Civil procedure I. Introductory Material

1. 
   discoverable as long a reasonably calculated to lead to discoverable evidence
   
   1. 
      i.e. relates to whereabouts of a witness, lead to admissible evidence
      
   2. 
      Blank - information re: female partnership in lawsuit found reasonably calculated to suit alleging discrimination in hiring
      

1. 
   court may order to protect person or party from annoyance, embarrassment, oppression, or undue burden or expense
   
   1. 
      Marresse - compare the hardship to the party opposing discovery with the hardship to party seeking if barred access to material party is seeking
      

2. 
   Purposes of Discovery
   
   1. 
      Three major purposes
      
      1. 
         preservation of relevant information that might not be available at trial
         
      2. 
         To ascertain and isolate issues in controversy - DEFINE ISSUES IN DISPUTE
         
      3. 
         Find out what testimony & other relevant evidence is available on each of the disputed factual issues
         
   2. 
      Broad or Narrow Discovery?
      
      1. 
         Broad
         
         1. 
            eliminates disparity between wealth and indigent parties
            
      2. 
         Narrow
         
         1. 
            induces lazy litigant to let other party do all the work
            

3. 
   Specific Devices
   
   1. 
      Depositions R. 30, 31, 26(d)
      

1. 
   Normally without leave of court, except
   
   1. 
      person confined in prison
      
   2. 
      more than 10 depos
      
   3. 
      previous depo in this case
      
   4. 
      party seeking depo is seeking dep before time under 26(d)
      
      1. 
         unless party outside the US
         
2. 
   Why Oral is helpful
   
   1. 
      demeanor, candor, may be able to catch off guard, follow-up, confrontation
      
3. 
   Other Options
   
   1. 
      R. 31 Written Dep. - asked by a neutral party
      
   2. 
      Via Satellite
      

2. 
   Interrogatories
   
   1. 
      written questions, answered under oath and signed by party
      
      1. 
         Objections to questions may be made and signed by atty.
         
   2. 
      25 LIMIT without leave of court
      
      1. 
         Additional int. are limited by 26(b)(2)
         
      2. 
         Factors
         
         1. 
            duplicativeness, opportunity, burden vs. benefit
            
   3. 
      Answers must be given within 30 days
      
   4. 
      Scope/Use at trial 33©
      
      1. 
         re: Legal Opinion
         
      2. 
         Court balances the value to the seeker vs. the prejudice to interrogated party Leumi
         
         1. 
            Factors
            
            1. 
               nature of the case
               
            2. 
               knowledge of the answering party
               
            3. 
               mount of discovery to be completed
               
            4. 
               proximity of issue to the central issue
               
            5. 
               NOTE - burden is on party objecting to show why court should not allow
               

3. 
   Production of Things R. 34,35
   
   1. 
      Any papers, photos, objects relevant to SM
      
   2. 
      Within the possession custody, or control
      
      1. 
         Hart - construe term broadly - influence may be sufficient “control”>>
         

4. Physical and mental examinations (Rule 35): When the mental or physical condition of a party (but non non-parties) or of a person in custody or under the legal ctrl of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination or other examiner, or to produce for examination the person under his custody or legal control.

• 
  Requirements
  
  • 
    Good cause must be shown
    
  • 
    Notice must be given to the person to be examined and to all other parties
    
• 
  Schlagenhauf v. Holder – emphasized that the “good cause” and “in controversy” requirements were not merely formalities, but “require an affirmative showing by the movant that each condition as to which the exam is sought is really and genuinely in controversy and that good cause exists for ordering each particular exam.”
  
  • 
    In some cases, however the pleadings alone may meet these requirements (ex: where P alleges personal injury in a negligence action)
    
  • 
    The fact that the judge signed off on 9 tests put his judgment in question.
    
  • 
    At some point the privacy concerns become appreciable.
    

5. Requests for admissions (Rule 36): A party may serve upon any other party (but not upon non-parties) a written request for the admission, for the purposes of the pending action only, the truth of any matters within the scope of Rule 26(b).

• 
  The statements the admission of whose genuineness may be requested include statements or opinions of fact, or of the application of law to fact.
  
• 
  An admission of the genuineness of any documents described in the request may also be sought
  
• 
  McSparran v. Hanigan - McSparran was an employer, made an admission in pre-trial exchange; P admitted that D was an employer (?); Interrogatory answer is not binding; The jury went with the P when the P recanted his previous statement
  
  • 
    Rule 33 interrogatory vs. Rule 36
    
  • 
    Rule 33 seeks to find out what your position is now (it can change over time); interrogatory requests can be numerous
    
  • 
    37(c)(2) requires that if you deny something and the other side is able to prove it, then you have to pay the other side’s expenses of having to deny
    
    • 
      As long as you have reasonable grounds the sanction will not apply.
      
  • 
    Rule 36 is there for the purpose of getting rid of both of these issues.
    

• 
  Comas - Rule 26 no longer requires you to turn over material that helps the other side
  
  • 
    The option of opting out was then taken away
    

D. Work Product: Immunity from discovery is given to the materials prepared by counsel for trial purposes, and to the opinions of experts that counsel has consulted in trial preparation

• 
  Immunity grated by Rule 26(b)(3) (material) and 26(b)(4) (expert opinions). Both work product immunity since the lawyer’s work-product which is in question.
  
• 
  Hickman v. Taylor - tugboat sank and 5 of 9 crewmen died; Fortenbaugh was held in contempt for not turning over “work product”; Supreme Court said that the work shouldn’t be turned over because there is no burden in not allowing the petitioners access; not entitled to adversary attorney’s mind
  
  • 
    We don’t want the attorney to have to hand over his theories
    
• 
  26 (b) (3) refers to materials prepared in anticipation of trial
  

E. Sanctions – Rule 37(b) does not say anything about the degree of culpability necessary before the various sanction measure may be used. Generally courts have not used sanctions except on a showing that the offender has willfully rather than merely negligently, failed to follow the discovery rules.

1) Gross negligence suffices: Court have sometimes distinguished between “ordinary” negligence and “gross” negligence. For instances, in Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp. the court held that a severe sanction (the preclusion of the discoveree’s right to introduce evidence on matters that were the subject of the discovery order) was appropriate where the discoveree’s failure to comply with the discovery order was grossly negligent.

• 
  trend over time toward strict sanctions because sanctions must be strict in order to avoid them being abused
  

• 
  Lundeen v. Cordner - 2^nd wife challenges first wife’s children’s claim on life insurance money; witness in question is in Singapore so they will likely not get him to appear anyway; Should the court grant summary judgment in the face of the possibility?
  
  • 
    Although there is a dispute, the dispute is one that a trial will not resolve.
    
• 
  Cross v. United States - Professor took a vacation for “research”
  
  • 
    Rule 56 (e) “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere party’s response, by affidavits or as otherwise provided in this rule, must the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
    
  • 
    For summary judgment motion you need to have a statement on itself that would eliminate all issues of fact.
    
  • 
    Motivation to lie
    
  • 
    If contested, you must ask what do I think the law allows.
    
• 
  Adickes - Summ. judgment for Δ reversed b/c Δ did not shift burden to Π
  
• 
  Celotex Corp. v. Catrett - P accused company of being responsible for her husbands death (asbestos); D moved for summary judgment asserting there was no issue of material fact; P presented testimonies etc; Should Celotex be able to obtain summary judgment without producing any evidence at all? Celotex didn’t produce affidavits, but it doesn’t matter.
  
  • 
    Since Celotex would not have the burden of proof at trial all they have to show is that Catrett would not have
    

B. Default Judgment – When D in an action at law omits to plead to the complaint within the time permitted by statute, and otherwise fails to contest the adjudication of the suit, and fails to appear at trial, he defaults, and a judgment by default may be entered against him without the formality of trial upon the merits.

• 
  If the D thereafter within the statutory prescribed period fails to contest the entering of a default against him, the default judgment because binding, and carries all the res judicata effects of a judgment upon the merits (FRCP 55)
  
• 
  Coulas v. Smith - P filed a complaint against D for certain amounts of money on a promissory note; D denied receiving notice of the movement of the trial date, judgment was rendered against D, not a default, but on the merits; D’s argues that a false judgment was rendered against him because he didn’t receive notice; Since the case is being considered on its merits then you want to have him present
  
  • 
    Rule 55 (b)(2) “If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.”
    
  • 
    Failure to give notice could make it void, but he waited too long anyway to challenge it.
    

A. Trial by Jury

• 
  Beacon Theatres, Inc. v. Westover - First filed under anti-trust (which requires jury) then counterclaim for declaratory judgment / injunction which are in equity and don’t require a jury trial
  
  • 
    The courts concern is if you decide number 2 or 3 before number 1 then there is nothing left to decide (i.e. effectively cut the jury out of action)
    
  • 
    legal issues must be tried first and ONLY in the most imperative circumstances can a party lost the right to a jury trial
    
  • 
    right to jury trial cannot be lost by prior by prior determination of equitable relief
    
• 
  Dairy Queen, Inc. v. Wood - Dairy queen pursued the notion of re-characterizing a traditionally equitable claim as a legal claim because of the remedies available at law
  
  • 
    Rule 53(b) says court can enact a master to assist the jury with what the rules are.
    
  • 
    court will look to see whether the issue is really legal or equitable → choice of words is not determinative
    
• 
  Ross v. Bernhard – P shareholder bought a derivative action claiming that the corp’s brokers had unlawfully large representation on its board of directors and that they had abused this control by extracting excessive fees. *involves both legal and equitable issues
  
  • 
    In determining whether a jury trial was available to Ps in a derivative action, the Court held that “the right to jury trial attaches to those issues in derivative actions to which the corporation, if it had been suing in its own right would have been entitled to a jury.”
    
  • 
    As our cases indicate, the legal nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries.
    
• 
  Chauffeurs, Teamsters and Helpers Local 391 v. Terry – 27 unionized truck members sued both their employer and their union seeking back pay for alleged violation of a collective bargaining agreement and breach of the duty of fair representation. When the employer filed for bankruptcy, Ps voluntarily dismissed the collective bargaining agreement claims against it.
  
  • 
    Apply a two-part analysis
    
    • 
      Hx.
      
    • 
      Remedy (arguable that this is weighted more b/c not always a hx. precedent on point)
      
• 
  Indianhead Truck Lane v. Hvidsten Transport, Inc. - interim damages should not be classified as damages for a contract breach (not legal)
  
  • 
    it is unsettled whether there should be a complexity exception to jury trial
    

B. Number of jurors –

• 
  The number of jurors vary from jurisdiction to jurisdiction
  
• 
  Federal courts have a rule that a jury must have a minimum of six members
  
• 
  The seventh amendment doesn’t apply to the states directly
  
• 
  Is six adequate? What is too few?
  
• 
  The reasons juries have been reduced in size is efficiency and monetary arguments.
  

C. Jury selection

• 
  Flowers v. Flowers - jury member had the opinion that if the mother had been drinking she would be an unfit mother
  
  • 
    court must exclude those jurors which are bias or prejudice to one side
    
  • 
    Bias – inclination towards one side
    
  • 
    Prejudice – pre-judgment
    
• 
  Hidalgo v. Fagen, Inc. - Hidalgo suffered injuries at meat packing plant; He wanted to keep Hispanic jury members under the guise of keeping older jury members
  
  • 
    You can legally strike someone for wearing a green tie.
    
  • 
    The juror has a constitutional right not to be evaluated on a discriminatory basis.
    

1. 
   The Province of the Jury
   
   1. 
      What is for the jury, What is for the judge, LAW vs. FACT
      
      1. 
         RULE:
         
         1. 
            Markman
            
            1. 
               consider hx, precedent and the interpretive skills of judge vs. jury
               
            2. 
               consider whether the issue is one where uniformity is needed, and thus a judge should consider so that there is uniformity in application of law
               
               1. 
                  i.e. the term "inventory" for patent
                  
2. 
   Jury Misconduct
   
   1. 
      Tools
      
      1. 
         Special Verdicts and Verdicts with Interrogatories
         
         1. 
            Robb – court ordered new trial b/c the jury verdict inconsistent w/ itself
            
         2. 
            Sopp – Mansfield Rule – jurors cannot impeach themselves
            
      2. 
         Most Jurisdictions Follow Mansfield, however, some follow....
         
         1. 
            Modified Mansfield
            
            1. 
               jurors can testify to overt acts of other jury members
               
               1. 
                  Cannot be beased on state of mind or feelings of ind. juror
                  
               2. 
                  affidavit and prob. must be supported
                  
      3. 
         FR Evidence 606
         
         1. 
            Jurors can impeach themselves
            
         2. 
            Allows the introduction of juror testimony only to show that prejudicial outside evidence was brought into the jury room or extraneous influences were improperly brought to bear on any juror
            
         3. 
            Avoids the problem of what is an "act" and recognizes that other things may taint jury verdicts
            
      4. 
         Quotient Verdict is NOT ALLOWED in most jurisdictions Huckle
         
         1. 
            however, the only way to know if by juror testimony, which is not admissible w/o extraneous influences or prejudicial outside evidence
            
         2. 
            Is it really that bad?
            

3. 
   Judical Power to Override the Jury
   
   1. 
      JNOV – FRCP 50
      
      1. 
         If a party has been fully heard on the issue and there is no legally sufficient evidence for a reasonable jury to find in favor of the verdict, the judge can issue JNOV for the other party upon motion – JUDGMENT as a matter of law (Renewed motion for directed verdict)
         
         1. 
            may be made at any time BEFORE the case goes to the jury
            
            1. 
               Thus, Δ can move after Π is heard, and both may move after both sides rest
               
         2. 
            If renewed no later than 10 days after the verdict, the court has options
            
      2. 
         STANDARD FOR GRANTING
         
         1. 
            If the evidence is such that no reasonable person could differ as to the result (see above for fed)
            
      3. 
         CASES
         
         1. 
            Denman
            
            1. 
               when Π has burden of proof, must carry burden or directed verdict for the Δ >>
               

C. Judicial Power to Override the Jury

• 
  Kircher v. Atchison - man’s hand run over by RR; the only way he can win is to persuade the jury that he tripped blacked out and ended up on the other side; the jury believed the story, and now the defendant is moving for a judgment not withstanding the verdict
  
  • 
    S: Since it is possible that it could have happen, and jury believed the story, then the it should be allowed.
    
  • 
    Rule: If a reasonable person could have come to that conclusion
    
  • 
    Rule 50(a)(1) “If during a trial by jury a party has been fully hear on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for a party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.”
    
• 
  Denman v. Spain - P, minor, in accident with her grandmother, alleges the decedent came into land and hit them at 45 degree angle; Testimony indicated that he was traveling at high speeds in dangerous conditions, but that he remained in his lane
  
• 
  Aetna Casualty & Surety Co. v. Yeatts - Aetna wouldn’t recover his malpractice claim because he was performing an abortion which was a criminal act; Would the judge want to say that the judge can grant a new trial in any situation where you can’t grant a MJNOV; Why should they intervene where a reasonable jury would have said it, but I wouldn’t.
  
  • 
    There ultimately would still be a jury decision
    

D. Conditional and Partial New Trials

• 
  Fisch v. Manger - automobile accident resulted in back injury, he was awarded $3K, he applied for a new trial, but judge offered additur to defendant for $7,500; you can avoid a new trial without having to totally put it in the party’s hands; should perhaps be allowed; The federal courts have said that remitors are ok and additur is not; The court says in this case that both are alright
  
• 
  Powers v. Allstate Insurance, Co. – jury came in at $5,000 but the judge said that was too high
  
  • 
    Overruled standard that allowed the minimum that a reasonable jury could have awarded, the Court went on to follow the practice of allowing the P the option of avoiding a new trial by remission of the excess above an amount which the court considers reasonable
    
  • 
    Judgment about what criteria has to use has to do with the purpose (efficiency, etc.)
    

E. Relief from Judgment

• 
  Hulson v. Atchison, Topeka & Santa Fe Railway – TC entered judgment for D based on jury verdict. P’s attorney’s moved for JNOV, court granted 10 day extension on 6/17/1960. On 6/27/60 counsel filed motion. D moved to strike the motion because it had not been filed w/in the 10 day period of Rule 50(b) and Rule 59(b),(d), and (e). Motion to strike was granted.
  
  • 
    Ignorance of the rules resulting in an agreement for an unauthorized extension of time cannot serve to furnish grounds for relief under Rule 60(b), under the facts before us in this appeal. P. 1108
    
  • 
    A motion under 60(b) could not be utilized to cure a failure to comply with court rules.
    
  • 
    Rule 6(b) says there are no extensions allowed for Rule 59 and 60 (filing a motion for new trial or JNOV beyond the 10 days) → what the court did was improper
    
  • 
    Rule 60(b) is discretionary
    
  • 
    <>
    

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