Civil Procedure II

1/7/2015
-Rule 3: a civil action starts by filing a complaint
-Rule 4: a summons is issued by the clerk and served on the defendant with a copy of the
complaint
-History of the Complaint in the US:
Complaint=first pleading in the case
Common Law Pleading: focus on technical forms of action (rather than cause of action)
Code Pleading: mid 19th century, more fact pleading. What was the cause of action, facts
needed to establish that cause
o No discovery during code pleading
Notice Pleading under the FRCP:
o With adoption of in 1938,
o Purpose: notice pleading to give notice of claim making to the other side
o Discovery added into process
o Summary judgment to kick out bad claims,
o Rule 11: have to have good faith basis as lawyer to sign a pleading
Pg. 65 of Rulebook: Forms
-Rule 8(a): what you have to do to ask for relief
short and plain statement of grounds for courts jurisdiction= SMJ but people also do PJ
Short and plain statement of the claim showing that the pleader is entitled to relief
A demand for the relief sought
o Injunction, money damages, etc.
-Other Key Pleading Rules applicable to the complaint FRCP 8(d)
Each allegation must be simple, concise, and direct. No technical form required
Alternative statements of a claim or defense: dont have to plead consistently, can hedge
your bets by saying alternatively
Inconsistent claims or defenses: can have inconsistent separate defenses
-FRCP 9: some special pleading rules for certain things (pleading fraud and mistake)
Heightened pleading standard
-FRCP 10: Form of Pleadings
Caption with courts name, title,
Rule 7(a), only certain number of pleadings
Use for brief filling out Friday
Caption example in Form 1

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 Numbered paragraphs in a complaint (Every Paragraph should be 1 sentence)
If you have a pleading, have to say it is one of these things (complaint)
-FRCP 11: Signing Pleadings Representations to the Court; Sanctions
-First Case in Developing Professional Skills
Know: breach of contract/fraud,
-only 78% positive feedback. Cashiers check only form of payment: harder to challenge
payment
--figure out correspondence
-Facts Wanted: what kind of research into authenticity= prove intent to deceive,
Guaranty
Intent and knowledge are elements of the crime
-what are the clients goals: have options listed
-Relationship development,

Interview with Nigel Vernon:

-first question maybe tell story in own words:
big MJ collector, thought great opportunity, has other important pieces, planned to spend
100k so thought 79 was good deal.
Saw info on EBuy, didnt do as much research as should have, but believed seller
Received cashiers check, got fedora, then saw story about Smithsonian display, more
research found out that fedora was on traveling tour. Smithsonian has owned fedora for
long time.
Corresponded with taylor, sent email how understand Smithsonian had, wanted to return
and get money back. Never heard from again
Wants money back
Certificate of Autheniticity: not always do, didnt in this case, didnt ask for one
Never had knowingly happened before,
Research usually does: didnt realize 78% positive feedback, maybe shouldve read
reviews. 78k wasnt all that much money, planned on spending 100K
Cashiers check been used before
Resolution: wants money back
Emails prior to buying: none exchanged, caught up in bidding process,
Taylor sent information about how to ship, then Nigel asking for money back
Family money, many degrees.
No prior knowledge on seller

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 Didnt investigate whether 100k, went by gut feeling. Knew wouldnt be as much as
glove.
o Was photographed in hat several times
Hat actually looked like real one
Could undermine reputation as a collector
Would rather get money back rather than sue
Has address from Ashely Taylor, in addition to email
Whether has history of defrauding people. Number of negative feedback
Dont know for sure that Smithsonian one is real
Focus on elements of fraud/breach. Intent to deceive:

Link on TWEN has electronic format template: Bring complaint printed. Read Iqbal before
finish claim
Examples of claims on Bloomberg
-Forms & Examples: where do you find them

-Conley: important because tells where starts out. Sufficiency of the complaint under federal
rules.
Dismissal standard that court addresses in Twombly
Claim shouldnt be dismissed unless it appears beyond a doubt that plaintiff cant prove
any set of facts in support of claim which would entitle him to relief
Fair notice is really the key here. Dont require plaintiff to set out in detail under FRCP,
only Short and plain statement of the claim under FRCP 8
o Fair notice of claim
o grounds upon which it rests
Not game of skill, wants decision on the merits
Swierkiewicz v. Sorema (2002)
Justice Thomas writes opinion
Petititioner said had claim under discrimination of national origin and age
DT Ct dismissed complaint because didnt adequately allege primia facie case of
discrimination under framework
Court of Appeals: affirmed the dismissal
SCOTUS: reverse and remand, doesnt need to include such specific facts. Only short
and plain statement of the claim

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Bell Atlantic v. Twombly: parallel conduct, absent evidence of agreement, is insufficient to
sustain an antitrust action under 1 of the Sherman Act. It also heightened the pleading
requirement for Federal civil cases, requiring that plaintiffs include enough facts in their
complaint to make it plausiblenot merely possible or conceivablethat they will be able to
prove facts to support their claims.
In Twombly, the court adopted a more strict, "plausibility" standard, requiring in this case
"enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal
agreement".
Facts:
P (Twombley) filed a claim under 1 of the Sherman Act against D (Bell Atlantic) which
requires P to show that D entered into a conspiracy to thwart the demonopolization of
their respective markets.
P instead showed in their complaint that D restrained trade and engaged in
anticompetitive practices. These practices are not illegal in themselves. It must be proven
that the Ds agreed among themselves to do this.
o P showed "parallel conduct" - D preventing competitors from entering the market
and failure of any D to attempt to compete in the market area of any other D.
Procedural History:
District court dismissed P's complaint concluding that parallel business conduct
allegations taken alone do not state a claim.
Second Circuit reversed, found P's complaint valid.
SCOTUS reversed, dismissed P's complaint.
Issues:
Can an antitrust claim survive a motion to dismiss when it only alleges that the
monopolists engaged in certain parallel conduct unfavorable to competition, absent some
factual context suggesting conspiracy or agreement to do so?
Are there any other times besides fraud and mistake cases when complaints that conform
to FRCP 8(a)(2) are insufficient?
Holding/Rule:
An antitrust claim cannot survive a motion to dismiss when it only alleges that the
monopolists engaged in certain parallel conduct unfavorable to competition, if there is no
factual context suggesting conspiracy or agreement to do so.
An antitrust claim is insufficient if it only conforms to FRCP 8(a)(2); it must include
some contextual facts that make the claim plausible.
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Reasoning:
The factual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true.
At the summary judgment stage, an antitrust P's offer of conspiracy evidence must tend to
rule out the possibility that the Ds were acting independently.
Something beyond the mere possibility of impropriety must be alleged so that Ps with
groundless claims cannot be allowed to take up the time of other people during the
discovery phase.
Antitrust discovery is very expensive; the threat of this expense will push cost-conscious
Ds to settle even weak cases.
Conley's "no set of facts" doctrine needs to be retired and replaced.
Nothing in the complaint intimates that the resistance to the upstarts was anything more
than the natural, unilateral reaction of each D intent on keeping its regional dominance.
If alleging parallel decisions to resist competition were enough to imply an antitrust
conspiracy, pleading an antitrust violation against almost any group of competing
businesses would be a sure thing.
There is a plausible explanation for the noncompetition of the Ds -- each was sitting tight,
expecting their neighbors to do the same.
"We do not require heightened fact pleading of specifics, but only enough facts to state a
claim to relief that is plausible on its face. Because the Ps have not nudged their claims
across the line from conceivable to plausible, their complaint must be dismissed."
Dissent:
The simplified notice pleading standard of the FRCP relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims.
The fact that the Sherman Act authorizes the recovery of 3x damages and attorney's fees
for successful plaintiffs indicates that Congress intended to encourage private
enforcement of the law.
-Evidence is the parallel conduct of the ILECs in keeping the competitors out of the market
Antitrust case: parallel conduct
- Trying to connect individual actions
- Trial court dismiss for failure to state a claim. District Court affirm, grants 12b6 motion
to dismiss. Circuit court says district court using the wrong standard. Is set of facts that
they could show as trial. Not inconsistent with idea of conspiracy.
- SC, Justice Souter: plausibility standard

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 o Get around Conley and Rule 8a, retire Conley.
o No set of facts language was more concerned with opportunity to prove adequate
complaint as opposed to minimum standard
Conley: what was pleaded was adequate, about when go to trial with
adequately pleaded complaint
o show that the pleader is entitled to relief under Rule 8
Have to show enough facts that are entitled to relief
Court expects cant just tell the elements of the claim, have to give enough
facts that plausibly suggest entitled to relief (429)
- Dissent in Twombly:
o Stevens: should at least be an answer to this case, address parallel conduct
Allegation of conduct that may be consistent with a conspiracy, not even
an answer of whether is a conspiracy, just threw case out
Bad case to retire the Conley language
- 1/9/201

-Justice Thomas in Sorema

8(a)(2) basic pleading standard
Conley: dont dismiss unless theres no way you could prove the claim
o Pleading facts inconsistent with the claim (age discrimination requirement: didnt
fit into age bracket)
Rule 9: heightened pleading rule (plead additional facts for fraud or mistake)
Ashcroft v. Iqbal (2009)
Basic allegation against Ashcroft and Mueller: Iqbal alleged that Ashcroft subjected him
to unconstitutional policy that led to discrimination of race and national origin. Ashcroft
was architect and Mueller was instrument
Legal issue where misconduct has to be attached to these actual individuals. (Defense of
qualified immunity)
PH: Mueller and Ashcroft moved to dismiss for failure to state a claim. Court did not
grant. 2nd circuit heard through immediate interlocutory appeal
o Supreme Court hears case: is Twombly an antitrust pleading case or change the
nature of pleading
SCOTUS: Twombly was a gamechanger, interprets plausibility standard
o Rules that come out of Iqbal
(443) To survive a motion to dismiss a complaint must contain sufficient
factual matter to state a claim to relief that is plausible on its face
Not a probability standard
Context standard: courts apply judicial experience and common sense to
decide if a claim has been plausibly stated
o Two working principles that underlie Twombly: middle of 443

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 1) If have conclusory statements (elements of claim), that is not enough.
Do not assume the truth of conclusory statements
2) Plausible claim is what needed to withstand motion to dismiss. Court
has to look at facts, and based on experience to decide whether plausible
o Legal conclusions as the framework of a complaint, but need to be supported by
factual allegations. (443)
Whether ultimately been a plausible claim:

1/14/2015 (460-462, 469-479) (chapter 4: Motion to dismiss for failure to state a claim)
TWOMBLY:
Twombly was an antitrust class action alleging an unlawful conspiracy based on the parallel
conduct of a number of competitors in the local telephone and Internet service markets.

The court reversed the Second Circuit decision and held that the complaint should be dismissed.
The court ultimately found that the plaintiffs did not allege sufficient facts to support a
plausible antitrust claim.
Three important determinations came from the decision with respect to the issue of adequately
pleading a claim. First, the court interpreted Rule 8(a)(2)s notice pleading standard to require
that a complaint allege enough facts to state a claim to relief that is plausible on its face.
Twombly, 550 U.S. at 570.
It found that the factual allegations must be enough to raise a right to relief above the
speculative level. Id. at 555. The court reasoned that this standard [did] not impose a
probability requirement at the pleading stage. Id. at 556.
In short, it determined that a plaintiff must allege sufficient facts to nudge their claims across
the line from conceivable to plausible, else risk dismissal. Id. at 570.
Second, the court retired Justice Blacks oft-quoted passage in Conley v. Gibson, 355 U.S. 41,
45-46 (1957) (on its 50th anniversary) that a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief.
The court reasoned that a literal reading of Conley would permit a wholly conclusory statement
of a claim to survive a dispositive motion if it left open the possibility that a plaintiff may later
discover facts to support recovery.
Finally, the court stated that in reaching its conclusion, it [did] not apply any heightened
pleading standard, nor did it require heightened fact pleading of specifics. Twombly, 550 U.S.
at 569, n.14, 570.
IQBAL:

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The Supreme Court revisited its Twombly decision in Ashcroft v. Iqbal. The case involved a
citizen of Pakistan and a Muslim that was arrested on criminal charges and detained in the wake
of the Sept. 11, 2001 terrorist attacks.
The plaintiff filed a complaint alleging certain federal officials adopted an unconstitutional
policy that subjected detainees to harsh conditions of confinement based on race, religion or
national origin.
Iqbal was an appeal from the Second Circuit, which had affirmed the district courts denial of
defendants motion to dismiss.
The Second Circuit, in considering whether the claims were sufficiently pleaded, held that
Twombly called for a flexible plausibility standard which only required amplified factual
allegations to render a claim plausible in certain contexts, the present claim not being one of
them.
The Supreme Court reversed. In re-examining its reasoning in Twombly, the court reiterated that
while the Rule 8 pleading standard does not require detailed factual allegations, conclusory and
formulaic allegations will not suffice.
It also emphasized that a claim to relief must be plausible on its face, and that while the
plausibility standard is not akin to a probability requirement, [ ] it asks for more than a sheer
possibility that a defendant acted unlawfully. Iqbal, 129 S. Ct. at 1949.
The court found that its Twombly decision rested on two fundamental principles: (1) that a court
must accept all plaintiffs allegations as true is inapplicable to legal conclusions; and (2) a
complaint must state a plausible claim for relief to survive a motion to dismiss.
The court provided scant additional helpful language as to how to analyze the plausibility of a
claim. It reasoned that such an analysis is a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. Id. at 1950.
It then suggested a two-pronged approach: (1) identify those pleadings that are mere conclusions,
because those are not entitled to an assumption of truth; and (2) assume the veracity of the
remaining well-pleaded factual allegations (if any), and then determine whether they plausibly
give rise to an entitlement of relief.
In applying the two-pronged approach to the Iqbal complaint, the court first rejected those
allegations that were mere recitations of the elements of a constitutional discrimination claim.
Next, in considering the factual allegations that the court was required to accept as true, it found
that while the allegations were consistent with the defendants purposefully designating detainees
of high interest because of their race, religion or national origin, it nevertheless concluded that
they were not plausible because there were more likely explanations for such policies.
The court concluded that [a]s between that obvious alternative explanation' for the arrests ...
and the purposeful, invidious discrimination plaintiff asks us to infer, discrimination is not a
plausible conclusion. Id. at 1951-52.

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The court next held, in no uncertain terms, that its decision in Twombly was not limited to
pleadings made in the context of an antitrust dispute.
It reasoned that the decision was based on its interpretation of Rule 8, which governs the
pleading standard in all civil proceedings in federal courts. The court made clear that Twombly
expounded the pleading standard for all civil actions.
Finally, the court rejected plaintiffs careful-case-management approach argument that the
pleading standard under Rule 8 should be relaxed because of controls placed on the discovery
process to make it minimally intrusive.

The court held that plaintiffs are not entitled to discovery, cabined or otherwise, if the complaint
has not been adequately pleaded under Rule 8.
Iqbal provides scant additional guidance in interpreting the plausibility pleading standard, while
leaving uncertain what it takes to nudge a claim from the conceivable (i.e., dismissable) to the
plausible (i.e., viable).
For example, how will a plaintiff know when sufficient facts are pleaded when a particular judge
is making that determination by drawing on her judicial experience and common sense?
Notwithstanding the inadequacies in clarifying the nuances of plausibility, the decision does
provide useful guidance on how to approach analyzing the sufficiency of a pleading under the
courts two-pronged inquiry.
Iqbal also resolves the issue of the scope of its applicability indeed, the court makes clear that
all civil claims are subject to the Twombly plausibility pleading standard. In addition, the court
flatly refused to relax the standard based on possible limited discovery.
Thus, while the courts two-pronged approach might bring more consistency on how a pleading
is analyzed, it remains to be seen with respect to innumerable claims as to how plausibility might
be sufficiently pleaded

1/21/2015
-filing an answer. Look at chapter 4,5.
-Rule 8a: where started with Twombly and Iqbal. short and plain statement of the
Rule 8b: how respond to the complaint.
Rule 8: General Rules of Pleading:
B: Defenses; Admissions and Denials
Radley admits the allegations of paragraph 11 (admission)
Zielinski

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 v. PP named CC(correct )
Insurance company represented both defendants
Paragraph 5 of complaint: stated that a motor-driver vehicle known as a fork lift or
chisel owned, operated and controlled by the defendant, its agents, servants and
employees was so negligently and carelessly managed that the same did come into
contact with the plaintiff causing him to sustain the injuries more fully hereinafter set
forth
Not an effective denial so treated as an admission
o Problematic in how denied paragraph 5
Rule 8c: list of affirmative defenses

No direct knowledge: Radley denies knowledge or information sufficient to form a belief as to

the truth of the allegations of paragraph 14 and therefore denies same.
Radley denies the allegations of paragraph 25

1/23/2015
-15(a) Amendments Before Trial. Amending as a Matter of Course.
-Beeck v. Aquaslide N Dive Corp. (1977)
Injured on water slide, sues manufacturer of the slide.
Relies on three separate insurance agents saying that was their slide, so Aquaslide admits
that it was their slide before going to know it.
o A couple years later, owner realizes that it was not their slide.
Trial court allowed to be amended, and whether was actually their slide was not
First issue: whether could be amended?
Appellate court with abuse of discretion standard.
bad faith or undue delay
-15(b) Amendments during or after Trial.

1/28/2015
-amend first, deal with relation back if too late and the SOL would be expired.
-15(c) relation back of Amendments
-the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out- or attempted to be set out- in the original pleading.

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-FRCP 4(M) Time Limit for Service
Krupski v. Costa Crociere
Relevant Facts: Wanda Krupski, while on a cruise operated by the Respondent, tripped over a
cable and fractured her leg. Upon her return home, Krupski hired an attorney to assist her in
seeking compensation for her injuries.

-Appellant purchased her ticket from Costa Cruise, and her ticket specified both that any injury
claims must be filed within one year and that any claims would be against the carrier. After
unsuccessful settlement negotiations, Krupskis attorney filed suit against Costa Cruise within
the one year limit.

-Costa Cruise through their answer and on two other occasions informed Krupski that they
were merely the marketing and sales agent for Costa Crociere and not the proper defendant. After
Costa Cruise moved for summary judgment, Krupski sought to amend her complaint and add
Costa Crociere as the proper defendant. The district court denied Costa Cruises motion for
summary judgment, allowed Krupski to amend her complaint, and then agreed to dismiss Costa
Cruise by consent after Costa Crociere was added as a defendant. Costa Crociere then moved to
dismiss the action as untimely, citing the one year limitation period.

-While Krupski had brought the original action within one year, Costa Crociere was not added as
a party until after one year had passed. Krupski argued that the date of the action should relate
back to the original filing date under Rule 15(c) of the Federal Rules of Civil Procedure. Costa
Crociere argued that the plaintiff had not made a mistake, as required by Rule 15, but rather had
deliberately chosen not to sue Costa Crociere in favor of Costa Cruise and did not seek to amend
the complaint even after being informed that Costa Crociere was the proper defendant.

-The district court agreed with the defendant, citing the undue delay in amending the complaint.
The Eleventh Circuit affirmed, concluding that Krupski either knew or should have known who
the proper defendant was, and similarly concluding that undue delay defeated any effort to relate
back the date of the complaint.

Issue: What constitutes a legitimate mistake as to the identity of the proper defendant under Rule
15(c) of the Federal Rules of Civil Procedure such that the time of filing properly relates back to
the original filing even though the proper defendant was only subsequently added?

Holding: The proper interpretation of relation back under Rule 15(c) depends on what the proper
defendant knew or should have known rather than what the plaintiff knew. In this case, the
proper defendant had notice of the claims at issue such that subsequent amendment to name the
proper defendant should properly relate back to the original filing.

Reasoning: Justice Sotomayor delivered the opinion of the Court. As the majority explained, the
Eleventh Circuit erred in adopted an interpretation of Rule c(1)C(ii) unsupported by the language
of the rule itself. Under the actual language of the Rule, complaints relate back to the original

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filing date if the proper defendant knew or should have known it was the proper defendant but
for the plaintiffs mistake. Justice Sotomayor explained that the Court below mistakenly
conflated knowledge of another partys existence with the absence of mistake regarding the
proper defendants identity. While the plaintiff here was aware that Costa Crociere existed, they
mistakenly believed that their claim was properly directed at Costa Cruise. While the defendant
argued that the original complaint represented a deliberate choice to sue one entity rather than
another, the Court concluded that the plaintiff was mistaken about the true identity of the
similarly named corporate entities. Furthermore, as the majority explained, the Federal Rules
should be liberally construed to favor judgments on the merits, and the holding here is consistent
with the notice requirements of Rule 4. Next, the Court explained that the Eleventh Circuits
analysis of plaintiff delay in amending the complaint was improper. Under the text of the
applicable rule, relation back is mandatory once the plaintiff has satisfied the exclusive list of
requirements- requirements that do not include diligence in amending the complaint. Thus, while
the plaintiffs conduct is relevant to determining proper notice to the defendant under Rule 4,
plaintiff conduct (and lack of diligence) is irrelevant to whether the complaint relates back.
Furthermore, federal courts do not have equitable discretion as to whether complaints should
relate back. Finally, the Court explained that upon applying the proper standard, the plaintiffs
complaint here relates back to the original filing. The allegations in the complaint itself make
clear that the plaintiff was mistaken as to the identity of the proper defendant. Furthermore, the
proper defendant contributed to the misunderstanding and should have been aware of the
potential for mistakes given other, previous errors regarding the same misunderstanding. The
proper defendant, Costa Crociere, represented by the same counsel as the original defendant was
aware of the plaintiffs claim within the applicable time limitation and subsequent amendment to
correct the plaintiffs mistake relates back to the original filing. Accordingly, the plaintiffs case
was timely as the amended complaint related back to date of the original filing.

Concurrence: Justice Scalia concurred in part and concurred in the judgment. He disagreed with
the majoritys reliance upon the Notes of the Advisory Committee, pointing out that they should
be afforded the same weight as other scholarly commentary. In his opinion, the Court attempted
to effectuate the intentions of the Committee rather than interpret the text of the Rule actually
adopted.

Conclusion: Under Rule 15c(1)C(ii), plaintiffs claims will relate back to the original filing
when they have made a mistake as to the identity of the proper defendant and that defendant has
notice of the claim within the applicable limitations period. The relevant inquiry is notice to the
defendant rather than when the plaintiff discovered the mistake necessitating amendment.

Worthington v. Wilson
Facts. Worthington, Plaintiff, was arrested by two police officers who allegedly twisted
Plaintiffs hand and broke it. Exactly two years later, Plaintiff filed a complaint in state court
against Peoria Heights, Illinois and three unknown police officers, Defendants, claiming the
police officers violated his civil rights. Peoria Heights removed the action to federal court. Four
months later, Plaintiff filed an amended complaint, which named the real identity of the two

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officers as Defendants. Defendants moved to dismiss the amended complaint on the grounds that
the statute of limitations had run and that the complaint failed to state a proper claim under 42
U.S.C. Section: 1983 and for sanctions. There was a hearing in front of the magistrate and the
magistrate recommended that the motion to dismiss and the motion for sanctions be allowed.
Plaintiff filed an objection to the recommendation. The court held an additional hearing on the
pending motions.

Issue. Does Plaintiffs amendment of its complaint to identify the two police officers relate
back to the date the original complaint was filed under Rule 15(c) of the Federal Rules of Civil
Procedure?
Held. No. Under the old version of Rule 15(c) of the Federal Rules of Civil Procedure, a party
later added by amendment must receive actual notice of the action pending against it before the
statute of limitations runs in order for the amendment to relate back to the date of the original
complaint. Under the new version of Rule 15(c) of the Federal Rules of Civil Procedure, the
party need only be aware of the action pending against it within 120 days of the complaint
being filed in order to relate back to the date of the original complaint. The failure to name
parties due to lack of knowledge is not naming different parties by mistake. Therefore, the
exception for mistake under Rule 15(c) of the Federal Rules of Civil Procedure does not apply
if the party seeking amendment did not initially know

Plaintiff sought post-trial relief from Defendant in federal court arising from litigation that was
pending in state court which had been resolved in another action. Plaintiff represented to the
Court that he had not worked in four years, and that an agency in collaboration with Defendant
had barred him from work. Plaintiff failed to disclose the pending state court action. The District
Court imposed sanctions against Plaintiff and Plaintiffs attorney for these incidents from which
Plaintiff appealed.

Synopsis of Rule of Law. Under Rule 11 of the Federal Rules of Civil Procedure, sanctions
cannot be imposed on a party before the 20 day safe harbor period expires because the point
of the period is to give the accused party time to correct the mistakes. In addition, sanctions
should only be imposed on a partys attorney for failure to investigate his/her clients statements
if the attorney did not conduct a reasonable inquiry under the circumstances as to whether the
statements have evidentiary support. If the record shows evidence supporting the clients
assertions, sanctions should not be imposed on the attorney.

Facts. Plaintiff Hadges sued Defendant Yonkers Racing Corp. in both state and federal court for
barring Plaintiff from working at Defendants racetracks. The federal claim was based on
violation of due process and was dismissed for lack of state action. There was also an affidavit
filed by Defendant that the court understood to mean that Plaintiff could work at other tracks.
The Court noted that if a racetrack in New Jersey followed Defendants decision, Plaintiff could

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establish state action. In the state suit, where Plaintiff claimed he was blackballed from
working at all New York racetracks, all counts were dismissed. Plaintiff then sued Meadowlands
Raceway, a New Jersey agency, in federal court on the same grounds as his original claim
against Defendant, which was settled and included an affidavit, stated that Defendants ban
provided a basis for Meadowlands ban. Plaintiff appealed the New York federal action under
Rule 60(b) of the Federal Rules of Civil Procedure on the grounds that the original federal action
should be vacated because the affidavit of Defendant which stated that Plaintiff could work at
other tracks was fraudulent. Plaintiff and his attorney both submitted affidavits that said that
Plaintiff had not worked in 4 years and presented evidence that a racing board had barred him
from a race in 1989. It was later revealed that Plaintiff was barred from the race in 1987.
Defendant moved to dismiss the action, and presented evidence that Plaintiff had raced in
Monticello, another track, and also moved to impose sanctions for misrepresentation of the date
Plaintiff was barred from the 1987 race and failing to disclose the state action to the federal
court. The District Court dismissed the complaint but did not impose sanctions because the suit
was not so frivolous as to warrant sanctions under Rule 11 of the Federal Rules of Civil
Procedure.
The District Court requested Plaintiff and attorney submit arguments against the imposition of
sanctions. The District Court then imposed sanctions against Plaintiff for misrepresentation and
his attorney for failure to investigate his clients assertions and for not disclosing the state court
action. Plaintiffs attorney sent a letter to the Court, arguing that the Court erred in imposing
sanctions against him and his client, and objecting to comments the Court made about the
attorney in its order imposing sanctions. The District Court considered this letter an application
to reargue the sanctions and wrote an order denying the application, which contained additional
comments about Plaintiffs attorney. Plaintiff appealed from these rulings.

Issue. Is Plaintiff entitled to Rule 60(b) of the Federal Rules of Civil Procedure relief? Should
Plaintiff be sanctioned for misrepresenting when he was barred from the 1987 race, not
accurately representing where he had worked in the past four years and failure to disclose the
state court action? Should Plaintiffs attorney be sanctioned for relying on his clients word
regarding the 1987 incident when Plaintiff was barred from the race, relying on his clients word
regarding his work history for the past four years and for failing to disclose the state court
action?

Held. No as to all issues. The District Courts ruling on Rule 60(b) relief is affirmed. The District
Courts imposition of sanctions is reversed. Under Rule 11 of the Federal Rules of Civil
Procedure, parties are afforded a safe harbor period before sanctions are imposed. A party
seeking sanctions must send a motion to the opposing party. The opposing party has 21 days to
cure the issue for which sanctions are sought before the party seeking sanctions may file the
motion with the court. In this case, Defendant did not file a separate motion seeking sanctions,
nor did it afford Plaintiff 21 days of safe harbor prior to filing the motion with the District Court.
The District Court must file a separate order illustrating the sanctionable conduct if the District
Court files a motion for sanctions sua sponte. The District Court stated that it was considering
sanctions upon Defendants request and not sua sponte. In addition, sua sponte sanctions must
rise to a level to be considered a contempt of court violation, which does not appear to be the
case with the conduct at issue. Because Plaintiff was not given the benefit of the safe harbor

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provision of Rule 11 of the Federal Rules of Civil Procedure (recently amended in 1993 at the
time of the case), and Defendant did not follow the procedural requirements of Rule 11,
imposition of sanctions on Plaintiff is reversed. Regarding sanctions against Plaintiffs attorney,
Rule 11 of the Federal Rules of Civil Procedure requires that attorneys conduct a reasonable
inquiry under the circumstances as to whether the attorney can find evidence to support the
factual statements. There was evidence on the record indicating that the 1987 incident took
place in 1989, based on an undated sheet and the affidavit from Plaintiff. In addition, Plaintiffs
attorney admitted the error and indicated the sheet was relevant anyway because it showed
state action between Defendant and a New York agency. There was evidence on the record
indicating that Plaintiff had not worked for four years. Plaintiff had sent letters to racetracks
requesting work and none responded. In addition, the New Jersey agency admitted that it had
banned Plaintiff from working. Therefore, it was reasonable for Plaintiffs attorney to believe
Plaintiff had not worked in four years. Finally, both Plaintiff and Defendant would have an
obligation to disclose the state court action if it would have been helpful to the District Court.
Because there was no final decision in the state court action, there is support that disclosure
was not helpful. Even if it was, Defendant would have to disclose its existence as well. The
District Courts comments in its sanctions order shows bias either towards Plaintiffs attorney
personally or those that represent unpopular clients, which further supports reversal of the
sanctions order.

Discussion. The safe harbor provision of Rule 11 gives a party or an attorney a chance to
rectify errors that are alleged to be sanctionable. This case illustrates a courts strict
interpretation of Rule 11 and reluctance to impose sanctions. An attorneys investigation of
his/her clients statements must only be reasonable. In this case, it shows that evidence
supporting the clients statements is evidentiary support notwithstanding that evidence clearly
controverts such statements and the attorney later admits the error.

-Rule 11 does not apply to disclosures and discovery requests. 26(g) would.
-conflicting federal and state court.

15
-partys attorney for failure to investigate his/her clients statements if the
attorney did not conduct a reasonable inquiry under the circumstances as to
whether the statements have evidentiary support
-safe harbor and separate motion requirement
-follow the rule to file: 21 day safe harbor.
-Pay attention to whether the rules are being amended. FRCP amended
December 1st.

2/04/2015
Joinder of Claims
-Joinder of Claims Rules
Joinder of Multiple Claims: Rule 18(a)
Counterclaims
o Compulsory: FRCP 13(a)
o Permissive: FRCP 13(b)
-Subject Matter Jurisdiction over Additional Claims:

For each additional claim, court must have SMJ (diversity, federal
question, or supplemental)
o Pg. 242-246 in book.
Pleading rules tell us when you may or must add a claim to your
pleading
-Example 7.1 on pg. 545: an additional claim over which the court will have
no subject matter jurisdiction

Rule 18 (Joinder of Claims): first have to have an original claim that is

proper within the court, (a) says can claim as many claims
Second car towing claim: Could not be diversity, because both are
from NY, could not be federal question because state tort claim
governed by state law,
o Supplemental Jurisdiction: appropriate only if same case or
controversy
In this case, would be unrelated.
o She does not want us to use Gibbs language, but language from
the statute: so say court would have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III.

16
 o Dont have to look at exception under 1367 because know that
it is based on federal question, do not have to deal with
exceptions for diversity jurisdiction.
Walk through each to figure out if SMJ (federal question, diversity,
supplemental) walk through language of 18(a), if not same case or
controversy under 1367 (a) tell why 1367 (b) doesnt apply
-Consequences of Not Joining a Claim

Consequences of failing to join a claim that could have been brought

in an earlier action:
o Possibility of claim preclusion
Applicable Standard: (pg. 1000)
o the prior action must have concluded in a valid, final judgment
on the merits;
o the claim in the subsequent action must be the same as the
claim that was raised or should have been raised in the previous
action;
Transactional test: common nucleus of operative fact
o and the parties in the subsequent action must be identical to- or
in Privity with- the parties in the first action
How does this issue arise?
o If DSX later trying to bar second claim: have to raise preclusion
in initial pleading
Rule 8 (c) (1) Defense
Estoppel or Waiver of Claims by not bringing up earlier.
-Rule 13(a) Compulsory Counterclaim
1) A pleading must state as a counterclaim any claim that- at the time
of its service- the pleader has against an opposing party if the claim:
o A: arises out of the transaction or occurrence that is the subject
matter of opposing partys claim AND
o B: does not require adding another party over whom the court
cannot acquire jurisdiction
2) Exceptions
-Rule 13 (b) Permissive Counterclaim: A pleading may state as a
counterclaim against an opposing party any claim that is not compulsory
Still have to figure out if have subject matter jurisdiction
-United States v. Heyward-Robinson Co.

You can never waive SMJ as a defense, only personal jurisdiction

This case occurred before supplemental jurisdiction

17
 Looking to interpret whether part of same transaction, broadly
interpret transaction
o Both subcontracts were entered into by the same parties for
same type of work and same period
o Heyward had right to terminate both subcontracts in event of
breach on either
o Right to withhold monies due on one against damages suffered
on the other
o Progress payments were made on a lump sum basis for both as
though for a single account
o A single insurance policy covered both jobs.
Judge Friendlys concurrence: wary of extending words transaction in
such a claim that could cause unexpectedly harsh results
o Look at whether compulsory at the time of pleading
o Worried about extending this definition so much that later
claims could be barred because of this expansive definition.
Claim preclusion
-Under 1367: if is just a permissive counterclaim, and not same
transaction or occurrence (like in compulsory counterclaim), if Judge
Friendly was right then would not have SMJ because not a part of the same
case or controversy
-FRCP 13 (g) Crossclaim against a Coparty
Arises out of the same transaction or occurrence or relates to any
property that is the subject matter of the original action
The crossclaim may include a claim that the coparty is or may be
liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
-Discussion Question 1:

Not federal question:

She wants us to go through everything, use language of the statute.
same case or controversy if miscalculating bonus based off her
gender. IF unrelated, not part of same case or controversy.

2/11/2015
Compulsory Party Joinder
-Rule 19(a)
-Rule 19 (b)

18
-MasterCard International v. Visa International Service Association (2006)
MasterCard sued FIFA for breach of contract, alleging that exclusive
rights were granted to VISA which was a right that MasterCard had
right of refusal on.
VISA trying to intervene in the case, or have the case dismissed
(rights a letter to the court which the letter treats as a Rule 19
motion)
o VISA tries to be a required party, then joinder would not be
feasible, but as an indispensable party
o Joinder not feasible because VISA is a DEL Corporation, same as
MasterCard so would defeat diversity, and no SMJ in federal
court.
Dt. Court held that VISA was not a necessary/required party (older
terminology), can go on without VISA because they are not necessary.
Appellate Court agrees, confirms.
o Court goes through to see whether VISA is a necessary or
required party by going through Rule 19(a)(2) analysis.
o Court goes through all of analysis to see if someone is a
necessary or required party
o 19(a)(1) inquiry: in the parties absence, can the parties already
in the case have complete relief between them?
VISA tries to argue MasterCard can only get partial relief,
Court says VISAs absence wont bar from full relief
Relief: full rights to sponsorship
Issue between MasterCard and FIFA can be
resolved.
Whether that impact on the absent third party is
significant under Rule 19 (a)(2) in next part of the
decision
o Whether (19)(a)(2) would impair VISAs ability to protect itself?
Case distinguished from case that VISA was not a part of
the contract
VISA has to prove that are disadvantaged from not being
in the litigation, impairment has to be from not being a
party of the litigation
Not impaired because might ultimately be affected
by the outcome. Doesnt matter just that VISA
might be negatively impacted.
o (19)(a)(2)(2): substantial risk has to be caused from the absence,
not just an adverse affect
FIFA doesnt raise this objection, not a

19
 o Ultimately finds that VISA was not a required party, shows how
hard it is to get through test that is a required party
Has to be not just impacted by litigation, but absence from
litigation would be hurting.

-Republic of Philippines v. Pimentel (2008)

Republic of Philippines/ Commission, Pimentel Class Action, Merril

Lynch

20
2/13/2015

Hypo 7.6
-Is Deborah a required party?
-Is Deborah an indispensable party?
-19(b) Factors for the court to consider
-For exam: walk through every step on the way and analyze all of the facts. For example, first
look at whether is required and then look at SMJ

Intervention
Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission
(1978)
- Motions to intervene allow non-parties to protect their interests
- A party may intervene in an action if it has a significant protectable interest that would, as
a practical matter, be impaired by non-participation in the litigation and the parties to the
suit would not adequately represent that interest.
o Not necessarily a direct interst, but a significant one. The consequence of this
litigation could be the imposition of new requirements for the issuance of a
liscense to operate a uranium mill, therefore a substantial threat to the interests of
Kerr-McGee, and this case presents a chance of impairing that interest.
- Rules refer to impairment as a practical matter and do not limit consideration to strictly
legal factors
- The party moving to intervene bears the burden of showing that representation by
existing parties may be inadequate. Burden is minimal, just have to show that may be
inadequate
- Role of stare decisis and res judicata
- UNC allowed to intervene
- District Court initially denied Kerr-McGee and AMC motion to intervene. Tenth Circuit
found ultimately do have a right to intervention on this case; even if defendants
- Doesnt have to be res judicata, just something that would impair.
-
- Interest: Meaning of Interest under Rule 24 (a)(2)
- Intervention of Right versus Permissive Intervention: 24(a)(2) versus 24(b)
o When deciding whether to grant permissive intervention, in addition to finding a
common question of fact or law, courts are supposed to consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties
rights FRCP 25(b)(3)
o Courts may also weigh a number of efficiency considerations, including the
degree of overlap of the two actions, the extent of progress in the original action,

21
 the impact that the intervention would have on the original action, and the
availability of alternatives to intervention
- Impairment Issue: Point II
- Adequacy of Representation under Rule 24(a)(2)
o The requirement of the rule is satisfied if the applicant shows that representation
of his interest may be inadequate; and the burden of making that showing should
be treated as minimal
Interpleader
- Rule 22:
Need to know some more venue stuff for the exams
Difference between Rule Interpleader and Statutory Interpleader.
-Implead/ Intervene/ Interplead
-Aggregation Rule p. 213

Joinder of Claim and Parties Review and Exam Review

-Essay: write about real issues. Dont address unrelated arguments. Dont make up own issues.
Analysis does mean both sides of an issue. Conclusion is least important part. Identify
rule that applies, facts that are important to analysis. The court might analyze the issue
this way. Alternatively the court might analyze the issue this way.

- Eraser Problem From Power Point

o Know which pages talk about aggregation, may need to use that during the exam
o IS properly brought with the other claim against Dwight under FRCP 18
Then have to look at subject matter jurisdiction to see if claim can be
brought in this case.
o Judy v. Dwight v. TSI
Dwights first claim against TSI should be asserted in A Third Party Party
Complaint
Couldnt be a cross claim because had to bring TSI into the
lawsuit, were not already a party.
o Dwights Second Claim Against TSI:
Is Permitted under FRCP 18(a): independent or alternative claims
o If TSI has a claim against Judy for $100,000
TSI can assert it only if it arises out of the same transaction or occurrence
as Judys claim against Dwight, under FRCP 14(a)(2)(D)
Rule 18 is just about joinder

22
 o Assume that TSIs claim against Judy does arise out of the same transaction or
occurrence as Judys claim against Dwight. Does the Court have SMJ?
Yes, Supplemental Jurisdiction (pg. 244)
o If Judy has a related claim against TSI?
The Court would not have subject matter jurisdiction over the claim.
If Judy has a related claim, its not federal question. Not diversity because
two TN parties. Only possible way is supplemental jurisdiction.
1367(a) so related that form part of the same case or controversy. 1367
(b) any civil action of which the district court have original jurisdiction
founded solely on 1332, the district court shall not have supplemental
jurisdiction over claims by plaintiffs against persons made parties under
Rule 14, 19, 20, 24.
Rule 14: TSI was brought in as a third party.
B does not work for supplemental jurisdiction, because founded on
diversity jurisdiction.
Dont want plaintiff to be able to circumvent lack of diversity by
waiting for Dwight to bring in TSI.
o Claim Preclusion:

2/25/2015
Post Midterm
Class Actions

3/4/2015: Proportionality in Discovery

B. Limits on the Scope of Discovery
-Rule 26 (b)(1) sets out limitations to discovery that the court may impose based on factors set
forth in Rule 26 (b)(2).
A) Permits courts to alter the limits on the number and length of depositions or the
number of interrogatories in its discretion
B) Protects parties against the burden of having to produce electronically stored
information that is not reasonably accessible
C) permits the court to limit discovery based on factors intended to ensure that discovery
requests are proportional to the needs, costs, and burdens of all parties involved.
1. Burden and Proportionality Limits Generally Rule 26 (b)(2)(C)

23
-enables the Court to limit discovery if the court finds that the discovery is too burdensome in
relation to its utility to the litigation
Focuses on proportionality: cost and burden of discovery versus contribution of
information to the case
Gonzales v. Google, Inc.
U.S. District Court for the Northern District of California (2006)
Facts:
-ACLU challenged the constitutionality of COPA. Several other challenges and procedural
history occurred, but Supreme Court eventually affirmed preliminary injunction and held that
there was an insufficient record, focused on less restrictive alternatives, such as blocking and
filtering software programs. Court remanded the case to allow parties to update and supplement
the factual record to reflect current technological realties. Government commissioned study to
test effectiveness of blocking and filtering software.
U.S. Attorney General Gonzales subpoenas Google to compile information from Googles search
index and to turn over a significant number of search queries entered by Google users. The Child
Online Protection Act (COPA), 47 U.S.C. 231 forbids knowingly using the internet to
communicate material that is harmful to minors for commercial purposes. The acts
constitutionality was challenged. The government hoped to test filtering software and
subpoenaed Google, Inc. The subpoena required production of URLs available to users and text
of search queries entered by users. Google, the market-leading search engine, objected to the
production. The government significantly reduced its initial demand for data, but Google still
objected. The government filed a motion to compel production.
Subpoena initially requested: all URLs that are available, then went down to a random sampling
of 1 million URLs, then to 50,000 URLs from Google search index. Also requested all queries
into search engine between June 1, 2005 and July 31, then went down to one week period, then
to only 5,000 entries from Googles query log.
Issue: Whether the request for the information sought by the subpoena is reasonably calculated
to lead to evidence admissible in the underlying litigation and if the production of information is
unduly burdensome?
Judgment: The motion to compel, as modified was GRANTED as to the sample of URLs from
Google search index and DENIED as to the sample of users search queries from Googles query
log.
Holding: Court exercises its discretion under Rule 26 (b)(2) to find that the marginal burden of
loss of trust by Googles users due to the disclosure of the search queries outweighs the
duplicative disclosures likely benefit to the Govt. study. The Court grants the Governments
motion to compel only as to the sample of 50,000 URLs.
Reasoning:

24
-Court balances the relevance of the discovery sought, the requesting partys need, and the
potential hardship of the party subject to the subpoena
Relevance: Court finds both relevant
- Information must be relevant to the claims and defenses, or reasonably calculated to lead
to admissible evidence, although is liberally construed.
- Sample of URLs: To determine whether the information sought is reasonably calculated to
lead to admissible evidence, the party seeking the information must first provide the
Court with its plans for the requested information.
o Court says the Governments disclosure of their plans is incomplete, and doesnt
explain the relevance fully of the information HOWEVER
o Court goes by the broad definition of Rule 26, and reduced number of 50,000
URLs to rule that the URLS randomly selected from Googles data base for the
study is relevant to the issues of ACLU v. Gonzales
- Search Queries: The Court finds that were the Govt. to run the URLs through filtering
software and analyze the results, the information could lead to reasonable evidence.
o The broad standard of relevance under Rule 26 does not require that the
information sought necessarily be directed at the ultimate fact in issue, only that
the information be reasonably calculated to lead to admissible evidence.
o Google brings up issues like number of other factors that influence search query
and search result, and list of search queries does not differentiate between the
source of the queries.
Undue Burden: Court concerned with economic burden on a nonparty. Under Rule 45, court can
modify a subpoena even for relevant information if it finds that there is an undue burden on the
nonparty
- 1) Technological Burden of Production: As a general rule, non-parties are not required to
create documents that do not exist, just for discovery. However, Google hasnt shown
that it is unable to simply extract this information and the Government has agreed to
compensate for the costs of production. (As well as due to the scaled down modified
subpoena)
o The Court finds that the technical burden of production does not excuse Google
from complying with the subpoena
o Google says that the Government running all of these searches will interfere with
users and advertises, but the Court finds this will be a minimal burden
- 2) Potential for Loss of User Trust: Google argues that this will result in loss of user trust,
would deter users from some searches.
o Googles privacy statement that it will protect personal information does not
apply to the URLs
o Another factor is though that users expect privacy of their searches, for example
searches for pornography. Therefore, might be a potential burden as to Googles
loss of goodwill if Google is forced to disclose search queries to the Government.
- 3) Trade Secret: Protected under Rule 45 (c)(3)(B), if a subpoena seeks a trade secret, the
nonparty must show that the information is a trade secret or confidential information, the
25
 burden then shifts to the requesting party to show a substantial need and reasonable
compensation. Court can then order production only under specified conditions.
o Search Index and Query Log as Trade Secrets: The Court presumes that the
requested information can be somewhat commercially sensitive.
o Substantial need: Government must then prove substantial need. Court holds that
the government demonstrated substantial need for the URLs to run filtering
software. As Google is the market leader, Government needs their URLs
- 4) Cumulative and Duplicative Discovery ***
o Government has not demonstrated a substantial need for both the information in
the sample of URLs and the sample of search query text. The information
requested from the two sources is very similar, so it would be unreasonably
cumulative and duplicative to compel Google to hand over both sets of
information
Because the production of the URLs are a trade secret/confidential business information, they are
protected by protective order.
The Court raises, sua sponte, concerns about the privacy of Google users apart from Googles
business goodwill argument.
Notes:
- In the Northern District of CA as opposed to the Eastern District of Pennsylvania,
because that is where Google is located. Motion to quash / enforce the subpoena will
have to happen in CA (place of compliance)
o Why open separate action to enforce the subpoena.
- Want URLs and Search Queries to justify law as protection

2. Proportionality Limits on Electronic Discovery

FRCP 26 (b)(2)(B): protects parties against having to produce Electronically Stored Information
(ESI) that they deem to be not reasonably accessible.
Zubulake v. UBS Warburg L.L.C. (Zubulake I)
U.S. District Court for the Southern District of New York (2003)
Facts: Plaintiff, Zubulake was hired in 1999 as a senior salesperson for Defendant company.
Plaintiff was passed over for a promotion, and the person who ended up with the job, Matthew
Chapin, proceeded to harass Plaintiff. Plaintiff filed a charge of gender discrimination with the
EEOC, and she was fired shortly thereafter. Plaintiff then filed federal, state and city charges of
gender discrimination. Plaintiff requested all of Defendants email correspondence concerning
Plaintiff as part of discovery. Requested all documents concerning any communication by or
between UBS employees concerning the plaintiff. UBS sent over 350 pages of documents,
including email recovers totaling 100 pages, but didnt search backup tapes or archives for
responsive emails. Defendants reached an agreement to produce responsive emails from the

26
accounts of five individuals named by Zubulake from August 1999 to December 2001. Plaintiff
wants emails from UBSs optical disks, servers, and backup tapes. Defendants did not turn over
archived emails because they claim that it would cost $175,000 not including attorneys fees to
gather the data. UBS informed Zubulake that the cost of producing e-mail on backup tapes would
be prohibitive, estimated at $300,000.
Issue: To what extent is inaccessible electronic data discoverable, and who should pay ofr its
production?
UBSs E-Mail Backup System: UBS emails were automatically backed up on tapes and optical
disks. Optical disks contained only the internal emails of registered traders. To restore a backup
tape would take UBS approximately five days, although such restoration could be faster if using
services available in the private sector for a higher price. Ninety-four backup tapes were
identified as containing information relevant to Zubulakes request.
UBS objected to the plaintiff's request, stating that the cost associated with complying would be
too high, which they estimated to be about $175,000 excluding the cost of lawyers reviewing the
e-mails. Alternatively, the defendants asked that the plaintiff shoulder the cost of such electronic
discovery.
Legal Standard: Balancing the broad scope of discovery prescribed in Rule 26 (b)(1) with the
cost-consciousness of Rule 26 (b)(2). Under the discovery rules, the presumption is that the
responding party must bear the expense of complying, but it can invoke the discretion of the
court under Rule 26 (c) to protect from undue burden or expense.
Eight-factor test from Rowe to determine whether cost-shifting is appropriate
Reasoning:
Should discovery of UBS electronic data be permitted?
Citing Rule 34, the Court in Zubulake I stated that electronic documents can equally be the
subject of discovery as paper documents. Furthermore, this is equally valid for digital data on
backup tapes.
Should cost-shifting be considered?
The Court clarified that cost-shifting need not be considered in all cases regarding electronic
discovery of digital information, and that the Oppenheimer presumption should be respected.
The Court identified the standard for undue at 26(b)(2)(B) of the Rules. It clarified that it is
wrong for courts to take the position that the standard for undue is met simply because electronic
evidence is involved in a particular case. The Court explained that such a presumption is false
because electronic evidence is often easier and cheaper to produce than paper evidence as it can
be searched automatically, reducing the need for photocopying, etc.
Also, the Court stated that a factor relating to determining what is "undue" is whether the
electronic data is in accessible or inaccessible form, which largely depends on the media it is
saved to. The Court identified five classes of data and media according to its accessibility,

27
starting with the most accessible and ending with the least accessible. To paraphrase the Court,
the five classes identified were:
1.Active, online data, such as data on a hard drive. This is the most accessible for of data
since it is at its most active. For example, when data is created, accessed and processed
the most.
2.Near-line data, such as data contained on optical disks. Retrieval time is slightly slower
than from, for example, a hard drive. However, it is still very accessible.
3.Offline storage/archives data, which is when data is stored to an optical disk or
magnetic tape for archival purposes because it was determined that the chance of needing
access to the data is low. In this case, access is slower than near-line data because it
requires manual retrieval. The speed of accessing such data can take days depending on
storage facility arrangements.
4.Backup tapes involves saving data to tape-recorder type of device and can hold up to
many gigabytes of information. It is not possible to retrieve individual documents
because backup tapes contain data which is recorded to mirror of each computer's
structure. They also often involve compression of data. For these reasons, restoration of
tapes and access to data is slow and costly.
5.Erased, fragmented or damaged data is the least accessible form of data. Fragmented
data occurs if data is stored in clusters.
The Court provided the guidance that, in general, the first three classes may be considered
accessible while the last two may be considered inaccessible. In the specific case before the
Court, it was found that there existed both accessible and inaccessible data, with active e-mail
files falling into the first category, and e-mails saved to optical disk falling into the second or
third category. Since backup tapes are a form of inaccessible data, the Court found it appropriate
to consider cost-shifting for the recovery of e-mails from those tapes.
What is the proper cost-shifting analysis?
The Court examined the Rowe seven factor test and found that it favored cost-shifting. To
respect the Oppenheimer presumption and ensure that the test be neutral, the Court modified the
Rowe test to the following seven factor test:
1. The extent to which the request is specifically tailored to discover relevant
information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
5. The relative ability of each party to control costs and its incentive to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.

28
Further guidance was provided by the Court that these factors should not be weighed equally, but
rather in descending order with the first two being given the most weight. Also, a factual basis is
required to support the consideration of the factors. To do so, it may be possible to require that a
small sample be recovered so as to determine whether the test is met.
Conclusion
- The Court concludes by describing its three step approach regarding electronic discovery and
costs for such discovery:
1.Active and stored data of the computer system must be very well understood. Costs for
retrieving accessible information should be covered by the responder. Only when
retrieving inaccessible data should cost-shifting be considered.
2.Due to the factual nature of the cost-shifting test, it may be prudent to request that a
small sample of the inaccessible data be restored.
3.Apply the cost-shifting test.
- The Court ordered that the defendants:
"produce all responsive e-mails that exist on its optical disks or on its active servers (i.e., in HP
OpenMail files) at its own expense. UBS is also ordered to produce, at its expense, responsive
emails from any five backups tapes selected by Zubulake. UBS should then prepare an affidavit
detailing the results of its search, as well as the time and money spent. After reviewing the
contents of the backup tapes and UBS's certification, the Court will conduct the appropriate cost-
shifting analysis.

Notes:
- Having IT person at discovery to explain the cost; details; methods.

3/06/2015
- Privilege, Work Product, Inadvertent Disclosure.
- FRCP 26 (b)(1)
o Fed. R. Evid. 501:
- Work Product:
o Hickman v. Taylor
o Resulting in Rule 26 (b)(3)
o In federal court, federal work product law governs even when case is based on
diversity.
Procedural Issue.
- Attorney-Client Privilege:
o FRCP 26 (b)(1)
o Work product protection;
o Privilege log to describe each document with basis for withholding; dont have to
disclose information more than just saying why is privileged.

29
 o Confidential communication / between attorney and client / for the purpose
of giving or receiving legal advice.
Agent can be present.
o TN has statute that defines attorney client privilege.
o Privileged information cant be compelled into discovery or introduced as
evidence at trial unless there is a waiver
- Fed. R. Evid. 501:
o Look to common law to determine rules of privilege.
o If in court based on diversity jurisdiction, look at state privilege law.
- Confidentiality Obligation in Rules of Professional Conduct:
o Exceptions: Consent, exception saying can go to other attorney for advice, if need
to protect human life.
- Goal of Privilege to protect confidential communications and litigation strategy.
- Upjohn v. U.S.: federal court following federal law
o Confidential communication in a company doesnt have to flow through just
managers or decision makers; applies to whoever the attorney needs to talk to
gather information for case
o Privilege applied throughout the corporation
As agents of company, capable of being clients
o Purpose of giving or receiving legal advice
- Work Product:
- Hickman v. Taylor (1947) still cited even after Rules 26(b)(3) & (4) into existence.
o Using interrogatories as request for production as well as an interrogatory.
o Mutual knowledge of all of the relevant facts gathered by both parties is essential
to proper litigation.
Memoranda, statements, and mental impressions in this case fall outside
the scope of attorney-client privilege but petitioner has to show the
necessity for the production of any of this material or any demonstration
that denial of production would cause hardship or injustice.
o Discovery can be had when relevant and non-privileged facts remain hidden in an
o Work Product:
Interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible
ways work product of the lawyer
o Policy concerns about this is how the legal system is set up.
But plaintiff saying gives more credence to large corporations.
- FRCP 26 (b)(3): Set Forth Rules governing the Discovery of Work-Product.
o Documentary materials prepared in anticipation of litigation or for trial by or for
another party/partys representative are protected from discovery unless the
requesting party can show a substantial need for the materials.
mental impressions, conclusions, opinions, or legal theories of a partys
representative are never discoverable.
- Responding parties are obliged to indicate the material that is being withheld based on
assertions of privilege or work-product protection in a privilege log. Rule 26 (b)(5)

30
 - The Meaning of anticipation of Litigation Rule 26 (b)(3)
o Some courts adhere to the notion that documents are protected by work-product
privilege if they are prepared primarily or exclusively to assist in litigation
o Majority of Courts hold in opposite and follow the prepared because of prospect
of litigation approach.
A document should be deemed prepared in anticipation of litigation if
in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.
o Emerging Issue: Connection with litigation holds in e-discovery and work product
o Focus on having to anticipate litigation
- Substantial Need : To overcome work-product protection, a requesting party must show
a substantial need for the information
- Privilege Waiver:
o Attorney client privilege only holds up if it has not been waived- whenever the
protected communication is disclosed to third parties.
o Can disclose the confidentiality of all communications relating to the same
subject matter
SM Waivers result in permanent loss of privilege protection
- Experts and Trial Preparation: FRCP 26 (b)(4)(C)
4. Electronic Discovery & Protected Materials
- Inadvertent Disclosures, Waiver, and Claw-back Agreements:
Claw-Back Agreements: parties are entitled to reclaim material that they produced but
should have withheld based on privilege or work-product protection
Quick Peek Agreements: permit requesting parties to review a body of material in
possession of the responding party prior to a privilege review by the responding party in
order to identify the subset of material that the requesting party is actually interested in
having produced.
-FRCP 26(b)(5)(B):
Applies to Inadvertent Disclosure. Can notify; then obligations on the opposing party.
Applies to Ana and Teresa potentially.
Professional Conduct Rules

-FRCP 26 (b)(5)(B): Doesnt mean that privilege wasnt waived, but have to follow those steps.

- Waiver by Inadvertent Disclosure

o History and Three Traditional Approaches
Lenient Test
Strict Test

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 Balancing/ Modern Test: Look at reasonableness: scope of discovery,
compared to how much information, what was the extent of the disclosure,
overriding issue of fairness
o Federal Rule of Evidence 502
(b) Inadvertent Disclosure: no waiver if
Disclosure was inadvertent
Reasonable precautions were taken to prevent disclosure, and
The privilege holder promptly took steps to rectify the error
o Claw back and Quick Peek Agreements
Claw back: If I inadvertently disclose, I can claw back the document
without waiver under these circumstances
Quick Peek: If I give you a quick peek at my docs without doing any prior
privilege review, then you can tell me which docs you want and I will then
withhold privileged docs. Quick peek does not result in waiver
o Federal Rule of Evidence 502 (d)
- Do not forget to address the non-legal considerations in the assignment

Civil Procedure: 3/25/15

Differences between 37 (a) and 37 (b)
- 2 parties have difference in opinion over what constitutes scope of discovery,
- 37(b) court order (Failure to comply in a court order)
o 37(b)(2)(A): Rule 26(f), 35, or 37(a), following court order
26(f) conference of the parties
35: physical or mental exam
37(a): usually first step, ask court whether request is appropriate
o 37(b) comes into play if someone violates court order from 37(a)
o If in discovery plan, and court entered order consistent with discovery plan,
motion under 37 (b) may be appropriate
- 37(a): compensated for reasonable expenses of filing motion to compel
- 37(b): more severe sanctions; striking the pleading, dismissing the action, default
judgment,
FRCP 37 (a): Motion to compel the production of information at issue
The responding party who feels that it should not be required to comply with a particular
discovery request and disclose certain information may file motion seeking a protective order
under FRCP 26 (c).

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 - Protect responding parties against abusive discovery requests
- American rule: litigants are responsible for their own litigation expenses, including the
cost of producing information in response to discovery requests.
FRCP 26 (g)(1): parties requesting or producing information must certify that their disclosures
are complete.
Sanctions: Table 8.2, 737
Poole ex rel. Elliott v. Textron (2000)
- request for attorneys fees and other expenses related to three substantive discovery
motions and other sanction
- Court has authority to redress discovery misconduct under the FRCP and the Courts
inherent powers. In this case, redress violations through FRCP 37 and 26
- Under FRCP 37(a)(4)(A): the Court determined that there was no substantial justification
for Textrons non-disclosure, responses and objections and that there were no
circumstances that made an award of expenses unjust.
- Under FRCP 26(g): The Court determined that counsel had not conducted the requisite
reasonable inquiry and that the quality of responses suggested an improper purpose,
specifically to cause unnecessary delay or needless cost of litigation
o No substantial justification for the certifications in violation of the rule.
- Under FRCP 37, in conjunction with 36, Textrons responses or objections were not
substantially justified.
- FRCP 36(a): a matter is admitted unlessa written answer or objection is served on
the requesting party. Rule 36 allows party to qualify an answer only when good faith
requires
o Textron lodged both an objection and an answer impermissibly
- Textrons Lack of Diligence in providing key requested information violates FRCP 37
and 26(g)
o Did not perform an even minimally adequate search for documents prior to s
motions for sanctions
o Court looked at the productivity of additional efforts mandated by the Court
which conformed with the demands of the rules and case law on the level of
inquiry and broad definition of control under Rule 34
Went from single page to 470 pages after filed motion to compel, and
then 2,900 pages after Motion for Sanctions.
Lack of adequate inquiry: when asked about all advertisements for Golf
Cart Models: initially only produced a single brochure. After Court-
ordered investigation, Textron produced 226 pages of brochures
o 26(g): counsel must make a reasonable effort to assure that the client has provided
all the information and documents responsive to the discovery demand
- Award of reasonable attorneys fees and costs is the appropriate sanction
Preservation and Spoliation:
-Legal Basis for duty of Preservation and Spoilation

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 safe harbor provision
Electronic discovery reference model (www.edrm.net) flowchart
Common law duty of preservation
Rimkus Consulting Group, Inc. v. Cammarata
-Duty to preserve
-Culpable
-Relevant/ Prejudice

55(c) and 60(b)

-Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc.

4/8/2015
-no genuine dispute of material fact, AND Movant is entitled to judgment as a matter of law
-FRCP 56 (a): Motion for Summary Judgment or Partial Summary Judgment

4/15/15
The Jury
-Generally questions of fact are reserved for the jury.
-Markman: judges are better suited than juries to construe meaning of terms in a patent
-Dobson v. Masonite Corp. (1996)
Question of whether agreement was contract for service or contract for timber (Contract
for timber would have had to been in writing)
Jury decided contract was one for service, but trial court disagreed and found as matter of
law contract was for sale of timber
Appeals Court overturned, interpretation is always a question of fact
o Legal effect that the trial court used is the result of applying rules of law to the
facts; which must necessarily await a determination of all the facts
o Deciding what is the meaning of a contract is a fact
4. Selecting the Jury
-After a jury is demanded, which must be done within 14 days of the last pleading directed at the
issue, and it is determined that a jury trial is appropriate, jury is selected
-Group of selected jurors= venire panel, parties must select some to serve on jury. Between 6-12

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-Final jurors are selected from among the venire panel through voir dire, where the Court
disqualifies the jurors on certain statutory grounds, and then the court and parties dismiss jurors
for cause or without cause through peremptory challenges.
-Dairy Queen, Inc. v. Wood (1962)
The labels do not determine whether the claim is equitable or legal
Equitable Relief is appropriate only if there is no adequate remedy at law
If the plaintiff is seeking money, the claim is legal and not equitable
s were seeking an accounting in this case
-Ross v. Bernhard (1970)
1) Pre-merger custom
2) Remedy Sought
3) Practical abilities and limitations of juries
-The Clean-up Doctrine
No right to a jury when the legal issues are incidental to equitable issues
But see, Dairy Queen, supra Beacon Hill (only under the most imperative circumstances
can the right to a jury trial be lost through prior determination of equitable claims) and
stating that the Beacon Hill holding applies whether the trial judge characterizes the
legal issues as incidental to equitable issues
-Katchen v. Landry (1966)
No right to jury trial when action for damages is brought in the context of a bankruptcy
proceeding
o Too disruptive to statutory bankruptcy statutory scheme, supposed to be very
efficient
-Chauffers, Teamsters and Helpers, Local No. 391 v. Terry (1990)
Compare new statutory cause of action Congress brought to 18th Century England
Examine remedies sought to determine whether legal or equitable

Edmonson v. Leesville Concrete Co. (1991): Supreme Court commenting on the constitutional
limitations on the use of peremptory challenges to remove prospective members of a jury
Rule of Law
A private litigant in a civil case may not use peremptory challenges to exclude jurors on account
of their race because the exercise or peremptory challenges invokes state action.

35
Facts
-Thaddeus Edmonson (plaintiff) was a construction worker injured on the job while working for
Leesville Concrete Co. (defendant).
-Edmonson sued Leesville Concrete Co. for negligence in federal district court.
-During voir dire, Leesville used two of its three statutorily-permitted peremptory challenges to
remove black persons from the prospective jury.
Edmonson, an African American, requested that the court require Leesville to articulate a race-
neutral reason for its peremptory challenges. The court denied the request on the grounds that the
case was a civil proceeding.
The result was a jury composed of eleven white people and one black person. The jury rendered
a verdict for Edmonson for $90,000, but reduced it to $18,000 because it found Edmonson eighty
percent at fault. Edmonson appealed, and the Fifth Circuit Court of Appeals affirmed. The United
States Supreme Court granted certiorari.
Issue
May a private litigant in a civil case use peremptory challenges to exclude jurors on account of
their race?
Holding and Reasoning (Kennedy, J.)
No. Leesvilles actions can be overturned based on the Fourteenth Amendments prohibition of
race-based discrimination if there is a finding of state action.
-Held in Criminal cases, Powers v. Ohio, cant exclude based on race from jury
Violates the equal protection rights of those excluded from jury service
Third party standing to hold that a may raise the excluded jurors equal protection
rights
-Discrimination on Basis of race in selecting a jury harms the excluded juror the same as in
criminal trial, denies the venire person the honor and privilege of participating in our system of
justice. Now applying to private litigant, has to be applied to a state action
-Lugar v. Edmonson Oil, 457 U.S. 922 (1982), two-step analysis shows that Leesville acted
pursuant to state authority.
1) Whether the claimed constitutuional deprivation resulted from the exercise of a right or
privilege having its source in state authority
o the act of exercising peremptory challenges has its source in state authority.
o A peremptory challenge means nothing outside of a court of law, which in this
case is provided for by the state.
o peremptory challenges are only exercised based on statutory authority provided
by the government.

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 2) Whether the private party charged with the deprivation could be described in all
fairness as a state actor
o Leesville can be deemed to be a government actor in this situation.
o Whether relies on governmental assistance, whether the actor is performing a
traditional governmental function, and whether the injury caused is aggravated in
a unique way by the incidents of governmental authority
o According to precedent, state action has been found when private parties make
extensive use of state procedures with the overt, significant assistance of state
officials.
o In the present case, a private party cannot exercise peremptory challenges without
the overt, significant assistance of the court.
The judge in the case, who is clearly a state actor, enforced Leesvilles
discriminatory peremptory challenges and effected the final and practical
denial of the excluded jurors opportunity to serve on the jury.
o The government summons jurors, constrains their freedom of movement, and
subjects them to public scrutiny. The party who exercise peremptory challenge
invokes the formal authority of the court, and the court then discharges the
prospective juror
-Whether an opposing litigant may raise the excluded persons rights on their behalf
Limited exception to raise third party claims if the litigant can demonstrate suffered a
concrete, redressable injury, that he or she has a close relation with the third party, and
that there exists some hindrance to the third parts ability to protect his or her own
interest
Thus, Leesville acted pursuant to state authority, and the discriminatory peremptory challenges
are thus prohibited by the Fourteenth Amendment.
The decision of the court of appeals is reversed.
Dissent(OConnor, J.)
-The majoritys conclusion that the actions of Leesville, a private litigant, are transformed into
state action simply because they occurred in a courtroom setting is disputed.
-The state provides the forum, but this does not constitutionally oblige the state to become
responsible for all discriminatory acts that occur within the forum.
Regardless of the majoritys desire to eradicate racial discrimination in the courtroom, the
Constitutions protections do not sweep that broadly. A peremptory challenge by a private litigant
is fundamentally a matter of private choice and not state action.

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