Professional Documents
Culture Documents
(a) Pleadings – only these are allowed Burden of Pleadings dictates who’s obligated
1. a complaint to allege an element of a claim. (COMPLAINT)
2. an answer to a complaint 1) If P fails its burden, complaint vulnerable
3. an answer to a counterclaim designated as a counterclaim to a motion to dismiss for failure to state a claim
4. an answer to a crossclaim Ex. Must prove all elements of cause of
5. a third-party complaint action
6. an answer to a third-party complaint 2) If D fails its burden, cannot raise that
7. If the court orders one, a reply to an answer defense at trial
Rule 7 Ex. Raise an affirmative defense
*Sets boundaries of trial, precludes unfair
Pleadings Allowed; surprise through new motions
Form of Motions and other Burden of Proof allocates the duty of proving
Papers contested facts.
2 elements: 1) Producing evidence
(“burden of production”)
2) Persuading the trier of fact
(“burden of persuasion”)
In the event that there is no proof of a contested
allegation, the party with the burden of
producing evidence loses. If the proof is in
equal balance, the party with the burden of
persuading the court loses.
(a) Notice Pleading – Complaint minimally requires CROSS REFERENCE Rule 9(b) – heightened
1. short and plain statement re jurisdiction pleading standards
2. short and plain statement of the claim entitling relief
[allegations going to elements of the claim(s)]
3. demand for judgment for the relief
2. By Ds
a. Compulsory Counterclaims must bring claim or it will be waived
Rule 13(a)(1)
Rule 18 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:
Joinder of Claims (A) Arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim; and
(B) Does not require adding another party over whom the court
cannot acquire jurisdiction.
Must join indispensable parties (Joint tortfeasors are not indispensable)
Rule 13(g) Crossclaim Against a Coparty.
A pleading may state as a crossclaim any claim by one party against a
coparty if:
A) the claim arises out of the transaction or occurrence that is the
subject matter of the original action or of a counterclaim, OR
B) if the claim relates to any property that is the subject matter of
the original action.
*The crossclaim may include claim that coparty is/may be liable to
crossclaimant for all/part of claim asserted in action against crossclaimant.
(failure to join indispensable party is Rule12(b) defense) Rule 19 was designed to differentiate between
“necessary” and “indispensable” parties.
(a) Persons Required to Be Joined if Feasible *Two controlling factors in this case:
A person who is subject to service of process and whose joinder will not 1) the inability of the federal district court to
deprive the court of subject-matter jurisdiction must be joined as a party if: finalize the litigation or to effectively adjudicate
2) In that person's absence, the court cannot accord complete relief the rights of all concerned parties, and
among existing parties; 2) the availability of adequate relief in the state
3) Person not in suit has interest relating to subject matter and court system. (Broussard)
disposing of suit w/o will affect interest;
4) Person claims interest relating to subject matter and disposal risks Steps:
leaving an existing party subject to a substantial risk of inconsistent 1) Fall within 3 categories?
or double obligations because of the interest 2) SMJ?
3) 4 factors to decide
Rule 19
Compulsive Joinder
(b) When Joinder Is Not Feasible - (falls within ^3 but would destroy
Subject Matter Jurisdiction)
Court must determine whether, in equity and good conscience, the action
should proceed among the existing parties or should be dismissed.
FACTORS:
(1) the extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would be
adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.
Permissive Joinder and Consolidation B v. G, but not S. Can sue S later? Yes. Joinder
is permissible.
Requirements: 20(a)
Rule 20 1. Same transaction/occurrence
2. At least one common question of fact or law
Permissive Joinder *Then, Rule 18 kicks in and they can join, as independent or alternative
claims, as many claims as they have.
*Even if not every P has one specific claim common amongst them all,
each P has at least one common transaction/occurrence and common
question of law/fact with another P. (Guedry)
Rule 22 Permits insurance company who has to pay to join competing claimants
into one action, deposit money with court, and let court figure it out.
Interpleader Avoids inconsistent judgment and obligations.
Allows person to intervene and become a party (P or D) on own initiative. EX. Developer v Zoning Board
Rule 24 24(a) Intervention of Right. Homeowners risk, allowed b/c has
On timely motion, the court must permit anyone to intervene when: practical effect on them
Intervention (1) given an unconditional right to intervene by federal statute; or
(2) claims a legally protected interest relating to subject of the action not
adequately represented existing parties
(a) REQUIRED DISCLOSURES
(1) Initial Disclosure (within 14 days after 26(f) conference)
a. Name, address, telephone of individuals with
discoverable info supporting claims/defenses, along
with subjects of that info
b. Copy or description by category and location of all
documents, electronically stored info, and tangible
things in your control to support your claims/defenses
c. Computation of damages claimed
d. Any insurance agreement under which an insurance
business may be liable to satisfy all or part of a
possible judgment or to indemnify or reimburse for
payments
Rule 26
(2) Disclosure of Expert Testimony (at least 90 days before trial)
General Provisions Experts you may use at trial, retained/specially employed to provide expert
Governing Discovery; testimony in the case or whose duties as the party’s employee regularly
involve giving expert testimony
Duty of Disclosure a. Identity of expert witness
b. Written report, prepared and signed by witness, containing
1) complete statement of all opinions the witness will express and any
basis/reasons for them
2) data or other info considered by the witness in forming them
3) any exhibits that will be used to summarize or support them
4) witness’s qualifications, including a list of all publications authored
in the previous 10 years
5) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or for deposition
6) a statement of the compensation to be paid for the study and
testimony of the case
(3) Pretrial Disclosure (at least 30 days before trial) info about evidence
a. Name, address, telephone number of each witness not
previously provided, separately identifying those
expected to present and those on call if the need arises
b. Designation of those witnesses whose testimony the
party expects to present by deposition, and if not taken
stenographically, a transcript of the pertinent parts
c. An identification of each document or other exhibit,
including summaries of other evidence, separately
identifying those items the party expects to offer and Duty to Update
those it may offer if the need arises Rule 26(e) requires a party to supplement prior
(b) DISCOVERY SCOPE AND LIMITS responses and initial disclosures “if the party
Generally, may ask for any nonprivileged info relevant [tendency to learns that in some material respect the info
(dis)prove something] to claim/defense. For good cause, court may order disclosed is incomplete or incorrect.” Updates
discovery of any matter relevant to the subject matter involved in the must be made “at appropriate intervals” and
action. “seasonably amend” prior responses to
(2) Limitations interrogatories, requests for production, and
Rule 26 (B) – need not provide discovery of electronically stored info from requests for admissions.
(continued) sources that the party identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery, must show undue Obstacles to Discovery
General Provisions burden or cost. Court may nonetheless order such discovery for good cause. (b)(5) Privilege - Sacrifice of accuracy of the
Governing Discovery; (C) – Court must limit frequency or extent of discovery if adjudication in order to encourage of facilitate
1) unreasonably cumulative/duplicative or can be obtained from certain relationships (attorney-client, doctor-
Duty of Disclosure another source more conveniently/less expensively, patient, priest-parishioner, reporter-source)
2) party seeking has had ample opportunity to obtain info by d. All communications between
discovery in the action, or the attorney and client concerning
3) burden or expense outweighs the likely benefit (considering the representation are protected
the needs of the case, amount in controversy, parties’ from compelled disclosure
resources, importance of issues at stake, importance of the i. Only discussions with
discovery in resolving the issues) the client are protected
(3) Work Product - recognizes presumptive privilege for documents by the attorney-client
and tangible things prepared in anticipation of litigation or for trial by or for privilege.
any party or its representative (including attorney, consultant, surety, -Encourages candid communication between
indemnitor, insurer, or agent). client and attorney
Discoverable when: 1) in substantial need of the materials and 2) -COVERS ANY PERSONS, WHO BY
the seeking party cannot obtain the info by other means without undue VIRTUE OF THEIR JOB, HAVE
hardship. Nonetheless, the court will still “protect against disclosure of the RELEVANT INFO ABOUT THE DISPUTE
mental impressions, conclusions, opinions, or legal theories of an attorney (NOT JUST UPPER LEVEL
or other representative of a party concerning the litigation.” MANAGEMENT). ** Communications are
covered, but facts are not. Communicating a
fact to an attorney is one thing, but knowledge
of the fact is another.
(5)(A) – When withholding info b/c of privilege or protection, must 1) (c) Protective Orders - Party against whom
expressly make claim and 2) describe nature of info in order to let other discovery is sought can preemptively seek
parties assess the claims judicial intervention in the form of a protective
(5)(B) Waiver - In some jurisdictions, an inadvertent disclosure of order under Rule 26(c)
confidential information waves the privilege as to the full subject matter of 1. Only way to prevent or limit scope of a
the communication, while others only cover the document, and others do deposition
not waive. 2. Only effective relief if discovery sought is
1) Unintentional Production of Documents not actually objectionable, but simply
a. Attorneys often stipulate prior to discovery how to handle sensitive, embarrassing, or confidential.
unintentional production of privileged documents 3. Court has great flexibility to craft effective
b. RULE 26(b)(5)(B) – If info is produced that is subject to relief under 26(c)
privilege or protection, may notify other party of the claim a. Can order discovery not to be
and basis. They must return, sequester, or destroy info and conducted in a particular area
any copies; must not use or disclose info until claim is b. Can limit how the discovery will be
resolved; must take reasonable steps to retrieve info if taken and who will have access to
disclosed; and may present info under seal to court for it.
determination of the claim. *Duty to act triggers upon i. Can order that only the
Rule 26 notification attorneys have access and
(continued) 2) Disclosure to Third Parties - If the privileged communication is keep info confidential.
shared with anyone else, the privilege is destroyed. c. Rule 26(c) requires “good cause”
General Provisions a. If non-client present during attorney-client interview be shown for an issuance of a
Governing Discovery; b. If the client reports the information to a third party after the protective order.
privileged communication occurred, privilege destroyed. i. Parties often seek to
Duty of Disclosure c. *However, disclosure between attorneys in the same office, establish that discovery
as well as paralegals and secretaries working for the would disclose “proprietary
attorney does not destroy privilege. info,” thus putting them at a
commercial disadvantage.
(f) Conference of the Parties; Planning for Discovery 1. Courts will compel
(1) Must confer at least 21 days before scheduling 16(b) conference if relevant, but
(2) Parties must frequently limit its
A) Discuss claims/defenses and settlement/resolution dissemination.
B) Arrange for disclosures under 26(a)(1) d. If denied, moving party pays fees
C) Discuss preservation of discoverable info for motion. If granted, the party
D) Develop proposed discovery plan whose conduct made the order
(3) Discovery plan must state necessary to pay the movant’s fees.
A) Subjects on which discovery may be needed, how long needed
B) Issues on disclosure or discovery of electronically stored info
C) Issues of claims of privilege or of protection
D) Changes in limitations of discovery
*(Default rule – 25 interrogatories. Can agree to change.)
E) Fill out scheduling order and submit to judge
Oral examinations of witnesses under oath
1) Taken before court reporters or other “officers authorized to
administer oaths”
2) ANY person w/ relevant info may be deposed, even nonparties
3) Written notice of who is being deposed, where, when, and how,
must be given to every party.
4) Deposition may be recorded by audiotape, videotape, or
stenographer
5) Each party is limited to 10 depositions without leave of the court
(unless otherwise specified)
Rule 30 6) Unless specified, no deposition may exceed 7 hours
7) Deponents may be asked to bring documents or other tangible
Depositions and Oral evidence in their possession
Examination 8) Rule 30(b)(6) – Can name business or organization. Organization
must designate person(s) to testify on its behalf. [Puts control in
organization.] Can make objection if person obviously has no
subject matter knowledge.
9) 30(c) – Deponent’s counsel can make objection (preserving right to
object at trial), but can only instruct client not to answer if privilege
or a court-directed limitation. Under 30(d)(3), can terminate if
conducted in bad faith or unreasonably annoying, embarrassing, or
oppressive manner.
10) 30(e) – Deponent, upon request, must be allowed 30 days to review
the transcript and, if making changes in form or substance, sign a
statement listing the changes and reasons for making them.
Served on any party, and the party must admit or deny the truth of any legal
or factual issues in the litigations
a. In the form of very specific questions
b. 36(a)(1)(A) May inquire into the application of law to the facts of
the case, or opinions about either; and the genuineness of any
Rule 36 described documents. 36(a)(4) Responding party must make a
reasonable inquiry into the truth of each contention.
Requests for Admission c. 36(b) A Rule 36 admission relieves the opposing party of the need
to provide evidentiary support at THAT trial. However, if the
matter is instead established at trial, if CAN be used in
SUBSEQUENT trials.
d. Any matter not denied or objected to in a timely fashion is
automatically deemed admitted
(a) Motion for order Compelling Disclosure of Discovery Procedures to Block (prior to compulsion)
(1) Appropriate court Objections – Unilateral refusals to produce
Where action pending – motion required if deponent is party requested info, thus placing the burden of
Where deposition pending – motion required if deponent not seeking judicial intervention on the party
party seeking discovery
(2) Motion e. Can be interposed in response to:
(A) if a party fails to disclose under 26a, the court may grant a i. Interrogatories
motion to compel disclosure, upon showing a good faith effort to ii. Questions at depositions
obtain the discovery without the court’s help iii. Requests for production of
(B) If a deponent refuses to answer, a party may make a motion for documents
an order compelling answer. If the court denies the motion, the iv. Requests for admissions.
deponent may be granted a protective order under rule 26c. f. May be asserted on the basis of
(3) Evasive or Incomplete Answer discovery:
considered a failure to answer i. Beyond the scope of Rule
(4) Expenses and Sanctions 26(b) (not related to any
if the motion is granted, or disclosure is made after the motion claim or defense)
is filed, the party/deponent must pay reasonable fees spent to ii. Sought in an improper
make the motion manner
Rule 37 iii. Calling for the disclosure of
if the motion is denied and the motion is not substantially
privileged info
Sanctions for failure to justified, the party making the motion must pay reasonable fees
g. With the exception of objections at
Make or Cooperate in spent to oppose the motion
depositions, the objection is in lieu
Discovery if the motion is denied in part and granted in part, expenses of a response
may be reasonably apportioned
all sanctions will be determined by a court hearing. -If found unfounded, court will order a response
and award the moving party attorney’s fees
(b) Failure to Comply with Order incurred in making the motion, unless the
1. Sanctions by Court in District where Deposition is Taken motion was “substantially justified.”
Failure to be sworn or provide an answer is considered -If found well founded, the court will order
contempt in that court attorney’s fees to be paid by the moving party.
2. Sanctions by Court in District Where Action is Pending::
i. Directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the
prevailing party claims;
ii. Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
iii. Striking pleadings in whole or in part;
iv. Staying further proceedings until the order is obeyed;
v. Dismissing the action or proceeding in whole or in part;
vi. Rendering a default judgment against the disobedient party; or
vii. Treating as contempt of court the failure to obey any order
Rule 37 EXCEPT an order to submit to a physical or mental examination.
(d) Complete failure of a party to respond to discovery, even after an
Sanctions for failure to attempt to resolve the dispute, may result, under 37(d):
Make or Cooperate in 1. Must require the party failing to act, the attorney advising that party, or
Discovery both to pay the reasonable expenses, including attorney's fees, caused
by the failure, unless the failure was substantially justified or other
CONT, circumstances make an award of expenses unjust
CONT.
(a)/(b) By Plaintiff/Defendant 1. Function – ascertain whether there
P may move for s.j. on all or part of the claim. The motion may be filed at evidentiary disputes that must be resolved at
any time after: trial TESTS LEGAL SUFFICIENCY OF
(1) 20 days have passed from commencement of the action; or CLAIMS
(2) The opposing party serves a motion for summary judgment a. Court determines whether party has
Defendant may move for s.j. on all or part of claim any time. satisfied burden of producing
(c) Serving the Motion; Proceedings evidence (burden of production)
Motion must be served at least 10 days before the day set for the hearing. that would support summary
Opposing party may serve opposing affidavits before the hearing day. judgment in its favor. If not, the
Judgment sought should be rendered if the pleadings, the discovery and case proceeds to trial (Determines
disclosure materials on file, and any affidavits show whether there is a genuine
1) no genuine issue as to any material fact and material issue of fact)
2) the movant is entitled to judgment as a matter of law. (STANDARD)
EX. Pres sued for actions during tenure and court revokes right to
immunity. Can appeal b/c right would be lost upon trial.
Collateral Orders EX. Forced medication
*It is important to have final judgments before appeals are made. A "right
not to go to trial," while significant, is rarely the key factor in a settlement
agreement, and cannot compare in importance to the right to be free from
"double jeopardy" in criminal court or the encroachment on public duties
caused by a denial of immunity to public officials (Digital)
Interlocutory Appeal – appeal order prior to disposition of case
EX. denial of motion to dismiss/discover