Anda di halaman 1dari 43

Last printed 04/06/12

Civil Procedure II

MMMMMMMMMMMMMMMMMMMMMMMMDLXXVI. Discovery A. Introduction: 1. A procedural device; Discovery ends lawsuits for two reasons: a. It produces information about the merits of the lawsuit and permits parties to make informed judgments about the strength of their and their opponent=s positions. Such information can end either in settlement or summary judgment. b. It costs time and money B one party (or both) may use it to wear the other down, without regard to the merits of the case. 2. Modern discovery: Permits parties to compel the disclosure of witnesses, evidence, documents, and other matters before trial. State and federal courts permit lawyers to uncover, in advance of trial, enormous amounts of information. The United States is unique, because the scope and depth of discovery allowed. The deep scope permits the bringing and defense of claims where all or much of the relevant information lies in the possession of the other side. Other countries do not allow the searching scrutiny of material in the possession of the opposing party. 3. The effects of modern discovery on litigation: Studies suggest: nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnn. In many ordinary cases, no formal discovery takes place. When it does occur, discovery works with few disputes, modest use of discovery devices, and rather little judicial time consumed in refereeing squabbles between parties. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooo. In large cases, discovery can consume years, produce reams of material that numerous lawyers and paralegals struggle to sift through, and occupy many hours of judicial time in deciding disputes.
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pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppp. In midsized litigation, in which discovery is sometimes a useful tool, it can sometimes be a daunting obstacle. B. Overview: Before engaging in discovery, an attorney should come up with a discovery plan. Part of the plan depends on knowledge of the devices. The attorney must consider the nature of the thing he/she is trying to obtain (whether it is a document, witness, etc.) 26024. Factors: rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrr. Consider the cost (it=s not cheap; some devices are more expensive than others. Interrogatories are cheap, depositions are not B it takes attorney labor, stenographer, cost of transcription, location.) ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssss. Attorney should discuss with client (before agreeing to take the case) how much should be spent on the discovery phase. It will affect the outcome of the trial.

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wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwww. Knowing local procedural rules (critical w/1993 rules, because judicial districts could opt out.) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Sequence of discovery B documents first? Depositions first? Sequence is really up to the attorney. Planning is important because the process is extra-judicial; it takes place outside the purview of the courts. The court only gets involved if something goes wrong. 26025. The three-part analysis:

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Scope: What can you get? i. Rule 26(b)(1): A[A]ny matter, not privileged, which is relevant to the subject matter involved in the pending action Y@ ii. What is relevance? It must prove or disprove the existence of a fact. iii. Also, the substantive law may dictate the relevance (contracts, torts, etc.) yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyy.Devices: What are their strengths and weaknesses? zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzz. Mechanics of the process: And, learning the rules (they set out what devices are available, and the path for using those devices.) C. Possibilities and Limits of Discovery: Relevance and Privilege:
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Rule 26(b)(1) gives parties a right to discovery Aany matter, not privileged, which is relevant to the subject matter involved in the pending action.@ - The concept of relevance grants and limits power; privilege operates solely as a limitation. - Something can be highly relevant to the lawsuit, but if it is privileged, it is not discoverable. 27048. Relevance: To be discoverable, information must be relevant. bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb. For a piece of information to be relevant to a legal proposition means, according to the governing substantive law, that information tends to prove or disprove something that matters according to the applicable substantive law. ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc. Rule 26: AA party is entitled to discovery, not only of material which is relevant and admissible at trial, but also of information which >appears reasonably calculated to lead to the discovery of admissible evidence.=@ dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd. Cases: mmmmmmmmmmmmmmmmmmmmmmmmmmmdc. Blank v. Sullivan & Cromwell (i) Facts: Plaintiffs were female lawyers who applied for positions as associates in the law firm, but were not hired. They sued, alleging sexual discrimination in hiring. Court found that the information sought by the plaintiffs related to the firm=s hiring practices (ii) Issue: Whether the information requested is so unrelated to plaintiffs=claim that women are discriminated gainst by defendant on account of sex that is not Arelevant@ under FRCP 26. (iii)Holding: For the plaintiffs. (iv)Rationale: The firm=s practices in advancing, or failing to advance, associates to partnership may have a bearing upon allegations of improper discrimination in hiring associates.
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(v) Other notes: When the defendants refused to answer the interrogatories, the plaintiffs made a Rule 37 motion to compel. [Party must try to settle first (motion to compel, R37); if it doesn=t work, seek court order; if opposing party still resists, sanctions are imposed.] mmmmmmmmmmmmmmmmmmmmmmmmmmmdci. Steffan v. Cheney [add in notes from 1/4/01 class] (mmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxiv)Facts: Steffan admitted that he was a homosexual and subsequently resigned from the US Naval Academy, after an administrative board recommended that he be discharged. This recommendation was based solely upon Steffan=s statements; he was not charged with any homosexual conduct. Steffan sued, claiming that he was constructively discharged and challenging the constitutionality of the regulations that provided for the discharge of admitted homosexuals. Steffan refused to answer questions at a deposition, claiming that such questions were not relevant to the legality of his discharge. After warning Steffan, the district court dismissed his action for failure to comply with the discovery order [FRCP 37(b)(2)] Steffan appeals. (mmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxv) Issue: Whether conduct, which was not a basis for the action, may be included in discovery. (mmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxvi)Holding: For Steffan. (mmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxvii) Ration ale: (mmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxviii) Other notes: a Privilege is not an issue because Steffan=s prior testimony waived his privilege against self-incrimination (privilege can be waived). 27049. Privilege: According to Rule 26(b)(1), information from certain sources can be protected. dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddd. Privilege has nothing to do with relevance

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eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee. Privileges typically block information from a particular source; privileges are not meant to block the underlying facts. mmmmmmmmmmmmmmmmmmmmmmmmmmmmdcxxiv. Ex: AttorneyClient, Doctor-Patient, etc. mmmmmmmmmmmmmmmmmmmmmmmmmmmmdcxxv. In the attorney-client example: () If a 3rd party is present, there is no privilege () The client holds the privilege; the purpose of the privilege is so that the client will give full disclosure to the attorney, because full disclosure equals good advice. Attorney cannot repeat what the client says, until the client waives his/her right. fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffffffffffff. Privileged information that can be gathered from unprivileged sources is allowable. . . Surveying Discovery: Procedures and Methods: Disclosure Requirements:
Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request.

. Types of disclosures required: Before making disclosures, a party has an obligation to make a reasonable inquiry into the facts of the case. Rule 26 requires parties to disclose all information Athen reasonably available@ (and not privileged or protected as work product.) Rule 26 requires three types of disclosure: . Initial Disclosure:
Within 10 days of the initial meeting, each party must offer to the other side:

() The names, addresses, and telephone numbers of individuals likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings.
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. . .

() Copies or descriptions of documents or things in the disclosing party=s possession or control that are relevant to disputed facts alleged with particularity in the pleadings. () A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and () Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that must be entered. [This rule, 26(a)(1)(D) is an exception to the relevance concept; it facilitates the resolution of cases, but knowing about a person=s assets does not.] Disclosure of Expert Testimony: Rule 26(a)(2) Pretrial Disclosures: Rule 26(a)(3)

Time Frame for Discovery: . First (unofficial) meeting: Rule 26(f) requires that parties meet, without the judge, at least 14 days before the initial conference. . After this meeting, parties have 10 days for initial disclosures (see above). {Then, by the time the scheduling conference is held, the parties should have the information from the opposing parties.} () No other discovery devices can be used prior to the scheduling conference. This is a significant change because in the past, a party could start discovery on the day that a complaint is filed. Parties may be in communication with each other during the first 120 days of service of the complaint, but nothing else can take place until the scheduling conference occurs. . Also, within 10 days of their first meeting, the parties must submit to the court a written report outlining their discovery plan. [See Form 35] This report includes the date when discovery will be completed (which can be changed with court approval). () Benefit: As long as the parties agree, the court does not get involved. . First (official) meeting: Scheduling conference. Usually held within 120 days of service of complaint. . Asking Questions: Interrogatories and Depositions (Rules 28, 30, 31, 32, 33 and 37): . Interrogatories [Rule 33]: Written questions, sent to the opposing party, who must either answer or object to the questions. . The party must respond not only with facts that she herself knows, but also with facts that are available to her. The party may also be asked to give opinions, even on the application of the law to facts. . Benefits: () Typically cheaper than depositions (only cost is labor) () Can be used any time prior to trial (as long as initial disclosure period has expired, after scheduling conference). () It is effective for getting certain kinds of information, including: Names and addresses of witnesses Identity and location of documents Itemization of bills Sometimes useful for getting a party to expose grounds underlying their claim (can ask them what their theories of negligence are). Also, parties can submit documents. . Drawbacks:
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() No opportunity for follow-up questions or spontaneous responses. () When asking for a narrative event, one can end up with self-serving answers. () Often times, you get back rejections (ex: outside the scope of discovery, privilege) () Parties have 30 days to respond to questions (therefore, responses are not quick) If nothing happens after 30 days, the party who sent the interrogatories can file a motion to compel; all that can result is being forced to answer. () Also, interrogatories rarely go beyond fairly routine questions, which are usually covered in disclosure. . Limits on interrogatories: () The requesting party may not serve more than 25 interrogatories, including subparts. Parties must seek the court=s permission before exceeding the limit. () Interrogatories may only be sent to parties of the case; non-party witnesses must be deposed. . Depositions [Rules 28, 30, 31, 32]: Involve lawyers of all parties, a court reporter, and witnesses. Witnesses answer questions under oath, usually in one of the lawyer=s offices. . Oral deposition of a witness, including a party-witness: () The most common form of federal discovery is the oral deposition under Rule 30. If the deponent is not available at trial, it may be used in lieu of her appearance as a witness. The deposition may be recorded by sound, sound and visual, or stenographic means. Depos may be taken by telephone or through other remote electronic devices. All parties may pose questions to the deponent. This method allows a party to bring any other party to a lawsuit to an office, with a stenographer present, and allows the attorney to question that person about anything that is relevant (within the scope of discovery) under oath. Parties are also allowed to force witnesses to submit to depositions. [Sometimes one must pay witness fee, travel fee, and under new amendments there is a seven-hour rule.] () Benefits: Lawyer can ask a series of questions that force the witness to take a position; lawyer can ask follow up questions, and new avenues of inquiry may be explored. If someone every changes his/her testimony B Aprior inconsistent statement@, so you can test the recollection of a witness, you can observe the demeanor of a witness, determine how good of a witness this person will be with a jury; authenticate documents; and it can also be used if witnesses cannot be present at trial {preserve testimony}. () Drawback: Costly. () Limits on depositions: Without seeking the court=s permission, the total number of depositions taken by one side may not exceed 10. No person may be deposed twice without the permission of the court or the other side. () There is no judge or jury present during depositions B it takes place outside the scope of the court; lawyers run it themselves. If they get into a dispute, they can end the deposition and ask the court for a ruling on discovery. . Deposition of Witnesses upon Written Questions {Also called letters rogatory}:
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() Rule 31 provides for written questions to witnesses and is designed to facilitate the depositions of witnesses living a great distance from the parties. All parties can pose questions to the deponent. Written questions, sent to court reporter. The court reporter convenes the meeting, administers the oath, reads questions and stenographically takes down responses. The questions are not given to the deponent in advance. Drawback: No ability for follow up questions. Advantage: Helpful when you need information from someone far away. This option is available to both parties and witnesses. In the past, this method was used to get information from high-ranking government officials (ex: Affairs of country were more important than having President sit for an oral deposition) () Depositions on written questions are rarely seen. . Examining Things and People: Production and Inspection of Documents and Things [Rule 34]:
Rule 34 provides (i) for the production by a party (or, if accompanied by a subpoena, a non-party) of physical material, including documents, relevant to the pending action; and (ii) that a party be required to permit entry onto land for relevant testing.

. . . . . .

Documents often relate to issues of damages; they may be critical to liability issue. () This rule allows the inspection of more than just documents. It also gives access to machines (ex: if litigation is about a machine malfunctioning, you can have access to the machine); access to private property (for photographs, etc.). () Requests are sent from one party to another, requesting production of documents. This rule allows one to gain access to original documents for purposes of either copying or inspecting it. {A litigation team goes in, and must go through documents, list what they are and find a way to log them}. The party seeking production of documents ultimately bears costs. () Request for production of documents from computers: We can assume that everything is fair game. With e-mail B sophisticated programs can find deleted documents. As long as its relevant, or calculated to lead to discoverable evidence, it=s allowed. If you have reason to suspect that you=re not getting the whole picture, you can hire your own investigator to gain access to such materials. Requesting documents: () From a party: Rule 34 request, specifying documents sought. () From a non-party: Through a subpoena issued under Rule 45(a)(1)(C). Requests for documents may not be made before disclosures required by Rule 26(a). Limits on requests for documents: There is no limit imposed by FRCP. Very broad requests are usually allowed, because the party propounding the request does not know what records the responding party has. Time allowed: 30 days. When you receive a request for documents: You must go through files and figure out what might be subject to inspection. There are 3 categories: () Privileged information () Possibly irrelevant information () Information that you are likely to have to give up.

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There is also information that might be subject to a protective order.

Things that you are not willing to give up should be physically separated from that which you are willing to give up. Also, there should be someone in your own office in the room (if your documents are being inspected).

Interrogatories can be used to figure out what documents you=ll request for production. () Or, you can generically describe the general area you want documents from (but you can=t be too broad either). How do you know if the other party has given you all of their relative documents? () There is no way to know. You can however, collaterally check other sources (ex: If you=re taking a deposition of company employees, ask them about documents that the company keeps {cross-check})

Physical and Mental Examinations [Rule 35]: . Orders for Examination: Rule 35 provides for an independent physical or mental examination of a party when that party=s physical or mental condition is in controversy. Such exam is available only if ordered by a court, on showing of good cause. Traditionally, this rule has allowed exams only by Aphysicians.@ Now, however, it allows exams by a Asuitably licensed or certified examiner,@ which would include, for example, doctors, dentists, occupational therapists, and any others required to be licensed and qualified to comment on a physical or mental condition. . Report of Findings: The person examined may request a copy of the examiner=s report, but if that person so requests or takes a deposition of the examiner, she waives any privilege and must produce, upon demand, copies of her own doctor=s reports of any other examinations of the same condition.

. Asking Your Opponent to Admit Things: Requests for Admission: [Rule 36]: Any party may serve upon any other party a written request for admission as to the truth or genuineness of any matter or document described in the request. The matters will be considered admitted unless the party upon whom the request was served returns a sworn statement denying the truth of the matters set forth in the request, or explaining why she cannot admit or deny them. Alternatively, the party upon whom the request was served can file written objections to those requests that she has a legal basis for not answering. A party may be asked to admit matters that are genuine issues for trial. - Rule 36 makes evidence irrelevant by taking an issue out of controversy - Rule 37(c) imposes sanctions for the failure/refusal to admit - Rule 36 works best to eliminate essentially undisputed issues (it=s simply asking the party to admit something that is true). . Disputes arise when one party uses Rule 36 to ask the other to admit a fact that seemed to be at the core of the case . Read literally, the rule suggests that requested facts will be deemed admitted. Courts have sometimes interpreted it that way, but others have ignored the literal language or interpreted it to suggest that admission were means to deal with peripheral rather than central issues. (Depends on jurisdiction).
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. . .

. . .

() Judges tend to be hesitant to deem information as admitted, if it involves the government (Judges tend to be protective of government coffers paying for inadvertent actions of government lawyers). Request for admissions is limited to parties. There is a 30 day response requirement. This device is useful for: () Asking a party to authenticate copies of documents (so they are like originals) () Can be used to prevent from wasting time on things that can be resolved now. () As a tool to get a resistant opposing party to cooperate B if they don=t respond, you=ve can get them on that issue. Facts admitted are pertinent to that particular case only B it can=t be used as proof in another case. In response to a request, a party cannot just say Adeny@ B it must explain why the party cannot admit it B there is a more affirmative obligation.

Ensuring Compliance: Rule 26(g) and Rule 37 are enforcement mechanisms. . Motion to Compel Disclosures and Discovery: () If a party fails to provide discovery or provides incomplete discovery (including disclosures and answers to interrogatories and deposition questions), the other party may move to compel discovery. A motion to compel must certify that the moving party has made a good faith attempt to obtain the discovery. . Sanctions for Violation of Order to Compel: If a party fails to comply with an order to provide discovery, the court may: () Order the matters to be treated as admitted; () Prohibit the party from supporting or opposing designated claims or defenses; () Strike pleadings, stay or dismiss the action, or render a default judgment; or () Hold the delinquent party or witness in contempt (but the contempt sanction may not be used for refusal to submit to a physical or mental examination). The court may also assess reasonable expenses incurred because of the refusal, including attorneys= fees.
_ Immediate sanction _ Automatic sanction - Rule 37: Court may impose punishments ranging from awards of expenses to dismissals of an entire case or the entry of a default judgment. - Rule 37(d) and (g): Some sanctions are available for misbehavior - Rule 37(b): Other sanctions cannot be imposed until a court order has been violated. - Rule 26(g): Like Rule 11, requires parties to sign disclosures, discovery requests, etc. It also punishes parties for unjustified requests and refusals, even when the party=s behavior has not violated a court order.

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o Rule 26(g) suggests that attorneys= fees will be an appropriate sanction for most violations of obligations.

. .

Discovery and Privacy During discovery, people can be required to reveal relevant information, even when the information is embarrassing or Aconfidential,@ in the ordinary sense of the word. The General Problem of Privacy Rule 26(c) grants judges the power to enter Aany order which justice requires to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense. Case: . Stalnaker v. Kmart Corp. () Facts: Stalnaker sued Kmart for sexual harassment. Stalnaker sought discovery of four witnesses, in hopes of revealing potential harassment by the same Kmart employee. Kmart moved for a protective order (pursuant to FRCP 26(c)), to protect four non-party witnesses. Kmart argued that the voluntary romantic or sexual activities of the witnesses were not relevant, and that an inquiry into such activities invades the privacy rights of the individuals. () Issue: Whether discovery from non-party witnesses, which probes into their Avoluntary romantic and sexual activities,@ is an invasion of privacy. () Holding: The court sustained in part and overruled in part Kmart=s motion. () Rationale: Stalnaker was not allowed to pursue discovery from the four witnesses about any voluntary romantic or sexual activities, except with Graves. The court went on to order the parties to use discovery from such witnesses only for purposes of this litigation, and barred disclosure to any other parties. () Other notes: Discovery for blackmail B force Kmart to settle {Kmart sought protective order to limit the plaintiff=s power; Judge knew what was going on B so limited what was discoverable A Special Instance: Physical and Mental Examinations Judges must balance the broad interest of privacy against the goals of discovery. The tension between the goals of disclosure and those of privacy seem to be greatest when it comes to questions involving individual bodily or psychic integrity. Rule 35 attempts to balance those interests. Case: . Schlagenhauf v. Holder () Facts: The plaintiffs were bus passengers, who were seeking damages arising from personal injuries when the bus they were riding in collided with the rear of a tractor-trailer. One of the defendants alleged that Schlagenhauf (the driver of the bus) was Anot mentally or physically capable of driving the bus at the time of the accident.@ The defendants petitioned the District Court to order Schlagenhauf to submit to four types of mental and physical examinations. Without holding a hearing, the DC ordered Schlagenhauf to submit to nine examinations (one by each of the specialists recommended by the defendant). Schlagenhauf then applied for

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() ()

()

()

() ()

a writ of mandamus (where the superior court orders the lower court to do something), seeking to set aside the order requiring Schlagenhauf to submit to the examinations. The appellate court denied mandamus; the Supreme Court granted certiorari to review questions concerning the validity and construction of Rule 35. Issue #1: Whether Rule 35 applies to both the plaintiff and defendant. Yes, because discovery Ais not a one-way proposition.@ Issue #2: Whether a plaintiff who seeks redress for injuries in a court thereby Awaives@ his right to claim the inviolability of his person. Waiver theory: A plaintiff waives his/her rights by exercising his right to access the federal courts. If this theory were valid, it would create constitutional problems. Further, the waiver theory does not work because the incident that injured the plaintiff wasn=t voluntary (so it isn=t truly a voluntary lawsuit). Issue #3: Whether Schlagenhauf must be an opposing party vis--vis the movant (or at least one of them) in order for Rule 35 to apply. Rule 35 only requires that the person to be examined be a party to the Aaction,@ not that he be an opposing party vis--vis the movant. Issue #4: Whether Schlagenhauf=s mental or physical condition was Ain controversy@ and whether Agood cause@ was shown for the examinations, as required by Rule 35. The only specific allegation made in support of the four examinations was for Aeyes and visions@; but the Supreme Court remanded the case to the District Court because of the other exams, and felt that it would be appropriate four the District Court to reconsider this order in light of the guidelines set forth in their opinion. Dissent #1: Thought good cause was shown for the physical and mental exams. Dissent #2: Would have denied all relief; stated that it was unfair that lawyers and judges are not present for exams, and cannot stop doctors, halt further inquiry, or object to a line of questioning.

Discovery in an Adversary System Discovery poses a question about what it means to be an Aadversary@ in litigation; some lawyers have difficulty in reconciling the required disclosure of potentially harmful information to one=s adversary with the competitive stance that adversarial litigation otherwise fosters. However, modern discovery requires opposing counsel to cooperate with each other. . Privilege and Trial Preparation Material . Hickman v. Taylor: P is trying to get written statements. The information contained was relevant, and not privileged. But, court said that it=s not enough to say that you want it. Instead, you must prove that there is no other way you can get those documents. The Supreme Court found that the material was privileged from discovery; Hickman failed to show necessity for production of the materials, or that the denial of production would cause hardship or injustice. . The work-product of a lawyer is privileged from discovery. . Expert Information vvvvvvvvvv. Experts testify to the inferences one can draw about the causes of an event by applying their special knowledge to the evidence available.

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dcxl. Laywitnesses can only testify as to their observations; Experts can testify to and provide opinions. They can be given hypothetical situations, to which they apply conclusions and opinions. wwwwwwwwww. The party presenting the testimony of the expert must establish that he/she is an expert and that the expertise is relevant to contested issues. xxxxxxxxxx. There are two types of experts: testifying and non-testifying. yyyyyyyyyy. Two portions of Rule 26 apply to expert testimony: cmlxxvi. Rule 26(a)(2): Requires, as part of the initial disclosures, information about experts who may testify and about the basis for their testimony, including a requirement that the adversary receive Aa written report prepared and signed by the witness Y contain[ing] a complete statement of all opinions to be expressed and reasons therefore. cmlxxvii. Rule 26(b)(4): Provides for additional discovery from experts; it requires that testifying experts submit to pretrial deposition but erects special barriers around the opinions of nontestifying experts. (mccclx) Under this rule, an expert=s report B but not notes B are discoverable. (mccclxi) Only the written report is discoverable; if the expert does not write the report, it is not discoverable. (mccclxii) A testifying expert can be deposed. cmlxxviii. Rule 26(b)(4)(B): If it=s a non-testifying expert, there must be a showing of exceptional circumstances. zzzzzzzzzz. Cases: mdclxiv. Thompson v. The Haskell Co.: Thompson sought a protective order to protect discovery of documents belonging to Dr. Lucas, a psychologist. Issue: Whether the expert testimony of a doctor, who prepared a report for prior counsel, can be protected by FRCP 26(b)(4). Outcome: Thompson=s motion for protective order was denied; the information was discoverable because: 1) Thompson=s mental and emotional state on the date she was examined was essential to the case; and 2) There was no other comparative report prepared during this crucial period of time (the period Thompson was fired); therefore, there were no other means to obtain the information. Also, defendant had no way to obtain/perform its own exam, because the lawsuit had not yet been filed. (mmxlviii) There may also be a work product or trial preparation issue here too. Rule 26(b)(4): There is no way to duplicate the report. mdclxv. Chiquita International Ltd. v. M/V Bolero Reefer: Chiquita sued International Reefer for failing to transport bananas from Equador to Germany. At Chiquita=s request, marine surveyor Winer inspected the vessel and loading gear shortly after arriving in Germany. International Reefer sought to depose Winer and obtain the file he assembled in connection with the inspection. International Reefer=s argument: Winer is a witness, not an expert; and, even if he was an expert, Winer was the only surveyor who observed the vessel shortly after it was docked in Germany, therefore the exceptional circumstance warrants discovery. Chiquita=s argument: Winer is a non-testifying expert, whose testimony is protected by Rule 26(b)(4)(B) [stating that a non-testifying expert is generally immune from discovery]. Held: Court denied the application to depose Winer, but ordered Chiquita to
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produce documents from Winer=s file that do not reflect his observations and opinions or are otherwise privileged. (mmccclxxxiv) Winer is an expert; he was hired to make an evaluation in connection with expected litigation. A witness, on the other hand, offers an opinion based on observations made in the normal course of business. (mmccclxxxv) There were no Aexceptional circumstances,@ as claimed by International Reefer. International Reefer was not precluded from sending its own expert to inspect the vessel. AThe failure of Intl. Reefer to engage its own marine surveyor in a timely manner should not be rewarded by permitting discovery of Chiquita=s expert.@ (In other words, Intl Reefer had an opportunity to get the information, but chose not to; the court says that they shouldn=t be allowed to backpaddle and get the information.) . Ensuring Compliance and Controlling Abuse of Discovery 2600. An Anatomy of Discovery Abuses 2601. Motion to Compel: ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt. If a party fails to provide discovery or provides incomplete discovery, the other party may move to compel discovery. uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. The motion to compel must certify that the moving party has made a good faith attempt to obtain the discovery. 2602. Sanctions as a Remedy zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. Sanctions for Violation of Order to Compel: Under Rule 37(b), if a party fails to comply with an order to provide discovery, the court may: mmmdccxii. Order the matters to be treated as admitted mmmdccxiii. Prohibit the party from supporting or opposing designated claims and defenses mmmdccxiv. Strike pleadings, stay or dismiss the action, or render a default judgment mmmdccxv. Hold the delinquent party or witness in contempt. mmmdccxvi. Assess reasonable expenses incurred because of the refusal, including attorneys fees. aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa. Rule 37(b)(2) Authorizes a district court to impose such sanctions Aas are just@ against a party that violates an order compelling discovery. bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb. Rule 26(g) Requires that discovery-related findings bear the signature of an attorney of record. The signature certifies that the filing conforms to the discovery rules, is made for proper purpose, and does not impose undue burdens on the opposing party in light of the circumstance of the case. mmmmxlviii. If you do something that violates certification, there is no safe harbor attached to this rule.

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mmmmxlix. When you file a motion for sanctions under Rule 26(g), Rule 11 governs because it applies to motions and pleadings. Rule 26(g) only applies to the actual discovery documents, not the motion (even to enforce discovery). [see above B ensuring compliance is addressed above] ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccccccccccccccccccccccccccc. Chudasama v. Mazda Motor Corp.: The Chudasamas sued Mazda, claiming defects in their MPV minivan caused an accident, which resulted in injuries. The Chudasamas= interrogatories and requests for production were overly broad; in response to the excessively broad requests, Mazda adopted four strategies: 1) Objecting to almost every production request and interrogatory; 2) Filing a motion to dismiss the fraud count for failure to plead fraud with particularity [pursuant to R9(b)]; 3) Seeking a protective order to protect confidential documents, which it wanted to keep from competitors; 4) Withholding a substantial amount of information that it later conceded was properly discoverable. The Chudasamas moved for sanctions, for failure to comply with the court order compelling Mazda to respond Afully and completely@ to C=s laundry list of interrogatories and requests for production. Sanctions were imposed in accordance with Rule 37(b)(2) and 26(g). Holding: The decision to compel discovery was an abuse of discretion. MMMMCCXXIV. Resolution Without Trial Discovery can produce information that enables parties to reach converging estimates of the outcome of the lawsuit; it may save the parties time and money to agree to settlement. FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF. The Pressure to Choose Adjudication or an Alternative Two procedural devices force parties to engage and respond to each other: default judgment and involuntary dismissal. 4992. Default and Default Judgment ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt. Rule 55: Typically occurs when a defendant refuses to respond to his litigative cues. mmmmmdcclx. Rule 55 applies to both plaintiffs and defendants (plaintiff B on counterclaim). mmmmmdcclxi. Summons Form 1 tells defendants that if they don=t answer in 20 days, a default judgment will be taken. (mmmmmmcxliv) If there is no response, the clerk can enter a default judgment. (Therefore, it is not an automatic default judgment) bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbb Under 55(b)(1), the clerk can enter a default judgment on the 21st day (without judge=s involvement) only if the amount of damages is for a sum certain.

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ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc If the amount of damages is an unascertained amount, a motion must be filed (with judge) for a hearing to determine the amount. (mmmmmmcxlv) There is, however, an abhorrence to default judgments. (mmmmmmcxlvi) Parties can agree to extentions; but, get it in writing and file it with the court. uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. In the United States, default does not operate as a general denial; instead, it operates as an admission to liability. vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv. Case: mmmmmmdcclxxxiv. Peralta v. Heights Medical Center : Heights sued Peralta for $5,600 Peralta allegedly owed Heights. After Peralta did not respond to the complaint, a default judgment was entered for the amount claimed plus attorneys fees and costs. Peralta then began a proceeding to set aside the default judgment (pursuant to 55(c)), claiming that he was never served with process, therefore the judgment was void under Texas law. Heights filed a motion for summary judgment, asserting (among other things) that Peralta must show that he had a meritorious defense to the action in which judgment had been entered. The court required Peralta to show that he had a meritorious defense, stating that without such a defense, the same judgment would be entered on retrial; therefore, he did not suffer harm from judgment without notice. Holding: The court found in favor of Peralta (reversed lower court=s judgment). Rationale: Failure to give notice violates due process of law. If Peralta had received notice, there were several options he could have explored, such as working out a settlement, or paying the debt, or selling the property to cover the debt. By not giving notice, Peralta=s opportunity to be heard was violated (so doesn=t matter whether or not he had a meritorious defense, because his right to due process was violated?) 4993. Failure to Prosecute: Involuntary Dismissal hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh. Rule 41(b): Occurs when a plaintiff initiates a suit but then fails to respond to one of the defendant=s initiatives or disobeys court orders. mmmmmmmcdlxiv. It is an adjudication on the merits; therefore, the plaintiff would be barred from refiling the lawsuit. It is given full force of the court and cannot be appealed.

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iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiii. If a plaintiff files a lawsuit, but simply sits and waits instead of pursuing it, a defendant may make a Rule 41(b) movement for involuntary dismissal Afor failure of the plaintiff to prosecute@ (as well as on other grounds). 4994. Voluntary Dismissal lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllll. Rule 41(a)(1)(i) allows a plaintiff to dismiss a lawsuit any time before the defendant answers. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmm. Rule 41(a)(1)(ii) permits the plaintiff to dismiss a suit at any time if all parties agree. nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnn. These stipulated dismissals do not bar a later refiling of the suit unless there has been a previous dismissal or the dismissal itself contains a provision that bars refiling. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ooo. Rule 41(a)(2) authorizes a voluntary dismissal only by permission of the court. pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppp. Voluntary dismissal was helpful in past, so that parties with good claims who brought the wrong writ were allowed to refile; today however, the system permits easy joinder of claims and easy amendment. It seems like voluntary dismissals are no longer important; however, they do facilitate settlements. If a plaintiff tries to settle, but the parties do not actually reach a settlement, the plaintiff is still allowed to bring the lawsuit. GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGG. Avoiding Adjudication In the United States, parties are allowed a broad set of ways to avoid litigation altogether (by agreement in advance) or to escape from it once involved, through a device known as alternative dispute resolution (ADR).
ADR relies on the law for its effectiveness; ADR involves contract law; the courts will enforce contracts not to litigate. By refusing

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to hear a lawsuit filed in breach of such an agreement, courts force parties to use the agreed-on procedure or to abandon their dispute. In ADR, parties have enormous freedom to write their own procedural rules. Existing procedural rules come into play only if the parties have not otherwise agreed (in other words, existing rules are used as gap fillers). Traditionally, the courts adjudicated matters (a final judicial decision). Today however, the courthouse provides other means of resolving disputes [ex: mediation (facilitated negotiation; a process by which both parties try to reach an agreement satisfactory to both parties)] Sometimes mandatory, sometimes semi-mandatory. Courts can also provide arbitration. o Parties can also mediate, negotiate, or arbitrate outside of court. o Example of arbitration: Some courts have mandatory arbitration for civil claims under a certain amount. In PA, arbitrators were 3 attorneys from the community, picked by the court. If parties appealed, it was a trial de novo (a new trial, in front of judge and jury). About 50% of cases ended in arbitration. It saved time (discovery period was shorter). [Don=t confuse this with private arbitration] o Under the ADR Act of 1998: Each federal district court is required to Aauthorize [], Y devise, and implement its own alternative dispute resolution program.@ Under the act, a consented-to arbitrator=s award has the effect of a judgment. It cannot however, be reviewed by a court of appeal. A party who does not like an arbitrator=s award can request a trial de novo in the district court.

8064. Negotiation and Settlement xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Benefits: mmmmmmmmdcccxxxii. Settlements are often cheaper and faster than trials. mmmmmmmmdcccxxxiii. Some argue that they can take account of nuances and subtleties in the facts and in the parties= interests that would be lost at trial. yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyy. Drawbacks: mmmmmmmmmclxviii. Some argue that settlement leaves the parties less satisfied than if a trier heard their stories, permits might to triumph over right, and deprives the public of definitive adjudication of issues that may reach beyond the individual case.

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zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. Settling: mmmmmmmmmdxii. In order to settle, each side must come up with an assessment of the value assigned to the client=s situation, and there must be an overlapping bargaining range (the least the plaintiff will take; the most the defendant will pay). (mmmmmmmmmdcccxcvi) Discovery is used to determine the value of the case. (mmmmmmmmmdcccxcvii) It is best to settle after discovery is done; that=s when the parties are in the best position to see what they can prove and what the other party can prove. (mmmmmmmmmdcccxcviii) Settlement can take place at any time: before, during, on appeal. mmmmmmmmmdxiii. AGetting real@ about assessments: (mmmmmmmmmmccxl) Summary jury trial (as in Lockhart): Gives parties a better idea of the strength/value of their cases B an advisory opinion. It=s a scaled-down process (usually a jury of 8 people or less, who listen to an abbreviated form of each side) that gives each side the opportunity to find out how a jury would decide. It=s only advisory B when both parties are far apart in their views, it brings them closer together. Verdict serves as a basis for further negotiation. [Court can order it, or either party can request it. Parties pay, but its not as expensive as arbitration.] (mmmmmmmmmmccxli) Early neutral evaluation: A neutral party assesses the strength and weaknesses of the case. Usually involves lawyers, who hear the case and render an advisory opinion. Also allows parties to do a more accurate assessment. (mmmmmmmmmmccxlii) Private judicial systems: Sometimes involves retired judges. Often quicker, cheaper. aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aa. Effectuating a Settlement: mmmmmmmmmmdxxxvi. A written settlement agreement: Include the amount of settlement, and the agreement (things to include: not to file a case, not to disclose the terms of the settlement, a release of all claims, no admission of guilt), consideration (must be present, not past). (mmmmmmmmmmcmxx) Problems with a release, agreement, etc: What if one side does not live up to the agreement? ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttt Sue for breach of contract; include a provision in the contract for attorneys fees; include a Aconfession of judgment@ (though constitutionality problems are attached) to follow for automatic default judgment.

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uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu If the agreement is no good, you can still go back and ask for the total amount you were originally asking for (but can=t use parts of the prior agreement as admission of liability). (mmmmmmmmmmcmxxi) Contractual agreement: Typically a release is included, and description of the scope of the release, and how it will be enforced if one of the parties breaches (it=s usually through contract law). bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbb. Settlement, if you=re already in court and the parties enter into a written agreement to settle: mmmmmmmmmmmdlx. Get a voluntary or involuntary dismissal, or a consent decree. (mmmmmmmmmmmcmxliv) Voluntary dismissal (pursuant to Rule 41(a)). (mmmmmmmmmmmcmxlv) Involuntary dismissal (pursuant to Rule 41(b)). rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr Risk: If you dismiss with prejudice, how do you enforce the agreement? By contract law (for breach of contract). If the case had previous full adjudication, cannot retry the case. (mmmmmmmmmmmcmxlvi) 8(c) Accord and satisfaction. (mmmmmmmmmmmcmxlvii) Consent judgment: An order of the court. If the party does not live up, you have the other methods of recovery (like contract law), plus the power of the court behind it (sue for contempt). xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Thing to watch out for: You have the court involved. The court will have to decide whether what you=re agreeing to makes sense. (In other forms of settlement, the court is not involved B it=s private)

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yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyy It is not in the rules per se B it=s inherent in the court=s duties. zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz If it=s class action, or if minors are involved, the court must approve the settlement. ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc.Contracting to Dismiss (578-582) mmmmmmmmmmmmmmmmmxxiv. The simplest form of settlement is a contract (also called a release) in which the plaintiff (or prospective plaintiff) agrees not to bring a lawsuit or drop a filed one. (mmmmmmmmmmmmmmmmmcdviii) Typically, money is given in return for such agreements. mmmmmmmmmmmmmmmmmxxv.There is no general doctrine requiring judicial approval of settlements. However, settlements are contracts and can be attacked on any of the grounds on which one can attack any contract: fraud, duress, mistake, incapacity, unconscionability, etc. 8065. Guided Negotiation: Mediation and Coercion Settlement negotiations sometimes fail, usually due to one of two causes: 1) The parties may have different estimates of the result of litigation (one or both is too optimistic); or 2) Parties may have similar guesses about the outcome of litigation but may not be communicating clearly. jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj. Rule 16(f) Imposes sanctions on a party or attorney (or insurer) who fails to obey an order; a party or attorney who comes unprepared to participate in a conference; if a party does not apply a good faith effort of participation.

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kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk. Lockhart v. Patel : Plaintiff lost sight in one eye, allegedly due to doctor=s negligence. In a summary jury trial, an advisory jury awarded the plaintiff $200,000. Then, at a pretrial settlement conference, the insurance carrier=s rep told the court it was authorized to offer $125,000. The plaintiff, however, demanded $175,000. Judge probably thought it could strongarm the parties if a qualified negotiator were present, directed the insurance company to bring someone authorized to negotiate a settlement. When the insurance company failed to do so, the court issued a default judgment against the defendants and set up a criminal contempt hearing. Later that day, the insurance company settled with the defendant. Issue: Whether the court has the authority to require parties to attend settlement conferences. Holding: Yes, the court has the authority to require parties, their attorneys, and insurers to attend settlement conferences, and to impose sanctions for those who do not obey court orders to that effect. Rationale: Rule 16(f) assists judges and parties in holding productive settlement conferences. The court noted that while it cannot require parties to settle a case, it can require parties to make reasonable efforts to do so. FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF.C urtailed Adjudication: Summary Judgment 18304. Rule 56: Governs the making and granting of motions for summary judgment. 18305. Key provision: Rule 56(c): Provides that such motions are to be granted when the record Ashow[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 18306. A plaintiff can move for summary judgment after 20 days from commencement of the action; or after a service of a motion for summary judgment by the adverse party. Defendant can move for summary judgment at any time. ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttt. Motions for summary judgment must be served to adverse party at least 10 days before the scheduled hearings.
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uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Opposing affidavits may be served any time before the hearing. vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvv. Summary judgment is based on the pleadings, depositions, interrogatories, admissions, affidavits. 18307. Courts decide summary judgment motions on the basis of various documents (as listed above). No witnesses testify in court; no jury is present. rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr. Affidavits are one of the most common documents in summary judgment motions. The affiant swears under penalty of perjury that the statements made are true; lawyers usually review such documents with affiants, who then sign them. ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssss. Statements must be made on personal knowledge. 18308. Irrespective of who files a motion for SJ, summary judgment is proven if: 1) Plaintiff cannot prove his or her case; or 2) Defendant can prove that he didn=t do it.

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx. In Visser, Packer stated that he didn=t fire Visser because of age, so the burden was on Visser to prove his reasons for being fired. 18309. When looking at summary judgment, keep in mind what has transpired before the motion for SJ was made: Since it=s a notice pleading system, the information contained and legal theories will be vague, etc. It is often difficult to get a 12(b)(6) motion granted (failure to state a claim), because you must assume that everything the plaintiff says is true; however, through discovery the idea is how much can the plaintiff actually prove. If you go beyond the pleadings, and into discovery B you move beyond legal theories and figure out what the opponent can prove, what information it can generate; parties can disagree about the law, but if there is no factual controversy, there is no requirement to have a motion for SJ. You have to show facts; cannot rely on pleadings (in either support or opposition of a motion for SJ). 18310. Cases: dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddd. Celotex Corp. v. Catrett: Catrett sued Celotex, claiming that her husband=s death was the result of exposure to products containing asbestos manufactured or distributed by 15 different corporations. Celotex motioned for SJ, claiming that Catrett failed to produce evidence that Celotex=s product was the proximate cause of the injuries alleged (didn=t deny causing death; instead, it argued that plaintiff could not prove it). In response, Catrett produced three documents establishing that her husband was exposed to Celotex=s product. The district court granted the motion for SJ; appellate court reversed. Issue: Whether the court should grant Celotex=s motion for SJ, or whether Catrett has failed to prove that her husband was exposed to Celotex=s product. Holding: Reversed SJ; remanded case for trial. Rationale: There is no express or implied requirement in Rule 56 that the moving party support its motions with affidavits or other similar materials negating the opponent=s claim. mmmmmmmmmmmmmmmmmmmmxcvi. The defendant can do one of two things: 1) Affirmatively show that the plaintiff was not exposed; or 2) Show that plaintiff cannot prove case. mmmmmmmmmmmmmmmmmmmmxcvii. Under the old test [Adickes]: The moving party bears the burden of proof (in this case, to show that the plaintiff
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was not exposed B therefore, it=s a burden of non-causation.) This test was so hard on the party who bears the burden of proof, that it was difficult to get summary judgment. (Under the new test, the defendant can either state AI can prove it wasn=t me@ or APlaintiff can=t show it wasn=t me). mmmmmmmmmmmmmmmmmmmmxcviii. Plaintiff is in same position (same burden) at summary judgment and at trial. eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee. Visse r v. Packer Engineering Associates: Visser was 57 years old when he was hired to work at Packer. Several years later, a dispute broke out among the company=s board members over founder Packer=s conduct. Visser was among Packer=s critics, and threatened to bring a stockholder=s derivative suit against Packer. Visser coauthored and circulated a letter attacking Packer=s leadership; eventually, Packer fired Visser, who at that time, was 64 years old. Visser=s pension was 9 months away from full vesting; as a result, he lost almost 2/3 of his pension benefits. Issue: Whether granting summary judgment was proper. Holding: Yes, SJ was proper because there was no evidence that age or pension costs played a substantial, or any, factor in Packer=s firing of Visser. GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG GGGGGGGGGGGGGG. Judicial Management of Litigation 20352. AManaging@ Litigation

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nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn. We=re looking at the judge=s role in managing litigation [Rule 16] oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooo. Sanders v. Union Pacific Railway Co.: Sanders was injured while working for the RR. Sanders filed a complaint in 6/95; the judge set a trial date for 11/19/96, and scheduled a pretrial conference for 11/8/96. Among other things, the order warned the parties that a failure to comply could lead to sanctions. Sanders failed to comply with almost all the requirements in the order. Sander=s attorney told the judge=s law clerk (who presided at the conference) that he was unable to comply with the pretrial order because he was tied up in another lawsuit. A week later, the district court judge dismissed Sander=s action with prejudice, as a sanction for failure to comply with the pretrial order, stating that counsel completely failed to comply with the pretrial order; Union Pacific had already incurred Agreat pain and expense@ preparing for trial; other litigants would be inconvenienced by the delay; the case did not involve important questions of public policy. Issue: Whether the dismissal of the plaintiff=s action with prejudice for failure to comply with the court=s pretrial preparation order is an abuse of the court=s discretion. Holding: Dismissal affirmed. Rationale: Sander=s counsel=s failure to inform the court or opposing counsel that he would be unable to meet pretrial and trial deadlines, counsel deprived the court of the opportunity to make alternative arrangements, or to impose lesser sanctions. Under the given circumstances, the district court did not abuse its discretion. Dissent: Dismissal is a harsh penalty, which should be applied only in extreme circumstances; Sanders= multiple failures were really a part of one general failure (to prepare for trial); the boilerplate warning (of possible sanctions) were inadequate. 20353. Managing Litigation Bound for Trial: The Pretrial Order

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lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllll. McKey v. Fairbairn : McKey rented a house from Fairbain. McKey=s mother-inlaw, Littlejohn, lived in the house with the McKeys. The McKeys found an area Aabout twice the size of a pie@ on Littlejohn=s bedroom wall. They contacted Fairbain; a representative came to inspect it, and after being unable to find the leak, he agreed to take care of the problem. Six days later, Littlejohn awoke to find her floor wet. She mopped it twice, then left the room. When she returned, she slipped and fell, and as a result sustained injuries. Littlejohn sued Fairbain, alleging that Fairbain knew of the leaking roof and should have repaired it. During trial, the judge asked McKey=s counsel if what he was alleging was true. Later in the trial, McKey=s attorney moved to amend the pretrial order to include certain sections of the District of Columbia Housing Regulations, which require that roofs do not leak. The trial judge denied the motion and directed a verdict for Fairbain. McKey appealed. Issue: Did the court err in refusing to admit into evidence pertinent housing regulations where counsel for plaintiff first became aware of them during the course of trial and proffered them while still putting on plaintiff=s evidence, particularly where counsel for defendants had admittedly been familiar with these regulations. Holding: Affirmed lower court=s directed verdict for the defendants. Rationale: The trial judge acted within his discretion in refusing to receive the housing regulations, because no reference was made (to it) in the pretrial statement. The trial judge did not abuse his Ajustifiably large discretion@ in refusing to permit appellant to change her theory during trial. IV. Subject Matter Jurisdiction of the Federal Courts A. The Idea and Structure of Subject Matter Jurisdiction 1. Involves the struggle between federal and state court power. The types of cases within each court=s jurisdiction is determined by the court=s Asubject matter jurisdiction.@ a. Courts are of either limited or general jurisdiction: i. Federal courts are of limited jurisdiction. (i) Article III, '2: Limits federal court jurisdiction to the list set forth in this section. A case not enumerated may not be heard in a federal court. (ii) Two questions always lurk in every federal case: 1) Does the case fall within one of the enumerated categories of Article III, '2; and 2) has Congress further authorized the lower federal courts to assume that jurisdiction? ii. State trial courts are of general jurisdiction. (i) Presumptively, they have a right to hear a case unless that right is taken away by a statute. b. Subject matter jurisdiction may be exclusive or concurrent: i. Sometimes federal jurisdiction is exclusive (fed court has the sole right to hear that kind of case) Examples: (i) Admiralty (28 U.S.C. '1333) (ii) Bankruptcy (28 U.S.C. '1334) (iii)Antitrust (28 U.S.C. '1337) ii. Concurrent jurisdiction: (i) Sometimes cases can be heard in either the state or federal system.
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(ii) Federal question: Usually presumption is concurrent jurisdiction. B. Federal Question Jurisdiction: 1. 28 U.S.C. '1331: Grants federal courts jurisdiction over cases that arise under federal law. a. Key provision: Gives district courts jurisdiction over cases Aarising under@ the Constitution, statutes, or treaties of the federal government. b. The federal question must appear in the plaintiff=s complaint. i. When determining whether there is federal question jurisdiction: (i) The defendant=s answer or defense is irrelevant. (ii) The plaintiff=s anticipation of a defense is irrelevant. b. Federal courts have concurrent jurisdiction over such cases 2. Comparing personal and subject matter jurisdiction: a. Rule to raise the issue: i. Personal jurisdiction: Raised by Rule 12(b)(2) ii. Subject matter jurisdiction (federal question): Rule 12(b)(1): lack of jurisdiction over the subject matter; 12(b)(6) [no valid claim in federal court]. b. Differences between PJ and SMJ: i. The defense of lack of personal jurisdiction can be waived; the defendant can choose to be bound to a court=s judgment ii. The lack of subject matter jurisdiction cannot be waived; the court can raise SMJ. iii. SMJ can be raised at any time. b. If someone tries to enforce a judgment in another state, should the judgment be enforced if there is a claim that the original court lacked SMJ? i. If a judgment has been rendered, and there has been no appeal, the party cannot collaterally attack in a subsequent enforcement proceeding. 2. Louisville & Nashville Railroad v. Mottley: The Mottleys were injured in a railway accident, and accepted a settlement agreement that gave them lifetime passes for free transportation. Later, in an effort to prevent bribery of public officials, Congress passed a law that made free passes unlawful. The railroad then refused to honor the Mottley=s passes. The Mottleys sued the railroad in federal court, seeking specific performance. The complaint alleged: 1) AThat the act of Congress referred to does not prohibit the giving of passes under the circumstances of this case@; and 2) if the law does prohibit such passes, it would violate the 5th Amendment because it deprives the Mottleys of their property without due process of law. (The actual claim is for breach of contract - the RR=s refusal to honor the Mottley=s passes. The Mottleys assumed that the reason the RR did not honor their passes was because of the act; that=s an anticipated defense.) Holding: There was no federal question jurisdiction, because the cause of action did not arise under the Constitution and laws of the United States. AIt is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense [is] invalidated by some provision of the Constitution of the United States.@ a. Court said that the proper basis for determining federal question is to look at the complaint, and what is alleged. b. If the court does not have the authority to hear a case, the parties cannot give the court that authority (in this case, the plaintiff, defendant, and trial court did not raise the issue; it was the Supreme Court).

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B. Diversity Jurisdiction: 1. 28 U.S.C. '1332: a. 1332(a)(1): Grants district courts jurisdiction over cases between citizens of different states, when the amount in controversy exceeds $75,000. b. 1332(a)(2): Grants district courts jurisdiction over cases between citizens of a State, and citizens and subjects of a foreign state, when the amount in controversy exceeds $75,000. i. For diversity purposes, an alien is a resident of the state in which he is domiciled (therefore, in Saadeh, Farouki would be a citizen/domiciled of Maryland; Saadeh would be a citizen of Greece.) {Permanent resident aliens; different from aliens} b. Diversity of citizenship requires complete diversity of all the parties. i. Such diversity must exist at the time the complaint is filed. ii. The burden of pleading the diverse citizenship is on the party invoking federal jurisdiction, and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof. 2. Proving citizenship to a particular state: Person must be a citizen and domiciliary of that state. a. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient. b. Domicile: The place of Ahis true, fixed, and permanent home and principle establishment, and to which he has the intention of returning whenever he is absent therefrom Y@ c. Change of domicile requires one to do two things: i. Take up residence in a different domicile ii. With the intention to remain there. b. Citizenship of a partnership: i. Partnership are considered to be a collection of people, not a single entity (like a corporation, which is domiciled in either the principle place of business or place of incorporation. ii. There are three tests to determine the principle place of business: (i) Nerve center B place where the executive and administrative functions are controlled. (ii) Muscle (iii)Hybrid test. b. Citizenship of a corporation: i. 2. Federal diversity of citizenship jurisdiction falls under Article III of the Constitution; it permits, but does not mandate, Federal court jurisdiction in such cases. Therefore, it is almost entirely permissive. a. The First Congress exercised its prerogative to vest diversity jurisdiction in the Federal courts. i. Why have diversity jurisdiction? What=s federal about it? (i) Parties are from different states; there is a fear that a party from another state would be adversely affected. (ii) Creditors were afraid that they were not going to get fair treatment when in another state, so they lobbied to be protected.

ii. Threshold limit (amount in controversy): Congress had a right to set it, so they did (basically saying that unless you have a huge claim you have no right to be in federal court. 2. Cases: a. Mas v. Perry: Jean Paul and Judy Mas are married. Jean Paul is a citizen of France, and Judy was (later determined to be) a citizen of Mississippi. Both were graduate assistants at Louisiana State University. The couple married in Mississippi, then returned to Baton Rouge to 2 years, to finish school, before moving to Illinois. While in Louisiana, the Mas= rented an apartment from Perry. They later sued him for damages incurred as a result of the discovery that their bedroom and bathroom contained Atwo way@ mirrors, and that Perry had watched them. At the end of the Mas= case, Perry made an oral motion to dismiss for lack of jurisdiction; the court denied the motion. At the end of this trial, the jury found for the Mas=. Perry appeals, arguing that the Mas= failed to prove diversity of citizenship among the parties and that the requisite jurisdictional amount is lacking with respect to Mr. Mas. Holding: Diversity exists on two grounds: 1) A claim by an alien against a State citizen; and 2) An action between citizens of different states. Rationale: Jean Paul is a citizen of France; pursuant to '1332(a)(2), diversity exists. The court found that Judy was a domiciliary of Mississippi. She remained a domiciliary of Mississippi because she lived in Louisiana only as a student and lacked the requisite intention to remain there. The court stated that until an individual acquires a new domicile, her old one will remain. (The fact that she moved several times after filing the complaint does not prove diversity; instead, it supports her lack of intent to remain permanently in Louisiana.) b. Saadeh v. Farouki: Farouki, a Jordanian citizen, borrowed money from Saadeh, a Greek citizen, and defaulted on the loan. At the time Saadeh filed suit, Farouki was living in Maryland and achieved Apermanent resident@ immigration status in the United States. The district court found for Saadeh; Farouki appealed on the merits. The appellate court asked the parties to brief jurisdiction. Issue: Whether diversity exists between a citizen of a state and an alien residing in the same state. Holding/Rationale: The court concluded that Congress intended to contract diversity jurisdiction through the 1998 amendment to 1332(a), not to expand it by voiding the longstanding rule that complete diversity is destroyed in lawsuits between aliens. The court stated that the alienage amendment Aclearly appears to have been intended only to eliminate SMJ of cases between a citizen and an alien living in the same state Y There is no reason to conclude, however, that the amendment was intended to create diversity jurisdiction where it did not previously exist.@ 2. Note: Amount in Controversy: In addition to requiring diversity, '1332 requires an amount greater than $75,000 in controversy. a. Courts look at pleadings to determine the amount in controversy; therefore, you never file in state court based on diversity without an amount over $75,000. i. Don=t confuse it with federal question jurisdiction, where there is no threshold amount required. b. Can claims, which are individually less than $75,000, be aggregated to meet the threshold? i. It depends on the circumstances: (i) Yes, if there is a single plaintiff, with two or more unrelated claims against a single defendant may aggregate claims to satisfy the statutory amount (ii) No, if there are two plaintiffs, each with claims against the same defendant, and their claims are regarded as Aseparate and distinct.@ [Ex: Mas case: Separate claims, therefore cannot aggregate.] (iii)Class action: Can be aggregated, but some individual claims must meet the amount in controversy requirement.

B. Supplemental Jurisdiction: Broadens federal jurisdiction. 1. Supplemental jurisdiction stretches federal jurisdiction to cover parts of cases that, if brought independently, would not have fit within the district courts= subject matter jurisdiction. Concept codified in 28 U.S.C. '1367. (Before codification, the concept of supplemental jurisdiction was split into pendent jurisdiction and ancillary jurisdiction.) 2. As set out by the Gibbs court: a. Federal courts may hear a state claim if: i. The state and federal claims derive from a common nucleus of operative fact. ii. The claim is such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding iii. It is a situation where state claims are so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. b. Pendent jurisdiction is a doctrine of discretion, not of plaintiff=s right. i. Justification: Judicial economy, convenience and fairness to litigants; therefore, if such conditions are not present, the federal court does not have to hear the case. b. A federal court may dismiss a case if: i. Federal claims are dropped before trial, pendent state claims should also be dropped. ii. If it appears that the state issues substantially predominate (either in terms of proof, of the scope of issues raised, or of the comprehensiveness of the remedy sought), the state claims may be dismissed without prejudice (and left for a state court to decide). iii. There may also be non-jurisdictional reasons B such as the likelihood of jury confusion in treating divergent legal theories of relief B that would justify separating state and federal claims for trial [FRCP 42(b)] b. Whether pendent jurisdiction has been properly assumed is one that remains open throughout the litigation. Rationale: i. Problems, which could not have been anticipated at the pleading state, may arise. ii. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is the only appendage, the state claim may fairly be dismissed. 2. Case: a. United Mine Workers v. Gibbs: Gibbs was hired by Consolidated to mine and haul coal during a dispute between UMW and its rival, Southern Labor Union, over representation of miners. As a result of the events that ensued, Gibbs lost his job as superintendent, and never entered to performance of his haulage contract. He began to lose other trucking contracts and mine leases in nearby areas, and claimed that this was the result of a concerted union plan against him. He sued UMW in the USDC for the ED of Tennessee; jurisdiction was premised on allegations of secondary boycotts under '303 (a federal labor statute). Federal jurisdiction over his state law claim was premised on pendent jurisdiction. Gibbs lost on the federal claim, but won on the pendent state claim. Issue: Can a district court entertain a nonfederal claim that arises from the same nucleus of operative facts that give rise to a federal claim? Holding: Yes, a district court can entertain a nonfederal claim that arises from the same nucleus of operative facts that gave rise to a federal claim. Court has power & discretion.

i. Supplemental jurisdiction may be exercised only when the relationship between the federal and nonfederal claims is such that it can be said that the inter lawsuit before the court Acomprises but one constitutional case.@ This relationship exists when both claims Aderive from a common nucleus of operative fact.@ (i) The test: Whether the facts are of the type that give rise to a party=s expectations that the two claims should be heard together. ii. It is not an abuse of discretion for the district court to entertain a state claim after the federal claim has been dismissed on the merits, because as such dismissal was not on jurisdictional grounds, the court=s power to hear the federal claim has not been changed. B. Removal 1. Impt: In diversity cases, the action may be removed only if no defendant is a citizen of the same state in which the action is pending. 2. Same rules still govern. 3. Limited to defendants. 4. Multiple claims 5. Caterpillar, Inc. v. Lewis: V. The Erie Problem B Conflict of Laws A. Rules and Decisions Act: '1652: B. The old rule: Swift v. Tyson 1. Held: Federal courts were free to find the Aright answer,@ and were not bound by precedent. Judges were free to exercise their own judgment to determine which state=s laws to apply, if one or both states had statutes covering the matter. (If there was no state statutes, the federal court did not have to refer to state law at all.) a. Rationale: Courts found that common law (case law) did not carry the full force of statutory law. Instead, they said that it was simply an interpretation of the law. 2. Erie Rule: a. A federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including that state=s conflict of laws rule. However, federal courts apply federal procedural law in diversity cases. [Erie Railroad v. Tompkins] i. Federal statutes or rules dealing with procedural matters will be applied over contrary state law. ii. Discussion of Erie: (i) Under Erie, both state statute and state common law makes up the Asubstantive law@of the state. (ii) Reasons for the shift from Swift to Erie: a Under Swift, there would be a lack of uniformity, because the courts could disagree with what the general law is. b Not only do federal courts not have to follow state law, but states didn=t have to either (lack of uniformity on two levels) (ii) Non-citizens would essential control; the citizen would be disadvantaged a Different outcomes when you have non-citizen v. citizen and citizen v. citizen (based on non-citizenship, the court would have another option (to apply general law instead) (ii) The constitutional problem: a Federal judiciary becomes legislators

(ii) Is there federal common law? a Under Swift, general common law was permitted under federal law. b Erie says no. Feds could interpret their own federal statutes; if it=s a diversity issue, it could interpret state statues and common law. ii. The choice of law issue: Between two states, how do you know which one to choose? (i) Look to the forum state to determine choice of law (statute will state which law to apply) a EX: In Erie, the cause of action arose in PA; P filed lawsuit in U.S. District Court for the Southern District of New York (forum). They then look to laws of NY, because it was the forum state, which stated that the court must follow PA law. a. Rationale: The idea is to mirror state court (therefore, if Erie were brought in state court, PA law would have applied), without the possible prejudices of state court. B. The Limits of State Power in Federal Courts 1. Interpreting the Constitutional Command of Erie: a. Determining Aprocedural@ versus Asubstantive@ law: i. Outcome-determinative test: Used when it is unclear whether a state law rule is substantive or procedural. Whether the outcome would be the same in state court and in federal court. (i) Under the outcome-determinative test, it does not matter whether the law is Aprocedural@ or Asubstantive@ (ii) Guaranty Trust Co. v. York: Court stated that it didn=t matter whether the SOL (which was at issue) was procedural or substantive; the court stated that the intent of Erie was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in State court. a This case takes power away from federal court, because just about everything, including procedure, affects outcome. Under Guaranty Trust, state law would prevail too often. (ii) Problem with the outcome-determinative test: It=s too difficult to determine whether the outcome would be different if the case were tried by a judge versus a jury. ii. Balancing of the interest test: Federal interest (integrity of own system) against state conflict (state rule, practice, law) (i) This test essentially articulates that the federal court had an interest in applying some federal interest separate and apart from the state=s interest in a diversity case. (ii) Byrd v. Blue Ridge Rural Electric Cooperative: Court found that the outcome-determinative test should not be applied because it was not clear. The federal court was again free to reject state rules. (iii)Problem with the Byrd test: How do you apply it? The court did not give any definitive guidelines; there=s no scale, no way to weigh the interest; it amounts to an ad hoc decision basis, either recognizing federal and overriding state, or the converse. B. De-Constitutionalizing Erie:

1. a.

Hanna v. Plumer: The two-step test: Clash between a Federal Rule and a state practice or rule: i. If the Federal Rule is consistent with the power granted to the courts under U.S.C. '2072 (Supremacy clause?), the Federal Rule wins (stop analysis there). Essentially, if state and federal rules are in conflict, federal rules will apply. b. Clash between a federal practice (statute?) and a state rule (policy or statute?): i. Apply the outcome-determinative test: (i) In order to define outcome determinative, look to two factors: 1) would it encourage forum shopping; or 2) inequitable administration of the law (will it be fair and consistent) a If it encourages forum shopping, apply state law because the courts are trying to shut the door on diversity citizenship (don=t want to let everyone in). b If the answer is yes to either, the federal courts are likely to apply state practice. 2. a. Reading Byrd and Hanna together: Both have the following in common (distinguished from Guaranty Trust): i. That there are federal interests at stake separate from state interests in diversity cases. Therefore, federal court does not have to behave like state court. ii. Both have to come up with a new test to determine whether the state or federal practice will prevail.

V. Respect for Judgments: Read: Rush v. City of Maple Heights: Only one cause of action arises from a single wrongful act.

Problem: Defining Asame claim@ (in this case, it was considered the same claim because it arose out of the same cause of action.)

A. Res Judicata (Claim Preclusion): 1. Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by res judicata (claim preclusion) from asserting the same cause of action in a later lawsuit. 2. Elements: For the cause of action to Amerge@ (when the claimant wins the earlier judgment) or be Abarred@ (when the defendant wins the earlier judgment), it must be shown that the earlier judgment is: a. Final b. On the merits i. Generally, any involuntary dismissal except those based upon jurisdiction or venue (or unless the court in the previous action entered the judgment Awithout prejudice@) is considered a judgment on the merits. Thus, a default judgment can carry res judicata consequences. b. The same cause of action is involved in the later lawsuit. i. Same cause of action: All claims arising out of the same transaction or occurrence that is the subject matter of the claim asserted by the claimant 2. a. b. Precluding the ASame@ Claim Efficiency i. Frier v. City of Vandalia : Consistency: i. Martino v. McDonald=s System, Inc.:

2. a. 2. 3. a.

Between the ASame@ Parties Searle Brothers v. Searle: After a Final Judgment After a Judgment Aon the Merits@ Gargallo v. Merrill, Lynch:

B. Issue Preclusion: 1. A judgment for the plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them or their privies, as to issues actually litigated and essential to the judgment in the first action. 2. Requirements: a. Actually litigated: i. The issue must have been a subject at trial, with evidence presented on it and a decision rendered by the trier of fact. (i) Therefore, a default or consent judgment does not give rise to collateral estoppel. b. Issues of Fact Essential to the Judgment: i. It must be clear exactly how the issue was decided by the trier of fact. (i) Therefore, a general verdict will not have a collateral estoppel effect in a subsequent case. ii. The judgment must depend on the issue of fact decided. iii. Note that the Aessential fact@ rule tends to reduce the number of cases in which collateral estoppel can be applied, thus eliminating some of the burden from the first suit. 2. 3. a. 2. The Same Issue An Issue AActually Litigated and Determined@ Illinois Central Gulf Railroad v. Parks: An Issue AEssential to the Judgment@

3. Traditional AMutuality@ Rules: Since a judgment cannot be used against a person who was not a party, that person has traditionally been barred from taking advantage of the judgment. a. Exceptions to mutuality when judgment used as a shield: b. Exceptions to mutuality when judgment used as a sword: i. Collateral estoppel is generally unavailable to nonparty plaintiffs. (i) Courts have been reluctant to permit a nonparty to use a judgment to aid him (as a plaintiff) to obtain relief. ii. Courts should consider fairness to defendant: (i) In Parklane, the court allowed the second plaintiff to rely on collateral estoppel to establish the existence of the violation since under all the circumstances it was fair to the defendant to do so. 2. a. b. Between Which Parties? The AVictim@ of Preclusion The Precluder i. Parklane Hosiery Co. v. Shore: ii. State Farm Fire & Casualty Co. v. Century Home Components:

II. Joinder A. Joinder of Claims:

The Federal Rules permit the adjudication of all claims between the parties and all claims arising out of a single transaction. 1. a. Joinder of Claims by Plaintiff: Rule 18: A plaintiff can join any number and type of claims against a defendant. i. Rule 18 permits joinder, but does not compel it. ii. Technically, the rules do not create compulsory joinder of claims; however, such a rule can be construed by other rules (ex: former adjudication rules, which sometimes require a plaintiff to join related claims that arise out of the same incident). b. If multiple plaintiffs or defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.
Compulsory and Permissive Counterclaims, Cross Claims Factual SMJ needed? connection Compulsory CC Yes No [13(a)] Permissive CC [13(b)] Cross Claim [13(g)] (claim against a
co-party; same side of the v. if it crossed the v, it=s a counterclaim)

Must you raise it or lose it? Yes

No

Yes

No

Yes

No

No (it=s voluntary; could raise it in a subsequent action)

2.

Claims by the Defendant: Counterclaims: There are two categories of counterclaims: compulsory and permissive. a. Permissive counterclaims [Rule 13(b]: i. Requires an independent jurisdictional basis. b. Compulsory counterclaims: i. Rule 13(a): A counterclaim is compulsory if it Aarises out of the transaction or occurrence@ that is the subject matter of the plaintiff=s claim. ii. Four tests have been suggested to further define when a claim and counterclaim arise from the same transaction. An affirmative answer to any of the four questions indicates the claim is compulsory. (i) Are the issues of fact and law raised by the claim and counterclaim largely the same? (ii) Would res judicata bar a subsequent suit on defendant=s claim absent the compulsory counterclaim rule? (iii)Will substantially the same evidence support or refute plaintiff=s claim as well as defendant=s counterclaim? (iv)Is there a logical relation between the claim and the counterclaim? a The logical relation test: A loose standard that permits Aa broad realistic interpretation in the interest of avoiding a multiplicity of suits.@ a. Benefits: Provides flexibility. a. A logical relationship exists when the counterclaim arises from the same Aaggregate of operative facts@ in that the same operative facts serve as the basis of both claims or the aggregate core of facts

upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant. ii. A compulsory counterclaim, if not raised, is barred (waived). iii. A compulsory counterclaim does not require an independent basis of jurisdiction (because it is covered by supplemental jurisdiction). b. Counterclaim RED FLAG: i. SMJ: (i) May be a problem with permissive counterclaims. Since they are not covered by supplemental jurisdiction, the require an independent basis of SMJ (complete diversity, amount-in-controversy, etc.) b. Note: Venue is not a problem on counterclaims B venue controls the place where the plaintiff brings his action. c. Case: Plant v. Blazer Financial Services:

2. Cross Claims: a. Cross-Claims [Rule 13(g)]: Allows for assertion of cross-claims arising out of the same transaction or occurrence as the main claim. i. Cross-claims are asserted by one party against a co-party (parties on the same side of the litigation). {Promotes efficiency and consistency because the same underlying facts will be litigated on the main claim and on the cross-claim.} ii. A cross-claim is always permissive, never compulsory. (i) The court has discretion to decide whether to hear the cross-claim. ii. Supplemental jurisdiction: Cross-claims are covered by supplemental jurisdiction; therefore, they do not need independent jurisdiction. B. Joinder of Parties: 1. By Plaintiffs: a. Rule 20(a): AAll persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action Y@ b. Permissive Joinder: Two specific requisites to the joinder of parties: 1) a right to relief must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences; and 2) some question of law or fact common to all the parties must arise in the action. i. ATransaction@ may comprehend a series of many occurrences, depending not so much on the immediateness of their connection as upon their logical relationship. All Alogically related@ events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. b. Case: Mosley v. General Motors Corp. 2. By Defendants: Third-Party Claims (Impleader): a. Rule 14(a): A third party complaint is appropriate only where the third-party defendant would be secondarily or derivatively liable to the defendant in the event the defendant is held liable to the plaintiff. [X v Y; Y v Z is proper only if Z is liable to Y for all or part of X=s claim against Y.]

i. Derivative liability: Liability to the 3rd party plaintiff (original defendant), not liability to the plaintiff (which would be direct liability). ii. Benefits: Allows process to permit D to pass on liability (shift or transfer part or all of liability) in the same lawsuit; judicial economy (shrinks two lawsuits into one. iii. Time limit for bringing in a 3rd party defendant: 10 days after serving the original answer. If not within 10 days, must do it with permission of the court. iv. Impleader is never compulsory. If D fails to implead a party, D can still sue that party in the future (only must worry about SOL). v. Supplemental jurisdiction: Covers 3rd party defendants; however, the court still requires IPJ over the 3rd party defendant. vi. Claims a 3rdD may assert, once impleaded: (i) Counterclaim against the original D. (ii) Cross-claim against other 3rdD, as long as the cross-claim is related to the same transaction or occurrence as the main claim. (iii)Implead an outsider according to 14(a), if the court has IPJ over the new D (supplemental is met). (iv)A claim against the original P arising out of the same transaction or occurrence as the original action. (v) Counterclaim against the original P, if the original P makes a claim against him. ii. Claims by P against 3rdD are not covered by supplemental jurisdiction. iii. Case: Watergate v. Wiss, Janey, et. al. b. More Complex Litigation i. Kroger v. Omaha Public Power District & Owen Equipment & Erection Co. v. Kroger: (i) Original lawsuit: Kroger v. Omaha Power. Omaha Power impleaded Owen. Then, Kroger amended her complaint and sued Owen directly. Omaha Power then moved for and was granted summary judgment. Now that Omaha Power is out of the lawsuit, there is no diversity jurisdiction over the lawsuit between Kroger and Owen. (ii) Section 1367(b): Protects from parties that may create federal jurisdiction when it wouldn=t otherwise be permitted. Compulsory Joinder: Under Rule 19, a party is Aneeded for just adjudication@ if: (i) complete relief cannot be given to existing parties in her absence; (ii) disposition in her absence may impair her ability to protect her interest in the controversy; or (iii) her absence would expose existing parties to a substantial risk of double or inconsistent obligations. Helzberg=s Diamond Shops v. Valley West Des Moines Shopping Center :

2.

a.

B. Intervention [Rule 24]: Intervention may be granted to a party of right or permissively. 1. Intervention of right [R 24(a)]: a. A nonparty shall be permitted to intervene if a federal statue confers an unconditional right to intervene or if he can satisfy three criteria:

i. Interest: The nonparty must show an interest in the main action=s subject matter. ii. Impairment: The nonparty must show that his interest may, as a practical matter, be impaired or his ability to protect it may be impeded if intervention is denied. (i) An interest is impaired if: a Res judicata would bind a nonparty to a judgment in the main action; or b The doctrine of stare decisis would in effect make futile any attempt to relitigate the subject matter of the main action. ii. Lack of adequate representation: The nonparty must show that his interest is not adequately protected by any of the existing parties. (i) It is enough that the representation Amay be@ inadequate. b. Traditionally, intervention of right invoked ancillary jurisdiction, so that no independent basis of SMJ was required over claims by or against the intervenor of right as a plaintiff. The statute appears to allow ancillary (supplemental) jurisdiction when one intervenes of right as a defendant. The United States has a right of intervention in all cases where the constitutionality of a United States statute is raised. c. Cases: i. Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission: ii. Martin v. Wilks: 2. Permissive intervention [R 24(b)]: a. Available when an applicant=s claim or defense and the main action have a question of fact or law in common; no direct personal or pecuniary interest is required. A claim in permissive intervention must not destroy complete diversity (if it does, intervention will be denied), and must be supported by its own jurisdictional ground. B. Interpleader: 1. Purpose Is to Avoid Double (or multiple) Liability: a. Interpleader permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in double liability on a single obligation. Interpleader is available under Rule 22 and under the Federal Interpleader Statute [28 U.S.C. '1335] 2. Rights of Plaintiff Stakeholder: a. The plaintiff stakeholder does not have to admit liability to any claimant and the claims do not have to have common origin. Once the court has allowed interpleader, a trial by jury is available to determine the issues of fact. 2. Jurisdiction: a. Rule 22 Interpleader: i. Where Rule 22 interpleader is relied on, the normal rules as to SMJ apply. Therefore, there must be either a federal claim, or complete diversity between the stakeholder and the claimants and more than $75,000 in controversy. b. Federal Interpleader Statute: i. Under the Federal Interpleader Statute, on the other hand, the jurisdictional requirements are less restrictive. The federal statute permits jurisdiction where the amount in controversy is $500 more or more and where there is diversity between any two contending claimants. Venue lies where any claimant resides, and process may be served anywhere in the United States

2.

under the statute (but not under Rule 22). The plaintiff stakeholder must deposit the amount in controversy (or bond) with the court. Case: Cohen v. The Republic of the Philippines:

B. Class Actions 1. Introduction 2. Statutory Requirements a. Communities for Equity v. Michigan High School Assoc.: b. Heaven v. Trust Company Bank: 2. The Class Action and the Constitution a. Representative Adequacy i. Hansbury v. Lee: b. Jurisdiction: i. Phillips Petroleumm v. Shutts: 2. Settlement of Class Actions a. Fees b. Damages and Injunctive Relief c. Settlement and Dismissal i. Amchem Products v. Windsor: