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Civil Procedure – PMBR

Pleadings, Pre-Answer Motions and Amendments; Joinder – Parties and Claims; Impleader, Interpleader, Intervention, and Supplemental Jurisdiction

Pleadings, Pre-Answer Motions and Amendments

Now we’re going to be turning to the commencement to the actual civil proceeding, the civil action and we’re going to follow the chronological time line of the proceeding beginning with the pleadings. So let’s focus now on the pleadings, the paperwork that begins litigation.

We’re going to be using from here on out in the lecture the federal rules of civil procedure as a guideline. I will be referring to these federal rules often. And I think it’s a good idea for law students to look at the actual federal rules because in class you’re going to reading cases and it’s also important to supplement your reading of cases with the actual rules.

So I’m giving you these rule numbers so you’ll be able to find where to look and at some point during your 1st year try to familiarize yourself with these federal rules.

So using the federal rules as a guideline:

We will determine what pleadings are required

What contents must be included

How pleadings can be amended

Let’s go over 5 basic types of pleadings that raise issues and distinguish them one from another:

1. First, we have the complaint – the plaintiff’s initial pleading which commences the cause of action

2. Second, we have an answer – defendant’s substantive response to the complaint

3. Third type of pleading is a counter-claim – defendant’s action to bring a claim against the plaintiff

4. Four, we can have a cross-claim – defendant’s action to bring a claim against a co-defendant

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5. Five, we can have what’s called impleader or 3rd party complaint – this is a pleading used generally by the defendant to bring new parties into the action

At this point, we’re going to be focusing on the COMPLAINT and the ANSWER. The other types the counter-claim, cross-claim, impleader we’re going to focusing on later in our discussion of joinder.

Let’s start out with going over the concept of NOTICE PLEADING:

Federal courts follow NOTICE PLEADING

State courts follow what’s called CODE PLEADING or FACT PLEADING, which requires much more specificity

Our focus is going to be on federal courts, so NOTICE PLEADING is what we’re going to be covering

So let’s turn first to the COMPLAINT

o Under Federal Rule 8(a), sections 1, 2, and 3….Rule 8 requires

a short and plain statement of the grounds upon which the court’s jurisdiction depends

a showing that the pleader is entitled to relief

a demand for the relief being sought

o So the complaint must state those 3 things – the grounds for jurisdiction, short statement of the plaintiff’s claim and the prayer for the relief (damages, injunction, declaratory relief)

o Note that the federal rule does not require the plaintiff to set out in detail the facts upon which he bases his claim

However, there are certain exceptions in which detail pleadings is required

Fraud or mistake

Capacity to sue

Conditions precedent

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Special damages – damages which do not necessarily or inevitably result from the defendant’s conduct

o For example in a personal injury case, pain and suffering would be general damages and would not require detail pleading

o But on the other hand, specific medical expenses, property loss, and/or loss of earnings would be classified as special damages requiring a detailed pleading under Federal Rule 9

Before we turn from the COMPLAINT to the ANSWER, let’s look at some of the Motions which are called “pre-answer” motions which can be made under Federal Rule 12

The defendant may file a motion to raise any of several possible defenses

Let’s go over a list of the Rule 12 defenses as well as the timing of when they may be raised

o First defense is lack of subject matter jurisdiction

Let’s say the defendant says there’s no basis for diversity of citizenship

Timing here of such a motion is that it may be raised at ANY TIME in the proceeding!!!

Lack of subject matter jurisdiction is a motion which is NEVER WAIVED!!

It can raised at any time before trial, during trial, even for the 1st time on appeal – it is never waived

o Second group of Rule 12 defenses would be a

(1)motion for lack of personal jurisdiction

(2)motion for an improper venue

(3)motion for insufficient process

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(4)motion for insufficient service of process

these motions are waived if not raised either by motion or by answer, whichever is first

so in this 2nd group of defenses the defendant must raise them by motion or by answer or they are forever waived

o Next type of defense is failure to state a claim upon which relief can be granted

This is sometimes known as a general “demurrer”

This type of motion can be raised any time before trial OR during trial

o Finally, failure to join a party can be raised any time before trial OR during trial

Next, we’ll turn to the ANSWER itself, Federal Rule 8(b)

The ANSWER is the defendant’s responsive pleading in which she may admit or deny each allegation of the COMPLAINT

Or the defendant may make what is called a “non-positive denial” in her answer

o This is where the defendant is without knowledge or sufficient information to make a belief

o Such a non-positive denial constitutes a denial

However, failure to specifically deny an allegation constitutes an admission

o That’s an important point you should remember!!!

In some cases the defendant may also use what is called a “general denial”.

o Statement that the defendant denies each and every allegation in the complaint

o Usually not possible since some the complaint allegations are true

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“Specific denials” are much more common

The ANSWER must also state any affirmative defenses the defendant may have such as statute of limitations or statute of frauds

o Must contain any affirmative defenses defendant may have as well as any claims for affirmative relief such as a counter-claim or a cross-claim

As we will discuss in more detail later on our section on JOINDER, students should be aware at this point that where a COUNTER-CLAIM is COMPULSORY, it must be stated in the ANSWER, otherwise it is barred

o A COMPULSORY COUNTER-CLAIM is defined as a claim by defendant against plaintiff which arises from the same transaction or occurrence as the plaintiff’s claim

o So COMPULSORY COUNTER-CLAIM must be stated in the ANSWER, otherwise it is barred

PERMISSIVE COUNTER-CLAIM as well as CROSS-CLAIM may, not must, may be raised in the ANSWER

o Permissive counter-claim by defendant against plaintiff do not arise from the same transaction or occurrence as plaintiff’s claim

o Improper jurisdictional requirements must be satisfied

In your studies of PLEADINGS, one of the most highly tested areas is going to be that of AMENDMENTS

Amendments are covered by Rule 15(a)

As a general rule, Rule 15 permits a party to amend a pleading ONCE at any time before a responsive pleading is served

Thereafter leave to amend may be sought upon permission of the court

And generally court approval to amend is freely given and may even be granted during the trial or after the trial in certain instances

The federal courts follow a very liberal policy permitting amendment to reach the merits of the dispute

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Now let’s look at the procedural effects of Amendments

o We’re going to be looking at what’s called the Relation Back Doctrine

This is really a legal fiction

General rule for relation back is this, amendments relate back to the date of the original pleading

Specifically where a new claim is added, even after the statute of limitations has run, an amendment of the original pleading will not only be permitted, provided the new claim arose from the same transaction, but it will relate back to the date of the original pleading

So that is how it works where a new claim is added

o Now where a new party is added, an amendment of the original pleading will be permitted and relate back if 3 factors are satisfied; an amendment adding a new party will be allowed if:

1-Claim against that new party arose from the same transaction or occurrence

2-The new party had notice the action had commenced before the statute of limitations ran

3-Again within the statutory period(statute of limitations period), the party knew or should have known, a claim would have been made against her

If those 3 requirements are satisfied, then a new party may be added by amendment

Again note that Supplemental Pleadings such as those we just discussed require permission of the court, leave of the court

Final area that we’re going to focus on in the area of PLEADINGS is that of SANCTIONS.

Sanctions under Federal Rule 11

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o Rule 11 requires the attorney to sign every pleading, motion, or other paper prepared for the client and thus certify that the pleading is supported by reasonable inquiry into the facts

o Warranted based on good faith argument and not offered for any improper purpose

o Reasonableness is measured objectively

o If Rule 11 is violated the court must impose appropriate sanctions on the attorney, the client, or both upon proper notice

o Sanctions may include monetary penalties such as payment of opponent’s reasonable attorney fees and expenses

Joinder – Parties

We’re going to turn to the second most highly tested area in civil procedure, second only to jurisdiction. We’re going to look at the area of Joinder.

Both Joinder of parties and Joinder of claims

As an introduction, modern Joinder provisions are constructed with the purpose of bringing about a complete adjudication of all claims among all the parties in the transaction involving resolution of common issues of law or fact

Students should be aware that there are two key themes which Joinder rules embrace.

1st the issue of transactional relationship

o The standard for so many areas is the test which requires a claim to arise from the same transaction OR occurrence

o TSTO – The Same Transaction or Occurrence

o The transactional relationship test – you always want to think of that theme!!

Another often tested area is the existence of common questions; common questions of law or fact

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o This requirement is perhaps redundant because if the claim does arise from the same transaction or occurrence, common questions of law or fact will be inevitably present

So we have a same transaction or occurrence test, common questions with law and fact as an add-on to it

Additionally we have a second theme

o Second theme is the jurisdictional theme

o Namely that every claim against each party must be supported by an independent ground of subject matter jurisdiction

So when you’re dealing with Joinder

o Remember to look for the transactional relationship

o As well as the jurisdictional theme

Every claim against each party must be supported by an independent ground of subject matter jurisdiction

i.e. Federal Question OR Diversity plus amount in controversy exceeding 75K

Unless the discretionary doctrine of Supplemental Jurisdiction applies

i.e. both ancillary jurisdiction and diversity cases dealing with ancillary parties

pendent jurisdiction in federal question cases dealing with pendent claims

Now using these transactional and jurisdictional principles, the rules for Joinder determine which parties and which claims may or must be included by the plaintiff and by the defendant in their pleadings

So let’s begin by looking at Joinder of parties

Compulsory joinder of parties

o Where a 3rd party is ruled indispensable – that means complete relief cannot be accorded in that person’s absence

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o Where a 3rd party is deemed indispensable yet he cannot be joined as a defendant for some reason, the result is that the action must be dismissed

o Examples could include such things as co-owners of property in a partition action or trust beneficiaries in litigation involving a trust

o If an indispensable party cannot be joined the action must be dismissed

o But on the other hand, the more common situation involves the instance where a defendant attempts to bring in a party that’s a co-defendant

This situation is generally examined under the rules for Conditionally necessary parties

If a necessary party is not joined for lack of subject matter jurisdiction, there is no dismissal and the action may proceed without that person

Complete relief can be given to existing parties

An example of conditionally necessary parties would be joint tortfeasors

Remember also that Joinder of a necessary party requires an independent basis for subject matter jurisdiction

o Now Rule 19 deals with this area; it deals with “Joinder of Persons needed for just adjudication”

Rule 19 sets forth a 2 part test to determine if a party is indispensable OR merely necessary

What it says is, if feasible, i.e., if there’s proper service of process and proper subject matter jurisdiction, a person shall be joined if

1. in the person’s absence, complete cannot be given to existing parties OR

2. If disposition in the person’s absence might either impair her ability to protect her interest in the matter

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or leave any existing party subject to a substantial risk of multiple or inconsistent obligation

So a party shall be joined if either complete relief cannot be given to an existing party in her absence OR disposition in her absence would either impair her ability to protect her own interest or leave existing parties subject to substantial risk of multiple or inconsistent obligations then the person shall be joined under Rule 19 if feasible

Now on the other hand, where Joinder is not feasible, the court has to decide whether the action can proceed or must be dismissed

So some of the factors under Rule 19 that are considered include the following

1 - Whether a judgment in the party’s absence might prejudice him or existing parties

2 - The extent to which prejudice can be lessened by shaping relief

3 - Whether a judgment in the person’s absence will be adequate

4 - Whether the plaintiff will have an adequate remedy if the action is dismissed

These are the factors under Rule 19 that you want to be arguing in your law school essay exams in applying these factors to determine whether the action can proceed or whether it should be dismissed to determine whether Joinder is compulsory

o To determine if a party is necessary or indispensable

Permissive Joinder

o This is Rule 20

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o Multiple parties may join as plaintiffs OR be joined as defendants in one action provided some claim made by each plaintiff and against each defendant arises from the same transaction or occurrence and presents a common question of law and fact

o Although Rule 20 permits broad Joinder, don’t forget that jurisdiction requirements must still be satisfied

Also, as an approach in multi-party, multi-claim joinder situations it is easier for you to join parties first then join claims second

Joinder – Claims

This is covered under Rule 18.

Rule 18 permits a plaintiff to join as many claims as she has against the opposing party no matter what type of claims they are

o So that’s your simplest situation – a plaintiff may join as many claims as she has against the opposing party no matter what type of claims they are

o i.e., no transactional relationship test is required since the goal of Joinder of claims is to achieve complete resolution of dispute between the parties

o So for example, the easiest scenario…..one plaintiff can sue one defendant for several unrelated claims and she may aggregate all of the claims to meet the jurisdictional amount in a diversity case

However in a federal question case, a non federal claim can be joined but only if the non federal claim arises from the same case or controversy as the federal claim

o In situations where multiple plaintiffs and multiple defendants are involved, it is required that at least one of the claims arises out of a transaction in which all the parties are involved

So that’s usually not very hard to satisfy

Finally, students should also be aware that even though Joinder of claims is expressed and permissive terms under Rule 18, Joinder is compelled when failure to join could result in what’s called, “Splitting a Cause of Action”.

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General rule – a plaintiff may not split a cause of action

o For example, if the plaintiff suffers both injury and property loss in a car accident, the law of Res Judicata which we will be covering later allows the plaintiff one cause of action for both harms

Both harms must be joined in one single law suit

So if the plaintiff sues for personal injury but not for the property loss, he will forever be banned from bringing that claim

That claim will be barred since both harms resulted from the same event, same transaction or occurrence

Counter–Claims

Claims by the defendant against the plaintiff

Rule 13 deals with compulsory counter-claims

Rule 13 requires a party to raise transactionally related counter-claims against the opposing party

o We mentioned this point earlier; failure to raise a compulsory counter-claim results in a waiver and bars the party from bringing a separate suit

o So a tranactionally related counter-claim must be raised otherwise it’s going to be waived

o To help us define what is meant by tranactionally relationship; let me give you some factors that you can apply on your exams

o A counter-clam is transactionally related if

1 – there is some logical relationship that exists between the claim and the counter-claim OR

2 – if both the claim and counter–claim raise common issues of both law and fact OR

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3 – if both the claim and counter-claim use evidence common to both, i.e, common evidence is involved OR

4 – if res judicata would prevent asserting the counter-claim in a subsequent action because causes of action cannot be split

o Now recall that supplemental jurisdiction applies to compulsory counter-claims

There is no independent source of subject matter jurisdiction required for a compulsory counter claim

Let’s turn now to permissive counter-claims

Rule 13(b) permits a party to assert as a counter-claim any claim not arising from the same transaction or occurrence

So permissive counter-claims deal with any claims against the opposing party which do not arise from the same transaction or occurrence

However, in this area, supplemental jurisdiction does not apply to permissive counter-claims

So subject matter jurisdiction must be satisfied

Cross–Claims

Next, let’s take a look at cross-claims

Rule 13(g)

Cross-claims recall are claims asserted by a party against a co-party

Here are some of the key points to remember

Cross-claims are always permissive

Cross-claim must arise out of the same transaction or occurrence as the plaintiff’s claim in order for the court to permit it’s joinder

In federal courts, supplemental or pendant jurisdiction applies and no independent basis for subject matter jurisdiction is required

Supplemental jurisdiction applies to cross-claims

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Impleader

Next, we’re going to be turning to the highly tested area, the area of what is

called Impleader or under Federal Rule 14, it’s called 3 rd Party Practice

This is the case where generally a defendant drags into the lawsuit a 3rd party

As a general rule, a defendant acting as a 3rd party plaintiff may implead a non-party who is or may be liable to him for all or part of the plaintiff’s claim

Impleader generally arises in Tort actions where the original defendant is seeking either Indemnity or Contribution

o The impleaded party becomes a 3rd party defendant and that impleaded party may raise defenses against both the 3rd party liability asserted against him by the original defendant as well as raise defenses against the plaintiff’s original claim

VERY HIGHLY TESETED POINT!!!

o Supplemental jurisdiction applies to Impleader actions

o So there is no independent basis for subject matter jurisdiction required

Let’s expand the equation a little bit….let’s say that if a defendant impleads two 3rd party defendants for indemnity and contribution, these 2 parties are now co-parties

o And either of them may then cross-claim against the other for transactionally related relief

o So this is the type of scenario you may very well FACE ON A LAW SCHOOL EXAM!!!

o The defendant impleads more than one 3rd party and each of those 2 parties or more parties cross-claim against the other or others

Finally note that thus far we have talked about context where it is the defendant who is acting as a 3rd party plaintiff by impleading a 3rd party into the litigation

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But also be aware that the plaintiff, the original plaintiff himself can also implead a 3rd party

o For example, when a counter-claim is asserted against the plaintiff, that plaintiff may say gee, I’m really not at fault; there’s somebody else whom I can seek indemnity and contribution

o So that plaintiff, the original plaintiff may then go out and implead a 3rd party to seek indemnity or contribution on that counter-claim

o So generally it is the defendant who impleads but not always

o The plaintiff can also use Impleader as well as a Joinder device

Interpleader

There are two types of Interpleader used as Joinder devices

Rule 22

Statutory Interpleader

Let’s go over a little background as to what interpleader deals with

Sometimes you have a person who is a stakeholder; he is called a stakeholder; let’s say you have an insurance company which is required to pay a claim but it doesn’t know to whom that claim is to be paid --- that’s a stakeholder

We have a stakeholder who may hold a sum of money or property against which several persons are asserting claims

Interpleader is a procedural device which the stakeholder may employ to require resolution of the controversy among all the claimants in one single action and thus avoid the possibility of multiple or inconsistent obligations

A plaintiff seeking interpleader in federal court can proceed as we said on either of 2 grounds

o Either under Section 1335, which is known as Statutory Interpleader which is more commonly used

o Or under Federal Rule 22 Interpleader

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Statuory Interpleader

Main thing to remember is special requirements apply

So first as to subject matter jurisdiction

o Be aware that only minimum diversity is required – that’s a special rule

o Only minimum diversity between the stakeholder and the adverse claimants is required

o i.e., at least 2 adverse claimants must be domiciled in different states

for example, plaintiff stakeholder is from Michigan, and adverse claimants A and B are domiciled in Michigan and Illinois respectively

In this case, the result would be minimum diversity is satisfied even though the plaintiff and A are both from Michigan

Second special requirement

o The amount in controversy need only be $500 or more

As to personal jurisdiction, nationwide service of process is allowed

o So a federal court has personal jurisdiction over any adverse claimant residing in the United States

As to venue, venue is proper in any district in which one or more of the claimants reside

So those are your special rules that apply when we’re dealing with the area of statutory interpleader

Rule 22 Interpleader

For Rule 22 Interpleader, regular rules apply here

As to subject matter jurisdiction, either complete diversity between the stakeholder and all adverse claimants is required

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o And the amount in controversy must exceed $75K or a Federal Question claim must arise

o So regular rules of SMJ apply

As to personal jurisdiction, the federal court may borrow the state’s long arm statute

As to venue, once again general venue provisions apply

o So in a diversity action, venue would be proper either

Where the stakeholder resides

Or where all the adverse claimants reside

Or where the adverse claims arose

Now because Statutory Interpleader is more flexible and have simpler standards it is more commonly followed than Rule Interpleader

Intervention

Intervention – Federal Rule 24

The purpose of intervention is to enable a person who is not named in the plaintiff’s complaint to enter the suit and participate in the action joined either as a plaintiff or a defendant

Intervention may be granted either by Right or it can be Permissive – so there’s 2 kinds of intervention

Intervention of Right

o Mandatory Intervention

o General rule is Intervention of Right is available under Rule 24(a) whenever the applicant claims an interest in the property or transaction that is the subject matter of the lawsuit

o AND disposition without his representation would impair his ability to protect that interest

o Timely application is required

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o And the applicant must show inadequate representation by the existing parties

o Supplemental jurisdiction applies in this area of Intervention of Right

so no independent basis is required for SMJ

Permissive Intervention

o Rule 24(b)

o Upon timely application, i.e., so as not to increase the potential for delay of the main action

An applicant may assert a claim or defense which involves a common question of law or fact with that of the main action

o No direct personal or pecuniary interest is required

Here, the intervener’s claim need not arise from the same transaction or occurrence as the main lawsuit

But remember the claim must have a question of law or fact in common with the main action

o Let’s look at an example

Let’s say Los Angeles county sues the state of California Department of Welfare regarding regulations which provide for disbursement of welfare benefits

Persons who are state welfare recipients may be allowed to intervene as plaintiffs in such a lawsuit

Since their interest and eligibility for these benefits involves a common question of law or fact

o Supplemental jurisdiction does not apply to permissive intervention

So an independent basis for SMJ would be required

Supplemental Jurisdiction

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Now throughout our discussion of Joinder, we have talked in each case about whether or not supplemental jusrisdiction applies

This is one of the issues you’re going to be confronting whether they ask you for it or not on your law school exams

You’re going to have to determine whether supplemental jurisdiction whether in the form of ancillary or pendent jurisdiction applies

So let’s go over now a summary, a list of first Joinder devices where Supplemental Jurisdiction generally does apply.

1. Compulsory Counter-claims

2. Cross-claims

3. Adding additional parties to respond to compulsory counter-claims or cross-claims

4. Impleading a 3rd party defendant or a 3rd party’s defendant claim against the original plaintiff

5. Joinder of claims

6. Rule Interpleader

7. Intervention of Right

In all those areas, Supplemental Jurisdiction applies and no independent basis for jurisdiction is required. On the other hand, Supplemental Jurisdiction generally does not apply in the following 5 areas.

1. Permissive Counter-claims under Rule 13(b)

2. Impleader situation where the original plaintiff’s claim is made against a 3rd party defendant who’s impleaded by the original defendant

3. Necessary and Indispensable parties under Rule 19

4. Permissive Joinder of Parties – Rule 20

5. Permissive Intervention – Rule 24(b)

Class Actions

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Class actions covered by Rule 23;Area that is highly tested on law school exams as well as the bar exam

Class action is a lawsuit brought by individual class representatives on behalf of or against an entire group of individuals who are similarly situated; Once court permission is granted by certifying the class potential class members are then given notice generally by mail or publication and an opportunity to remove themselves from the class, opt out

The remaining class members are then bound by the outcome of the litigation

Under Rule 23(a) a Federal class action lawsuit requires 4 elements:

1 – class must be so numerous that joinder of all members is impracticable – Numerosity; if there’s more than 50 members a class will be certified; less than 25 it’s unclear

2 – there must be a question or questions of law or fact common to the class – Commonality; the court’s concern whenever common issues predominate is to prevent prejudice which could result if multiple individuals suits were allowed.

Example: Inverse condemnation proceeding brought by local residents against an airport for excessive noise; individual suits might subject the airport to different standards or different restrictive measures or alternatively suits by the initial plaintiffs might preclude subsequent plaintiffs from obtaining adequate relief

3 – the named representative interest must be typical of the class – Typicality

4 - the named party must fairly and adequately represent the interest of the absent members of the class – adequacy of representation

On an essay discuss the 4 rules of 23(a) – Numerosity, Commonality, Typicality, and Adequacy – all 4 must be shown

Plus additionally under Rule 23(b) – one of the 3 following must also be satisfied to maintain a class action

1 – prosecution of separate actions would create a risk of inconsistent results with respect to class members or substantially impair the interest of none class members; incompatible standards or impaired interest resulting

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2 – the opposing party, the defendant has acted or refused to act such that declaratory or injunctive relief is appropriate for the class as a whole; this type of class would be entitled to equitable relief; not money damages

3 – common questions of law or fact predominate over individual issues so that a class action is superior to other means of adjudication

Examples: other methods of adjudication would be having 1 test case or another option would be an action by a named plaintiff or plaintiffs with a liberal right of intervention

In this 3rd party situation where we have our common questions – money damages are usually sought

This 3rd area, common question area deals with money damages; note here that often times mass torts situations fail certification as a class because the damages issue are unique to each individual; as far as a Notice requirement, only this 3rd type, the common type of question of 23(b) class action requires individual notice to all class members at least by ordinary mail which is usually paid for initially by the class representative; this notice informs them they may request exclusion by opting out and that the judgment will bind those class members who do not request exclusion

In all other class actions, notice is merely discretionary

To finish discussion of class actions I want to go over a few final points with you,

Traditional subject matter jx requirements apply; in diversity actions domicile is determined by that of the representative party

Each member of the class must have a claim exceeding 75k dollars with one exception – that is where the party claims are joint or common; that situation aggregation is permitted

Personal jx must be obtained as to the named representative of the defendant class

General venue requirements apply

Last point and it’s often tested - Dismissal of a class action requires court approval

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Discovery

FRCP 26 – the primary purpose of discovery is to assist the search for facts and evidence surrounding the actions as well as to simplify or eliminate issues prior to trial

Various devices are used to illicit information within a permissible scope of discovery; discovery is generally initiated by the parties but the court itself may also become involved to resolve disputes and even sometimes to impose sanctions in the form of costs or attorney’s fees where abuse or harassment has occurred

As a general rule a party may seek discovery of any matter that is

1 – relevant to the subject matter of the action

2 – not privileged

These are the 2 key issues that you’ll be asked to analyze on your law school exams –relevancy and privilege

Discoverable material need not itself be admissible at trial but privileged material is both inadmissible and not discoverable

There exists 5 basic types of discovery devices under Rule 26; let’s briefly go over each of them

1- Oral and written depositions – covered specifically by Rules 30 and 31

2- Interrogatories to parties – Rule 33

3- Inspections and production of documents – Rule 34

4- Physical and mental examinations – Rule 35

5- Request for admissions – Rule 36

Interrogatories, physical/mental examinations and request for admission are devices available ONLY to seek information from a party

Discovery from non parties is generally done by deposition or by what is called a subpoena duces tecum which is a judicial order propelling a non-party to bring with him documents to the deposition

Deposition

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A deposition is an out of court examination of a potential witness or deponent taken under oath; the deponent is subjected to both direct and cross examination by the attorneys; the examination may be oral or written but the witness answer orally and a court reported transcribes the proceedings

Any person may be deposed. Deposition to a party require proper notice to that party whereas deposition of a non-party requires both service of notice and a subpoena. Deposition may be taken at any stage of the proceeding. Generally the defendant is given the first opportunity to take depositions.

At trial the deposition of a witness may be admitted to impeach the deponent’s testimony.

So the effect of a deposition at the trial, deposition of a witness may be admitted to impeach OR it may also be admitted as substantive evidence if the witness if unavailable under a hearsay exception for former testimony

Whereas on the other hand, the deposition of a party may be admitted at trial both to impeach and as substantive evidence

Interrogatories

Rule 23 – written questions sent by one party to be answered in writing by another party

Only parties may be served with interrogatories; offer a way to determine the thought processes of the opposing party; must be answered according to information, “known or discoverable upon reasonable inspection by the party”; where a request involves burdensome investigation the party may choose to provide the requesting party an opportunity to inspect the records where the information may be found; however, the party has a duty to supplement the answers when new information becomes available about such matters such as the truth of previous responses or the identity of addl witnesses or experts who will be testifying

Inspection and production of document

Rule 34 – any party may request another party to produce documents, photographs, records, or other tangible items; even a request to enter and inspect real property is proper

Regarding the production of documents in the possession of non parties – a subpoena is required; the party challenging production has the burden to

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show lack of good cause; a request for inspection or production may be made at any stage of the proceeding

Physical & Mental Examinations

Rule 35 – only a party who’s physical condition is in issue, i.e., a plaintiff in a personal injury action, may be examined

The party seeking examination must obtain a court order upon a showing of good cause, i.e, a showing of a rzbl likelihood that the examination will produce information probative of the condition in issue

Both parties must be given the results of the examination

Also since the party has placed physical or mental condition in issue the matter is not privileged and

Furthermore the doctor/patient privilege is deemed to be waived as to all other examinations of that party regarding the particular condition at issue

Requests for admission

Rule 36 – device used to eliminate issues prior to trial by identifying facts that are not in controversy

Requests for admission may only be served on parties without the need for a court order

Responding party must either specifically deny the request or object to it on the basis of relevance or privilege; failure to properly deny or object constitutes an admission in the pending action unless the party after rzbl inquiry lacks sufficient knowledge to enable admission or denial

Request for admission may be made at any stage of the proceeding

Disclosure requirements

Rule 26 – as we stated the general obligation posed on the disclosing party by Rule 26 is to make rzbl inquiry into the facts than available

3 types of disclosure required by Rule 26

1- Initial disclosure

2- Disclosure of experts, which is the most highly tested area

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3- Pre-trial disclosure

Initial disclosure

Include such facts as name, address, phone #’s of individuals who have relevant information; copies of relevant documents; computation of damages claimed; copies of insurance agreements under which liability might arise against an insurer

Disclosure of expert testimony

Rule 26b(4) – highly tested area – names of testifying experts must be disclosed along with the summary of the grounds for each opinion; disclosure must state the subject matter on which the expert is expected to testify as well as the substance of the facts and opinions to which the expert is expected to testify

Thereafter by motion, courts routinely permit further discovery either by deposition or a subpoena duces tecum

As to retained experts, these are formal consultants

Retained experts who are not expected to testify discovery is allowed only upon a showing of exceptional circumstances under which it is impractical for the party to obtain facts or opinions on the same subject by other means

i.e. the party could not obtain another opinion of the same quality

So for retained experts formal consultants who are not expected to testify discovery is available but only if exceptional circumstances exist

This is the area you’re mostly likely to be tested on

There is no discovery generally allowed however as to non retained informally consulted experts – these would be ordinary or informal consultants, unless again there a showing of exceptional circumstances; but it will not be as likely here when we’re dealing with informal consultants rather than formal consultants

Pre-trial disclosure

A list of testifying witnesses, potential witnesses, deposed witnesses and their transcripts plus a list of other documents or exhibits which may be expected to be admitted

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Perhaps the most highly tested area for discovery on law school exams is the area of “Work Product”

Work Product

Rule 26b(3) – as mentioned earlier any matter may be discovered that is relevant, non-privileged and rzbly calculated to lead to the finding of admissible evidence; a qualified immunity from discovery exists to protect an attorney’s work product

Let’s go over the definition of work product – consists of material prepared by the attorney herself for her own use in anticipation of litigation

As a general rule work product is absolutely protected!!!!

As to any writing which reflects the attorney’s thoughts, mental impressions, conclusions, or opinions as well as her legal theories and legal research; work product absolutely protected as to those areas

On the other hand where the court is convinced that the information being sought is essential to the party’s case and there is no other rzbl means available to obtain equivalent information w/o due hardship then attorney work product as to these other areas may be discoverable

i.e., material prepared for the party by a formal consultant, a surety, an insurer, an accountant or an agent may be discoverable

Now let’s turn a short focus on the procedural aspects of discovery

Procedural aspects of Discovery

Motion to Compel – the court may grant a motion to compel production where a party’s discoverable request is not met or where the response is evasive or incomplete; device used there is a motion to compel

Protective Order – upon motion by either side the court may issue a protective order to limit the nature and scope of examination where discovery has been abused due to annoyance, embarrassments, oppression, or undue burden or expense so in that case a protective order will be issued

Sanctions

For failure to comply with a motion to compel the court may impose various types of sanctions which as we see progressively get more serious

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1- Order the matters treated as admitted - admissions

2- Prohibit the parties from supporting or opposing the designated claim or defenses

3- Strike the pleadings

4- Dismiss the action

5- Render a default judgment

6- Hold the party or witness in contempt

Additionally the court may access rzbl expenses incurred including attorneys fees

So that is a brief coverage of discovery – most essays include one or more discovery issues – so be familiar with the different devices and the procedural aspects of discovery