DUE PROCESS - made on a case-by-case basis: bare minimum Exparte: without notice to other parties in litigation.

Goals of Due Process: Promote accuracy, truth, and justice 1. 14th amendmentgoverns State actors v. 5th amendment governs Federal actors 2. Deprivation Temporary deprivation is not as weighty Timely and adequate notice Adequate opportunity to defend Impartial judiciary Right to counsel 3. LLP: Lifeusually related to prison terms or death Libertyfreedoms, usually constitutional Propertyany chattel or real property interest, even partial property interest 4. Due Process Test a) Private interest that will be affected by the official action b) The risk of an erroneous deprivation of such interest through the procedures used, and the probable value (if any) of additional or substitute procedural safeguards c) The govt. interest, including the function that involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.  Goldberg v. Kelly termination of welfare benefits - The three factors from Goldberg case to balance: private interests, risk of error resulting in deprivation of individual rights, and govt interest (fiscal economic administrative burdens that the procedural requirement would entail. CONCEPTS OF CIVIL PROCEDURE - Causes of action (claims) are the basic units of procedure. - A claim must be legally cognizable (the law recognizes the claim) - Each claim can be broken down into elements. - Elements are used to focus the litigation. -Pleadings a) a short statement showing that the pleader is entitled to relief b) gives notice to defendant c) filters out frivolous (no reasonable person would think you have a claim) cases A) NOTICE PLEADING/COMPLAINT

II.

COMPLAINT 1. General and Liberal Pleading Rule: FRCP 8(a): Pleading must include a simple statement of facts sufficient to derive a COA upon which relief can be granted.

Rule 8(a): short and plain statement of the facts a. The grounds for the courts jurisdiction b. The claim showing that the pleader is entitled to relief c. Demand for relief sought 2. Rule 8(d)(3): a party may state as many separate claims or defenses as it has, regardless of consistency 3. Notice pleading 8(f) - defendant must be reasonably able to respond to complaint: fair notice for the claims and grounds upon which they rest 4. Analysis

Conley v. Gibson: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. the court must ask whether the plaintiff, on the allegations of the complaint, could prove any set of facts that would entitle her to relief. This may encourage vague complaints but should be remedied by SJ later. Dioguardi v. Durning: a short and plain statement of the claim showing pleader is entitled to relief, no matter how inarticulate, is sufficient. Bell Atlantic: showing that the pleader is entitled to relief is very important. Plaintiffs must now allege facts to support a plausible showing that the challenged conduct is the product of conspiracy rather than independent decision-making a. If you plead the bare minimum facts you subject yourself to a. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted b. 12(c) motion for judgment on the pleadings c. 12(e) motion for more definitive statement if the language is so vague or ambiguous and a response cannot reasonably be prepared a party may move for a more definitive statement. b. Factual Specificity a. Cons 1. If you specify your cause of action, you subject yourself to the courts microscope the court may scrutinize your allegations more closely Bower 2. Might give too much info to the defense 3. Dont want to annoy the judge with too much info it might get stricken for irrelevancy 4. You want to do this if you have a more complicated case because the judge isnt going to want to let the complaint get through if it doesnt have merit because it will be costly b. Pros 1. Posturing you can get a settlement 2. Look better for the judge 3. Paint a picture of your case tell a story establish more sympathy 4. If you make your complaint more specific, answers have to be more specific 5. Exception: Fraud a. Rule 9: the circumstances constituting fraud or mistake shall be stated with particularity. There is a heightened pleading standard when alleging fraud. 6. Applicable Rules a. Rule 1 Scope and Purpose b. Rule 2 One form of action (civil action) c. Rule 3 Commencing an action (filing a complaint) d. Rule 7 Pleadings allowed; form of motions and other papers

e. f. g. h.

Rule 8 General Rules of Pleading Rule 9 Pleading Special Matters Rule 10 Forms of pleadings Rule 12 Defenses

PARTIES RULE 17 1. Real Party in Interest 17(a) a. An action must be prosecuted in the name of the real party in interest P named must be the person for whose benefit the case is being brought or who is entitled to the right to be enforced b. Exceptions: i. Executor ii. Administrator iii. Guardian iv. Bailee v. Trustee vi. A party with whom or in whose name a contract has been made for anothers benefit vii. A party authorized by statute c. Look to the COA in the complaint, then look to the substantive law to determine if the P can recover under that COA d. If a person sues, and the D doesnt take care of the real party in interest issue, the actual real party in interest can bring another suit so the D can be sued twice 2. Capacity 17(b) Capacity to sue or be sued is determined as follows: a. Must look to the substantive law of the state where the person is domiciled to determine whether she can sue or be sued b. For corporations look to the law under which it was organized c. For all other parties look to the state where the court is located, except that i. A partnership or other unincorporated association with no such capacity under state law, may sue or be sued to enforce a substantive right under the US Const. or laws d. For example Can a union be sued? Or do you need to sue the leader only? 3. Minors 17(c) a. Representatives may sue on behalf of - general guardian - a committee - a conservator - a like fiduciary b. If no representative, guardian at litem 4. Anonymous Plaintiffs a. Courts normally require that P use their real names because of the public's interest in knowing the pertinent facts of a case, but in certain circumstances courts have allowed fake names to "protect privacy in a very private matter", especially in cases involving public identification as a homosexual b. Balancing test between privacy interests of P and rights of D to confront the person who is suing him and openness in judicial proceedings c. Courts should NOT take into account employment status/professional life when determining whether to allow a P to use a fake name d. Anonymity should only be granted in very limited cases P gets to proceed under anonymity, while D is named publically and scrutinized this can lead to bad faith litigation e. Why proceed under a fake name: Health and Safety concerns 5. Anonymous Defendants

a. Can name John Doe defendants in a pleading to avoid missing the statute of limitations. This is done when the P needs discovery to uncover the name of the defendant, but the statute of limitations is almost up.

COMPUTATION and EXTENSION OF TIME; TIME FOR MOTION PAPERS 1. Computing Time 6(a) a. Day motion is filed does not count b. If the final day falls on a weekend or holiday, it is not counted c. If less than 11 days, intermediate holidays and weekends do not count 2. Extending Time 6(b) a. Before expiration of the time: can make a request for more time or court can extend on its own b. After expiration of the time: court can grant only if the party failed to act because of excusable neglect c. Exceptions: 50(b),(d); 52(b); 59(b),(d),(e); 60(b) Motions for New Trial ANSWERS (Responsive Pleading) Rule 12 Defenses and Objections; When and how Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing 1. Timing 12(a) Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: a. 20 days after being served with summons (could be longer in some circumstances) b. If a motion is denied, then the answer must be served within 10 days after the courts decision c. If a motion for more definitive statement is granted, the answer must be served 10 days after the more definitive statement is served d. No response = default judgment against you (Rule 55) 2. Defenses 12(b) a. Can be served either as separate motion or in the answer b. 12(b)(1-5) can be waived by omission c. If you file a motion, include all less favored defenses in the motion; if you file an answer with the 12(b) defenses, include all that you can d. Court only looks at the 4 corners of the complaint e. All 12(b) defenses have to be heard and determined before trial f. 12(b)(6) Motion to Dismiss i. Not a cognizable claim (in this jurisdiction) 1. Maybe party does not state a cause of action or anything that would indicate that they are entitled to relief but you dont HAVE to state a COA 2. If you deny the motion then you need to come up with a possible COA but no need to be overly particular ii. Insufficient facts iii. P complaint negates the possibility of recovery 1. Allegations negate 2. Conspicuously absent allegations lead court to dismiss g. If you assert a 12(b)(6) before your answer, the opposing party can still amend freely; if 12(b)(6) is asserted in the answer, the opposing party would have to get leave from the court to amend h. You would bring a 12(b)(6) motion before the answer if you think you have a slam dunk or if you dont want to pay the expenses of filing an answer i. 12(b)(6) can be brought after the answer, (1-5) are waived 3. Motion for a more Definitive Statement 12(e) a. So vague and ambiguous that the opposing party cannot reasonably prepare a response b. Made before filing an answer c. If granted, the motion has to be obeyed within 10 days

4.

5.

6.

7.

d. This can be used to get to a 12(b)(6) dismissal get to the point where the pleading party has insufficient facts to support a claim Motion to Strike 12(f) a. Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous material b. Made before responding to the complaint c. Want to strike anything you can out of paranoia get anything out of there that you can d. Dont want anything that will badmouth your client e. Can be used to get to a 12(b)(6) get to the point where the pleading party doesnt have a cognizable claim Motion for Judgment on the Pleadings 12(c) a. After the pleadings are closed, but early enough not to delay trial b. Based on all pleadings c. Can work if the D admits everything or asserts affirmative defenses (i.e. SOL) Admissions and Denials 8(b) a. Assert in short and plain terms defenses to each claim b. Admit or deny the allegations against you c. You have to admit or deny things in good faith or you may be open to sanctions d. Be specific/precise have to be responsive to the allegations if your language is iffy, it could be treated as an admission e. If a party lacks knowledge or info sufficient to form a belief about the truth of the allegation, that party can state that, and the statement has the effect of a denial only make in good faith f. Failure to deny = admission g. Admissions will be taken as true for the remainder of the case Affirmative Defenses 8(c) a. Even if you prove your cause of action (confession), I still win because of another rule or an exception (avoidance). Burden of proof is on defendant. b. Must be brought in the answer, or it is waived (in most cases) c. After you include an affirmative defense in your answer, file a 12(c) motion for judgment on the pleadings d. Affirmative defenses (Pg. 12 FRCP): duress, estoppel, fraud, illegality, statute of limitations, etc.

AMENDMENTS Rule 15 Amended and Supplemental Pleadings 1. Before Trial 15(a) a. 3 Options to Amend i. Go to court - leave to amend must be granted "when justice so requires" 1. Justice so requires when a. No unreasonable delay b. Good faith meritorious claim c. No prejudice ii. Once before a responsive pleading is filed - don't have to go to court (for Ps) 1. This provides incentive for Ds to file responsive pleading with 12b motions, instead of just filing 12b motions separately, because you cut off this time period where the P can freely amend. If you just file a 12b motion, you may educate the P on inadequacies in their pleading which they can then amend 2. Responsive pleadings can be amended within 20 days of serving, as long as the case is not on the trial calendar (for Ds) iii. If the parties agree to amend consent b. Response to amended pleading must be made within the time remaining to respond to the original pleading, or 10 days, whichever is LATER 2. During and After Trial 15(b)

a. If at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended b. Any issues not objected to will be treated as if they were in the original pleading 3. Relation Back 15(c) a. An amendment relates back to the date of the original pleading when i. 15(c)(1)(a): The applicable statute of limitations allows relation back (i.e. in cases where state law is being applied in federal court); 1. If the state law is more liberal, the court will apply state law 2. If the state law is more restrictive, the P can still argue under FRCP (1)(b) or (1)(c) ii. 15(c)(1)(b): If the amendment asserts a claim that arose out of the conduct, transaction or occurrence set out in the original pleading 1. Logical relation 2. Same or similar issue of fact and law 3. Same or similar evidence 4. Would be barred by res judicata iii. 15(c)(1)(c): adding/replacing a party 1. If adding, first has to be permitted under Rule 20 Joinder 2. Has to arise out of the original conduct, transaction or occurrence, AND 3. Within 120 days of the service of the original complaint (4(m)), party being brought in a. Received notice of the filing of the suit; notice of when i. May be inferred through a shared attorney, shared interest, or through publicity of a case b. Knew or should have known that the action would have been brought against it, but for a mistake concerning the partys identity i. Mistake is generally taken to mean typographical or clerical errors ii. In most jurisdictions, lack of knowledge about partys identity is not mistake Singletary 1. If Ps are not allowed to relate "John Doe amendments" back to the original pleading, then their SOL is drastically shorter than Ps with the same claim, but with named Ds. P who do not know the identity of the D would have to file a complaint much earlier than the statute of limitations calls for, would have to proceed through discovery quickly and hope that they can figure out the name in time. Rule 16 Pretrial Conferences; Scheduling; Management y Rule 16 trumps rule 15 free leave to amend when it conflicts with the scheduling order* Rule 11 SIGNING PLEADINGS AND SANCTIONS 1. Governs every paper submitted to the court, does not apply to discovery 2. Signature 11(a): everything must be signed by at least one attorney or record 3. Representations to the Court 11(b) a. Attorney certifies that to the best of their knowledge, i. No improper purpose - to harass, cause unnecessary delay ii. Legal contentions are warranted by existing law iii. Factual contentions have evidentiary support, or will likely have support after reasonable time for investigation 1. Another way to filter out bad lawsuits (along with 12b6, SJ, DV, JNOV) If a party pleads a frivolous claim, but still passes the short and plain statement pleading standard, this rule can get rid of that case

iv. Denials of factual contentions are warranted on evidence b. Attorney must continually amend their pleadings 4. Sanctions 11(c) a. Court may impose sanctions on attorney, law firm, or party that is responsible for an 11(b) violation i. Law firm must be held jointly responsible for the actions of employees ii. Inconsequential violations will not be sanctioned b. Motion for Sanctions i. Motion is served on the adverse party, but not filed with the court ii. Safe Harbor: adverse party has 21 days to fix the sanctionable act iii. If the act is not fixed, the motion is filed with the court iv. Court may award the prevailing party with reasonable expenses incurred in the motion c. Court can impose sanctions on its own accord i. Safe harbor rule does not apply ii. But parties must be given a reasonable amount of time to respond show cause order come in here and tell us why we shouldnt impose sanctions d. Nature of a Sanction i. Limited to what will deter ii. May include 1. Nonmonetary directives 2. Pay a penalty to the court 3. If imposed on motion, payment of expenses to moving party iii. Limitations on monetary sanctions courts cannot impose sanctions on 1. A represented party for having unfounded legal contentions 2. Court may not initiate $ sanctions against attorney, unless it issued a show cause order before voluntary dismissal or settlement JOINDER 1. Joinder of Claims Rule 18 a. Can join as many claims as you have against a party i. Contingent a party my join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties relative substantive rights. ii. Independent iii. Alternative b. You want to join claims to prevent preclusion barred by res judicata c. Under 42(a), court can join claims on its own accord if actions involve a common question of law or fact i. Join for hearing or trial any or all matters at issue in the actions ii. Consolidate the actions iii. Issue any other orders to avoid unnecessary cost or delay d. Under 42(b), court can separate claims - bifurcation i. For convenience ii. To expedite iii. If prejudice to one party would occur 1. Embarrassment 2. Court not paying attention to you 2. Required Joinder of Parties Rule 19 3. NECESSARY PARTIES a) 19(a)(1): Required Party. A party who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

a. In that persons absence, the court cannot accord complete relief among existing parties; or b. That person claims an interest to the subject of the action and is so situated that disposing of the action in the persons absence may: i. As a practical matter impair or impede the personas ability to protect the interest; or ii. Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. b. 19(a)(2): Joinder by Court order  If a person has not been joined as required, the court must order that person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff c. 19(a)(2)(ii): Inconsistent Obligations (defendant prejudiced) a. An inconsistent obligation occurs if one court orders a party to do one thing and another court orders the same party to do another thing that is inconsistent with the first. Any violation of the court order would place the defendant in contempt. d. 19(b) When Joinder is Not Feasible  If a person who is required to be joined if feasible cannot be joined, the court must determine whether the action should proceed among the existing parties or should be dismissed. The Factors for the court to consider include: 1. The extent to which a judgment rendered in the persons absence might prejudice that person or the existing parties; 2. The extent to which any prejudice could be lessened or avoided by: a. Protective provisions in the judgment b. Shaping the relief; or c. Other measures 3. Whether a judgment rendered in the persons absence would be adequate; and 4. Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder INDISPENSABLE PARTIES (SEE RULE 12B7) Necessary must be joined for relief a) test to determine if necessary: 1. Without the absentee, can the court accord complete relief, among those who are already joined? 2. The absentees interest might be harmed if she is not joined 3. Does the absentees interest potentially subject the defendant to inconsistent or multiple obligations? Indispensable must be joined if possible * Temple v. Synthesis Corpwhere man underwent surgery and mechanism in heart broke. CH joint tortfeasors are not necessary parties bc it may prejudice one of the parties.

4. Permissive Joinder of Parties Rule 20 (a)Persons who may join or be joined d. Plantiffs & Defendants i. Same T&O or series of T&Os, AND 1. Same core facts 2. Sufficient overlap of facts or evidence 3. Claims logically related to each other 4. In close cases, judges want to know why it will be convenient, efficient, or fair for the court or the parties to keep the claims joined exactly which evidence will not have to be entered twice, precisely which witnesses would otherwise have to be inconvenienced multiple times ii. Common issue of law or fact will arise in the action 1. The same questions will be asked in both courtrooms if the trials were separate 2. Court may separate trial to prevent prejudice or delay Kedra v City of Philadelphia (multiple s were assaulted and rights violated by multiple police in city) parties can be combined when their facts/claims are reasonably related if after discovery case will be prejudicial b/c too complicated etc., trials can be separated then when there is a systematic pattern of conduct, claims being combined can arise from facts taking place at different times 4. Misjoinder/Nonjoinder Rule 21 On motion or on its own, the court may at any time, on just terms, add or drop a party. a. Not grounds for dismissal b. Party will just be dropped or added by the court on any terms that are just Rule 13 COUNTERCLAIMS & CROSSCLAIMS 1. Counterclaim: Done in the pleading stage a. A claim asserted against an opposing party, usually by the D against the P b. Counterclaims have their own facts to remedies line c. Counterclaims can be either Compulsory or Permissive i. Compulsory 13(a) 1. If the counterclaim arises out of the same T&O, then it is compulsory a. This is a requirement because if the action arises out of the same T&O, and you dont assert it in your answer, then res judicata would bar you from bringing it as a separate answer 2. Must be asserted in the answer, or you cant bring it up at a later time a. To preserve your rights, if you have any inkling at the filing of your answer that you are going to bring a counterclaim, bring it up in the answer so there isnt any argument later about whether the CC was permissive or compulsory. Then have the judge separate under Rule 42(b) b. If a counterclaim matured or acquired after serving earlier pleading, then you can ask the court to file a supplemental pleading 13(e) c. Court may allow you to amend your pleading to include a crossclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires 13(f) 3. Exceptions 13(a)(2)

a. When the action was commenced, the claim was the subject of another pending action b. Opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. ii. Permissive 13(b) 1. Not part of the same T&O 2. Have to meet amendment (15) requirements 3. May be brought up at any time 4. Subject to separation under 42(b) d. Relief 13(c) i. May seek any kind of relief that the court is competent to give ii. Relief may or may not be related to the P claim iii. May ask for relief that merely neutralizes or cancel out the P claim, or it may seek relief that exceeds the P desired relief 2. Crossclaims 13(g) a. A claim between co-parties - usually Ds (i.e. stays on same side of the v) b. A cross claim may not assert every claim that possibly exists between co-parties c. If you are bringing in another party, you must first satisfy Rule 20 permissive joinder of parties d. Cross claim must i. Arise out of the same T&O of the original action or of a counterclaim, OR ii. Relates to any property that is the subject matter of the original action e. Cross claims are always permissive i. Because they may prejudice the main action, so they must be allowed to be brought separately at a later time ii. Because FRCP will never require parties who are not already adverse to become adverse (i.e. it will never require you to add another v)

IMPLEADER Rule 14 1. Requirements a. Timing i. Permissively within 10 days of serving an answer ii. After 10 days, need court permission b. Cause of Action i. Contribution statute is one example c. Non-Party (not already a party in the action) d. Conditional/Derivative Claim (conditional on outcome of original claim) i. The impleader claim has its own facts to remedies line 2. Types of Indemnification a. Contribution b. Insurance-like relationship (one party takes responsibility for the harm done by the other party) c. Respondiat Superior rd 3. 3 Party Ds Claims and Defenses a. Must assert any Rule 12 defenses against the D/3rd party Ps claims b. Must assert any compulsory counterclaims against the D/3rd party P; may assert permissive counterclaims Under rule 13. c. May assert any defenses against the original P d. May assert any claim against the original P same T&O as original action 4. P can assert a claim against the 3rd party D (after they have been impled by the D/3rd party P), if the claims arises out of the same T&O of the original action

Rule 22 INTERPLEADER (22)(a)(1) By a plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: a) The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or b) The plaintiff denies liability in whole or in part to any or all of the claimants. (22)(a)(2) By a defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim. Rule 24 INTERVENTION (a) Intervention of Right On timely motion, the court must permit anyone to intervene who: 1. Is given an unconditional right to intervene by a federal statute; or 2. Claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest 3. Cannot intervene if your interests are already adequately represented. (b) Permissive Intervention 1. In General. On timely motion, the court may permit anyone to intervene who: a. Is given a conditional right to intervene by a federal stature; or b. Has a claim or defense that shares with the main action a common question of law or fact. 2. By a Govt. Officer or Agency 3. Delay or Prejudice

Rule 26 DISCOVERY and Duty to Disclose 1. Overall Goals of Discovery a. Reduce ambush element i. Inefficient ii. Inhibits truth b. Settlement c. Narrow the issues for trial d. Level playing field 2. U.S. Discovery vs. Foreign a. Very lawyer driven in this country b. We embrace an expansive discovery system 3. Mandatory Initial Disclosures 26(a) a. Initial Disclosures i. Name and address, phone # of individuals likely to have discoverable information, the subject of that information, that YOU may use to support your claims/answers ii. Documents and things (same requirements as above) iii. Computation of each category of damages (applies only to the P) iv. Insurance agreements (applies only to the D) b. Timing 26(a)(1)(C) i. Initial disclosures must be made within 14 days after the 26(f) conference, unless another amount of time is agreed to by the parties ii. For a party that is joined after the 26(f) conference, within 30 days after being joined c. Any disclosures under 26(a) have to be continually supplemented under 26(e) can be sanctioned under 37(c)(1) for not complying i. In a timely manner ii. Or as ordered by the court

d. Party must make its initial disclosures based on the info then reasonably available no excuse for not fully investigating the case 26(1)(E) e. Expert witnesses 26(a)(2) i. Disclose expert witnesses you plan to use at trial ii. Accompanied by a written report iii. No later than 90 days before trial f. Must also disclose witness identities and documents being used at trial 26(a)(3) i. Must occur at least 30 days before trial 4. Scope of Discovery 26(b) a. Scope i. Any matter, not privileged, that is relevant to any partys claim or defense ii. For good cause, court may order discovery of any matter relevant to the subject matter involved in the action b. Issues with Scope i. Makes it easy to circumvent the "fishing expedition rhetoric" by pleading multiple claims that dont have support until the discovery process (coincides with liberal pleading requirements) - before, attorneys would just file claims that were supported and then amend to add new claims later c. Objections to Scope i. Privileged 26(b)(1) ii. Not relevant to the claim or defense of any party 26(b)(1) iii. Party seeking discovery has had ample opportunity to obtain the info by discovery in the action 26(b)(2)(C)(ii) iv. Cumulative or duplicative i.e. available from other sources 26(b)(2)(C)(i) v. Burden or expense of the proposed discovery outweighs its likely benefit 26(b)(2)(C)(iii) 5. Conferences a. Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)

b. 16(b) Conference i. Between the parties and the judge ii. Case management c. 26(f) Conference i. Planning for discovery ii. Just between the parties iii. Can be held over the phone iv. Formulate a discovery plan must be filed 14 days after this conference v. Parties may not seek discovery until this conference has been held 26(d)(1) except if ordered by the court vi. Court may expedite this conference schedule to comply with an expedited 16(b) plan 6. Methods of Discovery a. Depositions Rules 27-32 i. Used by attorneys to question potential witnesses under oath about their knowledge and participation of certain events or circumstances concerning the underlying action ii. Conducted orally and transcribed or written iii. Can depose any person, including parties or nonparties; non-parties must be subpoenaed iv. A deposition may be scheduled on reasonable notice in writing v. The noticing party may ask the witness to bring documents along

vi. If a witness fails to show up, they may be assessed expenses vii. The only objections that can be made in a deposition a. Objection as to the form of the question b. Objection that would reveal privileged information All other answers are required and recorded, but remain subject to the objection viii. Limitations 1. Party must get court's permission to conduct more than 10 deposition or to depose one person more than once 30(a)(2) 2. Can only last 1 day of 7 hours 30(d)(1) ix. Advantages to oral deposition 1. Gives the attorney the chance to question potential witnesses under oath, in a manner similar to trial a. This is useful to assess the demeanor of a witness under a variety of questioning styles 2. Responses to questions will have a degree of spontaneity unavailable under other discovery methods 3. Attorney has an opportunity to follow up on information revealed in answers and to take the questioning in a new direction that may reveal itself. 4. Anything recorded in a depositions is available for use at trial, subject to rules of evidence a. Can be used to impeach witness testimony b. Can substitute for live testimony when witness is unavailable for trial 5. Non-parties may be deposed 6. May be required to bring documents or other tangible items and otherwise undiscoverable evidence may be obtained from questioning about those items x. Disadvantages 1. Expense 2. Extensive prep work 3. Lawyer may give away her trial strategy or theories on the case b. Interrogatories Rule 33 i. Written questions submitted to an opposing party (or an agent of the party if it is a corp or partnership or government agency) that must be answered in writing, under oath and returned within 30 days 33(b) ii. Cant submit an interrogatory to a nonparty iii. Limitations 1. Can only submit 25 interrogatories (including subparts) without special permission from the court 33(a)(1) 2. Scope - anything under 26(b)(1) iv. Advantages: 1. Most useful way to obtain detailed and/or noncontroversial information from an adversary a. Names, dates, technical info, addresses, relationships, histories, lists, etc. 2. Inexpensive to prepare and serve (or propound) upon the opposing party 3. Available for use at trial v. Disadvantages: 1. Drafted by lawyers, so often contain as little info as possible 2. Not spontaneously answered 3. No opportunity for timely follow-up or clarification 4. Some lawyers delay until the court forces them to answer or will make every possible objection to wording or scope 5. May give away your legal theories about the case c. Production of Documents Rule 34

i. Any party may request another party to produce documents and things and may inspect and copy those documents and things before returning them to the producing party ii. The term "documents" is construed widely to include almost any type of written, recorded or digitized item iii. The documents must be produced as they are kept in the usual course of business iv. Things may include inspection of real or personal property v. Scope - anything under 26(b) vi. Non-parties can be subpoenaed to produce documents and things 34(c) vii. Disadvantages: 1. Requests have to be drafted so as to obtain the correct document or thing without getting an avalanche of documents viii. Advantages 1. Broad in scope can get a wide range of stuff as long as under 26(b) d. Mental/Physical Examinations- Rule 35 i. Exams may be requested when a person's condition is in controversy and the person to be examined is given proper notice ii. There must be an affirmative showing by the movant that each condition as to which exam is sought is really and genuinely in controversy iii. Medical exams are the only discovery tools for which advance court approval is required, and the court requires a showing of good cause for the exam iv. The court orders time and place; counsel for the party being examined is typically not allowed to attend v. Limited to parties only e. Request for Admissions Rule 36 i. A party may serve upon any other party a request for admission of any matter within the scope of discovery ii. Cannot be served on a nonparty iii. The requesting party formulates a "question" in the form of a statement that the answering party is requested to admit or deny iv. Scope - anything under 26(b) relating to: 1. Facts, the application of law to fact, or opinions about either, and 2. The genuineness of any described document v. 30 days to respond vi. Advantages 1. This locks in particular admissions or denials of fact - unlike evidence at trial, which may be rebutted and refuted, once admitted, the fact must be taken as true in the pending action 2. No limit on the number of requests vii. Disadvantages 1. The court may permit withdrawal or amendment of admissions/denials 36(b) 2. You can save your interrogatories f. Informal Discovery i. Any form of extrajudicial research or inquiry that attempts to obtain facts relevant to the case 1. Nonparty interviews 2. Site visits 3. Exchange of information (ex: cooperation with other attorneys that have handled cases against the same D) 4. Requests for information from govt agencies (ex: Freedom of Info Act) 5. Review of publicly available records 6. Private investigation 7. Internet research

ii. Advantages: 1. Less expensive 2. Provides no notice to opposing parties iii. Disadvantages 1. May be inaccurate 2. Some methods may violate professional ethics 3. Confidential info cant be released 7. Strategy a. Ways to COMPEL Discovery i. Seeking an order to compel ii. Seeking the assistance of the court through case management iii. Moving for sanctions iv. Moving for a contempt order v. Defending and then trying to reach a voluntary and explicit agreement with opposing counsel on how discovery will be sensibly and fairly conducted, with very precise commitments vi. Move to force opponent to comply with required disclosures, supplemental disclosures or a discovery plan b. Ways to DEFEND against Discovery i. Objections to answering 1. Interrogatories 2. Instructing a witness not to answer at a depo ii. Seeking continuances iii. Restricting an answer or compliance with a request to the most narrow possible reading of the question or request iv. Seeking a limiting order or protective order 26(c) v. Moving to squash vi. Reading a request in the broadest light possible and thereby providing so much information that the most relevant info may be lost in the shuffle vii. Claiming that the opponent has not complied with the required disclosure, meeting, planning, and certification requirements prior to commencing additional discovery 8. Sanctions Rule 37 a. Party moving for a motion to compel is required to make a good faith effort to resolve the situation outside of court 37(a) i. Motion to Compel Disclosure ii. Motion to Compel Discovery Response 1. Failure to answer a depo question 2. Fails to answer an interrogatory 3. Fails to permit inspection b. Failure to Comply with a Court Order 37(b) i. Award discovery expenses against the violator ii. Deem established facts that were the object of discovery iii. Exclude evidence iv. Strike all or part of the pleadings v. Hold the violator of a discovery order (other than one for physical or mental exam) in contempt vi. Dismiss the action vii. Render judgment by default 9. Rule 34(b)(2)(E) Electronic Discovery a. Reasons to Seek Electronic Discovery i. Electronic records may show access to a document by a given individual ii. Electronic records may show the timing of an individual's access

b.

c.

d.

e.

iii. Electronic records may show a document's evolution (i.e. revisions) iv. Electronic evidence may indicate document tampering v. The document may only exist in electronic form vi. Documents can be more easily manipulated by counsel in preparing a case Strategies for Pursuing and Responding to Electronic Discovery i. Seeking discovery regarding electronic information ii. Counsel should first send a "preservation of evidence" letter to the opposing party iii. Possibly hire a tech expert iv. Take advantage of discovery planning conferences to bring up issues of electronic discovery v. Under 26(a)(1)(B) - includes data compilations as required initial disclosures - failure to turn over electronic evidence may be sanctionable vi. One or two interrogatories should be directed at finding out the nature of the opposing party's IT system and file destruction policies vii. Counsel may want to schedule an inspection viii. Counsel should request that electronic discovery should be turned over in formats which can easily used by counsel, experts and the client ix. Request directory information and file histories x. Analyze own client's IT system because a similar request will probably come from opposing xi. May be useful to depose the opponent's system administrator (IT guy) xii. Consider claw back provisions - where privileged info turned over inadvertently can be taken back xiii. Privileged info is likely to be inadvertently turned over with other electronic data consider a protective order early on Responding to requests for electronic information i. Advise client to begin collecting data early to avoid sanctions for unreasonable delay ii. Also advise client to preserve all electronic evidence iii. Set forth the high costs and burden that the client may face early on iv. Start an early conversation about the possibility of privileged info being included in the files v. Become familiar with your client's computer system vi. Party does not have to produce electronically stored info in more than one form 37(b)(2)(E) vii. If request does not specify a form for producing electronically stored info, it must be produced in the form it is ordinarily stored in or in another reasonable form 37(b)(2)(E) Who Pays? i. Normally, each party bears the cost of document production ii. This can lead to "blackmailing" opponents to settle - if the cost of producing electronic evidence is higher than a settlement amount, why not settle? iii. In Rowe Entertainment v. William Morris Agency, the Court shifted the costs to the party making the request. Court outlined factors to be used to determining whether to cost shift 1. Specificity of request 2. Likelihood of a successful search 3. Availability from other resources 4. Purpose of retention 5. Relative benefit 6. Total costs 7. Ability to control costs 8. Relative ability to pay Spoliation claims, delay claims, and sanctions

i. Business often regularly destroy data - this may open them to spoliation claims if an action is pending or in process 37(e) ii. 4 factors in determining whether sanctions are appropriate for spoliation 1. Whether the party had a duty to preserve the evidence 2. The culpability of the destroying party 3. The relevance of the destroyed evidence 4. The prejudice resulting from the destruction 5. Some jurisdictions require bad faith f. Document retention policies i. Businesses should have a document retention/destruction policy in place prior to litigation to make discovery process easier and avoid spoliation sanctions ii. In determining whether a document retention policy is reasonable, courts consider 1. The facts and circumstances surrounding the relevant documents 2. The extent to which the destroyed documents are relevant to potential or pending lawsuits 3. The frequency and magnitude of similar lawsuits against the company 4. Whether the retention policy was instituted in bad faith RIGHT TO TRIAL BY JURY 1. Scope of Right to Jury a. 7th Amendment: In suits at common law, where value exceeds $20, the right of trial by jury shall be preserved i. Language based off causes of action in 1791 1. Suits at common law there were equity and legal (common law) courts 2. Preserved if the cause of action didnt exist in 1791, then you dont have the right to a jury trial for it a. Alternative interpretation: this can be construed broadly ii. 2-Part Terry Test 1. Historical Analysis what is preserved from 1791 a. Find and analyze analogous cases from 1791 i. Equity = no jury ii. Legal = jury b. **Note: Replevin and Ejectment were held in legal courts 2. Remedy Sought a. Money damages = legal = jury b. Non-money damages = equity = jury 2. Asserting Right to Jury Trial Rule 38 a. Both P and D can assert the right b. Must be asserted in writing within 10 days of the last pleading also may be asserted in a pleading c. The right is waived if not asserted within 10 days 3. Strategy a. Pros i. A jury is more sympathetic to some cases ii. Human element less hardcore emphasis on the law b. Cons i. Could be seen as a money grubber ii. Bench trials are shorter and less expensive iii. Avoid embarrassment 4. Policy Issues a. Pros i. Perspective of 12 different people, instead of just one judge

ii. iii. iv. v.

Participation in government - civic duty Make better rules than judges - they are regular people - represent changing social values Judges are more biased Lawyers should do a better job at explaining and breaking down the law, so the juries can understand - like teaching

b. Cons i. 12 uneducated people - ignorant - putting important decisions in the hands of people who are too stupid to get out of jury duty ii. Judges are more objective - unbiased iii. Especially applicable in complex cases - like medical malpractice or product liability SUMMARY JUDGMENT 1. Rule 56(c): SJ may be granted if the evidence shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law (i.e. no reasonable jury could disagree) a. Adickes (overruled by Celotex): moving party must affirmatively foreclose the possibility of proof for the contested element of the COA b. Celotex: D must just point to an empty box of the COA; P must then come forward with some sort of evidence to support the element c. Matsushita: SJ may be granted when the P evidence (esp. expert witnesses/evidence) are so unbelievable or discredited that the proof might as well be absent for that element d. Liberty Lobby: when there is a higher burden of proof at trial for a particular element, P has to produce more evidence to defeat SJ (Show beyond 50% that you are right) 2. Timing 56(a)&(b) a. Must be served at least 10 days before the hearing b. Motion brought by the P i. 20 days after commencement of trial ii. Or if the opposing party files a motion for SJ c. Motion brought by D i. At any time 3. Focus is only on P evidence whether P has enough evidence in every box of the COA a. Evidence can be used, even if it is currently inadmissible, if it could be admissible in some other form at trial b. Allegations are not considered, with 2 exceptions i. When the allegations are uncontested or not responded to - deemed admitted ii. Verification - a P may himself sign a complaint (rule 11 requires attorney to sign complaint) - if P signs a verified complaint, the complaint turns into an affidavit and can be evidence 4. Court can eliminate one issue at a time 56(d) 5. SJ can be granted before discovery or during discovery (ex: an affirmative defense) 6. 56(f) - If the opposing party needs more time for discovery to counter the motion, the court may a. Deny the motion b. Order a continuance (delay the motion) c. Issue any other just order 7. Strategy a. Checklist for D moving for SJ i. Matsushita - evidence not credible 1. Discredit witnesses 2. P own evidence contradicts itself ii. Liberty Lobby - if there is a higher burden of proof at trial, P needs more evidence iii. Inadmissible evidence 1. Not in a form admissible at trial iv. Issues of law

1. The evidence for a particular cause of action is not sufficient to establish the element v. Not accept P characterization of evidence pertaining to a particular element vi. Sensitive to the element's demands DISMISSALS, DIRECTED VERDICTS, JNOV, NEW TRIAL MOTIONS, MOTION TO VACATE 1. Dismissals a. Voluntary 41(a) i. Can be done by the P WITHOUT a court order 1. Before the opposing party serves either an answer or motion for SJ; OR 2. With a stipulation of dismissal signed by all parties who have appeared ii. Dismissed without prejudice - can bring the same suit again 1. Unless the stipulation states otherwise 2. If the P had previously dismissed this case in state or federal court, the voluntary dismissal in this case operates as an adjudication on the merits iii. Can be done by Court Order 1. By P request 2. On terms that the court considers proper (may require payments of fees) 3. If a counterclaim has been filed before the motion to dismiss, then the case will only be dismissed if the counterclaim can stand on its own as independent litigation 4. Without prejudice normally, but court can decide to dismiss with prejudice b. Involuntary 41(b) i. If P fails to prosecute or comply with a court order, D may move for dismissal ii. Operates as adjudication on the merits (with prejudice) 2. Directed Verdicts 50(a) a. Nonmoving party must have been fully heard on an issue b. If a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party on that issue (same standard as SJ) the court may i. Resolve the issue against the party, and ii. Grant a motion for directed verdict on a claim or defense that can be maintained or defeated only with a favorable finding on that issue c. Motion can be made at any time before the case is sent to the jury d. Only deals with evidence introduced at trial - this is different from SJ e. Must specify the judgment sought and the law and facts that entitle the movant to the judgment f. Common theories on which to base a motion for directed verdict i. There is insufficient evidence of one or more elements to permit reasonable people to find that it is true. This is often a matter of arguing inferences do not stretch as far as the P claims ii. The facts are in a "fog". No one knows what happened. D argues that the jury would have to engage in mere speculation iii. We know what happened, but reasonable people cannot find that it meets the legal standard iv. D may concede that the P has presented evidence of an element, but argues that no reasonable person could believe that evidence because its not credible on its face v. P try to survive a DV by arguing that the evidence is in the D hands, and that the jury, in judging the demeanor of the D or another witness, should find that the D or the witness is so unbelievable that the opposite is true g. Reasons to grant a DV and not wait until JNOV i. Efficiency ii. Cost iii. Settlement purposes there is a push to settle right before a motion

3. JNOV 50(b) a. If the court denies a directed verdict, the court is considered to have submitted the case to the jury subject to the court's later deciding the legal questions raised by the motion b. In order to bring a JNOV, the party must have moved for directed verdict at the close of all the evidence c. The motion must also specify the judgment sought, law and facts d. Must be filed no later than 10 days after verdict, or, if the motion addresses a jury issue not decided by a verdict, then no later than 10 days after the jury is discharged e. On a renewed motion (may include an alternative or joint request for a new trial), the court may i. Allow judgment on the verdict, if the jury returned a verdict ii. Order a new trial iii. Direct JNOV f. Reasons to wait until JNOV, instead of DV i. If a DV is overturned on appeal, then a whole new trial has to start. If a JNOV is overturned on appeal, the appellate court can just reinstate the jury verdict ii. Makes the parties involved feel better about the situation still had day in court iii. Dont alienate the jury or the parties 4. Motion for a New Trial Rule 59 a. Made on motion by one of the parties or on the court's own initiative b. Grounds i. Jury trial: for any reason for which a new trial has been granted in an action at law in federal court ii. Nonjury trial: for any reason for which a new trial has been granted in a suit in equity in fed court c. Motion must be filed no later than 10 days after entry of judgment d. Common grounds i. A judge becomes convinced that she made a mistake that would be a reversible error ii. Jury verdict is so excessive or inadequate as to demonstrate that the jury had misunderstood their duty or acted with extreme prejudice 1. Remittitur (P agrees to less)/Additur (D agrees to pay more) instead of new trial 2. Additurs are unconstitutional in federal court iii. Jury misconduct - bribery, talking to one of the parties, consulting documents not in evidence iv. Verdict is against the weight of the evidence - this is not because there is insufficient evidence (like in a directed verdict), but because the verdict is clearly wrong - the jury has made a horrible mistake; there has been a miscarriage of justice e. 61: unless justice requires otherwise, no error in admitting or excluding evidence - or any other error by the court or a party - is grounds for a new trial, so long as the error was harmless to the parties 5. Motion to Vacate Judgment Rule 60 a. This motion does not affect the judgment's finality or suspend its operation b. It vacates the judgment and opens it back up c. 60(a) - Corrections for clerical mistakes i. Court can do so by itself or by motion d. 60(b) i. Grounds that must be asserted within 1 year: 1. Mistake, inadvertence, surprise, excusable neglect a. Does not work with losses on SJ b. Only works for default judgments (when you dont answer a complaint)doesnt always work for default judgments though i. Judge has broad discretion

ii. Incompetence normally doesnt work - but an innocent mistake might work iii. Unpredictable in its application - can never count on winning a motion to vacate after a default judgment is entered 2. Newly discovered evidence a. Very narrowly construed b. Evidence must have existed at time of judgment c. Evidence was undiscoverable at time of judgment i. Did you make all reasonable efforts to discover this evidence before judgment? d. Would have changed the result in the case 3. Fraud, misrepresentation, misconduct by an opposing party ii. Grounds that must be asserted within a reasonable time - judge has broad discretion 1. The judgment is void 2. Judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable 3. Any other reason that justifies relief VERDICTS, BI/TRIFURCATION, JURY INSTRUCTIONS, REMITTITUR/ADDITUR 1. Verdicts a. Special Verdicts 49(a) i. Judge submits written questions to the jury, and the jury returns a verdict in the form of written findings of fact ii. Party waives the right to jury trial on any issue of fact brought up in pleadings/evidence that is not submitted to the jury, unless the party demands its submission to the jury before the jury retires b. General Verdicts 49(b) i. Judge asks the jury to issue a general verdict, but answer interrogatories that have been posed to it by the judge ii. If the general verdict and answers are consistent, then the verdict is entered iii. If the general verdict and answers are not consistent, the court may 1. Approve an appropriate judgment according to the answers, notwithstanding the verdict 2. Direct the jury to further consider its answers and verdict 3. Order a new trial iv. If the answers are not consistent with each other and the verdict, then judgment must not be entered; court can only have the jury further consider or order a new trial 2. Bi/Trifurcation a. Bifurcation 42(b) i. Separates a case into 2 potential trials 1. Usually liability and causation first 2. If D wins, trial is over 3. If P wins, there is a trial on damages ii. Judge can also separate 1. Issues 2. Claims 3. Crossclaims/Counterclaims/3rd Party Claims b. Trifurcation i. Separates case into 1. Causation 2. Liability (fault)

3. Damages ii. If the P loses any of the above, the trial will end iii. If the P wins the first stage, settlement often occurs c. Pros i. Efficiency 1. The elimination of one portion of the case will eliminate the need to go further 2. If P wins the first portion, often leads to settlement ii. By severing damages from liability or causation from both, eliminates some of the emotional element from jury consideration iii. P can get sketchy element out of the way - then not distracted with weak evidence d. Cons i. Juries often compromise between liability and damages; when cases are bifurcated, the jury will give higher damages because liability has already been imposed or will not find liability because they can't control the damages awarded and compromise between the two ii. P don't like it because it deprives them of their legitimate right to place before the jury circumstances and atmosphere iii. Lack of Consistency - there is a substantial difference in results when cases are tried in a unitary fashion or bifurcated 3. Jury Instructions Rule 51 a. Judge instructs the jury on applicable law b. Parties submit proposed jury instructions to the court normally at the close of evidence or before c. There are many correct ways to describe the law but different wordings have an effect on how juries interpret it d. When court decides which jury instructions to use it: i. Informs the parties of the instructions 1. Before instructing the jury, and 2. Before closing arguments ii. Must give the parties ample time to object on the record iii. May instruct the jury at any time before the jury is discharged 4. Remittitur/Additur a. Remittitur reduces the jury verdict i. Just taking off the excess from the verdict b. Additur adds to the jury verdict i. Unconstitutional in federal court because it adds something that the jury did not assent to NECESSARY AND INDISPENSABLE PARTIES 1. Rule 19 a. (a) Persons required to be joined if possible - "Necessary Parties" i. (1) A party whose joinder will not deprive the court of SMJ must be joined as a party if: 1. (A) in that person's absence, the court cannot accord complete relief among existing parties **P prejudiced** (inability to collect does not qualify) 2. (B) that person claims an interest to the subject of the action and is so situated that disposing of the action in the person's absence may a. (i) as a practical matter impair or impede the person's ability to protect the interest (legally protected interests only) **X prejudiced**; or b. (ii) leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations because of the interest **D prejudiced** ii. (2) If a person has not been joined as required, the court must order that person to become a party

iii. (3) If a party objects to venue and the joinder would make venue improper, the court must dismiss that party b. (b) "Indispensable Parties"(cannot proceed without) - If a person who is required to be joined under (a) cannot be joined, the court must determine whether the action should proceed with the existing parties or should be dismissed. The factors for the court to consider are i. (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties ii. (2) the extent to which any prejudice could be lessened or avoided by 1. (A) protective provisions in the judgment 2. (B) shaping the relief - change from equitable measure to damages 3. (C) other measures iii. (3) whether a judgment rendered in the person's absence would be inadequate; and iv. (4) whether the P would have an adequate remedy if the action were dismissed for nonjoinder 2. Framework for Analysis a. Figure out who is in the suit b. Figure out who ISN'T in the suit i. Who is affected by the outcome of this litigation? 1. Essentially is infinite in length 2. Speculate about what could happen ii. Is that entity/party a necessary party? 1. Must be joined if D and missing party would be prejudiced without the missing party in the case and if the P would not be prejudiced by it 2. If a necessary AND indispensable party, then the D could get the case dismissed on a 12(b)(7) 3. Sometimes, the case won't be dismissed, but the court will require the missing party to be joined, if feasible iii. Is that party an indispensable party? 1. If the party is necessary but cannot be joined, then has to decide whether to dismiss or proceed without the party 2. Indispensable party = dismiss the case 3. Dispensable party = proceed without the party 4. Will the parties be prejudiced? a. If less likely, then will be deemed indispensable b. If less substantial/severe, then will be deemed indispensable 5. Can the prejudice be avoided? a. Protective provisions in the judgment b. Changing the relief from equitable to legal remedies i. Court will threaten to dismiss the case unless the P amends the complaint to ask for only damages instead of equitable relief c. What happens if the case is dismissed? i. If the whole thing could be filed someplace else (if another jurisdiction has personal/SMJ, then court would be more likely to dismiss ii. If the whole case dies, then not likely to be dismissed