Civil Procedure

Personal Jurisdiction (in personam)

Jurisdiction over a person

in rem jurisdiction

jurisdiction over property

quasi in rem jurisdiction

the court asserts jurisdiction over a piece of property in the forum as a means of compelling the owner to appear before it in an unrelated matter

Pennoyer v. Neff

suit of nonresident, improper notice of service, default judgment when Neff failed to appear, property of Neff attached after ruling

the court has to have jurisdiction at the outset of the case and if it doesn’t the entire case is void

under due process of the 14th amendment, you have to be physically present within the state for the court to have jurisdiction

Pennoyer test

in order for a court to exercise personal jurisdiction, the defendant must be located or present within the state

creates problems when moving becomes more salient and people begin incurring liabilities and skipping town

two categories of personal jurisdiction

general and specific jurisdiction

specific jurisdicion

limited scope - can only hear claims arising out of specific contacts

test: minimum contacts, nexus, and fundamental fairness

claims must arise out of or relate to contacts with the forum

Key Cases: Int’l Shoe, Worldwide Volkswagen, Nicastro

International Shoe Co. v. Washington

Missouri based business had salespeople in Washington, they were served for delinquent contributions to the system of employment contributions in Washington - does the court have jurisdiction?

the Pennoyer test is replaced by the minimum contacts test

Minimum Contacts Test

• systematic and continuous contacts

• contacts with the forum must give rise to the liabilities being sued on

• cannot be unduly burdensome to the defendant

World-Wide Volkswagen Corp. v. Woodsen

couple purchases car in New York and gets in an accident in Oklahoma while moving to Arizona and sues the regional distributor and retail dealer in Oklahoma court

holding: in personam jurisdiction cannot be exercised unless defendants avail themselves of of the privileges and benefits of Oklahoma law

stream of commerce theory

stream of commerce theory

you must purposefully direct your contacts towards the forum for jurisdiction to be exercised - foreseeability and purposefulness are both required for due process

Burger King Corp. v. Rudzewicz

duo starts a Burger King branch in Detroit, sign contracts with headquarters in Miami, then go into default on monthly payments

headquarters terminates the contract but the duo refuses to stop business, Burger King sues them fro breach of contract in Florida

contracts plus doctrine

Contracts Plus Doctrine

contractual arrangements negotiated with another forum is enough to give that forum jurisdiction

signing a contract with another forum is significant contact

J. McIntyre Machinery, Ltd. v. Nicastro

Nicastro severely injured his hand while using McIntyre metal-shearing machine that was manufactured in England. Nicastro sued in Florida state court. McIntyre has no official U.S. offices but sells via a distributor in Ohio

the court found that New Jersey is without power to adjudge the rights and liabilities of J. McIntyre because there was no specific intent to sell in New Jersey

Marks Rule

when a fragmented court decides a case and no rationale enjoys the assent of five justice, the holding of the court may be viewed as the position taken by those members who concurred in the judgments on the narrowest grounds

Ford Motor Co. v. Montana Eight Judicial District Court

victims in Minnesota and Montana sued in state court for defects in their Ford vehicles that led to injury/death. Ford’s activities in the state were close enough to support specific jurisdiction

Justice Kagan said that for nexus to be established a claim can arise out of or relate to contacts with the forum

general jurisdiction

scope: “all purpose” - can hear any claims against D, even those unrelated to the forum

test: forum is where D is domiciled. for corporations where D is “at home”

• relatively easy for natural person, more difficult for corporations

• businesses are typically at home at their principal place of business or place of incorporation

Daimler Ag. v. Bauman

Argentinian resident filed suit against Daimler alleging that Mercedes Benz Argentina collaborated with state security forces to kidnap detain torture and kill workers during the “Dirty War.”

plaintiffs seek to hold Daimler vicariously liable for MB Argentina’s malfeasance

Daimler is not “at home” in California and cannot be sued there for injuries plaintiff’s attribute to MB Argentina’s conduct. Agency relationships are not used in assessing general jurisdiction

contacts in California compared to everywhere else are not substantial

Venue

established by statute: test for venue written by Congress

• a judicial district where any defendant resides if all defendants are residents of the state

• a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred

• if there is no district where venue would be proper, the action may be brought in any judicial district in which any defendant is subject to the court’s personal jurisdiction

places an additional on where a plaintiff can bring suit

Bates v. C&S Adjusters, Inc.

Bates received a collection notice in New York for debts incurred in Pennsylvania after the postal service forwarded it from his former address. He sued C&S under the fair debt collection practices act and C&S filed a motion for improper venue that the district court granted.

The U.S. court of appeals ruled that trial in New York would not be unfair because receipt of the letter is an important part of an FDCPA claim

Weight of contacts test

contacts-based venue is proper in more than one place; where are the contacts, evidence, witnesses

Piper Aircraft Co. v. Reyno

Scottish residents dies in a place crash in the Scottish highlands. the aircrafts only connection to the U.S. was its manufacture. It was originally found that a mechanical failure caused the crash, but later review found no evidence pf defective equipment and determined that pilot error caused the crash

the court held that public and private interests must be weighed and in this case the interests of Scotland as a forum outweigh those of the United States

dangers of forum shopping

Forum Non Conveniens Test

• adequate alternative forum?

• balance of public and private factors favors dismissal?

• only applies when the plaintiffs are foreign

• law does not travel with you

Venue Transfer

• used when there is a lack of convenience and no foreign party is involved

• when there may technically be jurisdiction in one place but it makes more sense to hold it in another forum

  • similar private and public factors are considered

• the law travels with you

subject matter jurisdiction

meant to protect the balance of power between federal and state courts

structural limit - is not waivable

if it turns out on appeal that the subject matter jurisdiction was not correct, the judgment is void

federal question and diversity jurisdiction

federal question jurisdiction

• “the judicial power shall extend to all cases, in law and equity, arising under the constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority”

  • statute U.S.C. §1331 has to authorize federal courts in these cases

Louisville & Nashville R.R. v. Mottley

• Mottley signed a contract for transportation for life with the railroad, the railroad stopped complying with the contract when an act of congress forbidding it was passed

• rule: an anticipated defense under federal law is not enough for federal question jurisdiction

Grable & Sons Metal Products Inc. v. Darue Engineering and Manufacturing

• IRS seized Grable’s property and sold it. Grable later brought suit saying the IRS failed to notify Grable of tis seizure of the property in the exact manner required by statutory provision - personal delivery, not by mail

• the court held that the federal interest in providing a federal forum for tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal

• rule: Grable Test

Grable Test

4 boxes to check for federal question jurisdiction to apply to a state law claim with a federal ingredient

• necessity

• federal ingredient actually disputed

• substantiality

• non-disruptive

diversity jurisdiction

• between citizens of different states or of a resident of another country and a resident of the United states

• statute 28 U.S.C. §1332 has to authorize federal court in these cases

• two major boxes must be checked

  • complete diversity

    • required by the statute but not by the constitution, so Congress sometimes allows partial diversity

  • amount in controversy exceeding a designated amount ($75,000)

• determined at the time the action is commenced

Mas v. Perry

• newlywed couple (French man and woman from Mississippi) rent apartment from defendant in Louisiana while completing their master’s at LSU. they find out they are being watched through two-way mirrors and sue in federal court but Perry argues there is a lack of diversity and the amount awarded did not meet the amount in controversy

• the court found federal jurisdiction to be correct because

  • Mrs Mas did not effect a change of domicile, only residency and Mr Mas was still a residence of France

  • the amount awarded does not have to exceed the amount in controversy requirement, only the amount claimed in good faith

citizenship for corporations

• incorporated businesses - either the place of incorporation or its principal place of business

• all other associational entities take the citizenships of their members (LLCs, partnerships, and labor unions)

types of supplemental jurisdiction

• pendent claim

• pendent party

• ancillary

pendent claim jurisdiction

plaintiff adds a new claim against an already existing defendant

pendent party jurisdiction

plaintiff adds a new complaint against a new defendant

ancillary jurisdiction

defendant impleads another defendant; new defendant’s liability depends on the first one’s

United Mine Workers v. Gibbs

100 workers laid off; suit under the federal Labor Management Relations Act and damages sought for intentional interference with advantageous commercial relations

common nucleus of operative facts

the court holds that this satisfies pendent jurisdiction because the claims are such that they would ordinarily be expected to be tried altogether in one judicial proceeding

Owen Equipment & Erection Co. v. Kroger

Exxon Mobil Corp. v. Allapattah Services, Inc. / Rosario Ortega v. Star-Kist Foods, Inc.

Removal

• allows the defendant to remove cases from state to federal court if the plaintiff files in state court, so long as the federal district court would have original jurisdiction over the case

rules

• you cannot remove if sued in the state court of your state of residence

• the right to removal is waivable, you have 30 days from when you are served or from when the case becomes removable to remove

• if there are multiple defendants, they all have to consent to removal

• if a defendant removes on the basis of diversity, the amount complained in good faith will be treated as the amount in controversy (defendant may assert additional damages)

Caterpillar Inc. v. Lewis

• where there is a statutory defect, it is not necessarily fatal to federal jurisdiction the way that a constitutional defect is - a cost benefit analysis is used to decide

• holding: a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdiction requirements are met at the time the judgment is entered

Eerie Doctrine

• applies specifically in diversity cases

• when there is a diversity claim arising under state law, when can federal courts apply federal law that conflicts with the law of the state?

• Swift v. Tyson

• Eerie Railroad Co. v. Tompkins

• Byrd v. Blue Ridge Rural Electrical Cooperative Inc.

• Hanna v. Plumer

• Shady Grove Orthopedic Associates v. Allstate Insurance Co.

• Walker v. Armco Steel Corp.

Swift v. Tyson

original eerie doctrine case - assumed that there is a general body of legal principles and you will get a uniform body of law with a more sophisticated understanding as various cases are decided under the general principle of law

Eerie Railroad Co. v. Tompkins

• the federal body of common law does not develop along the same line as common law in states (overrules Swift)

• rule of law: when a federal court is sitting in diversity, it must always apply state substantive law, whether enacted through statutes or common law

Byrd v. Blue Ridge Rural Electrical Cooperative Inc.

• Eerie Doctrine

• no longer used - difficult to apply

• whether law effects the outcome is part of the test but not the whole test - three distinct interests

  1. state court - is the underlying state law sufficiently bound up in some state substantive regulatory policy goal

  2. federal court - how important is the federal procedural right at issue to the core operations of the federal court - would using the state law rule fundamentally alter the operation of the federal court

  3. parties - how likely is it that application of the state law would actually change the outcome

Hanna v. Plumer

two-step modified outcome determinative test:

1. defer to the rules of the FRCP - is the state law in conflict with a federal rule of civil procedure? if yes, apply the federal rule of civil procedure unless it is unconstitutional or enlarges or modifies a substantive right

   • presumption that the FRCP is valid

2. What if the conflict is not with the federal rules of civil procedure but with a judge made doctrine? then we do a version of the York outcome determinative test using an Eerie purpose - Were the differences in state and federal law such that it would have incentivized a litigant at the outset of the case to choose one over the other?

Shady Grove Orthopedic Associates v. Allstate Insurance Co.

• shady grove files a suit to recover unpaid statutory interest under statute for itself and a class of others. New York law stops those seeking a class action from recovering statutory penalties, FRCP 23 is in direct conflict

• Scalia says the class action should be allowed and rights are not expanded because each party could still being cases individually under state law, this only determines that they can be combined into a single action

Walker v. Armco Steel Corp.

• Oklahoma state law and FRCP on statute of limitations meant to further different goals

  • rule 3 and state law can exist side by side therefore each controlling its own intended sphere of coverage without conflict

• example of how you would do what Ginsburg suggests - look to underlying policy purposes and determine laws not to be in conflict, even though a textualist would determine they are

What 3 factors does due process call for a consideration of?

1. private interests that will be affected by the official action

2. the risk of erroneous deprivation of such interest

3. the government’s interest

Hamdi v. Rumsfeld

• how does a court balance competing procedural values? In this case, the court makes up an ad hoc process

• interest of private citizens’ rights vs congressional authority for military force to protect country following 9/11

What is the importance of notice?

• gives the defendant time to prepare a case

  • what the factual basis for the argument against you is

  • when and where arguments will be heard

Mullane v. Central Hannover Trust & Co.

“notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”

Greene v. Lindsey

• service by posted summons on door permissible under Kentucky law but party was never notified

• rule of law - even constructive notice that is generally adequate can be inadequate if there is knowledge particular to the plaintiff that would lead them to believe service is inadequate

• complying with statute is inadequate if you know it less likely to be adequate than actual notice

Jones v. Flowers

• if you learn after the fact that your attempt to notify the party was unsuccessful, then you have not complied with due process clause of the 5th and 14th amendments

  • often times, pure constructive notice is not enough, plaintiff must take into account facts specific to the case

Mid-Continent Wood Products v. Harris

• the FRCP is supreme, judges cannot make rules that override

• even if you comply with constitutional requirements - there are additional guidelines under FRCP

• (constitutional minimum does not require actual notice)

Pleadings: what must a complaint show

narrative document with the court that tells the court and defendant. . .

• basis for jurisdiction

• what you allege happened

• what the legal basis is for your claim for relief

• what is the relief you’re seeking

serving process requirements:

• summons with logistical information

• copy of the complaint

• who can serve process

  • someone at least 18 years old

  • not a party

  • in some circumstances, a marshal can be ordered by the court

• how process should be served

  • follow state civil procedure

  • actual service

  • leave a copy at dwelling with a person of suitable age and discretion

  • deliver a copy to an agent authorized by law

  • corporation - on an officer as prescribed by rule 4(e)(1)

• the FRCP encourages waiving service to avoid needless expense

writ system

• adds to the cost of initiating a case

• requires you to commit to a very specific set of legal and factual claims

• not much opportunity at common law for amendment or correction

• deters frivolous lawsuits

• predictable and more refined

• high barrier of entrance

Conley v. Gibson

unless it is beyond doubt that the plaintiff can prove no set of facts in support of his claims which entitle him to relief, a claim cannot be dismissed

Swierkiewicz v. Sorema

• there are not special pleading rules for claims other than for fraud claims

• standard of evidence decided on by the Supreme Court under Conley is no longer the standard

Bell Atlantic Corp. v. Twombly

Twombly claimed defendants had conspired to restrain trade by agreeing not to compete; cited as evidence them engaging in parallel conduct

rule of law: there must be an allegation in the complaint that makes it more than possible that the defendant will be held liable, there must be something that raises the likelihood beyond some indeterminate threshold (determination made with an eye towards managing litigation costs)

Ashcroft v. Iqbal

Iqbal claims discrimination and confinement from other prisoners on the basis of race and religion

there were other possible explanations for the selection based on race/religion - claim must be plausible not just possible based on facts

Twiqbal Standard

• pleading must be “plausible” rather than merely “possible”

• plaintiff cannot rely on conclusory allegations

• not a probability standard

• court must accept all factual allegations as true

Swanson v. Citibank

Gloria Swanson alleged Citibank discriminated against her on the basis of race and pleads as evidence undervaluing of home, bank requiring her to bring her husband, and banker pointing out black family members

Court found for Swanson - still figuring out where the line is - this standard would have led to different outcomes in Twombly and Iqbal

answers

defendant must admit or deny every allegation in the complaint (FRCP 8(b)) and once something is admitted, stance cannot be changed

affirmative defenses

defendant must assert any affirmative defenses in the answer if D fails to do so, requires leave to amend answer from court (FRCP (c))

motion for judgment on the pleading

plaintiff may move for judgment on the basis of the complaint if defendant, in answering, admits every element of plaintiff’s claims

counterclaims

defendant must assert any claims against plaintiff arising out of the same “transaction or occurrence” as plaintiff’s claims

any compulsory counterclaims not asserted are waived (courts are split on whether Twiqbal standard applies to counterclaims)

compulsory counterclaims

if the claim does not require another party over whom the court cannot acquire jurisdiction, and the claim arises out of the same occurrence, it must be stated as a counterclaim (if not brought then it is waived)

permissive counterclaim

where there is independently some matter qualifying for subject matter jurisdiction, it can be brought but does not have to bea

amendments

before trial, parties may leave to amend their pleadings as of right within 21 days of filing, and with consent of the parties or leave of the court thereafter

supplemental pleadings

plaintiff may add additional claims after the statute of limitations elapses if those claims “relate back” to the original claim

David v. Crompton & Knowles Corp.

Plaintiff, David, was injured by a shredding machine and brought a products liability case against Crompton & Knowles. Defendant seeks to amend its answer that it was without sufficient evidence to deny that it designed, manufactured, and sold the machine in question

You must plead lack of sufficient knowledge in good faith and after a reasonable investigation of facts within your control and knowledge

if a pleading of lack of sufficient knowledge is not backed up by reasonable investigation, you will be deemed to have admitted, and you are stuck with it - it is true for the purposes of litigation

Krupski v. Cost

plaintiff filed a suit against Costa Cruise for tripping and falling on board a ship. after expiration of the limitations period, Costa Cruise filed an answer asserting that it was not the proper defendant. plaintiff served Costa Crociere, but the district court dismissed based on the statute of limitations

relation back under 15(c)(1)(C) depends on what the party to be added knew or should have known

requirements of rule 11

• signature

  • every pleading, written motion, and other paper must be signed by an attorney by the record or by the party if unrepresented

• representation to the court

  • by signing an attorney or party certifies that to the best of the person’s knowledge information and belief is not being presented for improper purpose, claims are warranted by existing law, factual contentions have or are likely to have evidentiary support

  • denials of factual contentions are warranted on the evidence 

• sanctions

  • on the court’s initiative - limited to what suffices to deter repetition of the conduct or comparable conduct

McCormick v. Kopmann

Lewis McCormick was killed when a truck operated by the defendant collided with his automobile. His widow sued Count I for damages under the Illinois Wrongful Death Act, alleging that Kopmann negligently drove his truck across the center line, and Count IV brought “in the alternative to Count I” for damages under the Illinois Dram Shop Act, alleging that the Huls overserved McCormick.

Can a plaintiff plead two irreconcilable claims together? – since she could bring actions against the defendants at the same time in separate suits, she is entitled to join them in a single action

Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College

Dr. Zuk a psychologist on the faculty of EPPI had two of his family therapy sessions filmed and duplicated for rental. He subsequently wrote a book containing transcripts of the book and registered it with the copyright office. After being furloughed by EPPI, Zuk requested all copies of the films be returned. Zuk brings two claims (after 2 years):

• A property claim (replevin to recover his property); and

• A copyright claim (for violation of a copyright)

Zuk’s attorney was sanctioned, three big issues:

• He requested his property and then didn’t take any action within the relevant period

• He never actually copyrighted the tapes

• The copyright claim is predicated on EPPI renting out the tapes, but there is no evidence of the tapes being rented out after Zuk’s initial complaint

Purpose of sanction is to deter, not be overly punitive – the real sanction is the black mark

Litigation workload post-FRCP

shifts to the discovery phase

• Summary judgments, settlements, etc., cause a lot of claims to end here

• The U.S. discovery system is an outlier

• Conserves court resources and promotes accuracy and fairness values, but

• Defendants may settle to avoid the cost of discovery when they have a good case

• Sophisticated parties can exploit the system – document dumping, information fishing

• A lot more money is spent than in other systems

types of discovery devices

• initial disclosures

• requests for production

• interrogatories

• contention interrogatories

• depositions

• physical or mental exam

• requests for admission

initial disclosures

• Information produced: list of documents in party’s control; calculation of damages; insurance info

• Done as soon as possible at the beginning of discovery

• FRCP 26(a)(1)(A)

requests for production

• Information produced: all responsive documents or ESI in the party’s custody or control

• Usually at the beginning of discovery

• FRCP 34

interrogatories

• Information produced: responses to factual questions

• Done throughout discover

• FRCP 33

• Limited to 25 (spread between interrogatories and contention interrogatories)

contention interrogatories

• Information produced: responses to questions about arguments or legal theories

• Usually after close of discovery

• FRCP 33

depositions

• Information produced: testimony under oath by witnesses

• Timing by agreement, usually after document production

• FRCP 30

• Default rule – 10 for each side

• More can be requested

• Not admissible in court -hearsay – but there are times when they can be used in a trial

physical or mental exam

• Information produced: examination of the party whose medical condition is at issue

• At any point in discovery

• FRCP 35

requests for admission

• Information produced: admission re: specific facts

• Throughout discovery

• FRCP 36

• Ask parties to admit the truth or falsity of something

• No limit on requests

discovery scope - Hickman v. Taylor

established what is known as the work product immunity to discover

discovery scope - In Re Convergent Technologies Securities Litigation

• Plaintiff was served with more than 1,000 interrogatories, many of them seeking to elicit facts that plaintiffs contended supported certain of their allegations about what defendant had done. The court held that the plaintiffs didn’t have to answer them all.

• Limit set on number of interrogatories that can be asked – lawyers are expected to behave in good faith – only seek relevant information

• FRCP 26 – you must sign disclosures, discovery requests, responses, and objections

  • If there is improper certification, you will be sanctioned

discovery burden

FRCP 26(b) - limitations

• must be proportional to the needs of the case

• the court may limit the frequency or extent if it determines that:

  • discovery sought is unreasonably cumulative or suplicative

  • the party seeking discovery has had ample opportunity to obtain information

discovery disputes - how to

1. responses and objections (must be specific)

2. informal negotiations (letter/email)

3. meet and confer (live - face to face or voice to voice)

4. rule 37 motion to compel (if a resolution cannot be met at informal negotiations or meet and confer stage)

FRCP 34

• time to respond - 30 days

• state with specificity grounds for objecting to the request

discovery disputes - FRCP 37

• in general - on notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery

• (b) - a few things the court can do if you disobey an order

  • direct the matters embraced in the order or other designated facts be taken as established

  • prohibit the disobedient party from supporting or opposing designated claims or defenses

  • striking pleadings

  • staying further proceedings until order is obeyed

  • dismissing action or proceeding

  • default judgment

  • treating as contempt of court

• general policy preference is to allow a broad scope of discovery requests, but unduly burdensome requests cannot be served

  • cost or privacy cannot be basis on their own to object to discovery

Davis v. Ross

Gail Davis instituted a defamation suit after Ross released letter saying she would not recommend hiring her. Davis requested information concerning Ross’ income, documents reflecting billings from Ross’ lawyer who was also a witness, and the names of other employees who have complained about Ross and the nature of their complaints. Ross requested Davis’ mental health records since she claimed mental anguish.

Ross’ requests were granted, Davis’ were denied

• Privacy and relevancy concerns

• This is an absurd case, typically Davis’ requests would likely be within the scope

Rule – discovery requests cannot be unduly burdensome, they must be proportional to the case

Kozlowski v. Sears, Roebuck & Co.

Plaintiff filed a request pursuant to rule 34 seeking among other items, a record of all complaints and communication concerning personal injuries or deaths allegedly caused by the burning of children’s nightwear. Defendants filed a motion to quash and then failed to comply after being ordered to produce. The court found that the failure to comply was willful and deliberate, so entered judgment by default against the defendant.

Rule: cost is not enough alone to deny discovery requests – you cannot get past having to present requested documents by making them expensive to access

Producing party must cover high costs if they are proportional to the case

McPeek v. Ashcroft

McPeek began working for the bureau pf prisons where upon promotion he began being sexually harassed. Plaintiff filed an informal complaint and was transferred but despite a confidentiality agreement, new people he worked at knew about the harassment and he suffered retaliation. Defendants searched for electronic and paper documents, but data was likely not saved. Branch chief estimated that restoring emails from a single backup tape would take 8 hours at a cost of no less than $93 per hour.

The court decided to do a small test run and decide from there if it was worth it/overly burdensome to recover the tapes

There is a preference for broad discovery, but the judge can limit it in certain circumstances

Courts have a lot of discretion to manage costs and burden

Privileges - FRCP 26(b)(3),(5)

• two main privileges

  • attorney-client

  • work product

• how to proceed

  • don’t produce the documents

  • if you produce and don’t revoke in a timely manner, you have waived privilege

  • you must disclose to the other side what documents you are withholding as privileged

    • privilege log

Hickman v. Taylor

• Fortenbaugh (lawyer) privately interviewed survivors of a tugboat accident and took statements. The opposing party requested his notes from the written statements, and he declined. The court held that the materials were not covered by attorney-client privilege but affirmed the judgment of the court of appeals overturning the order for discovery because it has ultimate and necessary boundaries.

• Rule: work product doctrine – judge made doctrine established in this case – even though it doesn’t fall under attorney privilege, the documents compiled in preparation of litigation are privileged – necessary for preserving adversary system (codified post-Hickman into FRCP 26(b)(3)

FRCP 26(b)(3) Trial preparations: materials

• Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative; but subject to rule 26(b)(4), those materials may be discovered if:

  • They are otherwise discoverable under rule 26(b)(1); and

  • The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

opinion work product vs fact work product

• Heavy burden to show you need fact work product, but you can sometimes get it (example is a transcript of what a witness tells an attorney)

• Opinion work product is almost never obtained, except for malpractice instances (like a memo explaining why the case appears weak – value judgments by attorney)

Upjohn Co. v. United States

• Upjohn Co., petitioner pharmaceutical company, conducted an internal investigation, including questionnaires, into possible payments to government officials. The company voluntarily submitted a preliminary report to the SEC. The SEC issued a summons demanding production of all files relative to the investigation.

• The court held that the magistrate applied the wrong standard when he concluded that the government had made a sufficient showing to overcome the protections of the work product doctrine. In the corporate context the attorney-client privilege applies to all employees including lower-level ones.

• Rule: in a corporate context, the attorney-client privilege applies to high-level employees with the authority to act on legal advice, as well as any of the employees who provide information to the attorney so that she may give advice

Attorney Client Privilege

• A (1) confidential communication (2) between an attorney and a client (3) for the purpose of obtaining legal advice

• The presence of a non-privileged third party, or later disclosure to a non-privileged third party typically waived the privilege

  • A clawback letter can be to return the document that should be privileged and then the information in the document cannot be used by the other party

  • Presence of a third party assisting in the case (like a translator) does not waive the privilege

  • company, not the employee can waive the privilege

    • Upjohn Warning - requirement to warn employee of possibility that attorney-client privilege will be waived

  • typically determined by state law

    • The Supreme Court comes up with its own rule for attorney client privilege because federal judge made law differs from state substantive law

      • Diversity jurisdiction - state law applies

      • Federal question jurisdiction – Hanna test is used since this is judge made