Civil Procedure Outline – Spring 2021

Content:
I. Joinder Key:
a. Basic Joinder Main Sections
i. Counterclaims Main Topics / Concepts
ii. Crossclaims Subsidiary Rules / Subtopics
iii. Impleader Requirements / Required terms
b. Complex Joinder Rules / Statutes
i. Required Parties Categories
ii. Intervention Timings
Cases & Acronyms
iii. Interpleader
c. Class actions
II. Supplemental jurisdiction
III. Choice of Law
a. Erie Doctrine – Substantive Law
b. Klaxon – Choice of Law
c. Hanna Framework – Conflict of Law
IV. Discovery
a. Scope of Discovery
b. Process of Discovery
c. Discovery Tools
i. Mandatory disclosures
ii. Interrogatories
iii. Requests for the production of documents and things
iv. Depositions
v. Physical and mental examinations
vi. Requests for admission
d. Abuse & Control
i. Certification Requirement, Objections, Protective Orders, Sanctions
V. Trial and pre-trial
a. Pre-Trial
i. Pre-trial case management
b. Without a Trial
i. Dismissals
ii. Summary judgement
iii. Judgment as a Matter of Law
iv. Motions for New Trial
v. Relief from Judgment
c. During Trial
i. Right to a Jury, Controlling the jury
VI. After Final Judgment
a. Appeals
i. Process, Issues, Timing, Standards of Appellate Review
b. Preclusion
i. Claim Preclusion, Issue Preclusion, Inter-system
Extras:
- Rules listed out → Fun Memorization phrases →

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 Joinder

Joinder of claims – Rule 18

- Meaning:
o Multiple claims are joined in same suit
▪ (original claims, cross, counter, or 3rd party claims – applies to all types)
o Rule 18 (a)
▪ MUST be the same parties – exactly the same D w/ exactly the same P
▪ Can be completely unrelated and seek different damages
▪ When Required:
● If all claims arise from SAME transaction or occurrence: MUST join b/c
of claim preclusion
- Determining Same Transaction/Occurrence =
1. Common issues in question?
2. Logical relationship btw claims?
3. Same evidence under both claims?
4. Logical relationship btw TYPES of claims & remedies?
- If Improper:
o Rule 21: on motion OR sua sponte court may add or drop any party OR sever claims
▪ Improper joinder does NOT dismiss action → will sever the claims or parties
▪ When Improper:
● Joinder does NOT mean has SMJ, PJ, or proper venue
● If only permissive joinder & improper → will be severed or dismissed

Joinder of Parties – Rule 20

- Rule 20: (Applies to multiple plaintiffs AND defendants)
o Requirements:
▪ P OR D may join/be joined if BOTH:
1. Claim arose out of same transaction/occurrence (or series)
2. At least ONE question of law or fact common to all WILL arise (IF 1→2)
o More stringent than Rule 18 - bringing new party in is significant
▪ Can sever parties under Rule 21 if improper (misjoinder NOT = dismiss action)
- Once the parties are joined:
o Rule 18 is valid: all other claims may be joined
▪ Rule 20 FIRST:
● Claim arising out of same transaction/occurrence MUST BE in common
to ALL existing parties
o Remember:
▪ Joinder of multiple plaintiffs is ALWAYS OPTIONAL (unless required by Rule 19)
▪ Why: Maybe if one P thinks another is dumb & will mess it up
- Transaction or Occurrence – based on:
o (1) time, (2) space, (3) origin, (4) motivation
- Consolidation/Severance when Proper:
o Rule 42(a): Court may consolidate common questions of law/fact by:
1. Joining hearing or trial on any/all matters at issue
2. Consolidating the actions

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 3. Issuing other orders to avoid unnecessary cost/delay
o Rule 42(b): can sever (even though proper, so NOT Rule 21) IF:
▪ (1) For convenience, (2) to avoid prejudice, or (3) expedite and economize trials

Counterclaims – Rule 13
- Meaning:
o Any claim by party who is already defending a claim in an action back at party asserting
claim
- Points:
o Different than a defense → It is a claim for relief – entitlement for relief
▪ Defense = a reason asserted a D is not liable (defeats liability w/ no relief to D)
o Can BE an answer or asserted IN an answer
- Categories:
o Rule 13:
▪ Compulsory – Rule 13(a): MUST be asserted
● If “arises out of the SAME transaction or occurrence”
o If not asserted → will be precluded from a future case
o King v. Blanton
▪ Permissive – Rule 13(b): MAY be, but not required to be asserted
● If it is not from same transaction/occurrence
o CAN bring the counterclaim – if not, still no preclusion
o These apply if the P and D or two Ds (doesn’t matter)
- Preclusion
o Basis of Court opinions
▪ Res Judicata = absolute bar on missing any claim arising from same event
▪ Equitable Estoppel / Waiver = only barred if party (1) KNEW of right to file
counterclaim AND (2) opportunity to file it
● King v. Blanton
- Adding Parties to Counterclaims:
o Rule 13(h):
▪ Specifies Rule 20 ALSO governs adding parties to counterclaims
● Still must:
o (1) Be same transaction/occurrence; AND
o (2) satisfy Rule 20 → same trans./occur. as main FIRST action
Crossclaims – Rule 13
- Meaning:
o Claim for relief against a co-party – a co-defendant, or co-plaintiff
- Rule 13(g):
o Requirements:
▪ If SAME trans/occur. That is the SAME original action or relates to any property
questioned in MAIN defense
- Difference from Counterclaim
o Can NOT assert unrelated crossclaim – ONLY if it is the SAME transaction or occurrence
▪ BUT: (loophole)
● Once a valid crossclaim is there under Rule 13(g) →
o Rule 18 – NOW: can add more counterclaims/unrelated claims

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 o (BUT: MUST have that 1 valid crossclaim)
- Adding Parties to Crossclaims:
o Rule 13(h):
▪ Rule 20: still applies
● Party validly asserting a crossclaim may join or add parties IF:
o Same transaction or occurrence

These do NOT
A Rule 18: have to be
P Joinder unrelated crossclaim separate
& valid cross claims documents
B

- Permissive:
o ALL crossclaims are permissive (they are NEVER compulsory)
o They can always bring them in a separate action
▪ BUT: there may be a compulsory counterclaim in response to a valid crossclaim
● If new crossclaim brings up a counterclaim from same trans./occur.
Impleader – Rule 14
- Meaning:
o To file a 3rd-party complaint against a person not yet joined in the action
▪ For:
1. Indemnification (100%) OR
2. Contribution
- How:
o Rule 14(a)(1):
▪ a D may bring in 3rd party ONLY IF:
● May be liable for ALL or PART of claim against FIRST D bringing in 3rd
party (but can NOT say 3rd party is guilty INSTEAD – ONLY may be liable)
o Impleader claim MUST BE “derivative” (“flow through liability”)
o Common examples:
▪ Contribution or indemnification
▪ Erkins v. Case Power & Equipment Co.
o Rule 14(b):
▪ If the plaintiff is bringing in the 3rd party
- When:
o Rule 14(a)(1):
▪ Can do “as a matter of right” in 14 days OR needs leave of court
- Exception:
o Generally: the P determines scope of the action - BUT: this is w/o P’s consent & is averse
to the P → So: Rules 14, 19, and 24 are exceptions to the rule
- Who:
o Usually: Defendant impleads – then becomes 3rd Party Plaintiff
o CAN be: Plaintiff

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 ▪ Rule 14(a)(3): if same trans/occurrence as P’s OG claim
JOINDER DIAGRAMS:

ADDING OF 3RD PARTY DEFENDANTS & CLAIMS

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 Complex Joinder

Persons required to be joined if feasible – Rule 19

- Steps to Analysis:
1. Is absentee “required party” under Rule 19(a)(1)(A), (a)(1)(B)(i), (a)(1)(B)(ii)?
2. If yes, is joinder feasible? (PJ and SMJ)
3. If not feasible, should be dismissed or continued without retired party?
- Required Parties: Rule 19
o Required Party = IF person (1) subject to service of process (PJ) AND (2) whose joinder
will NOT deprive court of SMJ - MUST BE joined IF:
▪ (a)(1)(A): without them → court cannot complete relief to existing parties; OR
▪ (a)(1)(B): that person has interest relating to the action AND without them:
● (i): may be practical matter that would impair or impede them from
protecting their interest; OR
● (ii): may leave existing party to substantial risk of double or multiple
conflicting obligations
- Feasibility
o NOT feasible IF:
1. Will deprive court of SMJ (for spoiling complete diversity)
2. Court would lack PJ over the new defendant
o MAY be “feasible” but improper venue:
▪ Party can object to venue and be dismissed under Rule 19(a)(3)
● Feasibility ONLY turns on PJ and SMJ
- Considerations - Rule 19(b):
o If required but not feasible: court must determine if should dismiss or continue
o MUST consider: (if can continue in “equity and good conscious”)
1) How prejudiced will that party or existing party be if continues as-is?
2) How can prejudice be lessened/eliminated? By:
● Protective provisions in judgement; OR
● Shaping relief; OR
● Other measures
3) Would judgement w/o them be adequate?
4) Would P have adequate remedy if dismissed for nonjoinder?
- If can NOT be added – can:
1) Go forward anyway
2) Dismiss b/c would be improper w/o absentee
3) Try to craft proper judgement w/o absentee
▪ Go through the considerations under Rule 19(b) above
▪ “Every Plan Lands At Attention”

Intervention – Rule 24
- Question: Under what circumstances can someone insert themselves?
- Categories
1) Truly Mandatory: Rule 24(a)(1)
2) Intervention as Right: Rule 24(a)(2)

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 3) Truly Permissive: Rule 24(b)(1)
- General Requirements - Rule 24
o (a): Mandatory Interventions: on timely motion MUST permit intervention IF:
1) Is given unconditional right by Federal statute; OR (will say “shall have right”)
2) Has interest in property/transaction AND:
● There may be a practical matter that impairs/impedes ability to protect
interest; UNLESS:
● existing parties adequately represent that interest (totally subjective by
court)
o (b)(1): Permissive Intervention:
1) MAY permit IF:
● Given conditional right by Federal statute; OR (“may intervene…”)
● Has claim/defense that shares common question of law/fact w/ main
actions
- Court Requirements - Rule 24(3)
o Court MUST consider if w/ the new party there will be undue delay or prejudice to
original parties’ rights
▪ MUST remember to consider costs
- Alternative to Intervention = a brief
o Amicus curiae participation = “friend of the court”
▪ Court must grant leave to file
▪ But MUCH easier b/c no costs to the court
● Don’t have to stop case or bring in people
o Just added paperwork (around 5pages long)
● More common on appeal – most common for Supreme Court
o BUT: also filed in DC on dispositive motions

Interpleader – 1335 & Rule 22

- Compare to “Impleader”
o That: was waiting to be sued then adding other people to cover price
o This: Person holds an item of value & adds others because afraid of being sued by more
people – so adding them all together to not have multiple/conflicting judgements
- Forms:
1. Statutory interpleader - 28 USC § 1335
2. Rule Interpleader - Rule 22
▪ Differences
● Procedural requirements
▪ Deciding which one:
● ENTIRELY up to the stakeholder bringing the interpleader action
- 28 USC § 1335
o PJ = Nationwide PJ authorized by 28 USC § 2361
▪ Why = b/c the point is to bring them together & Congress can under 5th Amend.
o SMJ = Broader Diversity jurisdiction under 1335
1. Only requires minimal diversity (and MUST be minimal – NOT complete)
2. Also: ONLY measure among the claimants – not the stakeholder (unless also a
claimant)

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 3. Amount in Controversy = only $500

- Rule 22
o PJ = Ruled by PJ – Rule 4(k)(1)(A): longarm statutes
o SMJ = Normal diversity under 1332(a)
1. Complete diversity between claimant (defendants) & interpleader (plaintiff)
2. Compare stakeholder to claimants
3. Amount in Controversy > $75,000
- Why ever Rule 22 over § 1335
o If doesn’t make Minimal diversity – only has Complete diversity
▪ Minimal Diversity = At least 1 P. is a citizen of the same state as at least 1 D.
- Interpleader Procedure
1) File interpleader complaint
a. Short/plain statement on jurisdiction grounds
b. Sufficient factual allegations show interpleader action is proper
c. Requested relief
2) Stakeholder must deposit the stake to registry of the court or post a bond
a. (so the value is out of their hands)
3) Court then dismisses the stakeholder from action
- Pie-Slicing Interpleader
o Difference:
▪ Usually: one sum and multiple parties have a claim to ALL of it
▪ Here: one sum and it may be divided between the parties
● The claims are not adverse to each other – each can get full damages
out of the insurance proceeds, etc.
● So: claimants will litigate how the “pie should be sliced”

Class actions – Rule 23

- Purpose:
o Responds to problem of low-value claims
o Potential D may/should face legal liability but no one single P has sufficient incentive for
the court
- Prerequisites:
a) One or more members of a class can sue/be sued as representative on behalf of all
members – ONLY IF:
1. Class so numerous joinder of all is impractical
2. Question of law/fact in common
3. Claims & defenses typical of claims/defenses of the class
4. Representative parties will fairly & adequately represent the class
b) ALSO: must satisfy ONLY criteria in Rule 23(b)
c) ALSO: District Court must certify the class under Rule 23(c)
d) ALSO: added procedural requirements not on regular actions
▪ Why: b/c they want to be SURE the parties in class that are NOT there to
participate will be protected
▪ They are BOUND by the judgement
● So will be precluded from litigating individual claims in another suit

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 Supplemental Jurisdiction
General Points
1) This is an additional basis
a. It is on TOP of 1331 and 1332(a)
2) Like others SMJ: must be (1) authorized by Article III AND (2) granted by statute
3) SMJ must still be assessed claim by claim even if one is SJ
4) Can ONLY be a supplement over another claim
a. So MUST have OG jurisdiction over another claim (usually 1331)
i. (Anchor Claim w/ a Tag-along Claim)
b. If it was under 1332 → would be auto SMJ b/c of diversity over ALL claims
5) It began as a judge-made doctrine → but NOT now, NOW it is § 1367
a. Was “pendant” & “ancillary” jurisdiction

Supplemental Jurisdiction - Gibb’s Analysis

1) Had constitutional authority
a. Article III
b. As long as state law claim part of same “case” or “controversy” (same factual event)
i. Not just the same “claim” (legal theory for recovery)
2) DC are NOT obligated to exercise supplemental juris
a. May sometimes decline
i. When Fed claim drops out, or when thinks “sure-er footed decision” from state
would be better, or mostly about the state claim
1. (“state law = god w/ fed claim tail”)
ii. IF declines:
1. DC dismisses state claim
2. But keeps the federal claim
a. DC has NO authority to decline jurisdiction over claims under its
original jurisdiction

STEPS SUMMARIED:
1. Does this meet §1367(a)?
a. Common nucleus of operative fact?
2. Claim precluded by §1367(b)?
a. OG SMJ ONLY based on 1332?
b. Claim by a P?
c. Against person added under Rule 14, 19, 20, 24?
i. If even ONE is a “no” → doesn’t apply/not precluded
ii. If ALL are “yes” → precluded & NO SJ
3. Even if SJ is permissible, should court decline it?
a. Raises novel/complex state law issue
b. New claim predominates against OG claim (dog metaphor)
c. Court dismissed all original jurisdiction claims
d. OR: in compelling circumstances, there are other compelling reasons
4. And tolling provision of §1367(d)
a. Must allow at least 30d to refile in state court if it was dismissed
i. (regardless of the statute of limitations)

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Pieces of 1367
- 28 USC § 1367(a)
o EXCEPT as in (b) & (c) OR expressly provided by Federal statue:
▪ in ANY civil action w/ DC OG jurisdiction (1331, 1332, etc.)
▪ the DC will have SJ over ALL claims that:
● so related that they form same “case or controversy” under Article III
o = common nucleus of operative fact
● This SJ shall include
o Joinder
o Or intervention of added parties
- 28 USC § 1367(b)
o If DC has OG jurisdiction ONLY based on 1332:
▪ NO SJ under 1367(a) IF:
1. Claims by plaintiffs
o (3r party claims, counter by a D, crossclaims btw Ds are all
unaffected)
2. Against persons made party through:
o Rule 14 – impleader
o Rule 19 – req. parties joined if feasible
o Rule 20 – general joinder of multiple Ds
o Rule 24 – intervening parties
3. OR over claims by persons proposed to be joined as Ps:
o Under 19 – req. parties
o Under 24 – seeking to intervene
▪ These are rare (he said don’t worry about it for exam)
4. AND: would be inconsistent w/ jurisdiction of 1332
- 28 USC § 1367(c)
o Explains the discretion
o DC MAY decline SJ IF:
1) Claim raises novel or complex state law issue
2) OR claim predominates against the OG claim (dog metaphor)
3) OR has dismissed all OG juris claims
4) OR in exceptional circumstances, there are other compelling reasons
- 28 USC § 1367(d)
o Period of limitations for any claim under (a)
▪ If the court dismisses although had supplemental jurisdiction →
▪ Then that P has an added 30 days to refile in state court

Mixed Cases
1) Removal of “mixed cases”
a. If case contains claims over which Fed court HAS SMJ & some that would lack SMJ →
i. May still be removed under 1441
b. “CASES” are removed – NOT claims
c. MUST:
i. Retain jurisdiction over ones that it has SMJ
ii. Sever other claims

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 iii. Remand severed claims back to state court
2) IF case has ONLY supplemental claims AFTER pre-trial dismissal of Federal claims:
a. District court: still has SMJ & can decide
i. EVEN if only has under § 1367
ii. EVEN though dismissed all claims over which had OG jurisdiction
iii. BUT: often will use discretion under § 1367(c)(3) to dismiss the remaining state
law claims
1. (if not SUPER close to trial)

Ruining Diversity - Exxon Mobil Corp. V. Allapattah

- Amount in Controversy
o If the OG claim is (1) completely diverse and (2) meets the AinC:
o Even if the SUPPLEMENTAL claim does NOT meet the AinC → it may be added
▪ Why: b/c do not “contradict the reason for diversity jurisdiction”
- Ruining Diversity
o If an added party ruins complete diversity:
o Even if the AinC is sufficient → can NOT be added
▪ This would remand the case to state, or dismiss if it wasn’t there
▪ Why: this “contaminates” the case & is “inconsistent w/ the jurisdictional
requirements of 1332”

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 Choice of Law

Substantive Law
Erie Doctrine Boiled Down:
- In adjudicating state-law claims, federal courts must apply state substantive law
- Two Scenarios:
o (1) SMJ based on Diversity
o (2): when have SJ under § 1367

History
- Historically
o In Swift v. Tyson SCOTUS interpreted “apply laws of several states” to = ONLY positive
enactments
o “Positive Enactments” = state constitutions & statutes ONLY (not common law)
o Result:
▪ Systematically advantaged out-of-state Ps
● Out of state: can choose if want state or federal if better for them
● In state Ds can’t remove also b/c of the instate D rule under 1441
▪ Court found: unconstitutional

The State Supreme Court Predictive Approach

- Critical point
o Federal courts have NO authority to determine content of state law
o They MUST apply it, but cannot create it
- Rule is:
o In deciding a state-law claim:
1. Federal court must construe what that state’s supreme court would hold
2. Must predict what state supreme court would hold
o Implications from this:
1. Lower state court decisions = persuasive authority – but do NOT BIND fed.court
● Same true of older state supreme court decisions – should think what
would decide TODAY
● by contrast, state courts are bound by precedent under stare decisis –
cannot think “what would supreme court do today?”
2. Federal court’s decision has NO PRECEDENTAL VALUE
● So in the future courts should ignore the federal interpretations
● These are ONLY predictions

Choice-of-Law
Klaxon
- Which states substantive law governs a state-law claim in fed. district court? (Klaxon)
o Much like Rule 4(k)(1)(A)
o Must use the STATE common law “choice-of-law” of state where forum court is located
▪ Do NOT get to pick the choice-of-law law

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 ▪ BUT doesn’t automatically mean substantive law that’s determined by the
choice-of-law → must check this per forum
- Choice of Law & Venue Transfers
o If § 1404 (proper) MUST be OG court → choice-of-law = what was in the TRANSFERRING
court = the original “choice-of-law” law
o If § 1406 (improper) MUST be NEW court → choice-of-law = where venue is NOW
PROPER
o If forum selection clause: WHERE forum selection specified
▪ Atlantic Marine Construction forum selection exception
▪ Why: would be able to choose better substantive law state regardless of forum-
selection & would stick = not fair → hence this rule

Federal Common Law

- Main points to know:
1. That federal common law exists (NOT “general” federal common law)
2. That there are these specific examples when need federal common law:
1) When rule must be federal
2) AND there is no federal statute
- When Federal Common Law Exists:
1. Federal law MUST provide substantive rule of decision
2. AND no federal statute governs the question
- When must federal law provide the substantive “rule of decision”?
o Will know more from Constitutional Law, but for now:
1) When federal government’s own interest is DIRECTLY at stake, OR
2) When matter NEEDS national rule to be resolved – not any one state’s rule
o Examples:
1) Disputes btw 2 states
2) Federal government own liability (owes someone)
3) Federal government own entitlement to recover (someone owes them)

Hanna Framework – Basic Steps

1) Do federal & state rules conflict?
2) If yes → what is the source?
a. Federal constitution?
i. If yes → Federal prevails
b. Federal statute?
i. If yes → does it NOT exceed congress’s powers? (rationally procedural?)
1. If yes → Federal prevails
2. If no → State prevails
c. FRCP?
i. If yes →
1. Is it within Congress’s powers?
2. Rules Enabling Act? ((1) is a general procedural rule AND (2) doesn’t
affect a substantive right?)
a. If yes → Federal prevails
b. If no → State prevails
d. Federal judicial practice?

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 i. If yes →
1. Twin evils? ((1) promotes forum shopping OR (2) produces an
inequitable framework?)
a. If no →is it a trivial issue? (formatting, etc.)
i. If yes → Federal prevails
b. If yes → State prevails

Federal Statute
- MUST apply – UNLESS: federal statute is NOT legally valid
o Invalid if: unconstitutional
o Constitutional = IF it is “rationally capable of classification as procedural”
- Congress legal authority is basis for this requirement – authority comes from:
o Article I §8, clause 9 and Article I §8, clause 18
▪ Gives Congress the ability to regulate procedure in Federal courts
▪ Why: Would be constitutional & under the Supremacy Clause of Article VI →
then it would preempt the conflicting state rule

Federal Rule of Civil Procedure

- If VALID → Prevails
o Why:
▪ It is “effectively an extension of Congress’s legislative authority”→should prevail
▪ It is within Rules Enabling Act of 28 U.S.C. § 2072: (under which Congress
delegated federal rules of procedure to the Supreme Court)
- Process:
1. Is this w/I Congress’s Enumerated Powers? Could Congress ITSELF have written Rule?
▪ It is if it is “rationally capable of classification as procedural”
o Even if could also be substantive, if it is rational to say procedural →
good
2. Within scope of authority Congress granted SCOTUS under the Rules Enabling Act?
1) Does this deal with general rule of practice and procedure? § 2072(a)
2) Does this not abridge, enlarge, or modify any substantive right? § 2072(b)
o ASK: WHAT is it regulating?
▪ (if only “manner & means” → VALID)
▪ (if “alters the rule of decision” → INVALID)

Federal Judicial Practice

- Lacks preemptive force (means: MUCH less clear → Scalia described as “Erie’s murky waters”)
- Process = District Court Balancing Inquiry between:
o State policy choice v. value of federal uniformity
o AND: “twin evils”
1) What degree of federal rule promotes “forum shopping”?
2) What degree would the federal choice produce “inequitable administration of
the law”?
- Presumption:
o Often likely goes w/ state law (Unless something trivial like font, etc.)
Procedure v. Substantive

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 - Procedural laws include: discovery, evidence, burden of proof, service of process
o Held: if it was a purely substantive issue → take the state’s law
o Based on: “reasonable man” standard

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 Discovery

Discovery Topics
1) Scope – what matter is discoverable?
2) Tools – how is that matter to be discovered?
3) Abuse & control – what constraints present/limit abuse during discovery?

Reminder – How they Relate:

Steps of “Must it be Disclosed?”

1) Check if privileged:
a. Communication?
b. Privileged persons?
c. In confidence?
d. For purpose of legal assistance?
i. If yes → NO. → Follow privilege/protection process.
ii. If no → next step
2) Check if Protected Work Product:
a. Primary Purpose Test: (Rule 26(b)(3))
i. Was it created for the primary purpose of in “anticipation of litigation”?
1. If yes → next step
2. If no → MUST disclose
3) Can it be requested anyway?
a. Opposing party demonstrates substantial need and
b. Substantial equivalent can NOT be obtained by other means w/o undue hardship
i. If yes → next step
ii. If no → NO. → Follow privilege/protection process.
4) Or is it Protected by Hickman /(Rule 26(b)(3)(B)?
a. Mental impression?
b. Conclusion?
c. Opinion?
d. Legal theory by attorney or other representative?
i. If no → court must weigh substantial need & undue hardship → if yes → MUST

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 ii. If yes → NO. → Follow privilege/protection process.
Discovery Overview
- Formal process by which parties gather evidence
- Relationship w/ pleading
o Discovery happens AFTER pleadings are complete
▪ Facts making allegations “plausible” MUST be uncovered through informal
investigation (NOT discovery)
- Relationship w/ trial
o Acquire evidence through discovery they will use at trial (witnesses, experts, exhibits)
- Who pays?
o Default rule: the party pays for RESPONDING to discovery requests
o BUT: parties or court can stipulate/order different allocation – and OFTEN do
- Role of District Court?
o Very small – just referee in disputes
o MOST aspects ONLY involve the parties
▪ Exchange info w/ each other → Requests served on parties NOT filed w/ court
o Disputes result in filing – “motion to compel”
▪ MUST prove tried to resolve the dispute

Scope of Discovery
- Boundaries – Rule 26(b)(1)
o Can get ANY nonprivileged matter (relevant & proportional)
▪ Relevant – capable of leading to useful info (including SMJ & PJ – contacts etc.)
▪ Proportional – considering:
1. Importance of issues at stake
2. Amount in controversy
3. Parties’ relative access to relevant information
4. Parties resources
5. Importance of discovery in resolving issues
6. Whether burden or expense outweighs likely benefit
- Limits:
o Objection: Rule 26(b)(2)(B):
▪ Party CAN object IF:
1. If electronically stored information
2. Party says sources are not reasonably accessible b/c undue burden/cost
o Court Limits: Rule 26(b)(2)(C):
▪ Court MUST limit frequency/extent IF:
1. Discovery is:
o (1) unreasonably cumulative or duplicative OR
o (2) can be found more conveniently/less burdensome/less
expensively
2. OR: Party had ample opportunity to get information in the action earlier
(were being negligent, missed previous opportunities)
o Work Product Protections: Rule 26(b)(3):
▪ Provides protection for “trial prep materials” or “work product”
▪ So can object to being forced to release one’s work product

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 o Also: most juris. bar evidence of implementing safety measures AFTER
injury – b/c then landlords would be afraid to
Scope Limits
- Attorney-Client Privilege
o WHEN applies:
1) Communication
2) Between privileged persons
3) In confidence
4) For purpose of obtaining/providing legal assistant for client
o Privileged Persons:
1) Client (inducing prospective client)
2) Client’s lawyer
3) Agents of client OR lawyer that facilitate communications (translators etc.)
4) Agents of lawyer who facilitates representation (learn more in Evidence class)
o HOW: To Claim Privilege/Protection at trial:
▪ Rule 26(b)(5) – MUST:
● Expressly make the claim (Can NOT just not include it – that’s illegal)
● Describe the nature of docs communications, tangible things not
produced or disclosed
o AND: do so in a way that: (1) doesn’t reveal the information and
(2) allows other party to be able to assess so can object if want
to
▪ In summary MUST REVEAL:
1. What it is and that you have it (do not reveal what the information is)
2. That if falls w/I Rule 26(b)(1)
3. Why it is privileged (So → other party can asses/determine if to object)
- Work Product
1. Protects:
▪ Docs & Tangible Things =
1) Docs prepared in “anticipation” of litigation or trial (P.P.Test)
2) By or for another party or its representation
o (Another attorney, consultant, surety indemnitor, insurer,
agent, etc.)
▪ IF: Rule 26(b)(3)
● Primary Purpose test:
o Was primary purpose in creating to prepare for actual/potential
litigation in “anticipation of litigation”
▪ Anticipation of Litigation = any time after a substantial
personal injury or property loss has occurred
● So NOT:
o Ordinary business records, Regulatory compliance docs
o Anything that may be made regardless of potential litigation
(standard practice docs)
● Also NOT:
o Underlying facts themselves
▪ Communication is protected

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 ▪ But NOT what is IN the communication (same for work
product)

2. Can still be discovered IF: Rule 26(b)(3)

1. Otherwise under Rule 26(b)(1)
2. Demonstrates substantial need and
3. Substantial equivalent can NOT be obtained by other means w/o undue
hardship
● BUT: court must protect against disclosing - intangible: (Hickman)
1) Mental impressions,
2) Conclusions,
3) Opinions
4) Or legal theories of party’s attorney or other representative
3. Why Protected:
1. Prevents chilling effect
2. Eliminates opportunity for free riding
3. Substantially reduces likelihood attorney may be witness

Process of Discovery
- First = Meet and Confer
o Rule 26(f)
▪ Exceptions: (rare)
● Rule 26(a)(1)(B) Or court order
o Timing
▪ Generally:
● MUST confer w/I 21d BEFORE a scheduling conference
● OR 21d BEFORE order due to Rule 16(b)
▪ Rule 26(d)(1)
● Party can NOT seek discovery BEFORE the Rule 26(f) conferring
● Except: (rare)
o Rule 26(a)(1)(B) OR authorization by rules/stipulation/court
order
o Purpose
▪ This is WHY no discovery at pleading → b/c you need to meet & confer first
▪ Meet & Confer – 26(f) - Main purpose: Develop a proposed discovery plan

- Second = Discovery Plan

o MUST have parties’ views/proposals on: (C,S,I,P,L,O)(Cats Sleeping in Pools Live Outside)
A. Changes
● What changes would be made in timing, form, or requirements for
disclosures under Rule 26(a)
● Includes statement of WHEN initial disclosure made
B. Subjects & Timing
● (1) subjects needed for discovery, (2) when discovery should be done,
(3) if will be in phases or limited/focused on specific issues
C. Issues
● Any issues about disclosure, discovery, or presentation of electronic info

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 o Including form/forms it’ll be in
D. Privilege/Protections
● Any issues on claims of privilege or protections
E. Extensions/Limitations
● Changes they want on rules OR any limitation
F. Other
● Any other orders under Rule 26(c) or Rule 16(b) and (c)
o Submitting:
▪ First: Submit this proposed plan to court
● Court will note disputed issues that need court’s resolution
▪ Then: Scheduling Conference 16(b)
● Then issue Scheduling Order
o Order governs terms of litigations (BUT can be changed)
▪ Managed by: Magistrate judges
● They are hired by district court
o Only 8yr terms, Cannot make decisions → only manage
- Scheduling order - Rule 16(b)(2)
o When:
▪ Judge must issue as soon as practicable
▪ Or w/I 90d after D served OR 60d after D appears in court
● Whichever is earlier
o What MUST Limit time to: – Rule 16(b)(3) (J, A, C, F) (Jogging Around Catches Flies)
1. Join other parties
2. Amend pleadings
3. Complete discovery
4. File motions
o What MAY ALSO – Rule 16(b)(3)(B)
1. Modify timing
2. Modify extent
3. Provide requirements for electronic information
4. Agreements about privilege or protection
5. Direct a movant & request conference w/ court
6. Set dates pretrial conference & trial
7. Include other appropriate matters

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Discovery Process Timeline:
Tools of Discovery
- Tools
1. Initial disclosures – 26(a)
2. Interrogatories – 33
3. Requests for producing docs & things – 34
4. Depositions – 30
5. Physical or mental examinations – 35
6. Requests for admissions – 36

Initial disclosures
- Except as 26(a)(1)(B) or court order →
- What: Parties MUST provide:
a. Name, address, telephone of each person:
▪ Likely to have discoverable information
● AND: subject of that information
● UNLESS: use is ONLY for impeachment
b. Copy or description (category/location) of:
▪ All documents
▪ Electronic info
▪ Tangible things
● That has in possession/custody/control
● AND may use for claims/defense
o UNLESS: ONLY for impeachment
c. Computation for each damages category
▪ Rule 34:
● AND: Make the documents that computation is based on available to
inspect & copy
o Including descriptions of nature/extent of injuries
o UNLESS: privileged/protected
▪ ONLY relevant to claimants
d. Any insurance agreement
▪ Rule 34
● For inspection/copying (ONLY relevant to claim-ees)
- When: Rule 26(a)(1)(C)
o MUST make initial disclosure at/within 14d AFTER Rule 26(f) conference
▪ UNLESS court changes
o Usually:
▪ After 26(f) meet & confer
▪ Before 16(b) scheduling conference
- Whose:
o Each requirement concerns ONLY that specific parties’ OWN claims/defense
▪ Do not have to be disclosing stuff that doesn’t apply or may apply to the other
party’s claims
● Why: b/c don’t necessarily know who they are bringing etc.
- Other Mandatory Disclosures
o Rule 26(a)(2)

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 ▪ Any expert witnesses & the reports
o Rule 26(a)(3)
▪ Any other pretrial disclosures
● List of witnesses
● List of other docs/exhibits plan to enter into evidence
o When: MUST be w/I 30d BEFORE the trial begins

Interrogatories
- What: Rule 33
o Written questions that are served & must be answered under oath
o Typically drafted by attorneys
- Why:
o Useful for revealing basic facts
o Unlikely to have any crucial/contested info b/c just on paper – no back & forth
- When:
o Served
▪ Usually served early in the process
o Responding – Rule 33(b)(2)
▪ Responding MUST be w/I 30d after being served interrogatories
● But can be changed under Rule 29 or by the court
- How many: Rule 33(a)(1)
o No more than 25
o Often: stipulated to be a larger number
▪ If cannot agree → can seek leave to expand
- Who:
o Can ONLY be served on the parties
▪ Rule 45 – gives info for if non-party (via subpoenas)
- Objecting: Rule 33
o What
▪ MUST be said w/ “specificity”
o When
▪ If not timely (w/I 30 days) → waived
▪ UNLESS: court found was in good cause
o How:
1. MUST be made so other party can properly assess the objection
2. Attorney MUST sign
- Answering – Rule 33(b)(5)
o How:
▪ Person that makes answer MUST sign
▪ Are Under Oath
● So: if lying = perjury (up to 5 years in prison)
● Lawyer who knows client is lying → “suborned” perjury → also felony
● If learns later inaccurate information → MUST correct it
- Correcting – Rule 26(e)(1)
o MUST correct in timely manner if materially incomplete or incorrect
▪ AND if this defect isn’t known by other party
o OR must correct as ordered by the court

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Requests for Production of Documents or Things
- Rule 34(a)(1)
o Within the scope of Rule 26(b):
▪ Can request other party to: (basic tool & LOT of information)
● Produce & permit party or rep to: inspect/copy/test/sample:
1. Designated docs/electronically stored info
▪ Writings, drawings, graphs, etc.
▪ Stored in ANY medium
▪ Even if translation is necessary
2. Any tangible things
3. OR permit entry into land/property
▪ So: can inspect/measure/survey/photograph on
property or any designated object/operation on it
o Who:
▪ Like interrogatories → ONLY served on parties
● Nonparties is through Rule 45 – subpoenas)
o What:
▪ Request MUST include:
● Rule 34(b)(1):
1. Description of each item/category (w/ reasonable particularity)
2. Reasonable time/place/manner for inspections
3. Forms of how electronically stored info will be produced
▪ Often includes:
● Definition section – b/c people argue on the basic definitions
- Responding
o When:
▪ MUST respond w/I 30days
o Objecting:
▪ Rule 34(b)(2)(C): MUST:
1. State whether any responsive materials are being withheld on the basis
of this objection
2. Say (1) have those things & (2) why objecting
3. If only objecting to a party → must turn over all other stuff
- Defects:
o If incomplete/inaccurate – Rule 26(e)
▪ MUST: supplement or correct
- Forbidden:
o Rule 34(b)(2)(E)
▪ Can NOT bury documents
o How MUST present them:
1. As “kept in ordinary course of business”
2. OR organize & label them in the categories requested
● If doesn’t specify form for electronic:
o MUST: produce in ordinary or reasonably usable form/forms

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Depositions
- Basic Information:
o Formal interviewing of witnesses as part of discovery
o Oral interviews under oath of people to obtain discoverable info
o Part of discovery MOST like trial
- How Many:
o w/o stipulations: Default limit = 10 depositions
▪ if complicated case will stipulate for a lot more
- Who:
o Rule 30(a)(1):
▪ May depose ANYONE (including party)
● w/o leave from the court (except as in Rule 30(a)(2))
● attendance may be compelled by subpoena under Rule 45
o Rule 30(a)(2):
▪ MUST get leave from the court to depose IF:
1. Would be more than 10 depositions
2. Deponent has already been deposed
3. Wants deposition before time in Rule 26(d)
o Unless: certifies w/ facts deponent will leave US & be
unavailable after that time
4. Deponent is in prison
- How:
o Rule 30(b)(1):
▪ MUST give reasonable written notice to EVERY other party
● Unless: deposing party – then just have to note that it is happening
o b/c court already knows them & has jurisdiction over them
● if NOT a party:
o MUST be subpoenaed under Rule 45:
▪ b/c court has no PJ
▪ but: w/ subpoena there is NOW a legal requirement for
this 3rd person (not a party) to respond/OR come
o why: subpoena → gives court valid Personal Jurisdiction
- Process:
1. Person deposed almost ALWAYS has attorney present
2. Is recorded – was stenographer, now = video
3. Once transcript available:
▪ MUST be shared w/ deponent
▪ They have 30d to review & present changes/corrections
- When:
o w/o stipulation/court order, default = MUST be done in a SINGLE 7 hour day
- Objections:
o What:
▪ Party can object just as trial (Such as privileged information)
▪ BUT: doesn’t concern discoverable information
● If hearsay → STILL has to answer
o (b/c doesn’t have to be admissible at trial to be discoverable)

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 o When:
▪ Rule 26(d)(3(A): at ANY time:
● Deponent or party may move to terminate/limit
● b/c being conducted in bad faith OR in a Manner:
o that unreasonably annoys, embarrasses, or oppresses deponent
or party
o relates to: HOW being asked, NOT WHAT being asked
- Failure to attend:
o Rule 26(g): if party
▪ The one that DID attend/attorney:
● Can recover reasonable expenses including attorney fees IF:
1. Failed to attend/proceed w/ deposition, OR
2. Failed to serve subpoena on NON party & the nonparty didn’t
attend
o Rule 45(g): if NON party
▪ If subpoenaed & didn’t attend as a witness:
● Can be held in contempt under Rule 45(g)

Physical & Mental Examinations

- Rule 35(a): court may order party to:
o Submit to physical or mental examination by certified/licensed examiner
▪ If: mental / physical condition in controversy (including blood group)
● Also applies to person in custody/under its legal control
o Requires:
▪ (2)(A): only on GOOD CAUSE & on notice to ALL parties & persons examined
▪ (2)(B): MUST: specify time, place, manner, condition, scope & person who is
performing it
- Why: Important points:
o ONLY get this IF the mental / physical condition is in controversy
o AND if there is GOOD CAUSE
- How:
o If in controversy – party generally stipulates
o If NO stipulation:
▪ Party seeking examination MUST file motion seeking Court Order
- Who:
1. Party
2. Or person in custody
3. Or person under party’s legal control
- Includes:
o specify time, place, manner, condition, scope & person who is performing it
- Good Cause:
o NOT:
▪ If has recently been examined & no objective reason to question that
examiner’s qualification → no good cause
- Remember:
o MUST still fall w/I scope of discovery under Rule 26(b)

25
 o Must be relevant & proportional to needs of the case
- Examiner’s Report – Rule 35(b):
o Party moved for examination MUST on request:
1. Deliver copy of examiner report
2. w/ reports of earlier exams of SAME condition
3. may be by party examined OR by other person examined
● Contents: (MUST be in writing) include: findings, diagnosis, conclusions,
& results of case
Request for Admission
- General info:
o Tool for reducing number of issues to be contested at trial
▪ Streamlines trial if not contested
▪ Helpful as means of authenticating documents
o Limit:
▪ Admission can ONLY be used for this action (Rule 36)
● Can NOT be used against party in ANY other proceeding
● So: if sued again, this is NOT held against them like a previous
judgement would be
● Only: means won’t be contested in THIS action
- Rule 36(a)(1)
o Party can ask other side to admit: (w/I Rule 26(b)(1))
▪ (A): facts, application of law to fact, or opinions about either
▪ (B): and genuineness of any described documents
- Rule 36(a)(3):
o When:
▪ If served – has 30d to object
● Objection must be: Written & signed by party or attorney
▪ If don’t object:
● Matter deemed admitted
▪ May be stipulated under Rule 29
o What:
▪ Rule 36(b): if admitted = conclusory established
▪ UNLESS: court (on motion ) permits withdrawal or amendment

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Abuse & Control
- Provisions:
1. Rule 26(g) – Certification requirement & accompanying sanctions
● Remember: Rule 11 doesn’t apply b/c that’s ONLY about filing
2. Objections – Parties entitled to object on different grounds if:
● Matter is not discoverable, is protected, or other reason
3. Rule 26(c) – Parties can seek protective orders
4. Sanctions – Parties can move to compel discovery (37 more common than 26)
● Rule 26(g)(3) – court MUST sanction if violation of certification requirement
● Rule 37(b) – DC MAY impose number of sanctions for failure to comply w/
discovery order (or failure to respond to valid discovery request)
● Inherent Power of Court – may sanction bad-faith conduct before them, and
state bar associations regulate the practice of law

Certification Requirement - Rule 26(g)

- Signing disclosures – scope =
o Discovery requests, responses, objections
- Requirement:
o Every request/response/objection MUST be signed at least by attorney
- By signing certifies:
o To (1) BEST of his knowledge, info, belief & (2) AFTER reasonable inquiry
▪ (A): if a disclosure = complete & correct at the time it was made
▪ (B): if request, response, objection =
● (1): consistent with:
o These rules, warranted by existing law, or is non-frivolous to
extend, modify, reverse existing or establish new law
● (2): NOT for an improper purpose
o Such as: harass, unnecessary delay, needless increase of cost of
litigation
● (3): NOT unreasonable/unduly burdensome/expense
o Considering: needs of the case, prior discovery, A in C,
importance of issues
- IF Violates Rule: - Rule 26(g)
o Court on motion or on its own – MUST:
▪ Impose appropriate sanction
● On signer, party they signed on behalf of, or both
▪ May include:
● Order to pay reasonable expenses (Attorney fees, etc. caused by
violation)

Objections:
- May object that opposing is NOT entitled to matter:
1) May exceed 26(b)(1) b/c:
● Not relevant
● Privileged
● Not proportional to needs of case
2) Rule 26(b)(3) or Hickman:

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 ● Protected Work Product
3) Rule 26(b)(2)(B):
● electronically stored & not “reasonably accessible b/c undue burden/cost”
4) Rule 26(b)(2)(C):
● “unreasonably cumulative/duplicate/can get from other source more
conveniently/less burdensome/less expensive”
5) Rule 26(b)(2)(C):
● Party seeking HAD ample opportunity earlier

Protective Orders – Rule 26(c)

- Another protective control on discovery
o Means for protection from discovery request (BOTH what & how)
o ALSO: may go beyond grounds that are under objections (this = more broad)
- General Requirements - Rule 26(c)(1):
o Who: Persons from whom discovery is sought (party or by subpoena) may move for
protection:
o Where: in court where action pending OR where deposition will be
o What: MUST include: certification of good faith confer or attempt w/o court
o Basics: Court may issue to protect from:
1. Annoyance
2. Embarrassment
3. Oppression
4. Undue burden/expense
o How: court may:
▪ (A): forbid the disclosure/discovery
▪ (B): specify terms (time/place/allocation of expenses)
▪ (C): prescribe diff. method of discovery (report v. interrogatory etc.)
▪ (D): Forbid certain matters/limit the scope on certain topics
▪ (E): Designate person that may be present during deposition (ban or require)
▪ (F): require deposition be sealed w/o court order (so not available out of
litigation)
▪ (G): require trade secret/other confidential research/development/commercial
information be NOT revealed OR ONLY in specific way
● VERY common in commercial cases
● MAY seek non-disclosure agreement
▪ (H): required parties simultaneously file specific docs/info in sealed envelopes
only opened by court
- Violating Protective Orders - Rule 37(b)(2)
o Who: party, party officer, director, managing agent, witness
o What:
▪ That fails to obey order above
▪ → may get “further just orders” = sanction
● May have to pay other’s attorney fees if lose

Sanctions & Motion to Compel – Rule 37

28
 - Motion to Compel:
o (a)(1): may move on notice to all others
● MUST: include certification of good faith:
● Attempt to confer w/ party & failing to agree w/o court action
o (b): failing to comply w/ court order =
▪ (b)(2): court may issue further orders (sanctions)
o Basics:
▪ BEFORE filing:
● MUST: have conferred or attempted in good faith w/o court action
● IF: opposing have responded in some way
o MUST have motion to compel BEFORE sanctions under 37
▪ UNLESS:
● Opposing hasn’t responded AT ALL – “stone walled”
● THEN: can go straight to sanctions (w/o a motion to compel first)
o b/c MUST ALWAYS respond to ALL discovery requests
o NO time limit: (they have 30d to respond → could move on 31st)
▪ But: need to show the “good faith attempt”
- Sanctions:
o Rule 37(b)(2): In a sanction, Court may:
▪ (i): direct the matters just be taken as the sanctioning party says (just believe
them that its true against the sanctioned party)
▪ (ii): prohibit sanctioned party from making claims, defenses, or add to evidence
▪ (iii): strike pleadings (whole or part)
▪ (iv): stay proceedings until they obey
▪ (v): DISMIIS the entire action (or part)
▪ (vi): Default judgement against disobedient party
▪ (vii): treat as contempt of court (criminal)
● Except: if physical or mental examination
o Other Sanctions
▪ Rule 37(c)(1):
● IF failed to give required disclosures (witnesses etc.)
● MAY: just be barred from using that information at trial at all
▪ Rule 37(a)(5):
● Losing party in motion to compel:
● MAY have to pay other side’s costs related to motion
▪ Rule 37(e):
● More lenient w/ electronically stored
o Severe sanctions are ONLY permissive when acted w/ INTENT to
deprive other party of the evidence

29
 Trial and pre-trial

Pretrial Case Management – Rule 16

- General Information:
o How court manages everything BETWEEN pleading stage and trial
▪ This is MOST of the time during litigation
▪ Mostly informal - But court = referee and gatherer
o General point: not as strict in state courts as in federal courts (Joondeph’s feeling)
- Pre-Trial - Rule 16
o Basic facts:
▪ District court has broad authority to convene parties & issue orders managing
action before trial
▪ Critical junctions PRIOR to trial
● (1) scheduling conference under Rule 16(b)
● (2) final pretrial conference under Rule 16(e)
o Both usually result in court order governing action from that
point forward (information on rules)
o Scheduling – Rule 16(b)
▪ (1): except in categories of ACTIONS exempted by local rule:
● District judge (or magistrate judge)
● When authorized by local rule – MUST ISSUE scheduling order:
o (A): after receiving parties’ report under Rule 26(f)
o (B): OR after consulting w/ parties’ attorneys and any
unrepresented parties at scheduling conference
o Final Pretrial conference & orders – Rule 16(e)
▪ What:
● Court CAN hold final pretrial conference to make trial plan
● Includes plan for admitting evidence
▪ When:
● MUST be held as close to start of trial as reasonable
▪ Who:
● AND must be attended by at least one attorney
o who w/ conduct trial for each party & unrepresented party
▪ Modify:
● Court can modify the order issued AFTER pretrial conference – ONLY to
prevent manifest injustice
- Management
o What:
▪ Local Rules and Standing Orders – govern “the minutiae” of pretrial practice
● Pretrial practice varies among DCs (and judges w/I same district)
▪ Local Rules: (Districts)
● 28 USC § 2071 – give fed courts authority to make rules “for the conduct
of their business” - Known as local rules (for each district)
o MUST be consistent w/ FRCP – so they just fill in around them
o (also consistent w/ constitution etc. of course)
▪ Standing Order: (Judges)

30
 ● District judges can give these rules for practice for that particular judge
o One judge can specify these that haven’t been handled already
in constitution, FRCP, and local rules
o Who:
▪ Usually managed by Magistrate Judge (instead of District Judge)
● Hired by district court and serve 8 terms
● Lack authority to issue dispositive judgements (only do
recommendations the elected district judge rules on)
o How:
▪ DC: has authority to REQUIRE parties to attend
▪ Rule 16(f): can impose sanctions for circumstances:
● Failing to appear
● Attending “substantially unprepared to participate”
● For failing to obey pretrial order
o BUT: can NOT mandate parties take certain positions, admit
certain things, etc. – can’t be forced into different opinion
o Result - Rule 16(e):
▪ Results in court’s issue pretrial order
● Purpose:
1. Claims and defenses parties will present
2. Witnesses who will testify
3. Evidence parties will introduce
4. Establish those points that are disputed
o For what should or should not be a part of the trial
▪ This final pretrial order → SUPERSEDES any preceding orders (including
pleadings)
● This controls course of trial
● BUT it CAN be modified if “justice so requires”
● But the court MUST give discretion
o So the parties can go and ask the court and the judge will decide
▪ Why: so there is no surprise – make sure all parties are aware of the rules

Without a Trial

Dispositions without trial:

1) Dismissal for failure to state a claim
2) Summary judgment
3) Judgment as a matter of law
4) Motions for new trial
5) Relief from judgment

Dismissals
- Distinctions:
o Voluntary v. Involuntary →

31
 o With Prejudice v. Without Prejudice →
- Reminder:
o Just like after Rule 12(b) →
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a required party under Rule 19

Voluntary v. Involuntary
- Basics:
o Voluntary = sought by claimant herself; Involuntary = obtained against claimant wishes
- Voluntary Dismissals - Rule 41(a)
o Options on Processes:
▪ (1): by the P – Notice Dismissal:
● How:
o (A): W/o a court order
o And subj to Rules 23(e), 23.1(c), 23.2, and 66 (and any fed
statute):
o P may dismiss action WITHOUT court order by filing:
▪ (i): notice of dismissal BEFORE opposing party serves
either (1) answer or (2) motion for summary judgement
or
▪ (ii): stipulation of dismissal signed by all parties who
HAVE appeared
● Result:
o (B): unless notice/stipulation states otherwise – dismissal is
WITHOUT prejudice:
▪ BUT: if the P PREVIOUSLY dismissed any: (voluntarily)
▪ Fed or state action based on/including SAME claim →
● A notice of dismissal operates as adjudication
on the merits (WITH prejudice – one chance)
▪ (2): by Court Order
● (except as provided by Rule 41(a)(1)):
o Action may be dismissed by P’s request ONLY by Court Order
o On terms that court = proper
● Counterclaim:
o IF D has pleaded counterclaim BEFORE being served w/ P’s
motion to dismiss
▪ The action may be dismissed OVER the D’s objection
▪ ONLY if: counterclaim can remain pending for
independent adjudication – WILL REMAIN
● Unless order states otherwise: dismissal = WITHOUT Prejudice
o However: court will often say if with or without prejudice

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 o Why Voluntarily dismiss:
1. Redraft the complaint (more convenient than amending for some reason)
2. Defeat diversity juris (join non-diverse party in state court – if D removed)
3. Refile in different court (for more favorable choice of substantive law)
4. New Judge (could potentially be assigned a different judge)
5. Statute of Limitations (move to juris w/ a longer statue of limitation – if can)
- Involuntary - Rule 41(b)
o If P FAILS to prosecute OR comply w/ these rules or a court order:
▪ D may move to dismiss action/any claim against it
o WITH PREJUDICE → operates as an adjudication on the merits
▪ UNLESS the dismissal order states otherwise
▪ Applies to dismissal under this AND any NOT under this rule
● (EXCPET for: lack of juris, improper venue, failure to join under Rule 19)
● All other Rule 12(b) and 12(c) dismissals are involuntary – the party
against who asserted claim & w/ prejudice
o Examples: Twombly, Iqbal, and Piper

Prejudice v. Without Prejudice

- Basics:
o Refers to bringing the same claim again in a separate action
o Prejudice = the claim will be precluded if the claimant tries to bring it again in the future
▪ Will not be able to bring this same claim in a subsequent action
▪ Remember: Claim preclusion = an affirmative defense
o Without Prejudice = the claim will NOT be subject to claim preclusion
- Merits
o “On the Merits” = WITH PREJUDICE
▪ Example: if it is dismissed for failure to state a claim
▪ This is on the merits of the claim (its not procedural, it is about the claim itself)
o Some are dismissed w/ prejudice but NOT on merits:
1) Dismissal for failure to prosecute
2) Dismissal as a sanction (severe misconduct)
3) As stipulated by the parties or ordered by the court (pursuant to voluntary
dismissal)
● When settling – so the P will not be able to sue the D again
● b/c you don’t want to settle then be sued again for the same thing again
o Some are unrelated to merits and WITHOUT prejudice for this reason
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Failure to join a party under Rule 19

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Summary Judgement - Rule 56(a)
- Legal Requirements:
1. NO genuine issue of material fact
▪ Means: no REASONABLE factfinder could find for non-moving party on the issue
2. Movant is entitled to judgment as a matter of law
▪ Because: undisputed facts - (remember: SJ can be partial)
- Process:
o Rule 26(c) →
▪ (1): Party asserting that fact cannot be/IS genuinely disputed must:
● (a): cite to particular parts of materials; OR
● (b): show that materials cited do NOT establish the absence/presence
of genuine dispute
o (or that the adverse party cannot produce admissible evidence
to support the fact)
- General Elements:
o Basics - Rule 12(d):
▪ Involves materials OUTSIDE the pleadings
1. If party presents matter to court outside pleadings in motion to dismiss
2. AND court accepts the matter
3. → court must treat motion as summary judgement
o (so: accepting ANY outside information beyond pleadings → SJ
deliberation)
▪ Court should state on record the reasons for granting or denying the motion
o When:
▪ Timing = AFTER the pleadings (toward end of discovery)
▪ Rule 56(b): can be filed w/I 30d AFTER the close of discovery
▪ Rare situation:
● Rule 56(f): DC: after giving notice & reasonable time to respond:
o Court may still grant summary judgement for the NON-moving
party - (This is rare, but totally possible)
o What: Rule 56(c)
▪ Purpose: dispose of case w/o trial (when trial unnecessary)
● SO: can accept evidence that WOULD BE admissible at trial
● OR which COULD be converted to admissible evidence
o Mainly: live testimonies, witnesses, etc.
o Docs or tangible evidence that would be admissible
o Sworn statements (affidavits) or testimony
o (diff. than pleadings: b/c pleadings do NOT have to be
admissible)
o Mechanics:
▪ Typically only one page
▪ Pieces:
● Memorandum
o In support of motion: explain in detail why it should be granted
SJ under circumstances (the 2 requirements)

34
 ● Appended record
o Includes the documents demonstrating lack of genuine issue of
material fact
▪ (1) affidavits, (2) transcripts, (3) answers to
interrogatories, (4) docs or other exhibits
- Opposing party →
o Will have opportunity to respond to the motion
▪ File its own materials
1. Have its own memorandum
2. Also various docs showing genuine issue of material fact
o Court will schedule hearing on motion/hear arguments from both parties
▪ Arguments on SJ resemble appellate court process/briefs

Circumstances of Summary Judgment

- Different styles of motions – Defendant
1. D presents its own evidence showing that P cannot establish an element - (Slaven)
2. D points out P has failed to generate the evidence for reasonable factfinder court find
for them - (Celotex)
- Common Basis:
1. P has failed to gather sufficient evidence to support an element of her claim
o So made past pleading, but didn’t get any more facts/evidence to make a
genuine issue of fact
2. P gathered so much evidence no “reasonable fact finder” would rule against them
o D failed to get enough to support defense
3. Material facts are undisputed & case turns ENTRIELY on interpretation of applicable
law
o Usually: ends w/ cross-motions for SJ
o Example: abortion laws (question = if goes too far past constitution, but all
the facts are the same)
- Common Results:
o Much easier for D to obtain than P
▪ Why:
● P has “ultimate burden of proof” EACH element of her claim by
preponderance of evidence
● D must ONLY show P has failed to prove by material fact just ONE of
those essential elements of P’s claim
- Burden of Production
o Usually: on the moving party
▪ Means: movant must come forward w/ evidence (using various materials)
● And show (1) no genuine issue, (2) entitled to SJ by matter of law
▪ If does this: burden shifts to non-moving to show EXISITENCE of genuine issue
● And show trial is necessary
● BUT: ultimate burden of persuasion ALWAYS rests w/ movant

35
Summary Judgement – Comparisons

Motion to dismiss for failure to Motion for summary

state a claim judgement
Applicable legal standard The facts must be enough to (1) genuine issue of material
make the claim “plausible” fact
(2) entitlement to SJ as a matter
of law
Materials Only looking at “4 corners of the (1) memorandum explaining
complaint” basis for summary judgement
(2) appended record:
demonstrating lack of genuine
issue of material fact
Timing Either before asserting an Near the end of Discovery, or
answer or IN an answer w/I 30d after close of discovery

Trial (obtaining verdict) Motion for Summary

Judgement
Applicable legal standard P has burden to prove by a P must prove there is a genuine
(burden of proof, etc.) “preponderance of the issue of material fact that
evidence” EACH element of the makes worthy of going to trial
claim
Materials Evidence admissible at trial (but Evidence admissible at trial
could be different evidence – (all documentary evidence)
ex: if a witness gives more
information than SJ
interrogatory)
Timing Trial – completely after Near the end of Discovery, or
discovery w/I 30d after close of discovery

Judgement as a matter of law Motion for summary

judgments
Applicable legal standard Standard: can a reasonable jury Standard: can a reasonable
find for the other party (but factfinder find for the other
AFTER hearing both parties) party
Materials The record of what evidence is Documents related to motion
produced at trial and evidence brough by non-
moving party to defend motion
Timing Either (1) halfway through the Near the end of Discovery, or
trial or (2) at the conclusion of w/I 30d after close of discovery
the trail

36
Judgment as a Matter of Law – Rule 50
- Clarify: This ONLY APPLIES during a Jury trial – If bench trial → judge decides (so irrelevant)
- Basics:
o Is there no “legally sufficient evidentiary basis” that a reasonable jury would find in
favor of the non-moving party?
▪ What court can NOT DO:
● Judge should not “weigh the evidence”
o NO credibility determinations – witnesses etc.
o But: must weigh a little – to determine if reasonable basis
- What:
o Rule 50(a)(2): Requirements:
1. Must specify the judgment sought
2. And the law/facts that entitle movant to the judgment
● Also MAY include alternative or joint request for new trial – Rule 59
o (b): Renewal (ALTERNATIVE to motion for new trial)
▪ Basics:
● If court does NOT grant OG motion for JMOL under Rule 50(a) →
● Court = considered to have submitted action to jury (subject to court’s
later deciding legal questions raised)
▪ Result Options:
● Court may:
o (1): allow judgement on verdict, if jury returned verdict
▪ So: deny the motion & go with jury verdict
o (2): order a new trial
o (3): direct entry of Judgment as Matter of Law
▪ So: approve the motion
▪ Process Requirements:
● Preservation of issue under Rule 50(b):
● MUST analyze ISSUE BY ISSUE
o Movant cannot “renew” motion on a NEW issue that didn’t
make in Rule 50(a)
o Has to be literally the SAME motion
● Preservation of sufficiency-of-the-evidence appeal requires →
1. Making motion for JMOL BEFORE case goes to jury
2. AND renewed Rule 50(b) motion

- When:
o First motion – Rule 50(a):
▪ ONLY AFTER opposing party “has been fully heard on an issue”
▪ AND BEFORE the case has been submitted to the jury
● So: IN BETWEEN → D presenting & the judge sending jury to decide
o Second Motion – Rule 50(b):
▪ Had to have done the first motion BEFORE jury
● → then: do second motion AFTER jury presents judgment
● No later than 28 days AFTER entry of judgment

37
 - What Included:
o ALL evidence at trial to that point in the trial
▪ Compare to summary judgment: that was “what will be admissible”
▪ Now – we are in trial – so: it is EVERYTHING that HAS been admitted to trial AND
the other side has been heard

- Legally Sufficient Graph – Sliding Scale:

- Why Rarely Granted under Rule 50(a)

o b/c if granting Rule 50(a) is overturned on appeal →
▪ case will need to try FROM THE BEGINNING – new jury and everything
o if court allows case to go to jury →
▪ jury may find in favor of moving party (so it’s a moot point & all good)
▪ if goes AGAINST movant & grants Rule 50(b) → THEN revered on appeal →
● jury’s verdict could just be reinstated (no need for a whole new trial)

- If AC finds JMOL SHOULD have been granted by DC denied it

o Appellate Court Options:
▪ Order a new trial
▪ Direct trial court to determine if new trial should be granted
▪ Direct entry of judgment

38
Motions for New Trial – Rule 59
- Grounds for new trial:
o (a): Why: if “clearly erroneous” and would result in “manifest injustice”
▪ (1): New trial on some (like relief) OR all issues (MOTION & to ANY party) IF →
● (A): AFTER jury trial:
o If in the past (common law) there has been a new trial granted
in a similar situation
● (B): AFTER a nonjury trial:
o If in the past (common law) there has been a new trial granted
in a similar situation - “granted in a suit in equity”
▪ (2): Further action after nonjury trial:
● Court MAY (on MOTION for new trial) →
1. Open judgement (if it has been entered)
2. Take additional testimony
3. Amend or make new findings of fact
4. Amend or make new conclusions of law
5. OR direct the entry of a new judgment
o (b): When:
▪ Motion by party:
● No later than 28d AFTER entry of judgment
▪ Court’s initiative:
● No later than 28d AFTER entry of judgment
o After giving parties notice & opportunity to be heard
● Requirements:
o Any reason that would justify granting a party’s motion
▪ (Can be reason not stated in motion)
o If grants new trial → DC MUST specify reasons
- Points:
o Successful Rule 59 motion does NOT = judgment for movant
▪ → is a REPLAY of the trial (or portion of it)
o Rule 59 permits court to order new trial sua sponte (w/I same timeframe)

- When Rule 59 & Rule 50 simultaneous:

o Motion for new trial = often SIMULTANEOUS w/ Rule 50(b) motion for JMOL
o Order:
▪ DC should rule on Rule 59 EVEN IF grants Rule 50 JMOL
▪ Why: So: both rulings can be reviewed on appeal (in case they will be reversed)

Bases for Ordering New Trial

1) Trial process errors – to an extent that we are suspicious of the outcome
a. Error in jury instructions
b. Admission/exclusion of evidence
c. Improper argument to jury
d. Juror or witness misconduct (talking to outside sources)

39
 e. Inconsistent verdicts (as a legal matter they just don’t fit)
▪ BUT:
o These are subject to Harmless Error Rule – Rule 61
▪ Error MUST = rise to level of prejudice
● reasonable possibility that w/o the error the verdict
would have been different
2) Verdict NOT supported by weight of evidence
a. “clearly erroneous” OR “seriously erroneous”
b. “against the weight of evidence”
c. “manifest injustice”
i. These are all basically the same thing (Joondeph says)
ii. DIFFERENCE from Rule 50 JMOL →
1. Judge CAN weigh the evidence (assess credibility of witnesses)
2. Why?
a. Because of remedy →
b. Judgment is NOT entered here – there will just be a new trial
c. So: b/c there is no judgment the court should NOT be able to
weigh the evidence
3) Damages NOT supported by weight of evidence
a. Excessive – “shocks the conscience”
i. Under this → court can order remittitur
1. P has the choice of:
a. Going to a new trial OR
b. Accepting the smaller award set by the court
b. Insufficient
i. If in federal court → MUST order new trial
ii. If state court (some/not all) → could CAN order additur
1. D has choice of:
a. Going to new trial OR
b. Accept paying the larger amount set by trial

Relief from Judgment – Rule 60

- (b): Requirements/Options:
o ON MOTION: court MAY relieve party/legal rep from:
▪ Final judgement, order, or proceeding – IF:
● (1): mistake, inadvertence, surprise, or excusable neglect
o Maybe they just never got service of process
● (2): newly discovered evidence
o w/ reasonable diligence could NOT have been discovered in
time to move for new trial – Rule 59(b)
● (3): fraud, misrepresentation, or misconduct by opposing party
o Must be very significant
● (4): judgement is void

40
 o Such as if there was no SMJ – so didn’t have right to adjudicate
● (5): judgment has been satisfied, released, or discharged
o Based on earlier judgment that has been reversed or vacated
o OR applying it prospectively is NO longer equitable
● (6): any other reason that justifies relief
o Must be very clear & similar to the other 5 requirements
- (c): When:
o On motion under Rule 60(b)
▪ Must be w/I reasonable time
▪ If reasons (1), (2), or (3) → NO more than a year AFTER judgment OR order OR
date of proceeding
- (d): Effect:
o MOTION does NOT affect judgment’s finality OR suspend operation
▪ So: if there is issue preclusion – this motion won’t make a difference
- Overall:
o LAST possible reprieve from DC judgement
o Can appeal judgement – but that seeks relieve from court of appeals – new court
o These are extremely limited
o Decision whether to grant relief = in the court’s discretion
o Well established point:
▪ Movant MUST ALSO have a meritorious claim or defense
● Example: even if there was fraud, etc.
● Must prove that “but for” the fraud, would have won
● But if regardless of the error, the claim would have lost → won’t get it

41
 During Trial

Right to Jury – Rule 38

- Basis:
o 7th Amendment grants right to jury in Civil Actions – in Federal District Court
▪ BUT: this is a federal law – not required for every state – not all have it
▪ MOST states do have a similar right → often in state constitution
▪ Congress can STILL req. by STATUTE if there is a federal question
- Equity v. at Law
o Based on “Relief Sought”
▪ Monetary damages → action “At Law” (legal claim)
▪ Injunction/declaratory → action “In Equity” (equitable claim)
● If both → Legal (Curtis v. Loether)
o Why matters:
▪ Legal Claims must be tried FIRST
● JURY decides “at law” → then COURT decides “in equity”
● BUT: determinations by jury govern court’s decision in equity
▪ Applies regardless of WHEN added
● Even if P’s claims equitable & D has legal counterclaim →
o Counterclaim will be tried FIRST
- Process of Demand:
o Rule 38: governs process
▪ Rule 38(b):
● Includes:
o On any issue – triable of right by jury (7th amendment or
statute)
● How:
o Party may demand jury by serving w/ written demand
o May be included in pleading
● When:
o Served no later than 14d AFTER last pleading on that issue
▪ usually: just complaint & answer (so 14d AFTER answer)
▪ easily forfeit → most put it IN complaint/answer
o AND filing in court according to Rule 5(d)
▪ Rule 38(d): Waiving
● Right to jury is waived: Unless its demand is property served & filed
● Proper demand MAY be withdrawn ONLY IF: the parties consent
- Points:
o Amendment to a pleading does NOT reopen this window
▪ It would need to be a NEW CLAIM or a NEW DEMAND FOR RELIEF
▪ Has to change it to a level that makes it a case that now has right to jury trial
o Who:
▪ It extends to ANY PARTY

42
 ● BOTH Defendant, Plaintiff, 3rd party defendant, party defending
crossclaim, etc. can demand
▪ it is an INDIVIDUAL right = why it can be waived (like PJ, Venue, etc.)
● Most common way to waive: through mandatory arbitration clauses
o Remember: waive right not just to jury but to any trial
o Must only go to arbitration agreement by arbitrator

Jury Instructions – Rule 51

- Basics:
o To assign Error (Rule 51(d)→) NEED TO:
1. Timely submit the proposed instruction (Rule 51(a) →) AND
2. Timely object to the rejection of the proposed instructions (Rule 51(c)→)
- (a): Requests
o (1): First Option:
▪ When:
● before OR at the close of evidence:
o At close of evidence; OR
▪ This = BEFORE closing arguments
o Any earlier reasonable time that COURT orders
▪ What:
● Can file/furnish to EVERY other party:
● Written request for jury instructions it wants the court to give
o (2): Second Option:
▪ When:
● AFTER the close of evidence
o This = AFTER the closing arguments
▪ What:
● Party MAY:
o (A): file requests for instructions on issue that:
▪ Could not reasonable be anticipated at an earlier time
(that the court set for requests)
o (B): WITH COURTS PERMISSION – file untimely requests for
instructions
- (b): Instructions Requirements
o What court MUST do:
▪ BEFORE instructions & final arguments are delivered →
● (1): Inform parties of proposed instructions/actions on requests
● (2): Give parties opportunity to object on the record AND out of the
jury’s hearing
o What court MAY do:
▪ BEFORE jury is discharged →
● (3): MAY instruct jury at any time
- (c): Objections
o (1): Requirements:
▪ Basis = EITHER objecting to instruction OR failure to make an instruction
▪ MUST:

43
 1. Be on the record
2. State the matter objected to distinctly
3. State ground for the objection distinctly
o (2): When:
▪ (A): objects at earliest opportunity under Rule 51(b)(2); OR
▪ (B): IF court FAILS on Rule 51(b) requirements
● (party NOT informed of an instruction/action on a request BEFORE an
opportunity to object) →
● The party CAN:
o Object promptly after learning the instruction/request:
o Will be (or was) given or refused
o Objections “boiled down”
▪ Timing: Must be made at party’s earliest opportunity
▪ Requirements: BOTH:
● Timely submitting the proposed instruction AND
● Timely objecting to the rejection of the proposed instructions
▪ Purpose: Rule 51 is ESSENTIAL to: “preserving a right to appeal”
● For courts failure to give proposed instruction OR
● For erroneous instruction
▪ Exception: ONLY plain errors
▪ Legal errors: ARE ground for meritorious objection (or maybe appeal)
● BUT: if they are HARMLESS:
o Will NOT be grounds for new trial or reversal on appeal
o UNLESS: prejudicial
● Judging if prejudicial: Instructions must be viewed as a whole
o NOT: just looking at that particular part in isolation
- (d): Assigning Error/Plain Error (Complaining there was an Error)
o (1): Requirements: Party MAY assign error if:
▪ (A): IF the party properly objected to the error in instruction & later the court
still gave that instruction (fulfilled Rule 51(c)) ; OR
▪ (B): Court FAILED to give an instruction the party properly requested AND
properly objected (Rule 51(a) & Rule 51(c))
● UNLESS: court rejected the request with:
o definitive ruling on the record
o (2): Plain Error (EXCEPTION/Saving Grace)
▪ Court MAY consider error (that wasn’t in Rule 51(d)(1)) IF →
● The error affects substantial rights
o So ONLY if it is an “egregious” error – VERY extreme & unlikely

44
 After final judgment
Appeals
- Topics
o Process for an appeal
o Issues – what and how they are preserved
o Timing – varies based on what is being appealed
▪ The final judgement rule
▪ Collateral order doctrine
▪ Rule 54(b)
▪ Interlocutory review
▪ Writs of Mandamus
o Standards of Appellate Review – how closely they can look at judgment of DC

Jurisdiction of Appellate Court

- 28 USC § 1291 (for the VAST majority of appeals)
o Courts of Appeal = federal
o Has jurisdiction from all appeals from ALL “final decisions” of DC of the US
▪ EXCEPT: where they have direct review in the Supreme Court (US Court of
Appeals for Federal Circuit – patent court)
▪ EVERYWHERE ELSE → goes to geographical location where appealed
o OUR jurisdictions =
▪ State = Sixth Appellate District (Sixth District Court of Appeal)
▪ Federal = 9th Circuit (US Court of Appeals for the Ninth Circuit)
- NOTE:
o Basis of § 2107 deadline = jurisdictional (WILL BE ON BAR EXAM)
▪ Bowles v. Russell – if notice of appeal = untimely, AC lacks SMJ and MUST
dismiss it

Process for an Appeal

- Steps:
o Notice of appeal
o Record appendix
o Briefing schedule
- Notice of Appeal
o Where: FRAP 4(a)(1)(A):
▪ Must file in the DC even though it will be taken to the appellate court
o When:
▪ Appellant must appeal w/I 30d after entry of judgment
● 28 USC § 2107(a): except otherwise provided in this section
▪ Extension:
● § 2107(c) – if file motion to extend w/I 30d AFTER expiration of the
original 30d time MUST →
a) File extension with the appellate court
▪ (totally up to court’s discretion)

45
 b) File within the original 30d time limit
c) MUST be “excusable neglect” or “good cause”
▪ If Motions:
● FRAP Rule 4(a)(4)(A):
o If party files timely in DC under FRCP – time starts w/ the entry
of order DISPOSING of the last remaining motion →
▪ So: 30d window starts after DC ends these motions:
1. Judgment under Rule 50(b)
2. Alter/amend judgement under Rule 59
3. New trial under Rule 59
4. Relief under Rule 60 (if motion filed w/I 28d
AFTER judgment entered)
▪ So: these motions will EXTEND the 30d beyond the 30d
after judgement
- Once IN the Appellate Court
o Rules:
▪ Switch from FRCP (DC rules) to FRAP (AC rules)
o Districts:
▪ 13 US Courts of Appeals
● 12 based on geography & one based on subject matter (US Court of
Appeals for Federal Circuit – patents)
● California = US Court of Appeals for the 9th Circuit
▪ California AC Districts
● We = California Court of Appeal 6th Appellate District
● (SF = 1st Appellate District)
- Record Appendix
o General Information:
▪ Contains portions of the trial court record relevant to the appeal
● (entries of case, pleadings, transcript, etc.)
▪ Is forwarded to the court of appeals
▪ Format/content of the briefs are governed by FRAP
● And each district has its own briefing
- Briefing Schedule
o Briefing of Appeal
▪ First – appellant files (usually has blue cover)
▪ Next – appellee files her brief responding
● about 35d later
▪ Last – appellant files short reply brief responding to appellee’s brief
▪ Also – could be amicus curiae briefs
● Often high profile cases – 3rd parties will file to get views before court
o Argument/decision
▪ Who:
● Usually = 3 judge panel of court of appeals judges
● Randomly assigned from roster of judges – could be about 27 judges
▪ After briefing:
1. Panel will schedule oral argument
2. OR determine the argument is unnecessary

46
 o (if it not complicated & they decide on briefs alone)

o Opinion:
▪ One judge in majority will write opinion (at least one other will join)
● May also be a dissent here
▪ Then it is handed down as court’s decision
● Can be designated as “published” – put in Federal Reporter (F.3d)
● Or can be “unpublished” – aka just the red ones on WestLaw/Lexis
o Means this is an issue that doesn’t have much weight

Issues & Preservation

- Overall Requirements: must be 3P’s: Prejudicial, Preserved, and Presented
a) Rule must be claim of error having to do with law
b) Must have been preserved
c) Has to affect substantial rights / was “plain error” - Could not be a harmless error
- Technically:
o ONLY questions of LAW can be appealed - As a formal legal matter
o Some appealable issues may be effectively factual in nature – but are not formally
▪ Example: Losing party could appeal that insufficient evidence (legal question)
- Preserving the issue
o Appellant must have “preserved’ (not forfeited) the issue in the DC
▪ Requirements:
1. The appellant made a timely objection to the DC resolution of the issue
o Example: if evidence was unacceptable, must have objected at
the time it was presented at trial
2. Objection must have been sufficiently clear that DC had opportunity to
decide & correct the error
o This = the general rule for all issues for a party seeking appeal
o But some issues = a special rule for preserving them
o Specific preservation rules
▪ Jury instructions – Rule 51
● Requirements under Jury Instructions →
o Must be objected to promptly after learning of instruction
▪ Sufficiency of the Evidence
● Must have preserved by making renewed motion under JMOL under
Rule 50(b)
o (which means also made Rule 50(a))
▪ Harmless error Rule – Rule 61
● There cannot be a situation where an error was small – will not be basis
for successful appeal
o Court will disregard any defects that do not affect a party’s
“substantial rights”
▪ So: if there was no substantial likelihood that the error
calls the party’s rights into doubt
- Presentation on Appeal
o Requirements:
▪ Must actually present the issue in brief – to the Appellate Court

47
 ▪ It is insufficient to simply note error
● MUST: affirmatively advance an argument =
o Why the DC’s resolution of the issue constituted reversible error
o This = a problem in McArthur (they didn’t put in brief)
o Who:
▪ ANY party who lost claim in TC = “aggrieved party” can appeal
▪ So: may be multiple parties (“cross appeals”)
● Cross Appeals:
o Issue = basis for cross appeal MUST conform to rules above
▪ Issue requirement, preserving, presenting, etc.
o Defending only:
▪ If only an appellee that is defending DC’s judgment
● Can raise completely new argument never presented in DC
● So: requirements are very low - Could be raising brand new argument
o Is just a very different position to be in
o Exceptions – even if not persevered would be allowed:
1. Pure question of law & to not would be miscarriage of justice
2. Had no opportunity to raise in DC
3. Substantial justice is at stake
4. Proper resolution is beyond any doubt
5. Issue raises significant questions of general impact or great public concern

Timing of Appeals
- Normal 30d after Final Decision/Judgment Filed
o Final Judgment v. Final Decision
▪ Under § 1291 - Final judgment = “final decisions”
● = decision that “leaves nothing for a court to do except execute the
judgment”
● Resolves ALL claims w/ respect to ALL parties in the action
o Examples: If A → B and C & court grants C’s motion to dismiss (is
NOT final: A → B still pending)
▪ if any cross/counter/etc. to be resolved → NOT final
judgement
▪ Final Decisions
● This does NOT mean MUST be final judgment – could be final decision
w/o being final judgement (but ALL final judgments are final decisions)
o Examples:
▪ Decisions that = final decisions under collateral order
doctrine
▪ Decisions that do NOT resolve all claims in action
directed as “final” by the DC under Rule 54(b)
● To know:
o The SMJ requires final DECSIONS – NOT judgments – so the
bigger section is allowed
- Immediate Appeals – After Aggrieved Party Files for Final Judgment (NEED REQUEST FIRST)
1) Collateral Order Doctrine

48
 - Requirements
1. DC’s Final Word: Order must conclusively resolve issue to be appealed
2. Collateral: Order must resolve question SEPARATE from the merits
o Must be “conceptually distinct from merits of P’s claim”
3. “Now or Never”: Issue must be effetely unreviewable if the appeal was
deferred until after a final judgment (MOST important part)
▪ Examples: sovereign immunity, qualified immunity
● b/c: if wait for final judgment then immunity has already been lost
2) Rule 54(b)
▪ Requirements:
1. Act if the issue only includes this ONE claim or (whatever is under
review)
2. Then ask: if court’s decision respecting that claim would = final
judgment
o So ALL that is left is to give final judgment
▪ Elements:
● Includes where an action has multiple claims or parties
● Court may: direct entry of final judgment (ON REQUEST) for one or
more – but fewer than all – issues in the case
● NOT PROPER IF: there is more to be reviewed beyond just giving
judgment
3) Interlocutory Review
▪ 2 circumstances
● 1292(a): grants juris over appeals from judgments regarding Injunctions:
1. Any order by a DC regarding an injunction (temporary or
permanent)
▪ Covers: granting, continuing, modifying, refusing, or
dissolving injunctions
▪ Does NOT cover: temp. restraining orders
● 1292(b): when DC is in civil action encompasses: almost anything
o DC must confirm:
1. Controlling question of law – dispositive to that issue
2. Immediate appeal will materially advance the action –
or will /may cause final judgment
▪ Then → put these in writing in appeal action
o AC then MAY:
1. Decide if it wants to take on the action (totally at it’s
discretion)
2. IF application is made w/I 10d after entry of the order
i. Files to APPELLATE court (NOT DC)
o This does NOT happen very often
4) Writs of Mandamus / Writs of Prohibition
▪ Requirements by Petitioner – MUST prove:
1. A special risk of irreparable harm exists in the action
o No other adequate means to attain the relief party desires
2. Petitioner is CLEARLY (plainly, without doubt) entitled to the relief
requested

49
 o There can be NO question – legal right to order requested is
“clear and indisputable” (to the level of “usurpation of power”)
▪ What:
● This is NOT AN APPEAL – is alternative way to get AC review of DC order
● Mandates or Prohibits DC from doing action, or stop clearly illegal action
● Is a “drastic remedy” to be invoked in “extreme circumstances”
▪ Jurisdiction = § 1651

Standards of Appellate Review

- Relevant question:
o How closely will AC scrutinize DC’s judgement?
▪ One end: AC could start from scratch – wholly unaffected by what DC decided
▪ Other end: AC largely defers to what DC decided – reversing ONLY if egregious
- Standards: (in order of most control by AC to least)
o De novo standard (Least deferential)
▪ Application of questions to law (like contributory negligence, etc.)
▪ Means AC should exercise complete independent review w/o deferring to DC
conclusion
● Example: like if have PJ is correct
o Clear Error Standard
▪ Applicable to judicial factfinding
▪ Although this is fact – this is an issue of law IF: the evidence review was so
clearly erroneous, should be reviewed
● Example: parts of PJ, like FACTS about minimum contacts
o Abuse of Discretion Standard
▪ Applicable to decisions vested in the DC discretion
▪ Only overruled by AC if they = an abuse of that discretion
● Definite and firm conviction DC committed a “clear error”
● This is VERY similar to the last one (but meant to be MORE differential)
● Kind of have to just feel this out (as book and Joondeph says)
o Reasonable Jury Standard (Most deferential)
▪ Applicable to jury’s factfinding
▪ Conclusion is reversible ONLY when no “reasonable factfinder” could have
found as the jury did

50
 Claim Preclusion and Issue Preclusion
Preclusion
a. Counterclaim preclusion (under joinder) →
b. Claim preclusion (or res judicata)
c. Issue preclusion (or collateral estoppel)
ii. Defensive nonmutual issue preclusion
iii. Offensive nonmutual offensive issue preclusion
d. Inter-system claim and issue preclusion

Claim Preclusion (res judicata)

- Basics:
o What: an Affirmative Defense (NOT jurisdictional)
o When: There is no set deadline b/c it is a defense – so whenever there is time to amend
a pleading (either: as a right, or with leave from the court)
▪ But if it is later in the litigation then it may be an issue of fairness for the other
party
- Requirements
1. Claim must be the “same” as resolved in first proceeding
▪ Transactional Test: Same Transaction or Occurrence? (Majority)
2. First claim must have resulting in valid, final judgment on the merits
▪ Valid: Jurisdictionally valid? Had PJ? SMJ – may be still allowed.
▪ Final: entered by the DC? (ignore appeals & Rule 59 motions)
▪ On the Merits: With prejudice?
3. Claims must be btw the same parties/privies/postures (claimant and opposing party)
▪ Privies: Exceptions
1. Party in second action agreed to be bound by judgement in the first
2. Preexisting substantive legal relationship btw parties in the two actions
3. Party in second action was adequately represented in the first action
4. Party in the second action assumed control of litigating the first action
5. Party in first action attempting to relitigate same claim through a proxy
6. Special statutory scheme bars successive re-litigation by non-parties
- General Exceptions
1. Parties agreed that P is entitled to bring second action (maybe settlement, etc.)
2. Court in first action reserved P’s right to bring second action (in an order)
3. P was unable to fully & fairly litigate claim in first (often due to limits on SMJ)
4. D has waived or forfeited defense of claim preclusion
● MOST COMMON:
o Claimant was not permitted to fully/fairly litigate in first (#3)

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Claim Preclusion Elements
- General Rules
o Constitutionality
▪ Across States:
● States have different preclusion laws – requirements above = just Fed.
● Full Faith and Credit Clause – Article IV § 1 (“Trans-System”)
o States MUST honor (give FULL preclusion laws) for claims
adjudicated in other states – to level would in their own state
▪ Basic Reminder:
● Due Process Clause
o Person cannot be bound by judgement to which she was not a
party (Hansberry v. Lee) – Class Actions & Rule 23 = exceptions
- Elements:
1) “Same” Claim
▪ Tests: What makes it the same?
1. Transactional test (MAJORITY) (River Park Inc)
o Do the claims arise out of the same transaction or occurrence?
(or series)
2. “Primary Rights” test
o Are the claims asserted from the same rights? (Due Process v.
state rights = different, etc.)
3. “Same Evidence” test
o Is the evidence presented different or could be different?
2) Valid
▪ Is the judgment Jurisdictionally Valid?
● If lacked PJ → invalid & unenforceable
● If lacked SMJ → How long ago was it decided?
o Long time ago/many years → probably still valid
o Recent → may be relitigated (but they did have chance to
address it earlier, so up to court’s discretion)
3) Finality
▪ Did the District Court enter the final decision or final judgment?
● If yes → valid - Not affecting:
▪ Post-trial motions (including Rule 59 – New Trial)
▪ Appeals pending (still after final judgment)
4) “On the Merits”
▪ Was the claim decided with prejudice or not with prejudice?
● Plainly on merits/with prejudice:
1) Judgment after a trial on the claim
2) Summary judgment or JMOL
3) Dismissal for failure to state a claim (not enough to make the
clam plausible)
● Plainly NOT on merits/without prejudice:
1) Dismissal for lack of SMJ
2) Dismissal for lack of PJ
3) Dismissal for improper venue or forum non conveniens
4) Dismissal for failure to join a required party

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 ● Other “on the merits”/with prejudice that are NOT OBVIOUS:
1) A second noticed voluntary dismissal
2) Dismissal for failure to prosecute (sues then goes AWOL)
3) Judgment based on expiration of the statute of limitations
4) Judicial Order (can just specify that it will be prejudice) –
▪ This can also be stipulated by the parties - Often
happens when the parties settle
5) Privities
▪ Exceptions – will STILL be Precluded although not same parties – explained:
1) Party in the second action agreed to be bound by the judgement in the
first action
o (often – if one sues a lot of people for same reason, the others
may agree to be bound by the first suit – often paid for this)
2) Preexisting substantive legal relationship btw the parties in the two
actions
o (preceding and succeeding owners of the same property & the
earlier owners already had suit as to property line, etc.)
3) Party in the second action was adequately represented in the first
action
o (example – was Rule 23 class actions – because there were all
the requirements to be sure adequately represented)
4) Party in the second action assumed control of litigating the first action
o (so they basically already sued)
5) Party in the fist action attempting to relitigate the same claim in the
second action through a proxy
o (very similar as previous point – 4 & 5 are essentially same
party)
6) Special statutory scheme bars successive re-litigation by non-parties

Issue Preclusion
- Requirements from First Proceeding:
1) Issue = actually litigated and decided
2) Party had = full and fair opportunity to litigate
3) Resolution was = essential to the judgment
- Limits:
o Can be factual or legal
o Can be broad (negligent in causing an accident, etc.)
o Can be narrow (speed at the time of the accident)
- Elements:
1) Litigated & Decided
▪ Turns on examination of record → including:
● Pleadings, transcripts, jury instructions, text of court’s orders, etc.
▪ Can be litigated and NOT decided
● Example: if P brings two claims: neg & strict liability
o If court holds for P we do NOT know either definitively
o This is NOT decided – could have been either

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 2) Full & Fair Opportunity
▪ Clear – based on if the party literally had the ability to litigate fully
▪ But do NOT have to be the same parties or same posture
3) Essential to Judgment
▪ MUST be essential do the judgment – as in not superfluous
● If it was superfluous the court may not have had same care deciding
▪ Ask: could that party have won WITHOUT knowing that element?
● If yes → NOT essential
● If no → essential
▪ If after the fact – ask: based on what ACTUALLY HAPPENED – did you have to
know that element?
● If yes → essential

Nonmutual Issue Preclusion

- Defensive
o Requirements:
▪ Non-mutual & used as a defense
▪ Against plaintiff that WAS in the original action
▪ Fulfills all Issue Preclusion Requirements
o Purpose:
▪ To establish a fact that was decided earlier as a defense in a new trial
o Remember:
▪ Can NOT use against someone NOT in the first action
● Why: Due Process Clause – NO ONE is held by a judgment they are not
party to
o What if first one just had a bad lawyer? Wouldn’t be fair.
● Due Process Clause applies to EVERY FORM OF PRECLUSION
o Example/Source of Law:
▪ Blonder-Tongue Labs v. University of Illinois
- Offensive
o Requirements:
1) Non-mutual & used as an OFFENSE – asserted by plaintiff
2) Against defendant that WAS in the original action
3) Fulfills all Issue Preclusion Requirements
o Important Note:
▪ Is greatly discretionary – court can decide to allow it or not – BE CAREFUL:
▪ Courts must weigh issues:
1) Does NOT promote efficiency the way Defensive does
o Encourages potential Ps to just watch then bring suit later
2) In some circumstances may be unfair to the defendant
o D may not have defended vigorously in the first case
o Or inconsistent prior judgements could allow “cherry picking”
o Example/Source of Law:
▪ Parklane Hosiery Co. v. Shore

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Inter-system Preclusion
- Basic Question:
o If one court rules, and the second case is in another juris → who’s preclusion rules?
- Background
o Preclusion rules vary among jurisdictions
▪ MAJORITY = recognizes counterclaim preclusion
▪ MAJORITY = use transactional test in claim preclusion
▪ MAJORITY = recognizes some version of nonmutual issue preclusion
▪ MINORITY = recognize Offensive issue preclusion
- General Rule:
o Law of the RENDERING court governs the preclusive effect
▪ The one that gave/rendered the judgement in the FIRST action
▪ Regardless of where the second action is brought
o The preclusive effect of a judgement attaches to (and runs with) that judgment
▪ So think that the first state attaches to the ruling
▪ So think: preclusion consequence are PART of that judgment
● Why: Other states = MUST give them Full Faith & Credit:
o Article IV § 1:
- Source of Obligation:
o State recognizes → another State b/c of: Full Faith and Credit Clause
o Federal recognizes → a State b/c: 28 USC § 1738 of Full Faith and Credit statute
▪ FIRST in State court
o State recognizes → a Federal b/c of: Supremacy Clause
▪ FIRST in Federal Court
- Federal Court Jurisdiction Issue:
o Depends on the SMJ basis →
▪ If DC’s judgement was under federal law (1331) then →
● Under FEDERAL law preclusion governing scope
▪ If DC’s judgment was under diversity (1332) then →
● Under the STATE where the DC was sitting
o Reach:
▪ This applies NO MATTER WHAT
▪ (even if choice of law = TX, but the court is in CA →
● the preclusive effect is still California)

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 All Federal Rules Up to This Point
Know your numbers
Rules so far:
Rule 18: Joinder of claims
Rule 20: Joinder of parties
Rule 13(h): Defensive Joinder
Rule 13(a) & (b): Counterclaims &
Rule 13(g): Crossclaims
Rule 14: Impleader
Rule 19: Required Parties if feasible
Rule 24: Intervention
Rule 22: Interpleader – Rule
§ 1335: Interpleader – Statutory
Rule 23: Class Actions
§ 1367: Supplemental Jurisdiction – 30d to refile in state if dismissed
§ 2072: Rules Enabling Act
Rule 26(b)(1): Discovery – Scope
Rule 26(b)(2): Discovery – Objecting
Rule 26(b)(3): Discovery – Work Product & Predominate Purpose Test
Rule 26(b)(5): Discovery – Privilege Process

Rule 26(f): Meet & Confer – 21d before scheduling conference or order
Rule 26(a): Initial Disclosures – 14d after meet & confer – w/I 30d before trial
Rule 16(b): Scheduling Conference & Order – w/I 90d after served, or 60d after D appears
Rule 33: Interrogatories – must respond in 30d – object in 30d or waived
Rule 34: Requests for producing docs & things – must respond in 30d
Rule 30: Depositions – 30d for changes – done in single 7h day – 10 total
Rule 35: Physical or mental examinations
Rule 36: Requests for admission – 30d to object
Rule 45: Subpoenas
Rule 26(c): Protective orders for Discovery
Rule 26(g): Sanctions from Certification Requirement
Rule 37: Sanctions from Failure to Comply w/ Discovery
Rule 16: Pretrial Case Management
Rule 41: Dismissals – Prejudice v. Without
Rule 56: Summary Judgment – w/I 30d after discovery closes
Rule 50: Judgment as Matter of Law – 1st = before submit to jury, 2nd = w/I 28d after judgment
Rule 59: New Trial – w/I 28d after judgment
Rule 61: Harmless Error Rule
Rule 60: Relief from Judgment – w/I reasonable time – w/I a year after judgment
Rule 38: Right to Jury – served w/I 14d after last pleading
Rule 51: Jury Instructions – before, at, or after close of evidence
1291: Appeals – Jurisdiction
2107: Appeals – Process – file w/I 30d after LAST judgment (respond w/I 35d AFTER filed)
FRAP 4(a)(4)(A): States own Appellate Process (50,59,60 extend another 30d to file appeal)
Rule 54(b): Appealing just ONE issue that could be final judgment
1292(a) & (b): Interlocutory Appeals – court may decide w/I 10d after entry of order
1651: Writs

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 Fun Memorization Phrases
Hit these for every essay – the main points
Required Parties:
Ready Ice-cream Cones
Relief to existing parties (need them to complete)
Impair or Impedes (them from a claim if not joined)
Conflicting Obligations (risk to an existing party)

Dismissal Considerations for Required Parties:

Every Plan Lands At Attention
Equity and good conscious
Prejudiced (if continues)
Lessen/eliminate prejudice
Adequate judgement w/o them
Adequate remedy w/o them

Intervention
Utterly Painful Interactions Can Come
Unconditional Right by Statute
Protected Interest that would be:
Impaired or Impeded
Conditional Right by Statute
Common Question of law or fact w/ MAIN actions

Declining Permissible Supplemental Jurisdiction:

No Pierogi Do Cartwheels
Novel/complex state law issue
Predominates OG claim
Dismissed all OG claims
Compelling reasons

Discovery Proportional Boundaries – Rule 26(b)(1)

Inside Arabian Restaurants Rests Important Baguettes
Importance of Issues
Amount in Controversy
Relative access to relevant info
Resources
Importance of Discovery to resolve
Burden or expense outweighs benefit

Attorney-Client Privilege
Cats Pause Coming Past
Communication
Privileged Persons
Confidence
Purpose of legal assistance

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Privileged Persons
Cats Cannot Access Agents
Client
Client’s lawyer
Agent of client or lawyer
Agent of lawyer who facilitates representation

Claiming Privilege or Protection

Each Dang Dog Accepts Pets
Expressly make claim
Describe nature
Don’t reveal
Allow assessment
Privileged – explain why

Overcome Work Protection

Order Some Underwear
Otherwise under Rule 26(b)(1)
Substantial need
Undue hardship – if by other means

Intangible Protections:
Men Can’t Operate Law
Mental impressions
Conclusions
Opinions
Legal theories

Discovery Plan – Elements

Cats Sleeping In Pools Live Outside
Changes
Subjects & Timing
Issues
Privilege/Protections
Limitations/Extensions
Other

Scheduling Order – Timing Limitation Requirements – 16(b)

Jogging Around Catches Flies
Join other parties
Amend pleadings
Complete discovery
File motions

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Mandatory Disclosures – 26(a)
Name Common Cat Identities Except Puss’n’Boots
Names, addresses, telephones
Copies or Descriptions (everything in possession/control & may use for claim/defense)
Computation for Damages
Insurance Agreements
Expert Witnesses
Pretrial Disclosures

Requests for Producing Docs & Things – options – 34

Dang Tangible Entries
Designated docs/electronically stored info
Tangible things
Entry to land/property

Depositions – Needing leave from court – 30

Many Acceptable Bitches Pass
More than 10 depositions
Already deposed
Before time in Rule 26(d)
Prison – deponent in

Certification Requirement – 26(g)

Certified Cats Identified Us
Complete & correct at time made – if disclosure
Consistent w/ rules – if objection
Improper purpose – not
Unreasonable/unduly burdensome – not

Protective Orders – 26(c)

The Flowers Look PISSD
Trade secret only revealed in certain way
Forbid disclosure/discovery
Limit scope on certain topics
Prescribe different methods
Info in simultaneous sealed envelopes
Specify terms
Seal deposition w/ court order
Designate person present during deposition
Sanctions – 37
DAD PASS
Dismiss entire action or part
Accept what sanctioning party says
Default judgement against disobedient party
Prohibit sanctioned party from claims/defense/adding to evidence
As contempt of court – treat
Strike pleadings
Stay proceedings until obey

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Voluntary Dismissals – 41
Redo Dis Dang Naughty Suspicion
Redraft complaint
Defeat Diversity
Different Court
New Judge
Statute of Limitations

New Trial – Bases – 59

The Verdict was Damaged
Trial Process Errors
Verdict = clearly erroneous
Damages = not supported by weight of evidence

New Trial – Trial Process Errors – 59

I AM In Error
Inconsistent verdicts
Admission/exclusion of evidence
Misconduct – from juror/witness
Improper argument to jury
Error in jury instructions

Relief from Judgment – 60

Man Needs to Fuel Jets to Jet Around
Mistake/excusable neglect
Newly discovered evidence (that COULD HAVE been at trial – existed then)
Fraud/misrepresentation/misconduct by opposing party
Judgment void – no SMJ, etc.
Judgment satisfied
Any Similar Reason

Appeal – Issues – 2107

Four P’s
Prejudice = Legal Error
OR: Plain error – affecting substantial rights (even if failed to preserve)
Preserved the Issue
Presented – put it in the brief

Privy Exceptions
PASS Another Subject
Proxy
Agreed to be bound by first judgment
Substantive legal relationship
Second assumed control of first action
Adequately represented in first
Statutory scheme bars re-litigation

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