Civil Procedure Outline

I.
THEMES
1. Adverserial system 2 parties duke it out in court. Party-run but still according to rules of
fairness and in pursuit of truth. Judge plays a passive role.
2. Access to courts and liberal notice pleading
3. Flexibility to change case with more info versus prejudice
4. Providing notice/avoiding surprise
5. Procedural posture- who is making the court decision, whether it is on appeal, whether a ruling is
dispositive, etc.
6. Substantive law shapes what should be pled/to avoid 12b6, shapes what discoverable under
relevance, shapes summary judgment by creating framework for genuine issue of material fact, shapes
the burden of proof at trial/what evidence is required.
II.
1.

AN OVERVIEW OF THE PROCEDURAL SYSTEM

An Overview of the Procedural System
A. Selecting a proper court
B. Commencing the action: plaintiff must serve defendant with a service of process, typically
a summons which directs the defendant to appear
C. Pleading
D. The response the defendant must respond to the complaint
1) Motions to dismiss
2)
Answer the defendants response if the motion to dismiss is denied
3)
Counterclaim
E. Discovery
1)
Depositions formal oral examination of a potential witness
2)
Interrogatories
3)
Document production
4)
Physical and mental examinations
5)
Request for admission agreement on a certain set of facts
F. Summary Judgment
G. Setting the case for trial if trial has not been terminated by dismissal, summary judgment
or settlement it must be set for trial usually one party will file a note of issue.
H. Jury and Selection
I.
The Trial
J.
Jury Instructions
K. Verdicts
1)
General factual issues presented with legal ramifications
2)
General with interrogatories factual issues along with questions
3)
Special verdict all factual issues in the case are presented to the jury as questions.
Judge applies the law to the jurys answers
L. Post-trial motions
1) Motion for a judgment notwithstanding the verdict
2)
New trial
M. Judgment - final determination of the lawsuit can be in the form of an award of money, a
declaration of rights between the parties, a specific recovery of property, an order requiring or
prohibiting some future activity (injunction)
N. Appeal
O. Conclusiveness of judgments res judicata defining the scope and effect of the final
ruling

III.THE HISTORICAL AND POLITICAL CONTEXT OF CIVIL PROCEDURE

1. Substance/Procedure Distinction:
A. Substantive law defines the rights and duties of ordinary citizens in relation to one another
(the ends) while procedure sets out the rules that govern the application of the law when those
rights are violated governs the decisional forms (the means).

B. The Ideology of Advocacy, Simon - Procedure serves as an explicit way of sublimating

conflict and underlying values and can distract from resolution of fundamental substantive
values. Cost of litigation itself limits access to court or may push a case that otherwise would
win in court to settlement.
C. Rule of law: sublimating conflict, safeguarding the integrity of institutions, negative peace,
substantive value issues may be overshadowed by lengthy procedural process
D. Ideal of law: secures justice in society, risks conflict for justice, positive peace
2.

Historical Background:
A. Rise of equity resort to a petition or bill directly to a king where remedies could not be
sought in the traditional system. Petition would go to the Chancellor under the Chancery. Certain
types of complaints were then filed in this way. Equity developed in personum actions in that
they could order a person to act or to prohibit action.
B. Saw the development of two different systems law and equity. Equity allowed greater
discretion. The two systems competed and then evolved into a dual system.
C. Federal Rules allowed for the merger of law and equity. Actions that were originally under
equity do not require a jury trial whereas actions under law do. FRCP introduced claims, crossclaims, counter-claims, third party practice, comprehensive discovery proceedings, and appeal
options. Working with the rules is a combination of statutory and case analysis.
D. Rules of Courts as Politics: What is valued within the procedural system and how does
this affect the actual procedures: shaped by culture, history, present political and social
circumstances.
E. Gender and Race: social and cultural norms shape access to courts. System of privilege
within the current system in which norms often dictate a hierarchical structure providing
variances in access to court difference between federal courts and other courts such as housing
or civil courts illustrates a structure of privilege

3.

Process Values and Access to Justice:

Rule 1: Scope and Purpose of Rules

Sets out the aspirational and balancing framework of the Federal Rules of Civil Procedure, which
subsequently shall be construed and administered to secure the just, speedy, and
inexpensive determination of every action. Courts therefore aim to balance between these three
priorities when addressing civil claims
A.

GOLDBERG v. KELLY
1)
Rule: Termination of public assistance payments without a pre-termination
evidentiary hearing is a violation of due process
2)
US Supreme Court essentially recognized the central role of notice and hearings as
elements in shaping access to courts holding that states termination of public assistance
payments to a particular recipient without affording him the opportunity for an evidentiary
hearing prior to termination denies the recipient procedural due process in violation of the
Due Process Clause of the Fourteenth Amendment denial of means of survival without
redress and ability to present evidence orally or confront/cross-examine
witnesses (Justice) Court will not impose standards beyond rudimentary due process in
order to prevent drain on fiscal administrative resources minimum procedural safeguards
in a pre-termination hearing. (Efficiency and Cost).

B.

Four types of values guiding litigation:

1)
Dignity values: the loss of self-respect that a person might suffer if denied access to
litigation. People affirm dignity by seeking redress.
a.
Buffalo Creek: Restores dignity of the victims simply because it allows them
to bring the suit. Infuriated by Pittstons refusal to take responsibility and the
settlement allowed eased this concern. Those who experienced an economic loss
could articulate their dignity and loss in more fiduciary terms
2)
Participation values: litigation as a mode of participation in society, a way to exert
influence in societal decisions.

a.
Buffalo Creek: Joining together to seek relief by starting a committee to seek a
lawyer. People acting together can have some effect
3)
Deterrence values: instrumentality of litigation as mechanism for influencing or
constraining individual behavior in ways thought to be socially desirable setting social
norms.
a.
Buffalo Creek: Some of the Ps motivation for suing was to stop Pittston from
doing this again. (Punitive damages)
4)
Effectuation values: litigation as a means through which persons are enabled to get
or pursue what they believe is rightfully theirs. Plaintiffs seek finality and relief.
a.
Buffalo Creek: Monetary damages for property, emotional distress and
vengeance.
C.

Models of Civil Litigation: Private versus Public Law

Adverserial Private Law

Framework: works within a more selfcontained framework that is party initiated,
retrospective relying on substantive law,
with less involvement of the judge

Public law framework: more flexibility in the

application of procedures, more negotiation,
ongoing supervision of the court, public policy
dimension of the issue. Using adjudication as a type
of social ordering.

1)
Lawsuit is bipolar lawsuit is a
contest between two individuals or parties

1)
Party structure is not rigidly bilateral, may
have multiple parties

2)
Litigation is retrospective,
controversy is about an identified set of
completed events

2)
Fact inquiry is not historical/adjudicative but
predictive and legislative.

3)
Relief is not conceived as compensation for
3)
Right and remedy are interdependent past wrong, it is forward looking often with a
scope of relief derived from the
policy-making dimension. Remedy not imposed but
substantive violation
negotiated
4)
Subject matter is not purely private but a
4)
Lawsuit is self-contained impact
grievance about the operation of public policy.
confined to the parties
5)
Scope of lawsuit is shaped by the court and
parties taking into account broader public interests.
5)
Process is party-initiated and party- Judge is not passive and not limited to analysis and
controlled. Case is organized and issues
statement of governing legal rules but active in
defined by the parties, judge plays a minor doing fact evaluation and organizing and shaping
rile and will not intervene to help either
litigation to ensure viable outcome
side if it fails to recognize a motion that
6)
Decree does not terminate judicial
can be filed, etc.
involvement, its administration may require
continued participation of the court
6)
Final ruling or settlement terminates
judicial involvement
REMEDIES
I.
GENERAL INFORMATION
1. Generally, one of the first considerations of a lawsuit is who to sue which brings up questions of
what can be recovered from the Defendant. The type of remedy sought will shape the case. Remedies
are what the courts can give to the Plaintiff. Issues of access to justice, which is the question of
whether barriers to litigation are too high or too low, can affect obtaining remedies.
2. 3 Categories of Judgments
A. Judgment that transforms a legal relationship
1)
Divorce, real estate

B.
C.

2) Transformational because the persons whose interests are determined must either
conduct themselves in a way that recognizes the new legal relationship or risk the
possibility of further legal sanctions
Judgment that creates an obligation to perform or refrain from doing a specific act
Judgment creating an obligation to pay money

II. FINAL REMEDIES

1. SUBSTITUTIONARY REMEDIES
A. Definition monetary damages that substitute some form of specific relief.
B. Most remedies are substitutionary which makes money damages the most common form of
relief. This is because (1) we live in an economic system and most claims are for debt and (2)
specific remedies are sometimes of impossible to grant. Courts can encounter difficulties when
they try to measure substitutionary remedies. Substantive law and procedure help to define them.
CLASS NOTES 09/15/14
Relieft and Remedy
a. Relief: Need legal decision from the court, it is transformative, it transforms the relationship
between the plaintiff and the defendant
i. Part of a case planning problem, what is the goal and objective of the case
ii. Lawyer might look for alternative disupute resolution, lititgation is not the only way
iii. Can't proceed until you understand the types and possbility of relief in court

C.

Money Damages and Reliefs

1)
Compensatory Damages
a.
Definition Economic Damages that will compensate the P for money he has lost
(lost wages due to an accident) or has had to pay (hospital bills)
b.
Substantive law requires rules for the measurement and proof of damages. Courts
enforce these rules through procedure and evidence such as medical bills, amount of last
wages, etc.
c.

d.

Pain and Suffering

i)
Definition Non-economic harm such as emotional distress.
ii)
Not easy to define these types of damages. Sometimes the court will take the
economic damages and multiply x 3. The judge must instruct the jury to use
common sense and reasonable judgment in light of the evidence. No expert witness
is required.
Other problems with non-marketable damages
i)
Courts dont just ask the P how much they want because they are afraid of
over exaggeration.
ii)
Individualizing damages to find a perfect remedy or exact compensation for
the harm suffered is time consuming.
iii) Because lawsuits are so long, interest can be added to the damages.
1.
Pre-judgment interest time the claim starts

CLASS NOTES 09/15/14

a. Money Damages/ Relief
i. Damages are a form of legal relief- default
i.
Rule of substantive law governs the capacity of relief, and substantive law contain
rule for proof of damages
ii. Injunctions are equity relief
i.
Only avaliable in certain circumstances
ii.
Only if money relief is inadequate
iii. Punitive damages

i.
ii.

iv.

v.

vi.

vii.

Willful, malicious intent, reckless

Court need to decide whether the jury decided punitive damages are constitutional
and is proportional to the compensatory damages
iii.
Usually it is 3 to 1 punitive to compensatory
iv.
The action is reprehensible, should be proportional to the defendant's bad conduct
v.
Wildly unpredicatble and out of control,
vi.
After State Farm, appellate court are required to review punitive damages awards
STATE FARM MUTUAL V. CAMPBELL
i.
Decided the 3 to 1 punitive to compensatory damages
ii.
The constitutional frame work of punitive damages has not been there for the last
100 years until recently
iii.
Distrcit court has to reach finality before you can get review in Appellate Court
iv.
Review de Novo-- Look at it fresh, new
v.
Three Guideline
a. Degree of Reprehensibility of the defendant's misconduct
i.
Did not show that state is a repeat offender
b. The disparity between the actual or potential harm suffered by the plaintiff
and the punitive damage award
i.
Wealth of the defendant can not justify unconstituional punitive
damages
c. The difference between the punitive damage awarded by the jury and the civil
penalties damages awarded
Specific Remedy
i.
Court may order parties to do things or refrain from doing them; they can enlist the
help of officials in recapturing personal or real property from defendants
ii.
Must demonstrate legal remdy is inadequate
iii.
Court are readier to grant equitable remdedies
Sigma Chemical v. Harris
i.
Case about employee leaving after signing a non-compete
ii.
How much the court need to say to justify the injection?
iii.
Bench Trial: No jury
iv.
The threat of harm to Sigma if an injunction were not granted greatly outweighs the
threat of harm to Harris if an injuntion were granted
v.
This case reinforced that there is remedial hierarchy, shows the complexity of
judicial balancing, whene equaitable discretion is involved with injuntive relief
Declaratory Relief
i.
A party wants a declaration of something, eg. Contract

III. TEMPORARY REMEDIES

1. Preliminary Injunctions and temporary restraining orders
a. All temporary relief will be granted by a judge, not a jury
b. Judge must act without the full adversarial exchange of a trial
c. Plaintiff must established that he is likely to suffer irreparable harm in the absence of a
preliminary relief and the balance of equities tips in his favor, and the injection is in the public
interest
2. Winter v. Natural Resources Defense Council, Inc.
a. Plaintiff sought injection that prohibited Navy from training with sonar
b. District court granted the plaintiffs request stating that plaintiffs had demonstrated a probability
of success on their claims under NEPA and the CZMA.
c. Plaintiff under the Ninth Circuit precedent had established at least a possibility of irreparable
harm to the environment
d. Court of Appeal narrowed the terms of its injunction
i.
According to Navys own reports, it would cause severe damages to marine mammals
ii.
Court held that the balance of hardships and consideration of the public interest weighted
in favor of the plaintiff

iii.

The 22,00 yard shutdown zone imposed by the district court was unlikely to affect the
Navys operations
iv.
Navy has previously certified strike groups that had not trained under such conditions
e. Defendant argued that plaintiff must demonstrate a likelihood of irreparable damage, not just a
possibility
i.
Must be likely, not just possible
ii.
Los Angles v. Lyons
iii.
Affirms District courts conclusion that plaintiff had already established near certainty of
irreparable harm
iv.
However, such injury is outweighed by the public interest and the Navys interest
f. Significantly understated the burden the preliminary injunction would impose on the Navys
ability to conduct realistic
g. Balance of equity tip in favor of the Navy
h. Dissenting Opinion
i.
Evaluating equity on a sliding scale, sometimes awarding relief based on a lower
likelihood of harm when the likelihood of success is very high
3. School of thoughts on preliminary relief
a. Likely to succeed on merit, and likely to suffer irreparable harm without relief
b. Sliding scale(see above)
c. Combination of probable success and the possibility of irreparable injury or that serious
questions are raised and the balance of hardships tip sharply in his favor
d. The outcome of this case turns on the public interest
4. Provisional Remedies and Due Process
a. Garnishment
i.
Involves asking some third party, often the defendants bank or employer not to pay him
because the plaintiff has a claim on it

CLASS NOTES 09/16/14

1. Preliminary Relief
a. Have much higher standard compared to general relief
b. Litigants sometimes can not wait for remedy
c. A judge decides all temporary relief, but must base her decision on incomplete information and
act without the full adversarial exchange
d. The Dilemma
i.
A court considering a motion for interlocutory relief faces a dilemma. If it does not grant
prompt relief, the plaintiff may suffer a loss of his lawful rights that no later remedy can
restore. But if the court does grant immediate relief, the defendant may sustain precisely
the same loss of his rights
ii.
Dilemma exists solely because the court's interlocutory assessment of the parties'
underlying rights is fallible in the sense that it may be different form the decision that
ultimately will be reached
2. Winter v. National Resource Defense Council, Inc.
a. Majority opinion
i.
Likely irreparable harm to the plaintiff
ii.
Plaintiff likely win on merit
iii.
Public interest
iv.
Balance of equity
b. Dissenting Opinion
i.
Possibility of harm would suffice
ii.
Very likely prevail on merit
DISPUTE RESOLUTION
1. Arbitration

i. Result in an award that is essentially final and not subject to further challenge
ii. Parties can choose the arbitrator
iii. Can design own procedure
i.
Can insist, that arbitrator will not refer to the ordinary rules of contract but instead
will adhere to the tradition that have develop around this particular relationship
iv. Less expensive than adjudication
v. More private
vi. Arbitrator can decide matter more softly than a court
vii. When litigation, both parties are in adversarial relationship, arbitration change the nature of
the relationship
2. Mediation
i. Involves no statutes establishing structured mediation process
i.
No discovery
ii.
No enforcement, the mediator suggest what approach to follow

PROCESS OF LITIGATION
I. INTRODUCTION TO FEDERAL RULE OF PROCEDURE
1. Federal Rules of Civil Procedure
a. Different from statute, not directly enacted by a legislature
b. Congress empowered judge to write the rules
c. Rules, unlike federal statute, which can deal with any topic concerning which the constitution
allows Congress to legislate, the Rules may only deal with practice and procedure
d. Can not be substantive
e. A series of committees appointed by the Chief Justice of the United States considers proposed
amendments to the rules
f. Committee-conference-supreme court
2. Bell v. Novick Transfer Co.
a. Defendant moved to dismiss the complaint
i.
Failed to state a claim against the defendant and each of them upon which relief can be
granted
ii.
Alleged only that an accident occurred due to the negligence of the defendants as a result
of which the plaintiff were injured
iii.
Fail to allege the specific act of negligence by the defendant of which the plaintiff
complain
b. Court ruled that under Rule 8 of Federal Rule of Civil Procedure, which requires only a short
and plain statement of the claim showing that the pleader is entitled to relief
c. If defendant want more definite state, it can be acquire through a interrogatories under Rule 33
and further discovery
d. This is pre Twombly and Iqbal
3. Two school of thought regarding complaints
a. General: more cases being resolved justly, on factual merits, allow weak case to survive longer
b. Specific: weed out the weaker cases, but eliminating a certain number of claims that would be
strong if they gained access to the discovery
CLASS NOTES 09/18/14

1. Federal Rule
a. Can not disrupt substantive law
b. Notice pleading
i.
Does not need to go into detail about the case, as long as it states the claim
c. Plaintff want to state the complain as general as possible, defendant want detail
i.
Defendant need to prepare for the allegation, thus need more information
ii.
It is story telling for the defendant

2. Bell v. Novick Transfer Co.

a. Defendant claimed that plaintiff''s allegation is vague
i.
Federal Court stated that maybe it is vague under Maryland statute, but according to FRCP,
the complaint is valid
b. Discovery is the phase to seek detail

II. PLEADING
1. The Complaint/Pleading
a. Rule 7
i.
Rule 7(a)
ii.
Complaint, 1) answer to a complaint, 2) an answer to counterclaim designated as a
counterclaim, 3) an answer to cross-claim, 4) an answer to cross-claim, 5) a third party
complaint, 6) an answer to a third patty complaint, 7) and court order if there is one
b. Rule 8
i.
8(a)-- a valid complaint in federal court requires three things
1. Short and plain statement of the grounds for the court's jurisdiction
2. Short and plain statement of the claim showing that the pleader is entitled to relief
3. A demand for the relief sought, which may include relief in the alternative or
different types of relief
ii.
8(b)-- defenses; admission and denials
1. General and specific denials-- 8(b)(5)lacking knowledge or information must be
stated and has the effect of denials
iii.
8(c )-- affirmative defenses
1. Defendant admits the truth of the complaint's allegation but avers that the plaintiff
theory of liability does not apply because of additional facts supplied by the
defendant; must be presented in the answer, otherwise it is waived
c. Rule 9
i.
9(b)--Fraud or mistake: condition of mind-- in alleging fraud or mistake, a party must state
with particularity the circumstance constituting fraud or mistake.
ii.
9(g)-- if an item of special damage is claimed, it must be specifically stated
iii.
Higher standard because court seeks punitive damages; must show facts signifying fraud.
Must be above 12(b)(6) standard
d. Complaint
i.
First pleading
ii.
Plaintiff explains his grievance and asks the court to grant some remedy
iii.
short and plain statement of the claim showing plaintiff is entitled to relief and a demand
for judgment for the relief sought
iv.
Answer
1. Defendants first pleading
2. Rule 12(b) listed series of defense motions
v.
Demurrer
1. Facts does not hold up because of matter of law, no legal remedy
2. Rule 12(b)(6)
a. Admits for the purpose of motion, that all facts are true
b. Even if it is true, the law grants plaintiff no legal remedy
3. Court must assume that all factual allegation are true
e. Haddle v. Garrison
i. Plaintiff claimed he was improperly discharged from his employment by defendant in an
attempt to deter his participation in a witness in a Federal criminal trial
ii. Because plaintiff was an at-will employee, he suffered no injury, at-will employee can be
discharge at any given time
iii. Under Rule 12(b)(6), Haddle failed to state a federal claim upon which relief can be granted
iv. Court of Appeal affirmed

f.

g.

h.

i.

j.

v. Supreme court held that interference with at-will employment may give rise to a claim for
damages under the Civil Right Act of 1871
1. Disagreed wit the 11th circuit that petitioner must suffer an injury to a
constitutionally protected property interest to state a claim
2. The gist of statute is not directed at deprivation of property, but intimidation or
retaliation against witnesses in federal-court proceedings
3. The fact that employment is not property for the purpose of due process does not
mean that loss of at-will employment may not injure petitioner in his person or
property
4. Harm is compensable in tort law
5. Thomas Cooley: the fact that employment is at will of the parties, respectively, does
no make it one at the will of others
6. Reversed and remanded
Sorting the cases
i. The Field Codes
1. Directed pleaders to state facts constituting a cause of action
ii. Rule 8(a)
1. Jurisdiction
2. Entitled to relief
3. Demand for relief
Conley v. Gibson
i. Purpose of pleading is to facilitate a proper decision on the merits
ii. Discovery will do most of the sorting between grounded and ungrounded claims
iii. Complaint is assumed unless it appears beyond doubt that plaintiff can prove no set of facts
in support of claim which would entitle to relief
Bell Atlantic Corp. v. Twomly
i. Re-interpreted Conley v. Gibson
ii. Anti-trust claim is insufficient if only conforms to Rule 8(a)(2), it must include contextual
fact that make the claim plausible
iii. Change the idea of notice pleading, must have factual backgrounds
iv. Plausible pleading
v. To survive 12(b)(6), complaint must contain sufficient factual matter accpeted as true
Ashcroft v. Iqbal
i. Iqbal filed an complaint that he was deprived of various constitutional protections while in
federal custody
ii. Defense raised the issue of qualified immunity which the District court rejected concluding
the complaint was sufficient to state a claim despite petitioners official status at the time
in question
iii. The court found that petitioners appeal did not present on of those Twombly context which
called for a flexible plausibility standard
iv. Complaint can not be conclusory
1. Can not be legal conclusion
2. Must have some plausible facts
v. Iqbals argument failed because
1. His allegation did not have factual content that would enable the court to come to
the reasonable conclusion that the defendant actually is liable for the misconduct
2. Twomly determined the sufficiency of a complaint sounding in antitrust, the
decision was based on the interpretation of application of Rule 8
3. Rule 9s generality claim does not take priority over Rule 8 which require factual
pleading
Stradford v. Zurich Insurance Co.
i. Doctor Stradford didnt pay insurance from Oct 10, 1999 to December 6, 1999. After he
resumed payment, he filed a claim on policy because of the damages in his office.
Northern insurance believed that willfully devised a scheme to defraud the defendant and
obtain money by false pretenses and representation
ii. Stradford move to dismiss the complaint under particularity under Rule 9(b)

1. The claim doesnt satisfied the circumstance part of the 9(b) which require time,
place, and nature of the misrepresentation to be disclosed to he party accused of
fraud
2. It is unclear, whether the defendant claim that doctor Stradford inflated the amount
of the damages never happened
3. Primary purpose of 9(b) is to afford a litigant accused of fraud fair notice of the
claim and the factual ground upon which it is based
iii. Defendant later amended to complaint to make it clear that Dr. Stradfords office was
flooded at a time when he permitted the policy to lapse
k. Jones v. Bock
i. plaintiff alleged that after his injury, the prison guard still make him to heavy work which
aggravated his injuries
ii. Whether PLRA is a pleading requirement the prisoner must satisfy in his complaint or an
affirmative defense the defendant must plead and prove
1. PRLA is an affirmative defense
iii. Inmates are not required to specially plead or demonstrate exhaustion in their complaints

CLASS NOTES 09/22/14

1. Haddle v. Garrison
a. Supplemental Jurisdiction
i.
When you have federal jurisdiction, you can have related state claim to file in deferal court
b. Held that no need to be constitutionally protected property
c. The Supreme Court disagreed about the substantive law under the Civil Right on this case
d. 12(b)(6)
i.
Law defining in that the district court must decide that the facts in the claim are able to get
relief
2. Bell Atlantic v. Twombly
a. Notice pleading was too liberal, allow many cases to get into discovery
b. Change the short simple claim to plausibility
c. How does judge decide when the complaint is plausible or not?
i.
Encourage judge to use common sense and judical experience
3. Swanson v. Citibank
a. Recent discussion of Iqbal
b. Alleging discrimination based on federal statute
i.
The appraisal company lowered the value of the house
c. The issue is the sufficiency of her comlpaint and whether or not post-Iqbal, the plausibility is
required?
d. Higher burden of pleading post Twombly and Iqbal
i.
Judge can make merit based decision at the pleading stage
ii.
Judge can allow limited discovery and hold the 12(b)(6)
e. Pleading is different from proof
f. Not many Supreme Court knows a lot of Civil Procedure, thus they dislike Iqbal
g. Important case post Iqbal on how to determine plausibility
4. Stradford v. Zurich Insurance Co.
a. Higher degree of pleading for fraud because fraud claim qualified for punitive damages
b. Counter Claim: X sue Y, Y sue X back, Rule 13(a)
c. What does it mean to have greater specificity under Ruler 9(b)?
d. Why Rule 9(b) singled out fraud given the concealing nature of the fraud?
e. Does 9(b) raise the Rule Enabling Act?
f. Rule 9(b)
i.
Relationship between substantive and procedural law
5. Jones v. Bock
a. Rule 8(c ) requires defendant to sumbit affirmative defense
i.
Supreme court has to determine whether a new PLRA statute is a burden of pleading
exhaustion or a affirmative defense

b.
c.
d.
e.
f.

ii.
It is an affirmative defense
Issue of who bear the burden of claim when it comes to bringing the allegation
Party may not go forward if they did not exhaust adminstrative remedy
Whoever has the burden of pleading in pleading will have the burden at trial
How is the defendant going to know whether it is exhaustive if it is not listed under 8(c )
Supreme Court changed the meaning of Rule 8(a)

III. RULE 11
1. Rule 11
a. 11(a)-- deals with signature and asks lawyer to stop and think before making an allegation
b. 11(b)-- Heart of rule--certifying to the court that by the best of knowledge information and belief,
an inquiry reasonable under the circumstance
i.
Not being presented for any improper purposes
ii.
Claim and defense have non-frivolous legal basis
iii.
Factual allegation have reasonable factual basis(evidentiary support)
iv.
Denials have reasonable factual basis
c. 11(c )--Sanctions-- motion for sanctions must be made separately; can not impose monetary
sanction on represented party
i.
11(c )(2) Safe Harbor Provision-- no sanction if corrected within 21 days after service or
within another time the court sets
ii.
11 (c )(4)-- nature of the sanction--limited to deter repetition of the conduct
d. Regulates the way lawyers and clients conduct themselves, establishing standards for
investigation of law and facts
e. Rule 11 allows court to enforce the standards in the context of litigation rather than in an
independent bar disciplinary proceeding that might occur long after the lawsuit was over
2. Walker v. Norwest Corp.
a. Massey, attorney for the Walkers failed to plead complete diversity of citizenship and plead facts
tended to show there was not complete diversity. He failed to allege citizenship of many of the
defendant
b. Whether Rule 11 require the kind of complicated, in-depth and possibility impossible inquiry
that would have been necessary to determine the defendants citizenship before filing a
complaint based on diversity of citizenship
c. Filing a diversity is a burden rested on the plaintiff, affirmed
d. Court not required to do research for Massey
3. Christian v. Mattel, Inc.
a. Hicks, filed a meritless claim against defendant Mattel on behalf of Christian. Christian filed a
copy-right complaints stating that the 1996 Cool Barbie door infringed the 1996 Claudene doll
b. Court held that reasonable investigation by Hicks would have revealed that there was no factual
foundation for the copy right claim, and his conduct fell below the standards of attorneys
practicing in central district of California
c. Hicks argued that even if the court were justified in sanctioning him under Rule 11 based on
Christians complaint, the conclusion is impermissibly because it considered other misconduct
that can not be sanctioned under Rule 11 such as discovery abuses.
CLASS NOTES 09/29/14
1. Rule 11
a. Anything that is written is governed by Rule 11
b. It require lawyer to have done both factual and legal investigation before filing a claim
c. Make lawyer independently responsible to the court
d. Only apply to federal litigators, some states picked up Rule 11
2. Bridges v. Diesel Service, Inc.
a. Plaintiff did not file a charge with Equal Employment Opportunity Commission until after the
commencement of this action
b. Failure to perform legal research

c. Sanction is to deter conduct, it is not necessary because in this case, it was a silly mistake and
the court is certain it will not happen again
d. Dont want to discourage people with disability from filing claim
e. Defendant counsel want to show that plaintiff counsel is incompetent in this field
3. Walker v. Norwest Corp.
a. Rule of complete diversity
i.
All P must be different from all D
b. Rule 11(b)(2) violated
4. Christian v. Mattel, Inc.
a. Sanctions are limited to what suffice to deter repetition, not all are monetary
IV. RESPONDING TO THE COMPLAINT: DEFAULT AND PRE-ANSWER MOTION
ANSWER REPLY AND AMENDMENT
1. Default
a. Failing to response to the complaint--default judgment Rule 55
2. The ResponseMotion and Answer
a. Pre-Answer Motions
i.
Motion to dismiss based on subject matter jurisdiction
ii.
Motion to dismiss based on not a matter of law
iii.
Pre-Answer motions take no position on the truth or falsity of plaintiffs allegations
iv.
Common for motions to decide without oral hearing
v.
If court deny pre-answer motion, defendant must answer Rule 7(a), 12(a)
b. The Answer
i.
Deny the truth of the one or more allegations (Denial 8(b))
ii.
Assert matters that will wholly or partially defeat plaintiffs claim (Affirmative Defense
8(c))
iii.
Can also draft counterclaims, cross-claims and third-party claims
3. Amendment of Pleading
a. Complaint can be amended when discovery revealed more facts of the case
b. Rule 15(a) sets out basic amendment rules and states that The court should freely give leave
when justice so requires
Responding to Complaints: Default and Pre-Answer Motions Pg. 426-456
4. Default
a. Failed to respond a complaint results in default judgment. Rule 55
5. The Pre-Answer Motion
a. Can have both substantive and procedural defense
b. Must admit to the substantive allegation of the complaint
c. Motion does not require a party to set forth her version of the facts alleged in the complaint
d. Rule 12 delay the time for defendant to answer
e. Rule 12 (e)
i.
Motion for a more definite statement in the pleading
ii.
Rarely invoked, vague claim will be subjected to 12(b)(6)
f. Rule 12 (f)
i.
Motion to strike
ii.
Allows a party to challenge a part of a pleading that fails under the substantive law, even
though the rest of the pleading states a claim or defense
iii.
Forces removal of irrelevant and prejudicial allegation in a pleading
g. Rule 12 (C)
i.
Motion for judgment on the pleadings
ii.
When defendant hasnt denied any allegation of the complaint or the defense is legally
insufficient plaintiff win
iii.
When complaint is filed after the statute of limitation defendant win
6. Answers
a. Denials

i.
Rule 8 (b) requires the defendant to deny only those allegations that he actually disputes
ii.
Rule 8 (b)(6) provides any allegation that is not denied is deemed admitted
iii.
General Denial: deny everything
iv.
You can either deny or assert new matter to defeat plaintiff's claim
b. Zielinski v. Philadelphia Piers, Inc.
i.
Plaintiff filed complaint against PPI because he thought PPIs employee injured him.
However, employee is actually of CCI
ii.
The defendant filed a ineffective general denial
1. It complied with some of the facts of the allegation but also denied some
2. Require the defendant to filed a more specific answer than a general denial
3. A specific denial of parts of the allegation would have warned the plaintiff that he
had sued the wrong defendant
iii.
Under Pennsylvania law, an allegation of agency is deemed admitted, when the defendant
failed to amend the answer within the time limitation
iv.
Under the doctrine of equitable estoppel, defendant can not take advantage of plaintiffs
mistake when the mistake is perpetuated by the defendants inaccurate response of
ownerships
v.
Defendant should have file a 12(e), fail 8(b)
7. Reply
a. Pleading stop with the answer
i.
Answer contain counter-claims
ii.
Rule 7 (a)(3) requires a reply if the answer contains a counter-claims designated as a
counter-claim
1. If contain affirmative defense, no reply is required even if some facts could have
support counter-claims
8. Amendment
a. Rule 15 allows revision of parties original stories and limits the extent and timing of such
change in the plot lines
i.
Easy Amendment: allow the pleading to reflect the parties changed view of the case as it
develops
ii.
Prejudice: the idea that at some point the other side has to make decision about how to
present its case, decision that become difficult if the story it has to meet continually shifts
iii.
Rule 15 --Allows such revision of the parties' original stories and limits the extent and
timing of such change in the plot lines
1. 15(a)-- amendment as a matter of course--without court's permission; allows party to
amend either 21 days after serving it or 21 days after opposing party's response--also
usable for answers
2. Amendment by consent-- it other party consents to the amendment in writing
3. Amendment by leave of court-- if it's too late, must ask the court's permission.
Motion for leave to amendment should freely give leave when justice so requires.
Justice requires if it doesnt so prejudice the opposing party or reason for why it
wasnt included to begin with
4. 15(c )(1)(C )--relates back to the date of the original pleading if the amendment
asserts a claim or defense that arose out of the conduct, transaction or occurrence set
out or attempted to be set out in the original pleading
b. Beeck v. Aduaslide N Dive Corp.
i.
Defendant initially admitted to the manufacture of the slide that injured the plaintiff, but
later move to amend its answer to deny manufacture
ii.
Court granted amendment on the grounds that amendment should be freely given in the
absence of any apparent reason such as undue delay, bad faith or prejudice
1. The defendant relied upon the conclusion of three different insurance companies
2. No contention that defendant influenced the erroneous conclusion
iii.
Court dismissed plaintiffs argument that the two-year statute of limitation would
destroyed plaintiffs chance to recover
1. held that plaintiffs argument is contingent on the fact that they would lose at trial
based on the factual issue
2. And they can still press their claim against other parties

iv.

Separate Trial
1. On the issue of whether the slide was manufactured by the defendant
2. Jury found that the slide is not manufactured by the defendant
v.
The risk of harming the plaintiff is less than the risk of having the wrong defendant
c. Moore v. Baker
i.
Plaintiff sued doctor defendant for failed informed consent, defendant moved for summary
judgment, plaintiff moved to amend her complaint asserting negligence
ii.
Whether the original complaint gave notice to the defendant of the claim now being
asserted?
1. No, nothing in the original complaint makes any reference to nay acts of alleged
negligence by Dr. Baker either during or after surgery
2. Original complaint focuses on defendants action before surgery, amended
complaint focuses on action during and after
d. Bonerb v. Richard J. Caron Foundation
i.
Plaintiff injured while playing basketball at the defendants facility. Plaintiff alleged that
the court is negligently maintained
ii.
Plaintiff amend his complaint to add new cause of action for counseling malpractice,
defendant objects on the ground that it does not relate to the original pleading
iii.
Original and amended complaints derived from the same nucleus of operative facts
1. It is true that negligent and malpractice are different
2. But, original complaint advised defendant of the same transaction or occurrence
giving rise to these different theories of negligence
3. Alerted the defendant to the possibility of claim based on negligent performance of
professional duties
iv.
As to matter of prejudice, defendant claimed they will need to go back to drawing board,
but discovery hasnt started yet
v.
Granted
CLASS NOTES 09/30/14
1. Pre-Answer Motions
a. 12(b): Lawyer can use it as defense, it needs to be raise in some manner
b. 12(b)(2): the state doesnt have the power to reach the defendant. The power of state to reach the
defendant
i.
Need to be raised right away, but this can be flexible
c. 12(b)(3): wrong place to bring the suit
d. 12(b)(4),(5): how you were served
e. 12(b)(6): Demurrer
i.
Every defendant is filing a 12(b)(6) to question the plausibility of the complaint
f. 12(b)(7): Whether the plaintiff left out a party
g. 12(b)(2)-(b)(7) needs to be raise right away
h. Subject Matter Jurisdiction has no time limit, the court can raise it anytime
i. Motion of Judgment Pleading
i.
Early summary judgment
j. Plaintiff needs to follow the same structure of the complaint to draft answer
2. Zielinski v. Philadelphia Pier, Inc.
a. General denial is ineffective, also failed to correct Sandy Johnson's deposition
b. Denial misled the plaintiff which lead to the statute of limitation run out
i.
Plaintiff thought the defendant were denying negligence
c. The same insurer made this case easier
d. Affirmative is waived if not stated in the answer
3. Reply: usually answer in the end of complaint unless there is counter claim
4. Amendment
a. Amendment at later process of the trial is unfair to defendant because defendant prepare the case
based on the original complaint
i.
The later it is, the more prejudice towards the defendant
ii.
Must balance the undue prejudice with other side

b. Flexibility in amendment and no prejudice to opposing party

i.
Premised on the idea of notice pleading
ii.
How far along the litigation process
c. Historically, initial pleading is the first draft, it is subjected to change before Twombly and Iqbal
i.
Statute of limitation relation with Amendment
1. The more time goes by, the evidence value drop
2. It provide repose for the defendant
d. Beeck v. Aquaslide "N" Dive Corp.
i.
Statute of limitation is the problem in this case
e. Moore v. Baker
i.
Relation back: the complaint filed--> statute of limitation runs out---> new complaint with
new claim--> allow if the old and new claim are sufficiently related
ii.
Plaintiff didnt seek amendment during discovery
1. Less procedural, it seems like more desperation
iii.
Plaintiff's first claim focused on the informed consent while second focused on negligence
1. Informed consent does not include negligence
2. First claim narrow, second claim broad
f. Bonerb v. Richard J. Caron Foundation
i.
First claim is negligence, second is malpractice, negligent includes malpractice
ii.
First claim is broad, second is narrow

DISCOVERY
I. THE POSSIBILITY OF DISCOVERY
5. Factual DevelopmentDiscovery
a. Restriction to discovery 26(b)(2), 26(C)
i.
Parties may only discover evidence that is relevant to a claim or defense in the case
ii.
The requested information may be protected if privileged
1. Self-incrimination
2. Attorney-client privileges
iii.
Unprivileged information may be undiscoverable if a party can convince a court that its
potential for annoyance, embarrassment, oppression or undue burden or expense
outweigh its evidentiary value
b. Discovery is interlocutory ruling (Steffan is an exception)--ruling within the proceedings of the
litigation process
c. Butler v. Rigsby
i.
A listing of the total number of patients referred to AMG and/or MHC by Castro,
Tolchinsky and/or PILC
1. Discoverable
2. Defendant want to show that medical group receive substantial income from the
attorneys who initially represented the plaintiff in this matter, and they argue that
such evidence is relevant to show potential bias
3. Court held that it is relevant to the issue of bias
ii.
The net income of the entities and the percentage of net income that is litigation related
1. Court held that the amount of income derived from services related to testifying as
an expert witness is relevant to show bias or financial interest
iii.
A computer printout of AMGs and MHCs current patients
1. Not discoverable
2. Because list of current or past patients is privileged according to the scope of health
law of Louisiana
iv.
Relevance does not render something discoverable if it is privileged
v.
Rule 45 permits discovery from person not parties to a lawsuit. Rule also allow third
person to object to discovery

Pg. 457-469

1. Modern Discovery
a. Permit lawyer to uncover in advance of trial, enormous amount of information
2. The Possibility of Discovery
a. Relevance
i.
Links the admissibility to the substantive law and to common-sense pattern of inference
ii.
Relevant information need not to be admissible at court if it leads to discovery of
admissible evidence
iii.
Relevance is situational and context specific
b. Davis v. Precoat Metal
i.
Case of work place discrimination
ii.
Plaintiffs motion seeks discrimination complaints made against the defendant by nonclerical/non-administrative employee who worked at the same plant as the plaintiff
1. From 1998-2002
2. Complaints from employee worked at same plant
3. Same national origin
iii.
Court held that request is tailored to the specific claim of the case
iv.
Defendants cited two case
1. Chavez
a. Different because in that case plaintiff wanted discover complaints filed by
employee who did not work in the same plant
2. Sidari
a. The plaintiff wanted to conduct across-the-board attack on all alleged
discrimination '
c. Steffan v. Cheney
i.
Steffan refused to answer deposition questions directed to whether he had engaged in
homosexual conduct during or after his tenure as a midshipman
ii.
Steffan challenged the Navys administrative determination because essentially it was not
his conduct that led to his dismissal but rather his declaration
1. Therefore, sanction under FRCP 37 can not be upheld because there is a error of law
iii.
Generally discovery cases is not appealable, because it is interlocutory and it is not final
d. Silverstri v. General Motors Corp.
i.
Plaintiff ran into a pole, his airbag didnt pop. After the incident he had his lawyer retained
two accidents Reconstructionist to examine the car but only preserved the car for two to
three months. Plaintiff argued that there was no spoliation because he didnt own the car
ii.
Policy of spoliation rule is to preserve the integrity of judicial process, if process falters,
people are justified in abandoning it
iii.
Court held that there is spoliation
1. If the party cannot fulfill this duty to preserve because he does not own or control
the evidence, he still has an obligation to give the opposing party notice of access to
the evidence or of the possible destruction of the evidence if the party anticipates
litigation involving that evidence
2. Plaintiff had access to the vehicle and preserved for two to three months
iv.
Court held that sanction is fair
1. Even when conduct is less culpable, dismissal may be necessary if the prejudice to
the defendant is extraordinary, denying it the ability to adequately defend its case
2. Whether the plaintiff was trying to secure an advantage or just carelessness is not
revealed
3. It is highly prejudicial to the defendant because they cannot inspect the car, the way
it was crushed.
4. It would lead to ability to determine whether the airbag acted as designed
5. How plaintiff injured his head, defendant believe it was a piece of wood
e. Spoliation
i.
Can not get rid of evidence in anticipation of litigation

ii.

Party responsibility-- duty to offer adversary cooperative premises to discovery

II. STAGES OF DISCOVERY

1. Stages of Discovery
a. Rule 26 --Master Rule of Discovery, defines ground rules, judge remain the background like a
kindergarten teacher
i.
Rule 26(a),(b)-- defines ground rules that establish several stages of discovery
ii.
Rule 26(f)-- Parties must meet to confer about matters that might be discussed in the
scheduling conference with the judge
iii.
Rule 26(a)(1)Parties must exchange the initial disclosures
iv.
Rule 16(b)Scheduling order
v.
Complaints & Service (Rule 8,4) Parties Conference & Discovery plan (Rule 26(f))
Initial Closures(Rule 26(a)) Scheduling Order (Rule 16(b)) Party-Initiated
Discovery( Rule 26-35) Exchange of Experts Report & Expert Deposition(Rule 26(a)(2),
(b)(4)) Pretrial Disclosures(Rule 26(a)(3)) Final Pretrial Order Superseding the
Pleadings (Rule 16(e))
b. Required DisclosuresFirst Round
i.
Rule 26(a) describes the first stage, which it calls required disclosures
ii.
Rule 26(a)(1) require the parties to exchange categories of information that the disclosing
party may use to support its claim or defense
1. Name, location of witnesses and description of location of documents etc
2. Party seeking for damages must provide computation of each categories
iii.
Rule 37(c )(1)-- failure to disclose--> motion to compell
c. Request for production and physical (Rule 34 and 35)
i.
Rule 34enable discovery on any tangible items, land, and electronically stored
information
ii.
Party and Nonparty document request
1. Party: use Rule 34
2. Nonparty: subpoena issue under Rule 45(a)(1)(iii)
iii.
One may not required documents from parties before the required disclosure (Rule 26(a))
iv.
Do no limit the amount of documents
v.
Rule 34(b) and 26(b)(2)(b): protect parties from a request that ask for unreasonable
documents because of difficulties to retrieve them
vi.
Rule 34(b)(2)(E)(i): a party must produce documents as they are kept in the usual course
of business or must organize and label them to correspond to the categories in the request
d. Interrogatories and admission (Rule 33, 36, 37)
i.
Interrogatories Rule 33
1. Cheaper for interrogator
2. Questioner can not follow up evasive answers with a questions designed to pin
things down
3. Yield little valuable information
4. Must seek court or stipulation from opponent before propounding more than 25
questions
5. Can only serve to a party, can not serve to non party
6. Usually used to identify persons and documents in the possession of the other side
person, things, documents and digital information
ii.
Request for Admission Rule 36 : request to admit truth in any matter
1. Only against parties in writing relatively cheap
2. Considered as a pleading rule as a discovery device
3. Does not uncover evidence so much as it makes evidence irrelevant by taking an
issue out of controversy
4. Positives of Rule 36
a. Used to eliminate essentially undisputed issue

iii.
Rule 37(a), (b): Sanctions for not complying with Rule 36 an 33 and 26(a)
e. More Disclosuresexpert reports
i.
Rule 26(a)(2): Provide second disclosure mechanism
ii.
Rule 26(b)(2)(A-B)
1. Expert report usually require long time to prepare, parties can not depose each
others expert until expert report are exchanged
2. Categorized two types of experts
a. Those retained in anticipation of litigation but will not testify
b. Those who will testify but were not retained in anticipation of litigation
f. Deposition (Rule 27-32)
i.
Differences to actual trial
1. In trial, lawyer will ask question to lead the judge to a favorable verdict or judgment
2. In deposition, lawyer can ask question that they do not know at all
3. In the case of hostile witness
a. At trial lawyer tries to undermine their credibility and expose weaknesses in
their testimony
b. At deposition, lawyer tries to pin down adverse witness to whatever story that
witness wants to tell
4. Deposition free lawyer from constraints of evidentiary rules
a. At trial, other side will object
b. At deposition, can object if involves with privilege
ii.
Advantage of deposition
1. Can ask a series of questions that forces the witness to take a position as to the
matters at issue
a. Can immediately follow a questions with another
iii.
Disadvantage: Fees
iv.
Rule 30(a)(2)(A)(i)
1. Governs the limit of deposition as to hour per day, times per week etc
v.
Rule 30(b)(6)
1. Allows the requester to identify a topic to be explored, placing burden on the
organization to produce knowledge person if the requester does not know who has
that knowledge

III. DISCOVERY AND LIMITATION OF DISCOVERY

1. Limitation on discovery in an adversary system

a. Privilege
i.
Rule 26(b)(1): makes discovery any non-privileged matter that is relevant
ii.
Privileged objection has nothing to do with relevance
iii.
Block information from source, do not block underlying facts
iv.
Not Self-Actuating
1. Will only have effect if a party asserts them, and they can be waived
a. Waiver can result from taking some action inconsistent with claiming the
privilege
i.
Example: Disclosing the privileged material to a third party
b. Trial Preparation material
i.
Rule 26(b)(3)-- developed from Hickman also work-product doctrine
ii.
Hickman v. Taylor
1. Defendant gathered information from 4 survivors of a tugboat accident preparing for
litigation from the deceased. Plaintiff, representative of the deceased wants
defendant to disclose that information
2. Trial court held that the requested matter is not privileged, Circuit Court reversed,
Supreme Court granted certiorari
3. Court agreed that this case fall outside the scope of attorney-client privileges and not
protected from discovery

a. Protective cloak of this privilege does not extend to information which an

attorney secures from a witness while acting for his client in anticipation of
litigation
4. Court then concede that this is a case of attempt to secure production of written
documents and mental impression contained in the files and the mind of the attorney
without showing of necessity or any indication of claim that denial of such
production would unduly prejudice the preparation of petitioners case or cause him
any hardship or injustice
a. It is simply an attempt, without purported necessity or justification to secure
written statement formed by an adverse party
i.
Falls outside of discovery and contravene the public policy underlying
the orderly prosecution and defense of legal claims
5. Policy Reasons
a. Lawyer need to work with certain degree of privacy
b. Work is reflected in interview, statements
c. Does not mean that all written material obtained or prepared by an adversarys
counsel with an eye towards litigation are free from necessarily free from
discovery
i.
Means that relevant and non-privileged facts can be discoverable if the
production of the facts is essential to the preparation of ones case
1. Such as witness is not available
ii.
Party must establish adequate reason to justify the production through a
subpoena
6. Plaintiff counsel in this case admit that he only want the information to help him
prepare to examine witness
7. Dissenting
a. It is the history of the movement for broader discovery
b. Discovery is hardly intended to enable a learned profession to perform its
function either without wits or on wits borrowed from the adversary
c. Expert Information
i.
Enter civil litigation in two ways
1. May participate in events that give rise to litigation
a. Engineer that build the bridge
2. Lawyer hire experts to analyze the case and to testify
ii.
Require the judge to certify expert as reliable
iii.
Problems with witness expert and retained expert
1. Deposing expert without knowing their testimony is nightmare
2. Also incomprehensible
3. Two Step Solution
a. Require expert to produce some form of initial written report describing their
conclusion
b. And submitting report, experts submit to deposition
c. Problem of its own
i.
Party may free-load others expert
ii.
Rule 26(a)(2)(D): balance this problem by require that 90 days before
the trial the parties identify experts who may testify
iii.
Rule 26(a)(2): Divide expert into two groups
1. Experts who must provide elaborate written report. 26(a)(2)(B)
2. Expert who need not. 26(a)(2)(C)
a. Fact witness summarize facts and opinion to which they
expect to testify
3. Distinguish fact witness and expert/retained witness
iv.
Rule 26(b)(4)
1. Addresses work product problems surrounding experts
iv.
Thompson v. The Haskell Co.
1. The co-defendant, employee of the defendant, sexually harassed plaintiff, she was
reduced to a depressed state when she did not comply with the advancement, and

she was later terminated. Dr. Lucas examined the plaintiff and the information is
highly probative
2. Court held that highly probative information is discoverable, in this case no other
comparable report was prepared
3. Court is weighing the probative value of the information versus the likelihood of
comparable information could be obtained by other means
a. Independent examinationpursuant to Rule 35 would not contain equivalent
information
v.
Chiquita International Ltd. v. M/V Bolero Reefer
1. International Reefer wanted to depose Mr. Winer, Chiquita objected to this request
stating that he is a non-testifying expert
a. Rule 26(b)(4)(D) generally preclude discovery of facts known or opinion held
by ta non-testifying expert, and so it anticipates that such an expert may his or
her own investigation
2. International Reefer contends that discovery should be permitted under the
exceptional circumstances clause
a. Because no other marine surveyor view the vessel
b. Does not have merit here, because they are not barred from sending their own
experts, they just didnt do it
3. Rule 26(b)(4)(D) applies to documents as well
d. Discovery and Privacy
i.
Rule 26(g): forbid abusive discovery
ii.
Rule 26(c): permits a party to seek a protective order and gives the judge broad power to
prevent abusive discovery
iii.
Rule 35: places special limits on the use of discovery to compel physical or mental
examination
iv.
Stalnaker v. Kmart Corp.
1. Plaintiff was sexually harass by his colleague at Kmart, plaintiff wants to seek
discovery regarding non-party witnesses sexual related activities
2. Defendant wants to seek protective order contending that inquiry into such activities
will invade their privacy rights
a. Rule 26(c) provides that the court, upon showing a good cause, may issue an
order to protect a party or person from discovery from annoyance,
embarrassment, oppression or undue burden or expense
b. To establish good cause, a party must submit a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory
statements
c. Rule 412(a) provides that evidence offered to prove that any alleged victim
engaged in other sexual behavior or to prove any alleged victims sexual
predisposition is not admissible in any civil or criminal proceeding involving
alleged sexual misconduct except as provided in subdivision (b) and (c)
i.
Rule 412 aim to protect alleged victim from invasion of privacy
3. Court held that they only permit discovery regarding incidents of sexual harassment
by the defendant involving the non-parties
v.
Coca-Cola Example
1. Special situation in weighing and balancing the information being sought, trade
secrets. Bottle who sued for division of profits from Diet Coke said that issue could
be resolved by discovering the ingredients used in both drinks. Court ruled it was
discoverable and Coca-Cola still refused to comply. Court put sanction on CocaCola
vi.
Physical and mental examination
1. Plaintiff who puts his mental or physical condition at issue by seeking damages for
mental or physical injury can be required to undergo a mental or physical
examination
2. The same for defendant who puts his mental and physical condition as a defense
3. Schalagnehauf v. Holder

a. Bus driver accident, plaintiff asked for vision, neuro psychiatric report, court
held it was too much
Ensuring Compliance
Rule 26(g): Require that discovery request and responses be signed, and states that the signature
implies the request are justified. Unlike Rule 11, rule suggests that attorneys' fee will be an appropriate
sanction for most violation of its obligation
Rule 37: establishes a system of sanction for parties violating more specific obligation
2. Ensuring Compliance and Controlling Abuse of Discover
a. An Anatomy of Discovery Abuses
i.
Too little discovery
1. Stonewallking occurs when one party resists appropriate request for discovery
2. Can use sanction to solve this problem 26(g), 37
3. Can also use judicial supervision to set up conference 16(b)
ii.
Too much discovery
1. When one party seeks more discovery than the case justifies
2. Rule 26(b)(1) limits the scope of discovery without a judicial order to matter
relevant to a claim or defense
3. Can also have sanctions 26(g)
4. Can use protective order 26(c)
iii.
Mismatched discovery
1. Occur when the two parties have significantly unequal litigation resources
2. Party with fewer resources may be able to conduct discovery from various public
sources
3. Well planned interrogatories can yield good result
4. Ride free on the discovery effort by the other party
a. Rule 5(d)(1) forbids parties from filing many discovery responses until they
are used in the proceeding or the court order filing
b. Makes it harder for ill-funded party to piggyback
5. Maybe able to join with other partners and lawyer
6. Or use the fear as leverage for settlement
7. Can also use Rule 26(g) to require each lawyer to certify that discovery request or
objections are neither unreasonable nor unduly burdensome or expensive
b. Remedies: Management and Sanctions
i.
Sometimes parties shred documents to prevent the other side from getting it
1. However judges and jury are always prepared to assume the information was
destroyed because it was very harmful
ii.
Mistake and miscommunication can also be a issue
iii.
Zubulake v. UBS Warburg LLP
1. Plaintiff seeks sanctions against UBS for its failure to preserve the missing backup
tapes and deleted emails
a. Order require UBS to pay in full the costs of restoring the remainder of the
monthly backup tapes
b. An adverse inference instruction against UBS with respect to the backup tapes
that are missing
c. An order directing UBS to bear the cost of re-deposing certain individuals
concerning the issues raised in the newly produced emails
2. Duty to preserve: The obligation to preserve evidences arises when the party has
notice that the evidence is relevant to litigation or when a party should have known
that the evidence may be relevant to future litigation
a. Triggering Date
i.
Should be April 4th 2001 because it appears that almost everyone
associated with Zubulake recognized the possibility that she might sue
b. Scope

i.

iv.

General is that a party need not preserve all backup tapes even when it
reasonably anticipates litigation
ii.
Has a duty to preserve what it knows, or reasonably should know, is
relevant in the action, is reasonably calculate to lead the discovery of
admissible evidence, is reasonably likely to be requested during
discovery and/or is the subject of a pending discovery request
c. Whose document must be retained
i.
The duty to preserve extends to those employees likely to have relevant
information
d. What must be retained
i.
A party or anticipated party must retain all relevant documents in
existence at the time the duty to preserve attaches and any relevant
documents created thereafter
e. Summary of preservation obligations
i.
Once a party reasonably anticipates litigation, it must suspend its
routine documents retention/destruction policy and put it in place a
litigation hold to ensure the preservation of relevant documents
1. If backup are accessible, then such tapes would likely to subject
to the litigation hold
f. What happened to UBS after August 2001
i.
UBS employees did not comply with their attorneys directives to
preserve all backup tapes
3. Remedies
a. Reconsider the cost-shift order is inappropriate
b. Adverse inference: often ends litigation, has 3 elements
i.
Duty to preserve: satisfied
ii.
Culpable state of mind: includes negligence
1. Once the duty to preserve attaches, any destruction of documents
is at minimum negligent
2. UBSs destruction or loss of Tongs backup tapes exceeds more
than mere negligence
a. Tong was the human resource employee directly
responsible for Zubulake
3. Relevance to partys claim or defense such that a reasonable trier
of fact could find that it would support that claim or defense
a. The existing 68 emails did not show Chapins dislike of
Zubulake related to her gender
b. There no reason to believe that the loss email are relevant
c. The likelihood of obtaining relevant information form the
loss tapes is even lower thus it is hard to speculate that there
is unfavorable evidence resides in the missing tape
d. No relevant
c. UBS must pay the cost of additional deposition
i.
Because the email were destroyed, UBS must bear the cost for redeposing certain witnesses for the limited purpose of inquiring into
issues raised by the destruction of evidence
E-Discovery
1. A court may not impose sanction under Rule 37(f) on a party for failing to provide
electronically stored information lost as a result of routine, good-faith operation of
an electronic information system
2. Rule 26(b)(2)(B): excuses a party from providing discovery of electronically stored
information that is not reasonably accessible because of undue burden or cost
a. Allow court to conduct cost-benefit analysis