Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
223 Cards in this Set
- Front
- Back
|
What are the affirmative defenses in rule 8(c)
|
accord & satisfaction
arbitration & award assumption of risk contributory negligence discharge in bankruptcy duress estoppel failure of consideration fraud illegality injury by fellow servant laches licence payment release res judicata statute of frauds statute of limitations waiver |
|
|
What needs to be included in the complaint rule 8 (a)
|
A short & plain statement for
1. grounds for jurisdiction 2. statement of the claim showing the pleader is entitled to relief 3. Type of relief sought |
|
|
Pleading response/answer must include
|
defenses to each claim asserted
admission or denial of each claim |
|
|
What goes in the pleading
|
Jury demand
prayer for relief Rule 8 Statement of jurisdiction (Mandatory) Statement of venue (not mandatory) Short & plain statement showing P is entitled to relief Rule 11 signature |
|
|
Twombly
|
raises pleading standard
Plausiblity standard not just concievable assertions not enough need supporting facts making a link to the conclusions |
|
|
what is required for a pleading of fraud or mistake per rule 9(b)
|
party must state with PARTICULARITY the circumstantces constituting fraud or mistake. Malice, intntent, knowledge, & other conditions of a presons mind may be alleged generally
|
|
|
What factors are used to decide who has the burden to plead an element?
|
Policy: allocating elements by way of favoring one or the other party to a particular kind of litigation
Fairness: knowledge of the event, access to evidence, control of the evidence Probability: if the event is unlikely to happen without the ∆’s negligence, then the element would be allocated to the ∆ to prove he wasn’t negligent. If a condition once established is likely to continue, then the burden ought to fall on the party benefited by the change. |
|
|
Gomez v. Toledo
|
Allocation of pleading burden goes to the party that has best access to the information related to the element
|
|
|
Rule 9(b)
|
fraud & mistake must be pled with particularity
|
|
|
Time to answer a complaint
|
rule 12
21 days /60 days government |
|
|
time to respond to a 12(b) motion
|
10 days
|
|
|
Erickson
|
Confused things more after twombly stuck to the short and plain statement requirement of rule 8(a)2
|
|
|
Notice cases
|
Mullane
Fuentes Jones v. Flower (if you know they don't know insufficient process) |
|
|
4 factor analysis for relation back
|
(1) Basic claim must have arisen out of the conduct set forth in the original pleading;
(2) The party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) That party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) The second and third requirements must have been fulfilled within the prescribed limitations period. |
|
|
Rule 15(c)
|
amendment/relation back
permits the complaint to be amended once as a matter of course (without court permission) so long as a responsive motion has not yet been filed |
|
|
Service Case
|
Shivione v. Fortune
gets name wrong/ relation back |
|
|
when does an action comence
|
rule 3
when the action is filed |
|
|
In personam
|
ct has power over the D
|
|
|
In Rem
|
Ct has power over property and the property is related to the dispute
|
|
|
Quasi In Rem
|
Ct has power over the property and the property is unrelated to the dispute
|
|
|
7th amendment and ajudication by a government agency
|
Per Atlas
Where the government is acting re: something characterized as a public right It can be adjudicated by an agency |
|
|
Traditonal basis of Personal Jurisdiction
|
From Pennoyer v. Neff
1. D served process in the forum/presence (gives general jurisdiction 2. D agent was served in the stat 3. D domiciled in the state (general jurisdiction 4.D consents |
|
|
Hess v. Polaski
|
Personal jurisdiction Consent can be implied
|
|
|
International Shoe
|
Ct can serve process outside the jurisdiction if ...
There is jurisdiction if the D has such minimum contacts with the forum so that the excercise of jurisdiction in the forum does not offend traditional notions of fairplay & substantial justice. 2 parts to the test Contact & Fairness |
|
|
Magee
|
relatedness claim arose from D contact within the formum
|
|
|
Hansen v. denkla
|
contact must result from D purposeful availment
|
|
|
Worldwide Volkswagon
|
Need foreseeablity that the D could be sued in that jurisdiction
|
|
|
Calder v. Jones
|
D does not need to enter the forum to be sued if they caused an effect in that forum it is enough
|
|
|
Burger King
|
Must have relevant contact before we look at fairness
the burden is on the D to show that the forum is so gravely inconvenient that it puts them at a severe disadvantage |
|
|
Asahi
|
rare exception where the fairness part of the test is more important than minimum contacts because the burden was huge and the states interest was little
|
|
|
When is there general jurisdiction
|
only when the D has continuous & systematic contacts in the forum
|
|
|
When is there specific jurisdiction
|
when the action arose in the forum
|
|
|
What are the 5 fairness factors
|
1. D inconvenience (BK shows it difficult)
2. State interest (Magee) 3. P interest 4. interest in efficiency 5. interest in shared substantive policies |
|
|
Schaffer v. Heightner
|
In rem & QIR must seize property at outset AND the D must have minimum contacts (International Shoe)
|
|
|
Rule 4
|
service of process
|
|
|
Rule 4(d)
|
waiver of service
|
|
|
Jones v. Flowers
|
If you are aware that the D did not recieve service then you may need to take further steps
|
|
|
Section 1332(a)1
|
Federal subject matter jurisdiction
Diversity of citizenship |
|
|
What is citizenship of a natural person (US Citizen)
|
citizen of the state in which they are domiciled. Domicile is that of your parents at birth. at the age of majority you can change if you establish physical presence and an intent to make it your permanenthome. You can only have one domicile at a time
|
|
|
How do you establish domicile?
|
physical presence
intent to make permanent home |
|
|
Citizenship of corporations
|
Section 1332(c) 1
citizen of state where incorporated AND principle place of business (ie HQ) |
|
|
How do you determine principle place of business for the purpose of establishing corpoate citizenship?
|
Hertz says the PPB is the nerve center of the corporation the place from which the business is directed. Greenberger says it is the HQ
|
|
|
For federal diversity subject matter jurisditiction you must have
|
1.complete diversity of citizenship between D's & P's
2. amount in dispute over $75,000 (exclusive of interest or costs on the claim) |
|
|
When can a claim be agregated to meet amount in dispute factor of diversity federal subject matter jurisdiction?
|
if there is only 1 P & 1 D
|
|
|
Section 1331
|
Federal question subject matter jurisdiction
|
|
|
well pleaded complaint rule
|
the federal question must arise in the complaint. Only look at the CLAIM not at anticipated defenses.
|
|
|
Louisville & Nashville RR v. Mottley
|
RR passes not federal question because the federal question is only raised as an an anticipated defense. The actual claim is a state contract claim
|
|
|
United mine workers v. Gibbs
|
supplemental jurisdiction if the 2nd claim shares a common nucleus of operative fact with the first claim
|
|
|
Removal rules
|
case is removable if it meets federal subject matter jurisdicion
cannot remove a diversity case if any D is a citizen of the forum all D must agree |
|
|
To which federal ct does a case go when D exercises removal
|
to the federal ct that embraces the state ct in a geographical sense
|
|
|
time frame for removal
|
must remove within 30 days of service of the document that makes the case removable
|
|
|
venue, Personal jurisdiciction & subject matter jurisdiction Distinguished
|
Venue: tells you which district ct you can file in
SJM: tells you if you can file in federal ct PJ: tells you which state you can file in |
|
|
section 1391
|
Venue rules
|
|
|
if a P is filing in federal ct which venues can the chose from
|
lay venue in any district where all D reside
If all D reside in different districts of the same state you can sue them all where any Ds reside |
|
|
Residence of natural person for purpose of venue
|
usually the place of domicile so generally the same as citizenship
|
|
|
Residence of a business
|
1391(c) every district where suject to personal jurisdiction
or any district where a substantial part of the claim arose |
|
|
Section 1404(a)
|
transfer of venue when transferor is a proper venue
discretionary |
|
|
Section 1406(a)
|
applies when transferor is an improper venue. ct can dismiss or transfer
manditory |
|
|
Piper v. Reno
|
Venue case dismissed for forum non conviens because the venue was not the center of gravity
|
|
|
Erie
|
fed ct must in diversity cases must apply state substantive law per the RDA & 10th amendment
|
|
|
When is there general jurisdiction
|
only when the D has continuous & systematic contacts in the forum
|
|
|
When is there specific jurisdiction
|
when the action arose in the forum
|
|
|
What are the 5 fairness factors
|
1. D inconvenience (BK shows it difficult)
2. State interest (Magee) 3. P interest 4. interest in efficiency 5. interest in shared substantive policies |
|
|
Schaffer v. Heightner
|
In rem & QIR must seize property at outset AND the D must have minimum contacts (International Shoe)
|
|
|
Rule 4
|
service of process
|
|
|
Rule 4(d)
|
waiver of service
|
|
|
Jones v. Flowers
|
If you are aware that the D did not recieve service then you may need to take further steps
|
|
|
Section 1332(a)1
|
Federal subject matter jurisdiction
Diversity of citizenship |
|
|
What is citizenship of a natural person (US Citizen)
|
citizen of the state in which they are domiciled. Domicile is that of your parents at birth. at the age of majority you can change if you establish physical presence and an intent to make it your permanenthome. You can only have one domicile at a time
|
|
|
How do you establish domicile?
|
physical presence
intent to make permanent home |
|
|
Erie blackletter law
|
the federal ct in diversity cases must apply state substantive law. Per the RDA and 10th amendment
|
|
|
section 1652
|
Rules of decision act (RDA)
|
|
|
3 tests for determining if something is substantive for erie problem
|
Outcome determinative (guarantee trust)
Byrd interest balancing Twin aims of erie |
|
|
Outcome determantive test
|
if it effects the case it is substantive (guarantee trust)
For erie problem determining if law is substantive |
|
|
Byrd Balance the interest test
|
If the federal interest is greater than the state interest the federal law applies (byrd)
For erie problem determining if law is substantive |
|
|
twin aims of erie
|
1. avoid forum shopping
2. equitible administtion of the law. Application: if the federal law will cause parties to flock to the federal ct thent he state law must be applied |
|
|
12(b)
|
motions to dismiss
|
|
|
Which 12 (b) defences are waivable
|
personal jurisdiction, venue,. insufficient process, insufficient service of process
|
|
|
Which 12 (b) motions can be raised at anytime through trial
|
12(b)6 failure to state a claim
12(b)7 failure to oin an absentee under rule 19 |
|
|
Which 12 (b) motion can never be waives and can be raised any time even for the first time on appeal
|
12(b)1 subject matter jurisdiction
|
|
|
General jurisdiction
|
D can be sued on a claim that arose anywhere in the world
|
|
|
Specific jurisdiction
|
D is sued on a claim that arises from activities in the forum
|
|
|
Per International shoe there is jurisdiction if
|
the D has minimum contacts with the forum so that exercise of jusridiction in the forum does not offend traditional notions of fairplain and substantial justice
|
|
|
Relatedness
|
Deals with the relationship between the claim and the forum (Magee deals with this)
|
|
|
Which case deals with relatedness
|
Magee
|
|
|
Which case deals with purposeful availment
|
Hansen v. Denkla
|
|
|
Hansen v. Denkla
|
contact must result from D purposeful availment
|
|
|
WWV
|
Deals w/Fairness element mentioned in Shoe must be foreseeable that the D could be sued in the forum
|
|
|
Calder effects test
|
D need not enter the forum to be sued, causing an effect there is enough per calder v. jones
|
|
|
BK
|
clairifies that there are 2 parts to shoe, contact & fairness
must have relevant contact before we look at fairness fairness burden is on the D to show the forum is so gravely inconevient that the D is at a severe disadvantage in the litigatioin |
|
|
Burnam split -Scalia
|
traditional basis from Pannoyer exist alongside shoe so presence has always been good
|
|
|
Burnam split -Brennan
|
traditional basis are gone and must go with international shoe minimum contacts
|
|
|
Burnham
|
general jurisdiction only if D has contiuous systematic contacts
|
|
|
Do mimimum contacts exist if
Continuous & systematic Related(specific J) |
YES
|
|
|
Do mimimum contacts exist if
Continuous & systematic Unrelated(general J) |
Maybe
|
|
|
Do minimum contacts exist if
Casual & Isolated Related (specific J) |
almost always
|
|
|
Do minimum contacts exist if Casual & Isolated
Unrelated (general J) |
NO
|
|
|
What makes a contact relevant
|
purposeful availment
& Foreseeablity |
|
|
Traditional basis for Personal Jurisdiction established in
|
Pennoyer
|
|
|
Minimum contacts established in
|
International shoe
|
|
|
PJ analysis steps
|
Step 1 Statuory
Does the state statue allow jurisdiction? Long arm?Traditional basis(if yes mention burnam split)?\ Step 2 constituional basis would jurisdiction in the state be constituional? traditional basis (always constitional. if yes, mention burnam split)? if no traditonal basis then Shoe it. Relevant contact? part A) D purposeful availment? foreseeable D would be sued there? part B) fair/reasonable? relatedness (specific/general)? 5 fairness factors: burden on D, P interest, St. interest, Efficiency, shared substantive policy. |
|
|
what is the difference between in rem & QIR
|
In in rem the dispute is actually about the property. In QIR the property is just used to secure jurisdiction
|
|
|
When must property be attached for QIR to be valid
|
at the outset of the case
|
|
|
QIR & In rem current analysis
|
Step 1 statutory basis
Does the state have a statute which allows seizure of D property? Step 2 constitutional use the shaffer test...Must sieze at the outset AND the D must have minimum contacts (do the Shoe) |
|
|
Shaffer test
|
For QIR/In Rem
1) must sieze/attach property at the outset;AND 2) D must have minimum contacts (do the shoe) Sometimes especially in rem contacts might be established with property ownership (especially land ownership) |
|
|
Due process requires
|
notice and an opportunity to be heard
|
|
|
Rule 4
|
Service of process
|
|
|
Process consists of
|
summons & complaint
|
|
|
Rule 4(1)a
|
contents of the summons
|
|
|
Who can deliver service?.
|
any non-party who is at least age 18 rule 4(c)2
|
|
|
rule 4(c)2
|
who can deliver a summons...nonparty at least 18 y.o.
|
|
|
How can process be served on a natural person
|
1. personal service in the forum state
2. substituted service 3. any method that is permitted by state law & reasonably calculated to provide notice under the circumstances 4. to an agent (designated or imlied like with non-resident motorist acts) |
|
|
What are the requirements for substituted service to be valid?
|
made at the D dwelling
given to a person of suitable age and discretion who resides there |
|
|
How can process be served on a corporation?
|
serve an officer, managing or general agent
methods permitted by state law (reasonbly calculated....) |
|
|
Rule 4(h) 1
|
service on a corporation
|
|
|
rule 4(d)
|
waiver of service
|
|
|
Waiver of service process
|
send waiver of service by mail
put waiver, service, SASE. D can sign and return and P will file. OR they can fail to return within 30 days and then they will be served formally and my have to pay the cost as a penalty |
|
|
Time frame for return of a service waiver
|
30 days
|
|
|
Mullane v. Hannover bank
Notice standard |
notice must be reasonably calculated under all the circumstances to give the party notice of the proceding
|
|
|
Jones v. Flowers
Holding |
If P is aware the D did not get notice then they may need to take other steps
|
|
|
Fuentes v. Shevin
|
people have a right to a pre-possesion hearing
|
|
|
Mitchel v. Grant
distinguished from fuentes |
writ of replevin had to be sworn upon by affidavit to a judge in Mitchel
|
|
|
Mathews test for notice
|
private interest of D
risk of error interest of P in seeking attachment |
|
|
Which test does the ct use in Dusenburry
|
Mullane Reasonably calculated under all circumstances to aprise & give opportunity to present objections
|
|
|
3 tests for notice
|
mullane (reasonably calculated...)
Fuentes (notice pre-posession) Mathews (3 part D interest, P interest & risk of error) |
|
|
Due process clause
|
5th applies to fed only
14th applies to states only |
|
|
What are the areas of federal jurisdiction
|
cases arising under constitution laws & treaties of the US, Ambasadors et al., admiralty, US is a party, Diversity between citizens of different states
|
|
|
final judgement rule
|
You cant enter an appeal until the trial ct enters final judgment
|
|
|
New term
Claim Preclusion |
Old term
Res judicata |
|
|
Old term
Res judicata |
New term
claim preclusion |
|
|
New term
Issue preclusion |
old term
collateral estopel |
|
|
Old term
Collateral estoppel |
New term
Issue preclusion |
|
|
What must exist for Claim preclusion to apply?
|
1. both cases same P v same D (same parties in the same configuration
2. case ended in a final judgment on the merits 3. both cases involve the same claim(transaction or occurence) |
|
|
5 requirements for issue preclusion
|
case 1 ended in valid final judgment on the merits
same issue was actually litigated & decided in case 1 issue was essential to judgment in case 1 Against whom is it used can only be used against someon who was a party in the 1st case (or in privaty) by whom is it used? mutuality rule can only use if you wer a party in case 1. Non-mutual 2 schools traditional say no-non mutual, current majority says ok as long as you use against someone who had a full opportunity to litgate |
|
|
Traditional view of non-mutual offensive collateral estopel
|
cannot use
|
|
|
current majority view of non-mutual offensive collateral estopel
|
can use as long as the party you use it against had a full chance to litigate the issue
|
|
|
Parklane hosiery fairness test
|
Did they have a full chance to litigate the issue in case 1
did they foresee mulitple suits could you have easily have joined no inonsistent judgements(most important) |
|
|
Merger
|
applies when P wins all possible grounds that could have been asserted are merged into it so as to prevent the P from brining new littigation
|
|
|
Barred
|
applies when P loses barred from bringing new litigation
|
|
|
Is res judicata waivable
|
yes it is an affirmative defense & it is waivable
|
|
|
Res juticata elements
|
same parties
final judgment claim the same |
|
|
Is claim on the merits always a condition for claim preclusion? Issue preclusion?
|
Claim NO
Issue YES |
|
|
Davis v. Dallas area rapid transit
|
Establishes transactional test for claim preclusion. All claims arising out of a particular transacion must be brout together. Asks the question did they arise out of the same transaction/occurance
|
|
|
Which case establishes the transactional test for claim preclusion
|
Davis v. Dallas area rapid transit
|
|
|
How is a transaction defined for claim preclusion
|
(davis) closely related in time? Make sense to resolve in the same proceeding?
Same evidence, witnesses, proof? |
|
|
Compulsory counterclaim rule
|
any counterclaim made compusory (as in rule 13) is subject to transactional/claim preclusion
|
|
|
What is an exception to claim preclusion?
|
remedial litigation. if there was som limit on the legal theory or remedy.( ex. Staats)
|
|
|
Distinguish supplemental J & removal
|
Removal D moves a claim to fed ct if the claim could have been brought there.
Sup J. Fed ct takes jurisdition in the first instance of a state claim that is related to a federal claim |
|
|
Collateral estopel 4 requirements
|
identical issue
full & fair opportunity to litigate issue must actually be litigated & decided issue was essential to the jugement |
|
|
Judicial estoppel
|
prevents from making inconsistent pleadings ex. Disablity discrimination case & social security claim.
|
|
|
What is the most important question in preclusion re:parties
|
WAS THE PERSON THERE?
You have to be there for preclusion to apply to you. Reason everyone deserves their day in ct. |
|
|
What is one of the few ways to extend preclusion to non parties
|
privity
|
|
|
What are some relationships where privity is likely
|
mutal or sucessive interest in propert
somone legally appointed to represent (guardian) contractual agreement binding parties relationship exists solely for purpose of litigation Party sought to be bound directed or controlled the litigation |
|
|
What reasons does ct give in Taylor v. Sturgel for when calim preclusion might apply to a non party
|
consent to be bound by judgment
pre-existing legal relationship adequate representation as a matter of law (ex. class action) control over previous litigation re-litigation by proxy |
|
|
Is summary judgement a litigated issue for the purpose of preclusion
|
yes
|
|
|
Which case is the first one where non-mutual collateral estoppel is permitted
|
Bank of America v. Earnhart
|
|
|
BofA v. Earnheart holding
|
departs from old mutuality rule establishes new majority rule re: non-mutual collateral estoppel. A new D can use issue preclusion against an old P becaue the old P had their day in ct (full & fair opportunity) re: that issue.
|
|
|
Defensive collateral estoppel
|
New D attempts to block old P from relitigating an issue that they lost in an earlier case
|
|
|
Offensive collateral estoppel
|
A New P attempts to use issue preclusion in a case against an old D
|
|
|
Which case illustrates Offensive collateral estoppel
|
Parklane Hosiery
|
|
|
Which case illustrates Defensive collateral estoppel
|
Bank of america v. Earnheart
|
|
|
Can Collateral offensive estoppel be used against the government
|
public policy claim -NO
governement acting as a private party (ex. tort)-YES |
|
|
7th amendment
|
In suits at COMMON LAW (not equity) 7th amend. PRESERVES the right to a jury trial in fed civil cases where amount in dispute is over $20
Also says no fact tried by jury shal be retried (lots of exceptions to this part though) |
|
|
Has the 7th amendment been incorporated into the 14th?
|
Nope, no constitutional right to a jury trial for a civil matter in state ct
|
|
|
Rule 38
|
allows a jury trial to be waived if there is not a timely demand
|
|
|
Can a jury trial be waived
|
yes under rule 38 if there is not a timely demand
|
|
|
3 principle tasks of a juror
|
fact finding- jury decides what the facts are
Evaluate the facts in the legal framework given by the judge in instructions deliberate |
|
|
basic test for Jury Trial
|
1. Is the claim asserted analgous to a claim that existed in 1791?
2. if there is what is the remedy sought(Chauffers v. Terry) |
|
|
3 rules for determining whether it is an equitible or at law claim for purpose of jury trial
|
1. determin right by issue (not center of gravity) (beacon)
2. if an issue of fact underlies both law & equity then right to jury trial 3. generally jury issues get tried first (beacon) |
|
|
Beacon theatre
|
rejects american insurance
Legal issue tried first if there are both right to jury trial attaches to issues. |
|
|
Exceptions to revisiting facts which have been tried by jury
|
Judge can:
render a decision as a matter of law (JMOL) Set asside judgment direct judgemnet |
|
|
Standard for allowing revisitation of facts
|
based on the evidence could a reasonable jury have found the way it decided
|
|
|
Ross v. berhnart
|
right to jury trial on legal claims must not be infringed.
Issue mostly depend on nature of remedy. Per beacon so long as there is a legal issue it predominates |
|
|
Parklane distinguished form beacon
|
multiple lawsuits in park lane if multiple lawsuits beacon does not apply.
|
|
|
Chauffers & 7th amend
|
compare to 18th century lawsuits
examine remedies. |
|
|
7th amendment and government regulatory agencies
|
in most instances where there is allocation to an administrative agency to a decion making authroity the 7th amendment doesnt apply. Atlas carves out an exception for the adjudication of statuory rights from congress to agencies.
|
|
|
12(b)6 Failure to state a claim what is the ct looking at
|
the FACE of the pleading. Assuming facts to be true did they plead all the elements necessary for their case?
|
|
|
Summary J What is the ct looking at
|
Unlike 12(b)6 they are now looking at evidence. Is there a need to go to trial? are there remaining issues of material fact? Are they entitled to judgement as a matter of law? Could a reasonable jury decide it differently?
|
|
|
What kind of evidence can be used to support summary J
|
Deposition testimony
sworn affidavit/declarations answers to interogatories MUST BE Admissible/1st hand knowledge |
|
|
rule 26
|
discovery
|
|
|
rule 26 (a) 1
|
initial disclosures
|
|
|
What need to be included in initial disclosures for discovery without being asked
|
1. Identify people with discoverable info you might use at trial
2. identify documents/tangible things you plan to use at trial 3. P calculation of damages 4.D insurance |
|
|
Rule 26(b)1
|
scope of discovery
|
|
|
what is the scope of discovery (permissible)
|
anything reasonably calculated to lead to admissible evidence(even if it itself is not admissible)
|
|
|
What is scope of discovery (impermissible)
|
privaleged info
Work product |
|
|
When may work-product be overriden
|
substantial need
info not otherwise available |
|
|
What kind of work product is always off limits
|
impressions, legal theories & mental impressions
|
|
|
What qualifies as a work product
|
stuff prepared in anticipation of a trial
|
|
|
What rules cover discovery
|
26-37-&45
|
|
|
What does Zublaki deal with
|
cost allocation of discovery of expensive ESI
|
|
|
Who pays for discovery
|
normally respondant unless too burdensome under rule 26(b)2
|
|
|
What is the gold standard test for discovery cost shifting
|
Rowe test(ct invalidates in favor of 7 factor)
specifity of request likely hood of discovering critical info purposes for which the reponding party maintains the requested data realtive benefits to the parties of obtaining the info, total cost associated with production relative ability of each party to control costs and incentive to do so, resources avialble to each party |
|
|
7 factor cost discovery cost shifting test established in Zublaki
|
1.extent to which the request is specifically tailored to discover relevant information
2. availablity of info from other sources 3. total cost of production in comparison to amt in controversy 4. total cost of production in comparison to resources avialble to the parites 5. relative ablity to control costs and incentive to do so 6. importance of issue at stake 7. relative benefit to parties of obtaining the info. |
|
|
what are the 5 discovery mechanisms
|
deposition
interogatories request to admit request to produce physical exam |
|
|
What are the only objections allowed in depositions
|
privilege
|
|
|
can corrections be made to a deposition
|
yes but it opens u up to criticism
|
|
|
what are the advantages to a deposition
|
get to observe witness demeanors
spontaneous can pursue evasive answers can be used for cross examination |
|
|
what are the disadavantages of deposition
|
cost
|
|
|
How do you depose a corporation
|
serve an individual or send corp notice of what subjects and they must provide someone who can answer
|
|
|
What is the limit to the # of depositions
|
10 but a judge can allow more
|
|
|
what is the limit for taking a deposition
|
only get to take a persons deposition once for one 7 hour day
|
|
|
Can non parties be deposed?
|
yes per rule 45 with a subpoena
|
|
|
What are the advantages to interogatories
|
inexpensive
obtain all relevant knowledge |
|
|
what are the disadvantages?
|
cryptic writen by a lawyer
no followup |
|
|
what is the limit on the number of interogatories
|
25
|
|
|
when are interogatories most useful
|
if you have something that just requires a straightforward answer
|
|
|
Request to admit
|
if you send a request to admit they must admit deny or explain why they cannot admit or deny. Must respond or its deemed admitted. Once admitted it is automatically accepted as true
|
|
|
request to produce
|
usually for documents
|
|
|
Can you request a non-party produce?
|
yes with a supoena
|
|
|
What are the conditions for using a physical exam as a discovery mechanism
|
showing of good cause
ct order |
|
|
Hickman v. Taylor
|
deals with work product discovery exceptions.
|
|
|
When might need for work product be substantial enough?
|
witness not available(ie dead)
Witness refusing to speak maybe |
|
|
Is relevance suffiecient to gain access to privaleged work product
|
NO it's all relevant must not be able to get anyother way & need must be substantial
|
|
|
Rule 26(a)
|
Deals with discovery of experts
|
|
|
What must be included in an expert discovery report
|
statement of opinions
data or other ifo used in informing opinion qualifications & publications last 10 years experts compensation list of all cases testified at in past 4 yrs (deposition and trial) |
|
|
What are the only witnesses allowed to express opinion
|
experts
|
|
|
yeager expert witness exceptions
|
experts informally consulted not retained -identy & opinions are off limits
Those whose info was aquired not in anticipation of trial-off limits |
|
|
current rule 11 sanctions rules
|
safe harbor provision
discretionary deempahsis on monetary compensation can sanction a firm not just individual lawyer If you find evidence later you must amendthe pleading ongoing responsiblity to be rule 11 compliant can make allegations in the complaint with the intent to seek separately supporting evidences. |
|
|
rule 15
|
relation back
|
|
|
What is the time frame for removal?
|
30 days from service of removable info
no more than a year from original |
|
|
Which district ct gets the case if you remove
|
the one that geographically encompases the state ct.
|
|
|
how long so you ahve to repons to complaint per rule 12
|
21days after service or you risk default judgment
|
|
|
section 1391
|
deals with venue
|
