Civil Procedure 2 – Outline Attack Sheet


The scope of discovery as defined in FRCP 26(b) states that a party may discover any item relevant to a claim ore defense WHEN it is reasonably calculated to lead to the discovery of “admissible” evidence. (in contrast to the older rule which required relevancy to the “subject matter” of the case). Items available in discovery are any tangible or intangible item that is not privileged for example: trade secrets, attorney work product, client confidentiality, and medical records (exceptions for substantial need or situations where the information is impossible to obtain otherwise). You have 30 days to respond to a discovery request and if the information that you provide is insufficient the counter-party will have 30 days to file a motion to compel. All items you wish to withhold from discovery will require a privilege log and justifiable reason why the information is being withheld. Discovery is often abused during litigation which is why limits are placed on the type and nature of information that is discoverable. However, under Lindenberger the court may use its discretion, with good cause, to order the discovery of “any matter relevant to the subject matter involved in the action” which brings the rule slightly closer to pre 2000 revisions. FRCP 27 does not allow discovery to be conducted before the complaint is filed. This “chicken” (complaint) must come before the “egg” (FRCP 27 discovery). Unless the information is in danger of being lost, for example a witness is about to die, or a building to be demolished, in this case FRCP 27 seeks to “preserve” this evidence and allow the discovery.

Six forms of discovery

1 Mandatory (Required, Automatic) Disclosures

Automatic disclosures under 26(a)(1) require that a party must disclose automatically, without waiting for a request: the name address and phone number of each person likely to have discoverable information; a copy or description of all documents, ESI, and tangible things in possession or control that the named-party plans to use for its claims or defenses (non-parties may be required to bring in items or docs for inspection); a computation of damages requested and information on which the computation is based; any insurance agreement which could be partially or fully liable for a judgment. These items must be disclosed voluntarily if the are to be used for your own claim or defense. * Mandatory disclosures must be made within 14 days of a 26(f) discovery conference. Pre-trial Disclosure (also mandatory, just a little later) In addition the parties MUST also disclose the identity of witnesses it plans to use at trial or present as evidence. Witnesses must disclose the subject matter the witness will present and a summary of facts and/or opinions the witness will provide. The designation of the deponent and a transcript of their deposition. The identification of all documents, exhibits, and summaries of evidence. This also included expert-witnesses. Testifying Expert witnesses must disclose: a complete statement of all opinions the witness has made, the facts or data that was used to form the opinion, any exhibits to be presented, the witness qualifications, a list of cases the witness has testified in during the past 4 years, as well as compensation to be paid for the witness testimony. Non-testifying expert-witnesses are NOT required to disclose this information as it is covered under the attorney work product doctrine. * These pre-trial disclosures are required 30 days prior to trial pursuant to 26(a)(3).

2 Depositions (Party initiated)

Depositions, under FRCP 30, are in person interviews conducted with at least two attorneys, a witness and usually a court officer. A standard deposition may not last longer than one 7 hour day and parties are limited to 10 depositions each (may extend the length or quantity by request). Depositions may not be had purely for impeachment purposes, however statements made during a deposition may be used to impeach testimony at trial (an impeachment by contradiction). Under a FRCP 30(b)(6) deposition you may list questions you want answered by a corporation and they will select a representative with that information to be deposed.

3 Interrogatories (Party initiated)

Interrogatories, under FRCP 33, are a set of written questions that a party must provide a written answers to under oath. Interrogatories must include definitions of terms like “the accident” or any other amorphous term used in the questions. Limits on the number of interrogatories is 35 in Federal Court, but you may ask “sub-questions” within one interrogatory (limited to 25 in CA state court). Interrogatories include three types: Standard Interrogatories asking for facts to be stated like “what are your standard phone rates” or “who do you purchase rental cars from.” In CA Form interrogatories from the court can be used and do not count towards the FRCP limit of 35 and can be single questions only and are often very generic. Finally Contentions such as “do you contend X is true” if the party answers affirmatively to a contention you may follow up and ask for all facts, witnesses, etc. surrounding the contention. Interrogatories must all be relevant to a claim or defense, unprivileged information, and admissible as evidence if obtained ie any matter wich is discoverable under 26(b). They cannot be used to seek out discovery or establish the opponents case, additionally cannot ask which witnesses will testify. Interrogatories are not objectionable simply because they ask for an opinion, but may not ask for a legal conclusion.

4 Request for production to inspect Docs of Things (Party initiated)

Under FRCP 34 parties may move to inspect all documents or items that could lead to the discovery of admissible evidence so long as those things are relevant to a claim or defense. Parties must provide documents and items as they are originally stored, eg ESI must remain in native format, document dumping (mixing in thousands of irrelevant docs), etc. is not permitted and could lead to sanctions. Electronically Stored Information ESI includes all electronic information, emails, facebook, twitter, Ims. Access to ESI ranges from easy access to hard access: active online data, near online data CDs USBs etc, offline storage accessible but offsite, backup tapes, and deleted or damaged data. When turning over ESI parties need to be aware of and redact privileged information, and irrelevant information. ESI must be provided in its native format, which often includes meta data about access, printing, etc. Discoverable under the same requirements of 26(b) which is relative to a claim or defense and could lead to the discovery of admissible evidence. Balancing the cost of producing ESI, the FRCP 34 requires the court to look at the: cost to produce vs amount in controversy, the cost in relation to the parties net worth, the availability from other sources, and public policy or public interest in the case. Sometimes a small sampling of data will be produced to determine the viability of the ESI, which is then usually examined in camera by the Judge to determine if the rest must be provided. When the cost of producing ESI is disproportionately high under the balancing test the court may consider shifting costs to the party making the request.

5 Requests for Admissions of Fact (Party initiated)

Under FRCP 36 you may ask for a party to admit to a fact about the case. These are not often used and are difficult to use early on in litigation due to lack of evidence. When a request for admission is submitted you will have 30 days to respond or object (usually vague or over-broad) otherwise a default to admission is made.

6 Request for Mental or Physical Examinations (Party initiated)

Request for Mental or Physical Examinations, under FRCP 35, require that you show good cause that the exam is necessary and the physical or mental ability of a party has come into question. Often very hard to obtain and must show real necessity. These strict limits are to avoid “fishing expeditions” and invasions of privacy. If the court decides a medical exam is proper, it must be reasonable in nature and number.

Limits on discovery

The court will limit the scope and amount of discovery available to the parties using a proportionality balancing test. This proportionality test weighs the amount at issue, the burden on the responding party, the parties comparative resources, national interest in the case, the judges discretion, and the likelihood it will lead to the uncovering of admissible evidence (uncovering evidence holds the most weight). If one party is substantially burdened in providing the evidence or the likelihood of discovering admissible evidence is low the court may use its discretion and consider cost shifting. When working with ESI the court may require a small sampling of the evidence be recovered to determine the likelihood that the remaining ESI holds admissible evidence. Items in discovery may be subject to a protective order that would limit what can be discovered, who you may share the information with, and may redact items that are irrelevant. Before a protective order is issued the Judge will usually review the docs in camera (in his chambers) before the items are released.

Discovery Planning Conference

A discovery planning conference FRCP 26(f) is used to determine what items, if any will remain confidential, and failing to comply with this confidentiality will result in a breach of K claim. Sometimes a “chinese walling” will occur where an attorney needs to keep items “confidential from himself.” The pending “Sunshine Litigation Act,” which has not been approved yet, would theoretically ban confidentiality agreements if strong public interest is shown.

Attorney Work Product Rules

Under FRCP 26(b)(3) attorney work product is protected from discovery. In order to be protected as work product the document must be prepared solely in preparation of litigation and not for a dual purpose such as a corporate merger and litigation. Attorney work product might be obtained if a great necessity or justification is show such that the information would be impossible to obtain otherwise. This is to avoid the counter party from sitting on their laurels while the other side prepares, then requesting all their hard work and preparation. This encourage both sides to be adequately prepared for the litigation. Attorney client privilege: To invoke the attorney client privilege you need to have: an attorney, a client, a communication (in private without outsiders), the privilege must be claimed and not waived, and NOTE the underlying facts of the controversy are not privileged ONLY the communication about those facts. Upjohndisposed of the “control group (execs)” test for establish attorney client privilege. Upjohn held that is doesnt matter so much who the communication was with, but how the communication was made. To invoke the atty client privilege all communications must be preceded by a disclaimer stating the confidential nature of the ongoing investigation for litigation. During the investigation you need to also inform ALL employees of the ongoing investigation. This doctrine especially protects oral statements made by witnesses. In cases of “substantial need or undue hardship” this information might be disclosed. Historically, if you made a voluntary disclosure, that would require you to disclose every other document related to the subject matter of that disclosure. But this applies ONLY if you intended to disclose the document, if it was disclosed by mistake simply call up opposing counsel and ask them not to read it because it is confidential and to return the documents, naturally they will oblige (however, you must still show that you took reasonable steps to keep the document confidential). Additionally, core work product is still protected under this doctrine even if disclosed to an expert witness (under Krisa but some courts are split and might force disclosure if given to an expert).

Summary Judgment

Motion for Summary Judgment FRCP 56 available when there is no genuine issue of material fact and a reasonable jury could only find one way. Either party may motion for summary judgment at any time during the trial by identifying each claim or defense, or the part of each claim, on which summary judgment is sought. The moving party always bears the burden of production on a Summary Judgment motion. The court will grant the summary judgment if the movant shows that there is no genuine issue of material fact. The court will usu state on the record the reasons for granting or denying the motion. When requesting summary judgment you can include as much information as you can muster including: ESI, depositions, interrogatories, paperwork, contracts, evidence, etc. Summary Judgement should also be requested when the counter party fails to produce evidence sufficient to meet their burden of production, in this case the moving party still has the burden to show that there is actually insufficient evidence or no evidence at all. Summary Judgment implies that the movant would be entitled to a directed verdict where the judge orders a certain verdict from the jury. (which has mostly been replaced by JNOV/JOML). Summary Judgment may not be granted when the amount in recover, damages, or a material fact is at issue. This includes the credibility of “interested” witnesses who have a vested interest in the litigation, as opposed to un-interested third parties. Because the intent and motive of the witness is still a very strong factor in determining the necessity of a full trial. The non moving party does not need to produce any more evidence until the moving party has provided enough evidence for a summary judgment (because if the moving party doesn’t exceed the summary judgment production burden then it will just go to trial).

Burden of Proof

Generally a party has met the Burden of production for issue X when he has shown the court enough evidence to justify a jury trial. A party has met their Burden of persuasion when he has produced enough evidence to have the jury believe by a preponderance of the evidence (51% ie more likely than not) that X exists.

Burden of Production

The party must produce SOME evidence that factor X exists, otherwise the jury must find that X does not exist. The party with the burden of production must take affirmative steps to bring forth some evidence. IF enough evidence is is shown that would justify a directed verdict, then the burden now shifts to the counter-party who must show rebuttal evidence or else be subject to a directed verdict (or a successful Summary Judgement motion).

Burden of Persuasion

Always rests on the CLAIMANT during trial. If at the close of evidence, the jury cannot decide if X exists, then it must find that X does not exists. The party wishing to prove X always bears this burden. The party with the Burden of persuasion must persuade the judge that the evidence brought forward in discovery points to the conclusion of law that will win your case.


Voluntary dismissals under FRCP 41(a), the first time are dismissed without prejudice meaning you can file again later/elsewhere (good for statute of limitations issues). The second voluntary dismissal is dismissed with prejudice. Voluntary dismissal can occur by: stipulation of both parties (anytime eg like a settlement), a notice of dismissal filed by one party (which must be sent before and answer or a summary judgment motion), or a Motion for Dismissal (which requires court approval). Involuntary dismissals, under FRCP 41(b) are always dismissed with prejudice and can never be filed again. An involuntary dismissal will occur when there is a failure to prosecute (eg didnt move forward, do due diligence, etc), or failure to comply with a court order. In some cases an involuntary dismissal can be re-opened under FRCP 60(b).

Default Judgment

Default Judgment under FRCP 55, will be entered when a party fails to plead or defend an action. The clerk can enter the default judgment if the relief sought is easily determinable, BUT a Judge must enter the judgement and apply the damages in all situations where it is unclear. The D must be notified of the pending default judgment 7 days before the Default Judgment Hearing. During the default judgment hearing the court may conduct further proceedings to: conduct “accounting,” determine damages, establish the truth of any allegation, or investigate any other matter of law.

Judgement as a Matter Of Law (JNOV)

The judge gives a different verdict than what came back from the jury. You must have first moved for a Directed Verdict during trial under FRCP 50(a) in order to motion for JNOV after the verdict is in. You must make this motion for JNOV within 10 days of the verdict being returned otherwise this is unavailable.

New Trial

The judge can also allow a motion for new trial 59(a)(1) if the judge feels the trial was faulty and needs a mulligan. Usually granted for irregularity, juror misconduct, new material evidence, insufficiency of evidence, excessive or insufficient damages (suggests juror prejudice), or errors of law

Relief from Judgment

You may also file for a relief from judgement (if the 10 days have passed for a new trial) you have one year for this under FRCP 60(c).


The Seventh Amendment “preserves” your right to a jury trial under 1791 standards. Suits at common law were guaranteed a trial in Courts of Law (damages, ejectment) and not granted in Courts of Equity (everything else: rescission, restitution, unjust enrichment, injunction). Tull established a two-prong test for determining the right to a jury trial. First the Historical Analogue, which the court here gives very little weight (ie what claim most closely resembles yours at common law). And Second the Nature of Relief sought, which the court gives the most weight too. This two-prong test boils down to allow a jury trial when the claim is primarily seeking damages or the damages are at the essence of the claim, what the plaintiff really wants. Under Granfinanci a third prong the “public-rights” exception was added that guarantees a jury when a citizen is making a claim against the government regarding a public right. In Chauffeurs the courts combined the legal and equitable claims into a jury trial. Then in Beacon the court also said to combine the claims, but the dissent said they should not be combined we should follow history (Scalia and Kennedy). Later Dairy Queen adopted the dissent from Beacon and said that legal and equitable claims should be split (conservative view) Administrative tribunals do not require a jury trial because it would defeat the purpose of statutorily set up tribunals (see OSHA).

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