Académique Documents
Professionnel Documents
Culture Documents
FRCP 26
Duty to Disclose;
General
Provisions
Governing
Disclosure
Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery
1. Disclosure
a. FRCP 26(a)(1) Scope
i. Past: Had to disclose ALL relevant information related to the disputed
facts.
ii. Now: Only have to disclose documents you plan to use to support your
claims.
1. EXCEPT information that would impeach the other sides
witness. We want the element of surprise.
2. Discovery
a. FRCP 26(b)(1) Scope
i. All non-privileged material that is relevant to any partys claims or
defenses.
ii. May ask for material relevant to the subject matter if there is good
cause for doing so.
iii. Information does not have to be admissible, can be inadmissible if it
will lead to admissible information.
b. FRCP 26(b)(2)(C) Limitations
i. Information may meet discoverability requirements but be
undiscoverable because:
1. It is relevant but cost of getting it is too high or the information
is duplicative.
2. Party had ample time already to get information.
3. Privileges
a. Privilege against self-incrimination
i. Cannot say I wont testify because it will make me liable. You have to
testify in civil actions.
ii. Can say I wont testify because it will incriminate me.
1. This is why criminal trials often occur first, so what is disclosed
during testimony in the civil action cannot be used against you.
b. Federal Rule of Evidence
i. Federal issue in federal court use federal common law to determine
privileges.
ii. State law in federal court use state court common law to determine
privileges.
iii. ***MSG There is a big difference in privileges, so it does matter
which one it is.
c. Types of Privileges
i. Attorney/Client, Spousal, Priest/Penitent, Doctor/Patient, Work
Product
d. Attorney Client Privilege
i. Restatement (Third) of The Law Governing Lawyers
1. 68. AttorneyClient Privilege
a. [T]he attorney-client privilege may be invoked as
provided in 86 with respect to:
i. (1) a communication
ii. (2) made between privileged persons
iii. (3) in confidence
iv. (4) for the purpose of obtaining or providing
legal assistance for the client.
ii. This is a restatement, but is very consistent with common law.
iii. Hypo: Your client tells you one thing and then on the stand lies and
says another. Attorney Client privilege?
1. Answer: NO. Attorney still has a duty to tell the court. Cannot
use the privilege to allow a client to lie.
iv. Purpose?
1. If client has to testify, and knows if he lies the attorney will
turn him in, wont he just lie to the attorney?
2. Privilege is imperfect; it is still better than nothing.
3. Hypo: Interrogatory asks client whether he ever told you he
was negligent.
a. If client ever told you he thought he was negligent, w/o
the privilege, he would be forced to answer yes.
b. It protects the sphere of communication.
e. Work Product Privilege
i. Created in Hickman v. Taylor (1947). Codified later
ii. FRCP 26(b)(3)(A) Scope
Defenses and
Objections
(c) Motion for Judgment on the Pleadings. After the pleadings are closed but
early enough not to delay trial a party may move for judgment on the
pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.
FRCP 56
Summary
Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may
move for summary judgment, identifying each claim or defense or the part of
each claim or defense on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary judgment at any
time until 30 days after the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Non-movant. If a non-movant shows by
affidavit or declaration that, for specified reasons, it cannot present facts
ii. D can get SJ if he argues why no reasonable jury could find for P.
Argue evidence of P is insufficient.
6. Directed Verdict/Judgment NOV
a. Directed Verdict
i. Granted after evidence is presented at trial. Same standard as SJ.
b. Judgment Notwithstanding the Verdict
i. Same standard as Directed Verdict but is given after the jury decides.
c. Reasoning?
i. How could a Judgment NOV be granted but not a Directed Verdict?
ii. Hypo: D moves for Directed Verdict, judge grants. P appeals and
appellate court remands.
1. There has to be an entirely new trial to present everything that
has already been presented. Time consuming and costly.
iii. Hypo: D moves for DV, denied. D moves for Judgment NOV, granted.
P appeals, appellate court reverses and remands.
1. No new trial, the juries decision is implemented instead. Risk
free.
7. SJ and 7th Amendment
a. 7th Amendment right to trial by jury.
i. If SJ is applied appropriately, it acts like a reasonable jury. Parties
dont have right to unreasonable jury.
ii. SJ is traced back to CL. Always been accepted.
b. ***MSG Twiqbal is worse for violating 7th. There might be a real dispute of
fact and requiring evidence at pleading might infringe rights.
Trial
1
Jury Selection
Presentation of Evidence
Execution of Judgment
Erie
28 USC
1652
State laws as
rules of decision
US
Constitution
Art. I Sec. 8
Clause 9 & 18
US
Constitution
Art. III Sec. 1
28 USC
2072
FRCP 41
Rules of
procedure and
evidence; power
to prescribe
Dismissal of
Actions
The laws of the several states, except where the Constitution or treaties of
the United States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the United
States, in cases where they apply.
The Congress shall have Power:
Clause 9:
To constitute Tribunals inferior to the supreme Court; AND
Clause 18:
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof.
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. . . .
(a) The Supreme Court shall have the power to prescribe general rules of
practice and procedure and rules of evidence for cases in the United States
district courts (including proceedings before magistrate judges thereof)
and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any dismissal not
under this rule except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19 operates as an adjudication on the
merits.
1. Erie
a. How the federal courts determine which law to use when hearing cases
concerning a state law cause of action.
i. Therefore must be in diversity or supplemental jurisdiction.
2. State Decision
a. Different states choose which states law to apply on different standards.
i. Lex Loci Delicti Use the states law where the incident occurred.
ii. Some states use the law of the state with the most interest in the case.
1. ***MSG prefers this method.
iii. There are up to six total ways states decide these are the popular.
b. When a federal court decides to use whether to use state or federal
law/procedure, if they choose state law they are choosing the law that the
state where they sit WOULD USE.
i. Not necessarily the states law where the court sits. Difference.
CASES
Guaranty Trust v.
York
Ragan v. Merchants
Woods v. Interstate
Realty
Holding
-Court advocated for vertical uniformity to fix the problems of Swift.
-Federal courts have to use the law that the forum state courts would in the
situation IF they were outcome determinative.
-SoL issues.
-State Law tolls upon service of process.
-Federal (FRCP 3) tolling commences upon filing.
Holding This is outcome determinative (case would be dismissed under state but
not federal law), so use state law.
-Mississippi requires corps. to appoint an agent for service of process in order to
bring suit in the state courts.
-Federal law does not.
Cohen v. Beneficial
Industrial
Holding Use the state law because the law is outcome determinative.
-Which procedure should be used?
-There was a fear after Guaranty Trust that the FRCPs would be out in diversity
Hanna v. Plummer
***Over rules the
language in Guaranty
Trust.
Semtek v. Lockheed
Federal law dismissal for SoL grounds does have claim preclusive effect.
Shady Grove v.
Allstate
***What to do when
the federal rule of
procedure is a FRCP.
Holding
-Because this is a federal common law issue we look to twin aims of Erie. This
would definitely motivate forum shopping. If suing in federal court would lead to
claim preclusive SoL dismissal, people are going to sue in state court so they can
sue elsewhere if dismissed for SoL.
-There are NO countervailing federal issues so use state law.
Issue
-NY 901 does not allow a class action suit to recover penalties or statutory
minimum damages.
-FRCP 23 doesnt say anything about this.
Holding
-According to Walker there is a direct collision between the FRCP and state law, so
FRCP should win if it is arguably procedural.
-But what if state law procedure is bound up in the state law COA? Under Byrd
this would mean use the stat law.
Opinions
1. Scalia If the FRCP truly does regulate procedure, it doesnt matter if it affects
the procedure bound up in a state law COA.
***MSG This seems to violate state rights by affecting the COA. NY said
you could sue for these damages, but not as a class action. Scalia rejects
that.
2. Stevens (narrowest opinion) You have to look to state law to see if state law
procedure is bound up in COA. If it were then using FRCP would override a
substantive state law.
Quote about Scalias Opinion But it ignores the second limitation that
such rules also not abridge, enlarge or modify any substantive right,
2072(b), and in so doing ignores the balance that Congress struck
between uniform rules of federal procedure and respect for a States
construction of its own rights and remedies.
***This defines the second prong of the twin aims of Erie. A FRCP abridges or
modifies a substantive right in these situations because the procedure is part of the
COA.
3. Ginsberg Wrote the opinion that Stevens concurred to (idea on when to use
FRCP or when to use state law). But thought that was the situation here.
-Stevens argued that there was no evidence that using the state law
procedure is what the legislature wanted need evidence of that.