Litigation Review
📘 Civil Litigation – Pleading Standards
Rule 8(a)(2) – General Rules of Pleading
A pleading must contain:
A short and plain statement of the claim
Showing that the pleader is entitled to relief
🧷 Case Law Development of Pleading Standards
🧪 1. Dioguardi v. Durning (1944) – U.S. District Court, S.D.N.Y.
Facts:
Pro se plaintiff (John Dioguardi) claimed U.S. customs mishandled his imported goods (bottles of medicinal extracts).
Filed a confusing and barely comprehensible complaint.
Holding:
Complaint was allowed to proceed despite being unclear and inartfully pled.
The Court held that even informal and ungrammatical complaints can meet Rule 8 if they provide notice of a claim.
Importance:
Established that plaintiffs don’t need to state detailed facts—just something that could entitle them to relief.
Demonstrates an extremely permissive pleading standard.
Example of the court prioritizing substance over forms
⚖ 2. Conley v. Gibson (1957) – Supreme Court
Facts:
African-American railroad employees sued their union for failing to protect them from wrongful terminations.
Rule:
A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle them to relief.
Presumption:
All factual allegations in the complaint are assumed to be true.
Importance:
Set the “no set of facts” standard.
Made it very hard for defendants to win a motion to dismiss under Rule 12(b)(6).
Reflected a very plaintiff-friendly view of notice pleading.
📉 3. Bell Atlantic Corp. v. Twombly (2007) – Supreme Court
Facts:
Antitrust case under the Sherman Act.
Plaintiffs alleged that telephone companies conspired to divide markets and keep competitors out.
The complaint only showed parallel conduct (not competing in each other’s areas), not a specific agreement.
Holding:
The complaint was dismissed for failure to state a claim.
Court found that mere parallel conduct does not imply conspiracy without further factual content.
New Standard Introduced:
Complaints must state a claim that is plausible on its face.
Possibility is not enough—must show factual content that allows the court to reasonably infer the defendant is liable.
Key Changes to Pleading Law:
Plausibility standard replaces the Conley “no set of facts” standard.
Conclusory statements (like “defendants conspired”) are not entitled to the presumption of truth.
Importance:
Raised the bar for what plaintiffs must plead.
Discouraged speculative or generic lawsuits.
Shifted towards protecting defendants from costly discovery in weak or unsupported claims.
🚨 4. Ashcroft v. Iqbal (2009) – Supreme Court
Facts:
Pakistani Muslim detainee sued government officials (Ashcroft & Mueller) for post-9/11 discrimination.
Alleged he was detained under harsh conditions solely because of his religion and ethnicity.
Complaint Allegations:
Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed” to the discriminatory detention.
Holding:
Court dismissed the complaint.
Found that the allegations were conclusory and not factually supported.
Importance:
Extended Twombly's plausibility standard to all civil cases, not just antitrust.
Legal conclusions must be supported by facts.
Complaints must show more than a sheer possibility of wrongdoing.
Rule from Iqbal:
Two-step analysis:
Identify and disregard conclusory allegations.
Determine if remaining factual allegations plausibly suggest misconduct.
Effect:
Made it harder to sue high-ranking officials without specific factual connections.
Made factual detail essential in civil rights and discrimination complaints.
🧾 Rule 9(b): Special Pleading Standard for Fraud or Mistake
When pleading fraud or mistake, the complaint must:
State with particularity the circumstances constituting fraud/mistake.
This includes who, what, when, where, and how.
However:
Conditions of a person’s mind (like intent or knowledge) can be alleged generally.
💡 Application Example
Complaint: “Microsoft and Intel conspired to artificially inflate the price of CPUs.”
Sufficient under Conley?
Yes — general allegations of conspiracy might survive.
Sufficient under Twombly?
No — without factual details (when, where, how they conspired), it is too conclusory.
🚗 Pleading Factual Allegations – Example
Car Accident Complaint:
Pursley was driving east on I-40, one lane left of my car, at 70–80 mph at 8 PM.
His car collided with mine with no speed reduction.
The collision forced his car into a barrier and mine into a tractor trailer.
Both vehicles flipped; my car was totaled and both my legs were broken.
Under Twombly/Iqbal, this complaint is likely sufficient.
These are specific, factual allegations that, if true, could entitle the plaintiff to relief.
Not conclusory; includes time, location, actions, and injuries.
⚖ Discovery – Civil Litigation Summary Notes
📂 Main Categories of Discovery
🤝 Good Faith Requirement – FRCP 37
Before seeking court intervention:
The movant must attempt in good faith to resolve the issue informally.
Applies to non-compliance with:
Depositions
Interrogatories
Document production
⚖ Motion to Compel Discovery – Rule 37(a)
Filed when opposing party fails to cooperate.
Must show good faith effort to resolve prior to motion.
If successful, court can order:
Compliance
Sanctions (e.g., attorney’s fees)
🛡 Protective Orders – Rule 26(c)
Requested by opposing party to limit or deny discovery.
Based on:
Harassment
Overbreadth
Privileged information
Undue burden or cost
🚫 Rule 37(d) – Excuses Not Allowed
Objection alone ≠ excuse for noncompliance.
Must have a pending motion for protective order to justify refusal.
🧨 Sanctions for Discovery Misconduct – Rule 37(b)(2)(A)
Court may impose:
Facts taken as established
Barring claims/defenses
Striking pleadings
Staying proceedings
Dismissal (whole or part)
Default judgment
Contempt of court (except for Rule 35 exams)
👩⚖ Judicial Discretion on Motions to Compel
Equitable: Courts consider full context & party behavior.
Discretionary: Rarely overturned on appeal.
Sanctions may include:
Monetary fines
Attorney’s fees
Case-altering penalties
🎤 Depositions – What They Are / Aren’t
✅ What Depositions ARE (Rule 30)
Sworn oral testimony taken before trial.
Involves lawyers questioning witnesses or parties.
Taken under oath and recorded (usually by stenographer or video).
Can be used for:
Gathering facts
Impeaching witnesses at trial
Preserving testimony
Example:
An attorney questions a corporate employee under oath about a product defect. A court reporter transcribes the testimony.
❌ What Depositions ARE NOT
❌ Not written (those are interrogatories).
❌ Not conducted in court (though portions may be read at trial).
❌ Not informal conversations.
❌ Not anonymous – the witness must be clearly identified and sworn in.
Example:
An attorney emailing questions to the other side's witness = ❌ Not a deposition.
A party refusing to answer deposition questions because they “disagree” without a protective order = ❌ Not allowed under Rule 37.
⚖ Federal Rules of Civil Procedure – Discovery Rules (Detailed)
🔍 Rule 26 – Duty to Disclose; General Provisions Governing Discovery
🔹 Rule 26(a): Required Disclosures
Initial Disclosures: Names of individuals with relevant info, documents you may use, damage computations, and insurance info.
Expert Testimony Disclosures: Identities and written reports of any expert witnesses.
Pretrial Disclosures: Info about witnesses, exhibits, and depositions you plan to use at trial.
🔹 Rule 26(b): Scope of Discovery
Discovery must be:
Relevant to any party’s claim or defense
Proportional to the needs of the case
Not privileged
Info doesn’t have to be admissible to be discoverable.
📌 Example: You can ask about emails discussing a defective product even if they might not be shown at trial.
🔹 Rule 26(c): Protective Orders
A party can ask the court to limit or prevent discovery if it's:
Harassing, invasive, overbroad, or expensive
The court can tailor protection (e.g., seal a deposition, limit questions, or restrict time).
📌 Example: A defendant being asked invasive questions about unrelated personal conduct might get a protective order.
🔹 Rule 26(f): Discovery Conference
Parties must meet early (usually within 21 days of service of the complaint) to:
Develop a discovery plan
Discuss scope, timing, and format (especially for electronic info)
Prepare a written report to the court
📌 Example: Parties agree to exchange ESI in PDF form and schedule depositions in phases.
🎤 Rule 30 – Depositions by Oral Examination
Allows a party to take a sworn, oral deposition of another party or witness.
Must give reasonable notice, stating the time, place, and name of the deponent.
Limits: 10 depositions per side unless the court allows more.
Deposition is recorded (stenographically, audio, or video).
📌 Example: A company’s safety engineer is deposed for 7 hours about their product testing.
📝 Rule 33 – Interrogatories to Parties
Written questions served on the other party (not witnesses).
Max: 25 interrogatories, unless court allows more.
Must be answered in writing and under oath within 30 days.
Can include questions about facts, witnesses, and legal contentions.
📌 Example: “Identify all employees who worked on the project in 2021.”
📄 Rule 34 – Requests for Production of Documents, ESI, or Things
Used to request documents, emails, records, or tangible items.
Can also request entry onto land for inspection.
Responses due within 30 days; must either produce or object.
📌 Example: Requesting all internal memos discussing a failed medical device.
🧠 Rule 35 – Physical and Mental Examinations
A party can request a court-ordered exam only when a party’s mental or physical condition is in controversy.
Must show good cause.
Can involve a medical professional’s examination.
📌 Example: Plaintiff claims PTSD—defendant requests psychological evaluation.
✅ Rule 36 – Requests for Admission
Allows a party to ask another party to admit or deny specific facts or the genuineness of documents.
Used to narrow issues for trial.
Failure to respond = automatic admission.
Response required within 30 days.
📌 Example: “Admit that Defendant was present at the scene on January 15.”
⚠ Rule 37 – Failure to Make Disclosures or Cooperate in Discovery
🔹 Rule 37(a): Motion to Compel
If a party doesn’t answer discovery, the other party can ask the court to compel responses.
Must show good faith effort to resolve the issue without court.
📌 Example: Plaintiff refuses to answer deposition questions; Defendant moves to compel.
🔹 Rule 37(b): Sanctions for Disobeying a Court Order
If a party disobeys a discovery order, the court may:
Assume facts as true
Bar evidence or defenses
Strike pleadings
Dismiss case
Enter default judgment
Hold party in contempt
📌 Example: Defendant won’t turn over emails even after a court order—court enters default judgment.
🔹 Rule 37(c): Failure to Disclose or Supplement
If a party fails to disclose info (e.g., witnesses), that party may not use it at trial.
Court may also impose other sanctions.
📌 Example: Plaintiff doesn’t disclose expert during discovery—court excludes that expert from trial.
🔹 Rule 37(d): Sanctions for Total Failure to Respond
Applies when a party completely ignores interrogatories or doesn’t attend their deposition.
No excuse unless a protective order was sought.
BASICS OF EVIDENCE
Functions of a Trial:
Dispute Resolution: In criminal trials, determines guilt; in civil trials, determines liability.
Truth Seeking: Aims to establish legally significant facts—the actual events that matter under the law.
Nature of Evidence and Knowledge:
Knowledge: A justified, true belief.
Justified = supported by sufficient and reliable reasons.
True = corresponds accurately to reality or fact.
Propositions in Evidence:
A proposition is a statement that can be true or false.
Propositions are the basic building blocks of knowledge and are:
The focus of belief/doubt.
What parties try to prove through evidence.
Examples of Propositions:
“Obama shot the clerk.” – Provable proposition.
“I didn’t shoot the clerk.” – Provable, though subjective.
“Get off my lawn!” – Not a proposition (command, not true/false).
“Limericks are crappy poetry.” – Opinion (subjective, not provable as true/false).
“This sentence is false.” – Paradox (problematic proposition).
Assessing Evidence:
Relevance – Does the evidence make a fact of consequence more or less probable?
Quality/Reliability – Is the evidence believable and from a trustworthy source?
Sufficiency – Does the evidence meet the burden of proof?
Side Constraints – Consider exclusion even if relevant, e.g. if unfairly prejudicial (Rule 403).
HEARSAY OVERVIEW
FRE 801 – Definitions
Statement: An oral or written assertion, or non-verbal conduct intended as an assertion (e.g., nodding).
Hearsay: A statement that:
Was made outside of the current trial/hearing.
Is offered to prove the truth of the matter asserted.
FRE 802 – Rule Against Hearsay
Hearsay is inadmissible unless permitted by:
Federal statute,
Federal Rules of Evidence (e.g., 803, 804),
Rules prescribed by the Supreme Court.
IDENTIFYING HEARSAY
Requirement 1: Was it an “assertion”?
Verbal Assertion: “I shot the clerk.” (yes – assertion)
Non-Verbal Assertion: Raising a hand in a vote (if intended to assert “I agree”).
Non-Assertion Examples:
“Give me $500 on Texas.” – Request, not a factual claim.
The captain calmly boarding a ship – not an assertion unless meant to convey “the ship is safe.”
Requirement 2: Is it offered for its truth?
“I shot the clerk.”
Hearsay if used to show the speaker committed murder.
Not hearsay if used to show the speaker is prone to dramatic statements.
Hand raise:
Hearsay if offered to prove the person voted yes.
Not hearsay if offered to prove the person participated in the vote.
The captain sails out boldly:
Hearsay if to prove the ship was seaworthy.
Not hearsay if to show the captain’s belief or his boldness.
HEARSAY EXCEPTIONS
FRE 803 – Exceptions (Declarant May Be Available)
Present Sense Impression
Statement describing/explaining an event or condition while or immediately after perceiving it.
Excited Utterance
Statement about a startling event made under the stress of excitement it caused.
Statements for Medical Diagnosis or Treatment
Describes symptoms, history, or general cause of illness/injury.
Must be made for purpose of diagnosis/treatment (includes statements made to medical professionals).
FRE 804 – Exceptions (Declarant Must Be Unavailable)
Declarant is “Unavailable” if:
They are dead, missing, refuse to testify, or have a legal privilege, etc.
Statement Against Interest
A statement so contrary to the declarant’s interest that a reasonable person wouldn’t have said it unless it were true.
In criminal cases, must be corroborated for reliability.
Dying Declaration
Must be made under belief of imminent death, and concern the cause/circumstances of that death.
Admissible only in homicide prosecutions or civil cases.