Civil Procedure II

GWU School of Law

Professor Schaffner

Spring 2013

Table of Contents

DISCOVERY

Discovery Devices

Initial Disclosures

Depositions

Interrogatories

Production of Documents and Things

Medical Examination

Request for Admission

Relevance

United Oil v. Parts Assoc., Inc.

Hill v. Motel

Electronic Materials

Zubulake v. UBS Warburg LLC

Privilege

Work Product

Hickman v. Taylor

Experts

Ager v. Jane Stormont Hospital

Timing & Sanctions

Washington Physicians v. Fisons Corp

ADJUDICATION

Constitutional Right to a Jury

Chauffeurs Local v. Terry

Law vs. Equity

Ross v. Bernhard

Dairy Queen v. Wood

Herbert Markman Positek, Inc. v. Westview Instruments, Inc.

Tull v. United States

Feltner v. Columbia Pictures Television

Complications of Merger

Beacon Theatres, Inc. v. Westover

Jury Selection & Size

J.E.B. v. Alabama

Summary Judgment

Anderson v. Liberty Lobby

Coble v. City of White House

Judgment as a Matter of Law

Lavender v. Kurn

New Trial

Dadurian v. Lloyd's of London

Other Controlling Techniques

WHAT LAW APPLIES

The Erie Doctrine

Erie v. Tompkins

The Rules Enabling Act Distinguished

Hanna v. Plumer

Applying the REA and RDA

Burlington Northern Railroad Co. v. Woods

Stewart Organization, Inc. v. Ricoh Corporation

Latest Developments

Gaspirini v. Center of Humanities

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.

Determining Content of State Law

Deweerth v. Baldinger

Federal Law

PRECLUSION DOCTRINES

Claim Preclusion

Scope

Parties

Valid, Final & On the Merits

Exceptions

Issue Preclusion

Same, Litigated, Determined

Essential

Against Whom

By Whom

Non-Mutuality

Exceptions & Federalism

APPEAL

Jurisdiction

28 USC §1291

Collateral Order Rule

Exceptions to Final Judgment

La Buy v. Howes Leather Company

Discovery Orders & Mechanics

Scope of Review

Anderson v. Bessemer

I.DISCOVERY

  • Introduction and Integration
  • Definition
  • The formal mechanism provided in the rules of civil procedure for parties to obtain information pertaining to one's case
  • Fairly liberal set of rules.
  • The quantity and timing of information sought is left almost entirely to the parties with judicial intervention only when there is a problem
  • Purposes of Discovery
  • Permit the preservation of evidence that might otherwise be lost before trial
  • Provide mechanisms for narrowing the issues in dispute
  • Allow the parties to gather information about the other side's case
  • Types of information that can be discovered
  • Evidence the other side has in support of its claims or defenses
  • Eliminates the element of surprise
  • Upside: parties can adequately prepare arguments and the case quits being about who can think on their feet -> more likely to reach a just result/settle
  • Settlements
  • In theory each party should be willing to settle for the expected value of the claim
  • Expected value of the claim = (possible value * the probability of getting the whole value) - the costs of litigation
  • Downside: it’s easier to commit perjury when you know ahead of time what you need to lie about
  • Information that may strengthen one's own case
  • Often the strongest evidence of fault is in the hands of the wrongdoer
  • Some people believe it is wrong to require persons to supply evidence that may be used against them, discover "is designed to enable the party to prove facts they already know, not to find out facts they don't"
  • Modern Discovery
  • Step 1 – General Discovery
  • 26(b)(1) – Scope of Discovery
  • Parties may obtain discovery regarding any non-privileged matter this is relevant to any party’s claim or defense—including the existence….of any documents or other tangible things and that the identity and location of persons who know of any discoverable manner. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence
  • Material must be non-privileged
  • Also non-testifying expert witnesses (see Experts below)
  • Requested information must be “relevant to party’s claim or defense” - anything relevant to the issues framed by the pleadings
  • attorneys may be more likely to plead multiple theories to discover more information
  • Includes documents, anything that can be used as evidence/witnesses
  • Discovery doesn’t have to be admissible evidence!
  • Hearsay questions are permitted at a deposition as a way to find out more information
  • Step 2 –Objections from respondents
  • Rule 26(b)(2)(C) LIMITS the scope of discovery
  • Court must limit frequency or extent of discovery otherwise allowed if it determines that:
  • (i) Discovery sought is unreasonably cumulative, or can be obtained from another more convenient, less burdensome, or less expensive source;
  • (ii) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
  • i.e., party waited until end of discovery period to request a large amount of information
  • (iii) Burden or expense of the proposed discovery outweighs its likely benefit, considering
  • (1) needs of the case,
  • (2) amount in controversy,
  • (3) parties' resources,
  • (4) importance of the issues at stake in the action,
  • (5) importance of the discovery in resolving the issues.
  • (b)(3)-(5) – Other reasons for avoiding the discovery process
  • Rule 37 – Motion to Compel Discovery when the other party won’t comply
  • Step 3 – Protective Orders issued by the court
  • (26(c)) Court can structure discovery to protect a party from having to disclose something
  • (1) Party receiving discovery request may seek a protective order from the court to protect discovery. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
  • (a) Forbidding disclosure or discovery
  • (b) Specifying terms, including time/place for disclosure/discovery
  • (c) Court may prescribe different discovery methods
  • (d) Court may forbid inquiry in certain matters or limit scope to certain matters
  • (e) Designate who may be present when discovery is conducted
  • (f) Require deposition be sealed and opened only upon court order
  • (g) Require trade secret or other confidential information not be revealed or only revealed in a specific way
  • (h) Require parties to simultaneously file info in sealed envelopes, to be opened as the court directs
  • Other options: In camera review, redact files, sequence discovery (discovery of least controversial stuff first)
  • (2) If motion for protective order is denied, court may order that person to permit/provide discovery

A.DiscoveryDevices

1.Initial Disclosures

  • 26(a) – Required Disclosures
Initial Disclosures
Disclosure of Expert Testimony [Experts]
Pretrial Disclosures [Managing a District Court Caseload]
Form of Disclosures [Managing a District Court Caseload]
  • 26(a)(1) – Required Initial Disclosures
  • Party must disclose any information that it:
  • may use in support of its claims or defenses;
  • unless the information would be used solely for impeachment;
  • Also computation of damages;
  • Insurance agreement
  • Need to use other tools of discovery in order to obtain information unfavorable to responding party
  • (A) Party must, without awaiting discovery request, provide to the other parties:
  • 1. Name, address, phone (if known) of anyone likely to have discoverable information that disclosing party may use to support its claims/defenses, unless the use would be solely for impeachment
  • 2. Copy, or description by category and location – of all documents, ESI, and tangible thinks that disclosing party has in its possession or control and may use to support its claims/defenses, unless the use would be solely for impeachment
  • 3. Computation of each category of damages claimed by the disclosing party – as well as documents on which each computation is based, unless its privileged or protected from disclosure
  • 4. Insurance agreement under which an insurer may be liable to satisfy all/part of possible judgment
  • Must be given up front because it can’t be asked for at trial (too prejudicial, grounds for mistrial)
  • (B) Proceedings exempt from initial disclosure (very specific, i.e. petition for habeas corpus, forfeiture action in rem arising from federal statute)
  • (C) Time for Initial Disclosures – In General
  • A party must make the initial disclosures at or within 14 days after the parties Rule 26(f) conference unless court decides otherwise or a party objects
  • (D) Time for Initial Disclosure – For Parties Served/Joined Late
  • Party joined or served AFTER the 26(f) conference must make the initial disclosures within 30 days of being served or joined, unless court rules otherwise
  • (E) Basis for Initial Disclosure; Unacceptable Excuses
  • Party must make its initial disclosures based on information then reasonable available to it.
  • Party is not excused from making disclosures because it hasn’t fully investigated or because it challenges sufficiency/absence of other party’s disclosures (just because they didn’t do it doesn’t mean you can’t!)

2.Depositions

  • Testimony taken under oath in front of a notary (no judge)
  • Other side can always be present for cross-examination. They may also participate through written questions delivered to the noticing party and asked by an officer (30(c)(3))
  • Usually the last discovery method used, it’s most expensive
  • Previews witness testimony, it’s on the record, lawyer can ask follow-ups
  • Can be used in two ways:
  • Discovery deposition - open ended questions asked to pin down as much information as possible from witness that may be offered at trial)
  • Evidence Deposition - if witness is unavailable to testify at trial, this will be used in place of their testimony
  • Who – Anyone with discoverable information can be deposed (30(a)(1))
  • If deponent is party – Counsel initiates deposition by sending a notice of the deposition to ALL parties in the action, stating time/place (30(b)(1))
  • If deponent is NOT a party – must be subpoenaed under Rule 45 as well
  • If they want non-party deponent to produce documents, they must serve a notice of that (subpoena duces tecum) with notice of deposition
  • Some depositions require leave of court: If parties have not stipulated to the deposition AND (i) deposition would result in more than 10 per side OR (ii) deponent has already been deposed in this case; OR (iii) party seeks to take deposition before time specified in Rule 26(d) (unless party certifies that deponent will be outside US or unavailable after that that time)
  • Or Deponent is in jail
  • If a corporation is noticed, the named organization must designated one or more officers, directors, etc. who can testify on its behalf
  • Recording
  • Party who notices the deposition must state in the notice the method for recording the testimony. Usually audio, audiovisual, stenographic. Noticing party bears recording costs
  • Any party can specify another method of recording, with them bearing the cost
  • By Whom
  • Unless parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28.
  • Officer must begin with an on the record statement including his name, business address, date/time/place of deposition, deponent’s name, administration of oath to deponent, identify of all people present
  • Objections
  • Noted on the record, but examination still proceeds. Testimony is taken subject to an objection
  • Person may instruct deponent not to answer only when necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under 30(d)(3)
  • Duration – Deposition limited to 1 day of 7 hours. Court must allow for additional time if needed
  • 30(a)(2)(A)(i) imposes a presumptive limit of 10 per side but that can be altered
  • Sanctions
  • Court may impose sanctions on any person who impedes, delays or frustrations the fair examination of a deponent
  • Motion to Terminate or Limit
  • Deponent or party may move to terminate or limit deposition on ground that it is being conducted in bad faith or manner that unreasonably annoys/embarrasses/oppresses deponent or party. Motion may be filed in court where action is pending/deposition is taking place. If objecting party demands, deposition may be suspended for time necessary to obtain order. 30(d)(3)(A)
  • Court may order that deposition be terminated or limit its scope and manner as provided in 26(c) (protective orders). 30(d)(3)(C).
  • Failing to Attend or Serve; Expenses
  • A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if noticing party failed to attend or serve a subpoena on a nonparty deponent who didn’t attend
  • 31. Deposition by Written Testimony
  • Party may serve on the other parties a set of questions that will be asked to a witness. Court officer then swears in the witness and asked the questions.
  • Advantage- lawyer need not attend
  • Disadvantage- witness is likely to know in advance the questions that will be asked; no opportunity for follow-up
  • 32. Using Depositions in Court Proceedings
  • For any purpose if deponent is an adverse party
  • Can be used to impeach or contradict testimony given by deponent as witness
  • Used for unavailable witnesses
  • Gives rules for waiver of objections [See 32(d)(1)-(4)]
  • 45. Subpoena
  • If person to be deposed is NOT a party, she must be subpoenaed by deposition under Rule 45.
  • Can object under 45(c)(2)(B) if want to resist  other side files motion to compel
  • May be held in contempt of court if does not appear. 45(e)

3.Interrogatories

  • Questions that you may send to other parties in the case (not to non-parties like depositions) answered in writing and under oath
  • This is a reason for making someone a party to a case (i.e., sue both bus company and bus driver (even though he has no $$), then dismiss bus driver after discovery)
  • Typically the first method of discover used because it’s a cheap way of getting background information from other parties (names/addresses, location of documents, etc.)
  • But counsel is usually stringy in giving answers
  • Less expensive and more effective than depositions for acquiring detailed, objective information
  • Parties must provide facts that are reasonable available to them, even if this requires reviewing files of documents
  • Who 33(b)(1)
  • Interrogatories must be answered by the party to whom they are directed or, if corporation, by an officer or agent
  • 33(b)(3) - Each interrogatory must, to the extent it’s not objected to, by answered separately and fully in writing under oath
  • 33(b)(5) – Person who makes them must sign them
  • Answers are typically drafted by a lawyer and therefore may not be effective for ascertaining testimony or credibility of witnesses
  • When 33(b)(2)
  • Within 30 days after being served. Shorter/longer time can be stipulated by court
  • Objections 33(b)(4)
  • Grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated is waived unless court excuses it
  • 33(b)(5) Attorney who raises them must sign them
  • Limits 33(a)(1)
  • No more than 25 interrogatories, including all discrete subparts. Leave to serve additional may be granted consistent with 26(b)(2)
  • Scope 33(a)(2)
  • Interrogatory must relate to any matter that may be inquired into under 26(b). It’s not objectionably merely because it asks for a contention that relates to fact or application of law to fact, but court may order that interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time
  • Therefore, contentioninterrogatories are permissible but don’t get you very far.
  • Used to force opponent to specify the grounds of the general claims raised in complaint/answer
  • i.e. can ask plaintiff who generally alleged negligence in what ways the defendant’s conduct was negligent
  • Option to Produce Business Records 33(d)
  • If answer to interrogatory may be determined by looking at a party’s business records (including ESI), and if the burden of deriving the answer will be substantially the same for either party, the responding party may answer by
  • Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
  • Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies

4.Production of Documents and Things

  • Party may serve on any other party a request within the scope of 26(b) to produce and permit requesting party to inspect, copy, test any writings, ESI, tangible things, or let them inspect the designated object, etc.
  • Basically it authorizes a party to require an opponent to produce documents/things in their control for inspection/copying
  • This is typically done early on (after interrogatories) to give you stuff that you can ask witnesses about during depositions
  • Parties resist requests for production of documents by construing them narrowly, so requesting lawyers draft them VERY broadly
  • Procedure 34(b)(1)
  • Request must describe with “reasonable particularity” reach item or category to be inspected, state a reasonable time/place/manner for inspection, may specify form in which ESI is to produced
  • Responses and Objections 34(b)(2)
  • Must respond in writing within 30 days – can be amended via Rule 29
  • Must respond to each item (allow inspection or state objection)
  • As with interrogatories, responding party can simply offer to open their records as they’re kept in ordinary course of business for examination by requesting party 0 this imposes a big burden on requesting burden to cull through all the records
  • At minimum, they should indicate how they’re organized, which records respond to which requests, and other info necessary to locate requested items
  • ESI (34(b)(2)(E)) – See ESI Below
  • Party must produce documents as they are kept in the usual course of business or must organize/label them to correspond to categories in the request
  • If request does not specify form for producing ESI, party must produce it in form usually maintained
  • A party need not produce the same ESI in more than one form
  • Nonparties (34(c)
  • Non-party may be compelled to produce via subpoena (Rule 45)

5.Medical Examination

  • FRCP 35
  • Requires Court Order, where party whose mental or physical condition is in controversy
  • Prove two things:
  • 35(a)(1) Reason for exam is in controversy (relates to issue in the case)
  • Materiality and relevance of the issue – Law, Facts, Conclusion
  • In almost all cases, the fact that a plaintiff is claiming substantial injuries will justify an order for the exam
  • Did the trucker see the red light? Vision of truck driver is important here
  • 35(a)(2) Must be for “good cause”
  • Weigh need to get information from other parties/sources against burden on party (intrusiveness)
  • Party who requested the examination must, on request, deliver to the requester a copy of the examiner’s report which should include the examiner’s findings, diagnoses, conclusions, test results
  • After delivering reports, party who moved for examination may request from the party against whom the examination order was issued like reports of all earlier or later exams of the same condition
  • By requesting and obtaining examiner’s report, or by deposing the examiner, party examined waives any privilege it may have concerning testimony about all examinations of the same condition

6.Request for Admission

  • Request for Admission isn’t really a discovery device, but a way of narrowing the scope of trial by eliminating uncontested issues
  • Scope 36(a)(1)
  • Party may serve a written request on another party to admit the truth of any matters within the scope of 26(b)(1) relating to facts, application of law to facts and the genuineness of any described documents
  • Time to Respond 36(a)(3)
  • A matter is admitted, unless within 30 days after being served, party serves on requesting party a written answer or objection
  • Always respond! If you fail to object or deny, they’re considered admitted
  • Answer 36(a)(4)
  • If a matter is not admitted, answer must specifically deny it or state why they can’t truthfully admit/deny it. They can assert lack of knowledge as a reason for failing to admit/deny, but only if they’re made reasonable inquiry and information that it knows/can readily obtain is insufficient to enable it to deny
  • Requests for admissions that are admitted are binding on party at trial
  • Vs. interrogatories, which are admissible but NOT binding
  • Effect of an Admission; Withdrawing or Amending it 36(b)
  • A matter admitted under this rule is established unless the court permits the admission to be withdrawn or amended, if it would promote the presentation of the merits of the action and the court is not persuaded that it would prejudice the requesting party
  • Admission under this rule can’t be used for any other purpose or against the party in another proceeding – No Preclusive Effect on other cases
  • So they can admit to something, amend it, then if withdrawal is granted, the opponent has to litigate an issue her opponent and previously withdrawn from contention

B.Relevance

  • Something is relevant if it has the tendency to make the existence of the fact more or less probable
  • The scope of relevance is relevant to claim or defense of the party
  • A party can gain a wider scope to include subject matter of the case but only if they show good cause

1.United Oil v. Parts Assoc., Inc.

Discovery of other litigation is allowed where it involves