Civil Procedure Outline
Professor Russell Spring 2008
CHAPTER 5: EXEMPTIONS FROM DISCOVERY
I. FRCP 26(b)(3): Trial Preparation: Materials. (Work Product Doctrine): Subject to (b)(4), party may obtain discovery of documents and tangible things..prepared in anticipation of litigation or for trial only upon a showing that…
1. Party seeking discovery has substantial need of materials in preparation of the party’s case; and
2. Party is unable without undue hardship to obtain substantial equivalent of materials by other means.
Even when required showing has been made, court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A. W-P is a qualified immunity b/c can be overcome
B. Policy FOR W-P Doctrine: Protecting lawyer’s mental impressions = fundamental to American adversarial system b/c lawyer’s thought process = valuable commodity
1. If attorney’s W-P open to discovery upon demand, much of what is now written down would remain unwritten.
a. Quality of legal representation would suffer
b. Demoralizing effect on legal profession
c. Interests of clients and justice poorly served
C. Hickman v. Taylor p. 381: (Attorney Work Product Afforded Protection From Discovery)
1. GR: Discovery of attorney work product prepared in anticipation of litigation may be had only if the material sought is not privileged and is essential to the preparation of the requesting party’s case. (refer to Rule)
2. Facts: After tugboat accident that killed five crew members, attorney took statements from surviving crew members and interviewed other witnesses in anticipation of litigation. Hickman sought discovery of statements taken by Taylor’s attorney shortly after accident.
3. Holding: Discovery denied b/c Hickman did not show need for discovery of written statements. No legitimate purpose served. H only wanted documents to make sure he didn’t overlook anything.
II. Attorney-Client Privilege
A. GR: A communication by a corporation’s employee to the corporation’s attorney is protected by the attorney-client privilege if the communication is (1) about matters within the scope of the employee’s employment and (2) was obtained for the purpose of providing legal advice to the corporation.
B. Definition: A communication (of any type, written or oral) from the client to the lawyer without the presence of others for the purpose of seeking legal advice.
1. Client can WAIVE privilege
C. UpJohn Co. v. United States p. 391: UpJohn Co. refused to produce documents (a questionnaire) that related to an internal investigation conducted by its general counsel, claiming that the documents were protected by the attorney-client privilege.
1. Holding: Questionnaires constitute work-product and are protected. Court rejected “control group test” (officers/agents responsible for directing company’s actions) and applied a broader standard by looking at whether persons had substantial control to make decisions for the corp. Middle and lower level employees may have info need by corporate counsel.
D. Difference btw A-C Privilege and W-P Doctrine: the parties involved
III. Experts
A. Rule 26(b)(4)- Trial Preparation; Experts
(A) Testifying: A party may depose experts who are expected to be called at trial.
(B) Non-Testifying: A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who…is not to be called as a witness at trial as…
-provided in Rule 35(b); OR
-upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means
(c) Paying Experts
B. In Re Shell Oil Refinery p. 401:
1. GR: Experts ordinarily employed by a party will be considered retained or specially employed if their employer assigns them to work on a particular matter in anticipation of litigation or for trial.
a. Investigations by a company’s regular employees in the course of their employment may be protected by privilege.
2. Facts: Part of an oil refinery operated by Shell Oil exploded. An in-house “expert” inspected the premises to see what happened. Opposing counsel wanted to depose the in-house expert, even though he would not be used at trial.
3. Holding: Expert reports prepared by regular employees in anticipation of litigation are not discoverable b/c regular employee is considered as retained or specially employed. Opposing counsel did not show any exceptional circumstances that would justify recovery.
IV. Sanctions
A. Rule 26(g): Signing of Disclosures, Discovery Requests, Responses, and Objections
(1) Every disclosure, request for discovery, and response or objection must be signed by at least 1 attorney of record.
(2) The signature constitutes a certification that to the best of the signer’s knowledge, information, and belief, the document is complete and correct, and is being served for proper purposes w/in the Rules
(A) Document consist w/Rules and existing law
(B) Not imposed for improper purpose (e.g. harass, delay, cause needless expense)
(C) Discovery not unreasonably or unduly burdensome
(3) If certification made in violation of 26(g) w/out substantial justification, court will impose sanction on the party, the attorney, or both.
B. GR: Though mere negligence is not enough to invoke sanctions, willful or gross negligence (reckless disregard) is sufficient to invoke sanctions.
1. Cine 42nd Street Theatre Corp. v. Allied Artists Pictures Corp. p. 415: Cine failed to comply w/Allied Artists’ discovery requests, arguing that it assumed answers would not be due on the dates set out in the orders (answers Cine submitted were ambiguous and inadequate).
a. Holding: Sanctions against Cine appropriate b/c its answers were very late and prolonged discovery. Court found this behavior willful. à A preclusion order or dismissal of a party’s pleading is justified if the party is at fault when failing to respond to a discovery order.
V. Notice is not required to take a statement that is not a deposition.
A. GR: FRCP does not prohibit a party from taking recorded statements w/out notice to the opposing party.
1. Corley v. Rosewood Care Center, Inc. p. 412: P Corley took statements from witnesses under oath before a court reporter and did not give notice of taking depositions to Rosewood Care Center. Court held that lack of notice ok b/c statements were not depositions (those rules only concerned w/whether statements discoverable)
B. Policy: Do not always have to go through formalities b/c…
1. Would be inefficient (case might not get filed)
2. No notice ok as long as info gathering (as opposed to formal depositions)
CHAPTER 6: SUMMARY JUDGMENT
I. Rule 56: Summary Judgment
(a) For Claimant: Motion for SJ may be made “at any time after expiration of 20 days from commencement of action or motion of SJ by adverse party” w/out supporting affidavits
(b) For Defending Party
(c) Motion and Proceedings Thereon: …The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(d) Case Not Fully Adjudicated on Motion
(e) Form of Affidavits; Further Testimony; Defense Required: The party opposing motion for SJ bears burden of responding only after moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.
(f) When Affidavits are Unavailable
(g) Affidavits Made in Bad Faith
II. Burden Shifting
A. Burden of Proof
1. Burden of Persuasion: concerns which party must convince the trier of fact at trial of the accuracy of his factual assertions
a. There must be a preponderance of evidence in favor of the party having this burden before he is entitled to verdict
2. Burden of Evidence (Production Burden): whether a party has sufficient evidence to go to trial (SJ is mostly concerned w/this)
a. If party w/this burden does not produce sufficient evidence, judge will grant a directed verdict (no jury verdict)
B. Burden Shifting
1. Burden of Persuasion: usually remains on the same party throughout litigation
a. Burden usually placed on plaintiff, except affirmative defenses
2. Burden of Production: Party w/burden can shift burden to other party by presenting enough evidence that a reasonable fact finder must find for him. At that point, burden of production has shifted to opposing party, who must respond w/evidence of his own sufficient to allow a reasonable fact finder to find for him.
a. If opposing party fails, trial will not go to jury.
b. If opposing party responds w/enough evidence that reasonable fact finder must find for him, burden of production shifts back to party who had it initially.
III. What Must Movant Do to Trigger a Response from the Other Side?
A. Older Standard: The moving party bears the burden of proving an absence of a genuine issue of material fact in order to sustain a motion for summary judgment.
1. Adickes v. S.H. Kress & Co. p. 428 (USSC): Plaintiff Adickes was denied service at D’s store when she entered the store in the company of 6 black students. P alleged conspiracy and D moved for summary judgment based on depo from store employee saying that there had been no prior communications btw store and police.
a. Holding: SJ inappropriate b/c D had burden of showing absence of genuine issue of material fact. D did not prove the non-existence of a police officer at the scene.
2. Standard in favor of denying SJ (easier to move case forward)
3. Not overruled
B. Newer Standard (Finger Pointing): SJ will be granted when moving party demonstrates absence of genuine issue of material fact and that, as matter of law, it is entitled to judgment in its favor, based on pleadings, depositions, answers to interrogatories, and admissions on file, with or without supporting affidavits.
1. Celotex v. Catrett p. 435: Catrett sued 15 asbestos manufacturers, including Celotex, for her husband’s wrongful death. Catr provided evidence that her husband had been exposed to asbestos, but there was no evidence showing that he had been exposed to Celotex products. Celo moved for SJ.
a. Holding: SJ appropriate b/c movant need not affirmatively negate component of P’s claim; in this case, Celo did not have to prove that their products weren’t among those P’s husband was exposed to. No evidence is needed unless movant bears burden of proof at trial; in this case, Catr had the burden of proof.
2. Policy Reasons for New Standard (2)
a. Efficiency (allow lower courts to do work)
b. Attention to literal language of FRCP
3. Easier to get SJ
C. Non-Binding Lower Court Cases
1. Arnstein v. Porter p. 450: P sued D for copyright infringement, although he did not know whether D was actually involved with those allegedly stealing his songs. P moved for SJ, denying ever seeing/hearing any of P’s songs or associating w/anybody who might have stolen the songs.
a. Holding: SJ not appropriate b/c similarities btw P and D’s songs enough to permit reasonable jury to infer that P may have copied A’s songs. Though P’s account might be fantastic, his credibility should be determined by a jury.
b. GR: When a factual issue turns on the credibility of the witnesses, SJ is inappropriate.
2. Dyer v. McDougal p. 452: P accused D of defamation, alleging that D made false statements about P (re lawyering activities and blackmail) to P’s wife’s sister and other lawyers. D moved for SJ, using affidavits denying P’s allegations for various parties involved.
a. Holding: SJ appropriate b/c there is no genuine issue as to material fact. P did not depose witnesses, so court can assume that they would have repeated what they said in the affidavits on the stand. Speculation that they might appear different in front of just is not enough.
b. GR: A party may not rely on mere speculation that a witness may change his testimony or that his demeanor may convince the jury of his untruthfulness to escape SJ.
IV. General Principles
A. Distinction btw 12(b)(6) and Rule 56
1. 12(b)(6) examines legal sufficiency; 56 examines factual sufficiency
2. 12(b)(6) examines only allegations contained in pleadings; 56 looks at pleadings, affidavits, depositions, interrogatory answers, admissions, and other evidence
a. Motion for SJ after some discovery has been completed
B. Distinction btw Rule 56 and Rule 50
1. Rule 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial
(a) Judgment as Matter of Law/Directed Verdict
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a basis to find for that party, the court may
(A) resolve the issue against the party; and
(B) grant JML
(2) Motion for JML can be made any time before case is submitted to jury
(b) JNOV (Judgment notwithstanding the Verdict): Movant may renew its request for JML no later than 10 days after entry of judgment (gives each side chance after verdict to reverse verdict or get it thrown out)
-must have already raised 50(a)
2. Similarity: Both 56 and 50 test for whether, on evidence then before the court, a reasonable jury could return verdict in nonmoving party’s favor
3. Difference: SJ motions made before trials (after discovery); 50 motions made during trial, after close of P’s (and sometimes D’s) case
a. 50 challenges the need for trial; 56 challenges need to convene trial
CHAPTER 8: TRIAL
I. Phases of a Trial (7)
A. Jury Selection
B. Opening Statements
C. Presentation of Evidence
D. Argument
E. Instructions
F. Jury Deliberation and Verdict
G. Post Trial Motions and Verdict
II. 7th Amendment Right to Jury Trial
A. FRCP 38: Jury Trial of Right
(a) Right Preserved. This provision codifies Constitution’s 7th Amendment, which provides that parties have a right to trial by jury for all suits at common law w/more than $20.00 in controversy (this is a nominal barrier now)
(b) Demand. Right to jury trial in federal practice not self-executing. Party who wishes a jury trial on a particular issue must file a demand for that jury trial to the other parties w/in 10 days after service of last pleading directed to that issue.