Civil Procedure II

Spoliation

The destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation

Required (mandatory) disclosures

Exchange of information that the disclosing party may use to support its claim or defenses

Mandatory initial disclosures, all parties (1)

Name and information of each individual likely to have discoverable information that disclosing party may use to support their own claims or defenses

Mandatory initial disclosures, all parties (2)

A copy of all documents, ESI and other media that the disclosing party has in its possession, custody, or control and may use to support their own claims or defenses

Mandatory initial disclosures, plaintiff

Computation of each category of damages along with what the damages are based from

Mandatory initial disclosures, defendant

Any insurance agreement under which another business may be liable to satisfy all or part of a possible judgement in the action to indemnify

Timing of mandatory disclosures

Within 14 days of the parties’ rule 26(f) conference

Timing of rule 26(f) conference

As soon as practicable, at least 21 days before scheduling conference

Duty to supplement

If initial disclosures are in any way incomplete or incorrect in some material way, and if the correction had not been made known, a party must supplement or correct its disclosure

Consequences of failing to provide mandatory initial disclosure

Party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial; May be sanctioned

Exceptions to consequences of providing mandatory initial disclosures

If the failure was substantially justified or is harmless

Requesting documents (RFP; Request for production)

Parties serve another party with a request to produce specific documents or ESI or tangible things in the other party’s possession or control. Permitting entry to places for inspection

Types of documents for RFP

Any designated documents, electronically stored information, designated tangible things. (Includes writings, drawings, graphs, photos, sound recordings, etc.) Also permitting entry onto designated property

Rule 34(b)(2) RFP response

Every item request must have its own response. Must say if docs are being released as requested and hand over correct information in a reasonable time

RFP Objections

RFP objections must be stated with specificity on the the grounds for the objection, and whether any responsive materials are being withheld.

Interrogatories, definition

Asking questions in writing and receiving answers in writing. May include opinions or contentions related to facts

Amount of interrogatories

A party may serve on any other party no more than 25 interrogatories within scope of discovery

Interrogatories, responses

Responding party has 30 days to respond, and each interrogatory must be answered separately and fully in writing under oath (except for parts being objected)

Interrogatories, objections

Grounds for objection must be stated with specificity. Any ground not stated in a timely objection is waived

Request for admissions of denials in writing (RFA)

A written request on any party to admit the truth of matters relating to facts, the application of law to a fact, or opinions about either and the genuineness of any documents

RFA, effects

A matter admitted is conclusively established unless the court allows it to be withdrawn or amended

RFA, response

A matter is admitted unless the part gives a written answer or an objection within 30 days of receiving the RFA

RFA, answer

If not admitting, answer must deny or state in detail why it cannot be admitted or denied. If denying, denial must be qualified and specify the parts they admit while denying the rest. Lack of knowledge can be a reason for denial if party has looked for proof

RFA, objections

Grounds for objecting must be stated. No objection solely because the request is a genuine issue for trial

Live interrogations (deposition) limits

No more than ten depositions lasting no more than seven hours each PER SIDE

Depositions, objections

Can include objections about the evidence, other party’s conduct, officer’s qualifications, and manner of taking the deposition. Must be stated concisely in a nonargumentative and nonsuggestive manner. Noted, but examination continues.

Deposition, objections with nonanswers

Deponent may be instructed not to answer only when necessary to protect privileged information. other objections are noted and if court agrees, inadmissible at trial.

Reasons to end a deposition

When deposer is doing so in bad faith, or to embarrass, annoy, or harass party

Physical or mental examination

Can only be requested when mental or physical condition is in controversy to be conducted by a licensed examiner.

Witness and exhibit list

Actual list of evidence and witnesses that will be called on at trial

Scope of discovery, generally

Parties may obtain discovery regarding any nonprivileged matter that is relevant and proportional to the needs of the case

Factors determining proportionality, 1

Importance of the issues at stake in the action

Factors determining proportionality, 2

Amount in controversy

Factors determining proportionality, 3

Parties’ relative access to relevant information

Factors determining proportionality, 4

Parties’ resources

Factors determining proportionality, 5

Importance of discovery to resolve issues

Factors determining proportionality, 6

Whether the burden outweighs the possible benefits

ESI Limits

Party does not need to provide discovery of ESI when not reasonably accessible because of undue burden of cost

Types of actions that would be limited,1

Discovery sought is unreasonably cumulative or duplicative

Actions that would be limited, 2

Discovery could be obtained from another source that is more convenient, less burdensome, or less expensive

Actions that would be limited, 3

Party seeking discovery has had ample opportunity to obtain the information with previous discovery in the action (but did not do so)

Actions that would be limited, 4

Proposed discovery is outside of the scope of discovery

Protective orders

Anyone from whom discovery is sought may move for a protective order to protect from embarrassment, oppression, or undue burden or expense. Can also prohibit discovery of trade secrets

Discoverable evidence does not necessarily need to be…

Admissible. Info may lead to more admissible evidence

Privilege

Blocks information about things from a specific source

What can be privileged

Sources are privileged, not the information and facts themselves. Privilege can be waived.

Privilege log

Party describes list of privileged info, expressly making the claim it is privileged and describing the nature of of the documents. Will enable other parties to assess the claim

Clawback

Disclosure of privileged materials does not act as a waiver if disclosure was inadvertent, holder took reasonable steps to prevent disclosure, and holder took reasonable steps to rectify the error.

Clawback steps

Holder notifies other party receiving information that it is privileged and the basis for it. Once notified, other party must return, sequester, or destroy information and must not use it.

Types of privilege

Attorney client privilege, work product privilege (trial preparation material)

Trial preparation material privilege

Parties cannot discover documents prepared in anticipation of litigation or for trial.

Exception for privileged material

If the party shows that is has substantial need for the materials to prepare its case and cannot without undue hardship get that information from any other source

Exception to privilege exception

Court must protect against disclosure of mental impressions, conclusions, or opinions of a party’s attorney or another representative concerning the litigation

Types of experts

Retained experts (testifying experts and non-testifying experts), “fact witness” experts

Non-testifying experts

Consultants

Testifying experts

Person with expertise relevant to the litigation; retained in anticipation of litigation or hired to provide testimony at trial

When must parties identify testifying experts

90 days before trial. At this time, expert witnesses must produce and sign a detailed, elaborate report. Can be deposed after report

Expert privilege

Drafts of report and communication between expert and attorney are privileged.

Exceptions to expert privilege

Show exceptional circumstances under which it is impracticable for party to obtain facts or opinions on the same subject by other means. (relating to compensation for the testimony, facts or data provided by attorney and that the expert considered in forming the opinions to be expressed, or identifying assumptions the party’s attorney provided and the expert relied on in making testimony.)

“Fact witness” experts

Person with expertise relevant to the litigation and will testify. Identity must be disclosed in initial disclosures

Fact witness report

90 days before trial, party must disclose a summary of the facts and opinions to which the witness is expected to testify. Can be deposed after

Spoliation of ESI

If ESI that should have been preserved in the anticipation of litigation is lost because a party failed to take reasonable steps to preserve it and cannot be restored or replaced by other discovery

Spoliation effects if PREJUDICED

May order measures no greater than necessary to cure the prejudice or sanction limited to cure prejudice

Spoliation effect if done with the intent to deprive another party the info in litigation

Presume that lost info was unfavorable to party, instruct jury that it may or must presume info was unfavorable, dismiss the action or enter default judgement, or HEAVY sanctions

Signature/ certification

Every discovery request, response, or objection must be signed by at least one attorney on record in the attorney’s own name

Signature must include…

Name, address, email address, telephone number

Signatures certify that…

Disclosure is complete and correct as of time it is made. Discovery request, response, or objection is consistent with rules, not interposed for improper purposes, not unreasonable nor unduly burdensome considering needs of the case and proportionality.

When there is no signature….

Other parties have no duty to act on the unsigned request

When attorney violates certification without substantial justification….

Court must impose an appropriate sanction. Expenses/ attorney fees appropriate

Steps to compel discovery

Discovery request sent, respondent denies. Requester attempts good faith meeting, respondent still does not comply. Requester files motion to compel, respondent opposes. Hearing. Court order compels response. Respondent does not comply. Requester files motion to enforce discovery order, or to impose sanctions. Court may order sanctions

Severe sanctions under Rule 37, 1

The matters in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims

Severe Rule 37 sanctions, 2

Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence

Severe Rule 37sanctions, others

Striking pleadings in whole or in part, staying further proceedings until order is obeyed, Death-knell sanctions, treating it as contempt of court

Death-knell sanctions

Usually reserved for repeat offenders. Dismissing the action or proceeding in whole or part. Rendering default judgement against disobedient party

When to skip a motion to compel and go straight to sanctions

When a party fails, after being served with proper notice to appear for that person’s deposition. Or a party fails to serve its answers, objections, or written response. Still need to try to meet and confer

Default and default judgement

Defendant does not reply to a complaint. First step it to enter a default with the clerk of court

Default judgement by the clerk (limited circumstances), conditions

“sum certain” or sum can be certain with computation. Plaintiff submits affidavit showing amount due. Defendant has not appeared. Defendant is not a minor or incompetent

Default judgement by the court (judge)

If default judgment not granted by clerk, Court has discretion to enter default judgement. May or may not hold a hearing

default judgement, effects

If no plausible defense, or counterclaim, default judgement can be shorter and cheaper. Due process is still important because defendant could settle or find alternate solutions

Involuntary dismissal

If plaintiff fails to prosecute or comply with rules, defendant may move to dismiss the action or any claim against it.

Involuntary dismissals act as adjudication on merits

Involuntary dismissals are with prejudice. Cannot be refiled, and would have to be directly appealed

Involuntary dismissals are NOT like other dismissals

Dismissals for lack of jurisdiction, improper venue, or failure to join a party are NOT involuntary dismissals

No parking on the dance floor!

What constitutes parking is highly context specific

Voluntary dismissals without court order

Notice of dismissal before opposing party serves either an answer or a motion for summary judgement. All parties must consent

Effects of voluntary dismissal without court order

Dismissal without prejudice.

Two-Dismissal rule

If plaintiff has previously dismissed actions based on the same claim previously, notice of dismissal counts as adjudication on the merits

Voluntary dismissal with court’s permission

File motion seeking an order to dismiss the case. Must be on terms that the court considers proper

Settlement

cheaper and faster than trial. Controls risks because trials are unpredictable and usually all or nothing

Mediation

Third party participant helping in settlement

Arbitration

When parties cannot agree, arbitrator can decide dispute after having heard from both sides

When is a party entitled to summary judgement

When there is no genuine dispute as to any material fact and the party is entitled to judgement as a matter of law

Supporting factual positions

To prove that the facts are or are not disputed can rely of citing the evidence itself or affidavits and declarations

Affidavits and declarations must be made on…

personal knowledge, facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated

On summary judgement, the court will…

Consider evidence, but it will not weigh evidence

If the court determines there is a genuine material factual dispute…

It will not grant summary judgement

Summary judgement burden of proof

Summary judgement granted when moving party shows that there is an absence of evidence to support the non-moving party’s case or that there is a necessary element on which the non-mover will not be able to prove.

Summary judgement burden of proof, on movers case

No requirement for the moving party to support its motion with evidence negating the opponent’s claim

When is a fact material

A fact is material when is might affect the outcome of the case

When is dispute about material fact genuine?

If the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Not created by a “mere scintilla” of favorable evidence.

When considering summary judgement, court must…

Believe the evidence of non-mover and draw all justifiable inferences in his favor.