sanctions to be authorized by Rule 37 (b); failure to disclose justifies sanctions w/o an order to disclose; requires meeting or attempted meeting before order to compel is granted Rule 37 (d): complete and utter failure to respond Cine 42nd Street Theater Corp v. Allied Artists (1979): Facts: reached agreement w/ to defer discovery on damages until it could retain expert to review rival box offices receipts. Subsequently filed inadequate answers, failed to obey orders by the Magistrate, filed deficient answers. Magistrate concluded willful conduct. Rule: Where gross professional negligence has been found that is where counsel clearly should have understood his duty to court the full range of sanctions may be marshaled. Magistrate: authorizes severe Rule 37 sanction Order to compel: typically oral (makes sense to be in writing, though) Society Internationale Rule: Where the failure to comply is beyond the forces of control of party which has not complied w/ the order, presumably that person cannot be punished for failing to do what could not have done. Fault: Court looks to whether failure to respond was due to willfulness, bad faith, or fault -> draws the line at gross negligence Sanctions punish both the client & the lawyer -> lawyer can be sanctioned independent of Rule 37 (b) [Rule 11] -> Client could turn around and sue lawyer, but the system does not want to encourage clients to be adversarial w/ lawyers Purposes of Sanctions: 1.] Party will not profit from failure to comply 2.] deterrents which seek compliance deter specific party from doing this again 3.] courts consider general deterrent effect orders may have on instant case & on other litigation Inconsistent w/ civil dispute resolution: dispute resolution is usually b/w the parties and should not be used to solve public problems Consistent w/ civil dispute resolution: in order to assure that the courts are seen as a fair way to resolve conflict, procedures need to be stable. Bottom line: Ultimate sanctions are not warranted if the absence of compliance is due to something beyond the partys control and not due to 1.] willfulness, 2.] bad faith; 3.] fault Contrast w/ default: party that doesnt answer complaint in a timely manner is treated w/ less sympathy than party that doesnt comply w/ discovery

SUMMARY JUDGMENT: adjudication on evidence before trial -> no genuine issue as to any material fact and moving party is entitled to judgment as a matter of law. has burden of proving affirmative defense Nature of burden of proof borne by movant: 1.] burden of persuasion; 2.] burden of production Burden of persuasion: burden of having to persuade a trier of fact as to accuracy of factual/legal assertions (requires preponderance of evidence standard, 51%; qualitative) When compared to the evidence opposed to it, the evidence asserted has more convincing force than the opposite evidence. Burden of production: talk about quantum of evidence needed to keep case going (quantum of evidence such that reasonable trier of fact could find for the movant) Burden of persuasion & production lie w/ at beginning of lawsuit: Burden shifts to when he makes affirmative defense When presents enough evidence that reasonable trier of fact could find for him, and there is no rebuttable evidence coming from , the trier of fact must find for -> judgment as a matter of law: judge will step in and say you lose (Rule 50); non-movant fails to meet burden of production If meets burden of production, trier of fact has opportunity to decide the case If provides so much evidence that line goes all the way back to , burden is back to to push it back so case can be decided by jury. Summary judgment vs. judgment as a matter of law: Has non-moving party met burden of production? If not, there is no genuine dispute of material issue of fact Distinguishing Features: 1.] Timing: Summary Judgment: typically occur pre-trial Judgment as a matter of law: occurs after has put on everything he has to put on 2.] What movant must show: Summary Judgment: affirmative representation -> cannot simply require disclosure of non-movants case Judgment as a matter of law: dont require affirmative showing on part of movant Adickes v. S.H. Kress & Co. (1970): Facts: sued alleging conspiracy b/c and police to arrest her b/c she was in company w/ blacks. moved for summary judgment putting on following facts: 1.] manager of store had no communication w/ police officer, 2.] affidavits of two police officers stated there was no request by the manager for to be arrested; 3.] , in deposition, said she had no knowledge of communications b/w employees and police. Held summary judgment inappropriate. Rule: Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. (adopts the maximal approach, perhaps middle) Court: failed to show absence of genuine issue of material fact -> did not foreclose possibility that policeman reached understanding w/ s employee. Inference goes to a state of mind which is difficult to refute Justification for requiring to come forth w/ evidence before trial: judicial economy Theory: If case would not survive at trial b/c there is not sufficient evidence, would it not be more convenient and economical for /court to find that out in advance. It saves money for ; probably does not want to posture case for dismissal -> the longer it hangs in, the more chance of settlement; anything can happen w/ a jury Burden of production: allows you to get to a jury Summary Judgment & Work Product: court & movant take a peak at trial preparation isnt that kind of like work-product? Three Approaches: 1.] Traditional: must offer so much evidence such that no reasonable jury could find for . (maximal approach) 2.] Currie: need do nothing more than move for summary judgment (minimal approach); does not have to show much of anything; has to come forward and show that it has enough evidence to get to a jury (put the other side on notice if they have the burden) 3.] Louis: minimal approach says it is too easy for to move for summary judgment (it will become a tool for harassing) -> if you are a party who is moving who does not have the initial burden of proof, it must put enough evidence on to support a verdict in his/her favor. Celotex Corp v. Catrett (1986): Facts: s husband died from exposure to asbestos from fifteen corporations. granted summary judgment b/c was unable to produce evidence in support of her allegation in her wrongful death complaint that decedent had been exposed to petitioners asbestos products. Rule: The burden on the moving party may be discharged by the showing that there is an absence of evidence to support the non-moving partys case. [adopts standard closer to minimal approach] Court: summary judgment should not be a rare occurrence Celotex standard applied to Kress: Motion for summary judgment still fails, since has testimony that policeman was in store at the time (not admissible, but evidence does not have to be) Brennan (dissent): If burden of persuasion at trial would be on non-moving trial, party moving for summary judgment may satisfy burden of production in Rule 56 two ways: 1.] moving party may submit affirmative evidence that negates an essential element of the nonmoving partys claim 2.] the moving party may demonstrate to the Court that the nonmoving partys evidence is insufficient to establish an essential element of the nonmoving partys claim. [under this would have to show absence of proof that s husband was exposed to products] Todays standard: will not come forward w/ much of anything & will be put to test Rule 56(f): if someone files a motion for summary judgment based on a little evidence and says that you dont have enough evidence to get to the jury, under Rule 56 (f) you can claim that summary judgment is premature. has no right to Rule 56(f) discovery -> it is the judges decision to say yes or no must specify a specific area he will search which relates directly to the summary judgment Unlike general discovery, you must persuade court that discovery is going to lead to something Negative: conceding that you dont have requisite information to respond to summary judgment -> telling the court your case is weak tips hand about everything he has in case Rule 11: sufficient investigation to justify motion for summary judgment or sanctions are waged MEETING THE BURDEN OF PRODUCTION: Arnstein v. Porter (1946): alleges numerous songs by taken from s copyrighted songs. Held summary judgment improper: s credibility, denials left to jury. Rule: With credibility a vital factor, is entitled to a trial where the jury can observe the witnesses while testifying. Standard: Summary judgment is appropriate only if indubitably [w/o a doubt] did not have access to s composition; if there is the slightest doubt, then summary judgment is proper [not good law anymore] Arnsteins copies were widely disseminated; there may be some basis that Porter may not have been forthright Inference here is similar to inference in Adeckis (meeting of the minds) -> this is a strong inference Would a court really uphold a verdict for Arnstein based on evidence presented? -> majority sidesteps this issue; there might be cross-examination at trial which gets an admission/new evidence Bottom line: Speculation of possibility of new evidence undermines utility of summary judgment -> it means that chances for summary judgment are going to be routinely denied Demeanor evidence disappears w/ the witness and the reviewing court cant access it -> appeal would go s way anyway Disbelief evidence alone cannot possibly satisfy burden of production; otherwise burden of production is no burden at all Porter has met Celotex requirement Decision puts things out of balance: general lack of enthusiasm for summary judgment as proper means of resolving disputes [looks more like Adeckis case] Dyer v. MacDougall (1952) [restoration of balance]: filed complaints for libel and slander. Witnesses each denied any instances of libel and slander, and chose not to depose any of them. Rule: Where the possibility exists that may extract admissions in open court which he was not able to get through depositions, must still depose witnesses in order to see if there is any basis for witnesses admitting to awe of judge. Court: no reason to expect that witnesses would change tune at trial -> additional depositions would have possibly showed that witnesses were crafty or defiant, and that would suggest to court that witnesses would change their tune as they got to the stand must supply extrinsic evidence -> circumstantial evidence to create the inference that discrimination was present Where Porter said we should indulge in certain amount of speculation, Dyer says we dont Restores importance of summary judgment Celotex: requires just a sufficient demonstration of proof on issue i.e., that statement was not uttered (affidavit should be enough) Between summary judgment & judgment as a matter of law: Civil disputes held in bench trial at election of s: can elect jury or judge trial Civil cases: six member jury (typically need to be unanimous) If summary judgment fails -> 1.] pre-trial conferences/settlement devices; 2.] jury

MOTIONS FOR JUDGMENT AS MATTER OF LAW: evidence is so compelling that only one result can follow Directed verdicts: take cases away from juries Historical argument: because we have taken cases away from juries all along, there is nothing unconstitutional about awarding a directed verdict Galloway v. United States (1943): Facts: seeks insurance benefits b/c he went crazy in the army. must show continuous disability; however, five year gap exists where he has no evidence for. himself cannot testify, neither can wife (insurance reasons). Chaplin, who observed was in the Army while was in Navy. Physician did not examine during gap. Directed verdict ordered. Rule: Where the inference to reach the s conclusion is great, and the had the ability to provide evidence in support of the inference, a directed verdict will be ordered against the . Judge orders directed verdict b/c juries are unpredictable and might be able to find for ; jury would have to disregard instructions, however, b/c there was no continuous disability Court doesnt like s to sit on errors that could have been remedied early on; if there was some fatal defect to s case, we like s to raise that early on. Reasons: 1.] Judicial economy 2.] if you really care about juries, you should want the jury verdict to stand Reason for majoritys decision: answer has to do w/ gap -> court struggles w/ how to make sense of the time period; court says we dont think we can fill this in and neither can a jury, judge denies the reliability of expert conclusion by Dr. Wilder Speculation & conjecture should not do the work of probative facts Even if government had helpful/harmful information that would help get to jury, government is under no obligation to provide information to Dissent: w/o weighing the credibility of witnesses, if there is no room for difference of opinion, then the case can be decided before a jury Lavender v. Kurn (1946): Facts: hit by mail hook of mail car or backing train. puts on evidence such that it is conceivable he got hit by the hook. s theory is that was attacked and killed. Held that sufficient evidence exists of negligence on part of s to justify submission of case to jury. Rule: Where facts are in dispute or the evidence is such that fair minded men may draw different inferences, a measure of speculation and conjecture is required which is left for the jury. There is not a complete absence of probative facts; speculation and conjecture is not a problem [case is similar in fact, but different in theory to Galloway, which stood for speculation should not do the duty of probative facts.] Standard: Just a scintilla of evidence is needed by if files motion for directed verdict [probabilities dont matter that much] Court: this case should go to jury b/c reasonable minds defer; a jury can ignore what evidence it wants to ignore Standard for going to jury: in light of all the evidence, a reasonable jury could find for ; if not, directed verdict to Guenther v. Armstrong Rubber Co. (1969): Facts: remembers the tire to be a 15 black wall tire but the defective tire was a 13 white wall tire. No proof that had anything to do w/ black wall tires except that was responsible for 75-80% of tires the shop sold. Rule: Where there are two conflicting testimonies which decide the crux of the case, it is left for the jury to resolve the problem. could amend complaint: party is not bound by representation in complaint (a persons recollection is often unreliable) Possibilities in fact: 1.] Mr. Smalls works for Sears possible that he could grab another tire and claim it was defective 2.] Mr. Smalls heard the explosion (did not see it) 3.] 18 months went by while tire sat in Sears office -> possible that tire experts encountered a year and a half later was different. Sometimes courts are willing to draw the line at some level of statistical significance: 99%. [statistical evidence says nothing about the actual event -> gets only to the generic likelihood of an event happening, but not to the specific.]

MOTIONS FOR A NEW TRIAL: court is in position of weighing evidence when considering motion of new trial Ahern v. Scholz (1996): Facts: Breach of contract dispute. Jury found in breach of agreement, owing $500,000. Trial court found both breach agreement; however, s breach was not material b/c the provision that he is alleged to have breached is subject to multiple interpretation or damages associated w/ breach are not material. (same conclusion as jury) Rule: Where the ruling is not against the clear weight of the evidence or based on evidence which is false and a reasonable basis exists for the jurys verdict, the court will not grant a new trial. Standard of review (trial court): deferential to jury finding Standard of review (appellate court): will reverse only if clear abuse of discretion by trial court Trial court & jury are on the frontlines of litigation they know what the evidence is and are in the best position to decide whether verdict is against clear weight of evidence. Interplay b/w directed verdict (Rule 50) & motion for a new trial (Rule 59): can be filed simultaneously; standards for granting the two motions are different Rule 50 (b): Motion for Directed Verdict after the trial and in the alternative, the party may also make a Rule 59 Motion for a New Trial 50 motion standard: no rational finder of fact could find for the non-mover; more stringent 59 motion standard: verdict entered against the movant is against the clear weight of the evidence A court may be unconvinced that no rational finder of fact could find for non-movant but convinced that verdict in his favor would be against clear weight of evidence 50(c)(1): court grants motion for directed verdict -> ruling for new trial should be granted at the same time (should be granted in the alternative; in case the directed verdict is reversed upon appeal there is an alternative ruling already in place remedy would be a new trial) 50(c)(2): allows a party that prevails by trial by jury but loses on directed verdict to move for a new trial Rule 60: motion for relief from judgment; KEY: must point to some newly discovered evidence; it is evidence that did not exist before [standard: against the clear weight of the evidence] Newly tendered evidence v. newly discovered evidence: not the same to discourage counsel from withholding evidence during the trial New evidence: must be admissible; must be able to overturn the result; must have been discoverable but not discovered during the trial (there must be a good reason why it wasnt discovered earlier)

PERSONAL JURISDICTION: Court has to have requisite authority to decide a case Two forms of Jurisdiction: 1.] Personal: circumstances under which a court has authority to make binding determinations as to particular parties in a case What about who presumably does not invoke consent to enter binding judgment against it? 2.] Subject matter: kind of jurisdiction that deals w/ courts authority to decide a particular type of case. TRADITIONAL APPROACH: Pennoyer v. Neff (1877): Facts: Mitchell sued , a CA resident, in Circuit Court of OR. owned property in OR. Mitchell served notice to through publication, once a week for six weeks. failed to answer; Mitchell executed against s tract of land in OR & transferred title to . Held OR did not have personal jurisdiction. Rule: Judgment in personam requires personal service of process in the state. Substituted service by publication is allowed where 1.] property is brought under court by seizure or some equivalent act; 2.] judgments in rem. Notice: in regards to property, notice is not needed; law presumes that property is always in possession of owner/agent. (constructive notice) POWER: personal jurisdiction more concerned w/ power rather than notice Power of court to issue binding rulings against a particular Two principles of public law, not constitutional: 1.] Every state possesses independent & exclusive jurisdiction over land and people w/in its territory CA does not lose exclusive jurisdiction over Neff if he is served in OR -> both States can assert personal jurisdiction over Neff CA must recognize judgment by OR 2.] No state can exercise direct jurisdiction over people or land outside of its territory If Neff shows up in OR, he consents to the jurisdiction of OR Types of personal jurisdiction: power to exert personal jurisdiction rooted in the concept of presence In personam: established through personal service (summons) Against persons actually present in state Lawsuit against person for money damages In rem: focus directly on property so that result of case determines what happens to property Against the thing (property): disposition is over property regardless of who claims to have title to it Pure in rem: clears up title to real estate; doesnt care about individual litigants Jurisdiction by necessity or custom: language resembling justification for in rem -> state must have right to clean up property rights in the state Nature of in rem: lawsuit that is directed at the property, but the effects of it are limited to the parties of the lawsuit Ex: suppose there is a sale, and you want to enforce sale of that property; proceeding would direct attention to property & seek to resolve title of property to you (concerned only about specific rights to property) Eye towards individual litigants in the case. Quasi in rem: in personam proceeding, but you have no way of asserting jurisdiction -> use property as lure in order to reel in individual using property (by attachment, garnishment, etc); state has no authority; only have to defend yourself up to the value of the property Exceptions: 1.] if you are inquiring to status of states inhabitants, you dont need to use personal service -> (status = marriage) 2.] state might consent to jurisdiction in advance to allow individual to engage in certain types of activities w/in states borders Harris v. Balk (1905): Facts: : resident of NC who owes $180; : resident of NC, who owes Epstein $300; Epstein: resident of MD. While is in MD, he is sued by Epstein for the debt owed to Epstein. pays the $180 to Epstein in MD, but then is sued for the same $180 by Balk in NC. Balk claims MDs judgment for garnishment against does not control the NC court b/c there was no jurisdi