Pciii - Judicial Notice And Fed Discovery

Front 1

What is Judicial Notice? What is the scope?

Back 1

Judicial Notice is a substitute for Evidence.

The court can only take judicial Notice of "Adjudicative Facts"

Front 2

What are adjudicative facts?

Back 2

a. Adjudicative Facts: the facts to which the law of the case is applied. Generally, the things decided by the jury. Facts that tend to answer a question w/in the province of the jury.
b. The Who/What/When/Where/Why type facts

(not legislative facts (rulings on a point of law)
e.g. can't take notice of geographic facts to help answer jurisdiciot or venue questions; or the "fact" that i. e.g. the “fact” that racially segregated schools lead to inherently unequal treatment
ii. Used to make policy decisions

Front 3

Can you ever asdk the judge to take judicial notice of a law

Back 3

i. When applying foreign law, one must prove what the law of the foreign jdx is
ii. Judge has access to American law, but less to foreign law, so it’s the litigant’s responsibility
iii. Now, you can ask the judge to take judicial notice of foreign law.
iv. Sometimes applies to municipal ordinances & other types of law that are not readily accessible

Front 4

Facts must not be "subject to reasonable dispute." What does that mean?

Back 4

a. Generally Known within the territorial jdx of the trial court (common knowledge); or

b. Capable of Accurate & Ready Determination by sources whose accuracy cannot reasonably be questioned.
i. (“Verifiably Certain” facts. - ALMANAC facts)
ii. Must show the source to the judge

iii. Examples:
1. Lincoln story w/ almanac
2. Life expectancy charges/tables, actuarial data; but NOT work-life expectancy
3. Reliability of scientific theory under Daubert, if you can provide an appellate opinion of other cases that already recognized it as reliable.
4. Contents of court records from this court

Front 5

When is the taking of judicial notice of a fact discretionary and when is it mandatory?

Back 5

When discretionary: A court may take judicial notice sua sponte (whether requested or not)

When mandatory: A court shall take judicial notice if a party requests and supplies the necessary information.

Front 6

Does a party have a right to be heard with regard to Judicial Notice?

Back 6

Opportunity to be heard: A party is entitled upon timely request to an opportunity to be heard as to:
a. the propriety of taking judicial notice and
b. the tenor (how the instruction to the jury will sound) of the matter noticed.

Front 7

When can judicial notice be taken?

Back 7

at any stage of the proceeding.

Judicial notice may be taken at any stage of the proceeding.
a. Pre-trial, post-trial, during trial, even while on appeal!
b. But if you first raise the issue post-trial, they’re reluctant

Front 8

How is Judicial Notice given?

Back 8

8. Instructing jury:
a. In a civil proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed.
b. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Front 9

What is a judicial admission?

Back 9

2. Judicial Admission: Something you admit to the court, expressly or impliedly
i. Elements:
1. Statement made during a judicial proceeding;
a. testimony in court,
b. statements in pleadings,
c. motions,
d. responses to discovery requests,
e. statements by atty @ trial,
f. affidavits of a party or atty

Front 10

What happens when a fact is established by judicial admission?

Back 10

1. Other Party No Longer Required to Prove Fact – It’s Conclusively Established; and
2. Evidence to the Contrary is Inadmissible.
3. (But if no objection to it being offered, Objection to the admission is waived!)

iii. They’re admissible in any similar case – you create evidence whenever you speak

Front 11

CONFRONTATION CLAUSE

What does it say?

Back 11

In all CRIMINAL prosecutions the accused shall enjoy the right to confront the witness against him.

Front 12

What does the confrontation clause mean?

Back 12

It is:

1. The right to be in a courtroom whn witnesses are called; and

2. The right to cross examination

Front 13

What if you are not allwed to cross a witness?

Back 13

It is a clear violation of the confrontation clause.

Front 14

New Confrontation clause rule from Crawford v. Washington

Back 14

(b) Applies to only to testimonial statements

(c) Requires
(i) (prior or current) cross-examination and
(ii) unavailability

Front 15

What is testimonial?

Back 15

Rzbly, objectively seen as being used prosecutorialy.
(i) Interrogations
(ii) Affidavits
(iii) Depositions
(iv) Witness statements
(v) Grand jury testimony

Front 16

What did Crawford change?

Back 16

Crawford says that we are only concerned with testimonial hearsay.

the confrontation clause is not a guarantee of reliability but a procedural rule that demands reliability be tested through CX.

Front 17

What about statements made to a 911 operator?

Back 17

COurts have said that quenstions designed to deal with an ongoing emergency are not testimonial.

Front 18

is grand jury testimony given in court a violation of the confrontation clause?

Back 18

The defendant has not opportunity to cross examine so the testimiony is inadmissible if the declarant is unavailable.

Front 19

What about stament made to police in respone to questioning designed to investigate a past crime 9even though crime just occured)

Back 19

Testimonial

Front 20

Is a dying declaration testimonial?

Back 20

Yes, but it is the one exception to the theconfrontation clause

Front 21

What about forfeiture by wrongdoing?

Back 21

If a defendant secures a witness' unavailability he doesn't get the benefit or right to confrontion.

BUT the aim must be to prevent the person from testifying. Murder charge is not enough if murdered for another reason.

Front 22

Federal Electronic Discovery

37(e) safe harbor rule

Back 22

Different from Texas

Absent exceptional circumstances, a court may not impose sanctions for failing to provide electronically stored information as a result of a good faith, routine electronic information system.

Front 23

But what happens if you are on notice?

Back 23

Then you have a responsibiliyt to put a litigation hold on the info

Front 24

Under the federal rules, when must e discovery be addressed?

Back 24

in pertrial.

Front 25

Is hard data enough?

Back 25

A court may require a party to trans;ate information into a reasonably usable form.

Front 26

When requesting electronic data what must you do and what should you do?

Back 26

You must describe with particularity each item or category of item to be inspected.

You must specify a reasonable tiem place and manner for the inspection and for performing the realate acts.

You MAY specify the form in which e-data is produced but you should.

Front 27

FRE 502

Disclosure of a of priviledged material is not a waiver of atty-client or work product privilege if

Back 27

1. the disclosure is inadvertant

2. the holder of the privilege to reasonabel steps to prevent disclosure

3. the holder promptly took reasonable steps to rectify the siuation including giving notice to the other party, retrieveing, and turning it over to the court under seal for a determination.

Front 28

502d - court order

Back 28

a court may order that privilege is not waived by the disclosure connected with the litigation pending before the court.

Front 29

Federal E-Discovery cost shifting issues

when are the standards different?

Back 29

There are different standards for cost-shifting during the pendancy of the case and at the end of the case.

Front 30

When is cost shifting appropriate?

Back 30

If the data is accessible in the ordinary course of business then it is inappopriate to consider cost shifting.

If something is not reasoably accessible, then cost-shifting MAY be appropriate. (NOT MUST LIKE IN TEXAS)

Front 31

When something is not readilly accesible, how do you determine whether cost shifting is appropriate?

Back 31

Look to the materiality and fairness factors:

1. Materiality = how important is it to this case

2. Fairness= how specific are you being in your request?

Front 32

If a party request that something be produced in a certain way, what must a party do if they want to shift the cost?

Back 32

The objecting party has the burden to point out with specificity and produce evidenc of why the cost of producing the evidence would be unduly burdensome. State why cost should be shifted.

Front 33

Court Costs - who gets them and what are they?

Back 33

Should be awarded to the prevailing party.

Court costs are the costs reasonable and necessary for litigation, not for the convenience of the party.

you must argue that this is a necessity, (like maybe because there is no time).

This is not about what the attys have to do, its about what the non-attys have to do.

Front 34

In E-discovery what is accessible vs non accessible?

Back 34

(c) Accessible vs. non-accessible
(i) Accessible:
1. Online (e.g. H/D, Tivo)
2. Near-line (e.g. CDs, DVDs, Jump-drives)
3. Off-line (magnetic tape, VHS)
(ii) Inaccessible
1. Backups (magnetic tape, At the video store)
2. Legacy (Outdated stuff, like BETA)
3. Residual (dmgs or invisible data, like scratched discs or deleted files)

Front 35

E-discovery privilege issues

What is the procedure?

Back 35

(a) In order to address privilege concerns, same protocol as in State
(b) Neutral appointed by court (who is then an officer of the court)
(c) Putting protective orders in place
(d) Neutral goes through data
(e) Gives it to the producing party
(f) Producing party reviews & produces the non-privileged, relevant data & priv log
(g) Requester objects
(h) In camera review by court
(i) etc.

Front 36

What does it mean that you have to take reasonable steps to avoid inadvertant disclosure?

Back 36

in Vicotor Stanley they did not take reasonable steps.

(f) Problem? Lawyers used keyword searches to check for privileged data, but didn’t set forth any facts in the affidavit about testing the keywords selected for proper scope/results
(g) Knowing that, not testing accuracy, you haven’t taken rzbl steps to avoid inadvertent disclosure, so you probably wouldn’t be able to save your own ass w/ new FRE 502

Front 37

ailure to properly describe the existence and protection of the privilege to begin with → waiver also.

Back 37

As party asserting privilege, it’s your duty to prove it and protect it.

Front 38

What if you don't review the stuff you send?

Back 38

Not reviewing is not reasonable so you waive the privilege.

Front 39

Federal clawback provision (same as snapback)

Back 39

WIth rolling production you want a clawback provision to protect you. you can negotiate with other party to have a clawback provision. you want the court to give you something more than 502.

Front 40

Are social networking sites discoverable?

Back 40

Yes they are. so what should you do? take a snapshot to preserve the evidence and then tell your client to take that shit down.

Front 41

Evidence preservation and production issues

(a) One party produced a CD w/ a document requested
(b) Requester says, “Hey, this isn’t in native format. I want metadata!”
(c) Producer says, “Hey, you didn’t ask for it!”

Back 41

(d) If you don’t specifically request metadata, you don’t get it.
(i) And since party can only be made to produce data in one form, you might be out of luck.
(ii) If court orders second production with metadata, you’ll definitely be footing the bill.

Front 42

Is there an automatic duty to preserve metadata?

Back 42

But, no automatic duty to preserve metadata.

If you have metadata that is likely to be relevant and material to the potential litigation, you have a duty to preserve.

Front 43

Who has the duty to preserve the evidence?

Back 43

Your client has a duty to preserve, but you must inform the client about the duty.

Negligence is enough. (GN not req'd.)

If there is bad faitl then you get a presumptoin tha it was bad evidence for the spoliator.

counsel must help them figure out who has the relevant info.

Front 44

What kind of culpability is required for sancions.

Back 44

Some circuts only require negligence if its highly relevant issue

5th requires bad faitn culpability for a hard discovery sanction.

--if the failure was negligent, it will not equal an adverse inference instruction but will get a less severe sanction.

Front 45

Physical and Mental Examinations

Back 45

(1) Fed. R. Civ. P. 35
(2) It exists
(3) It’s kinda like Physical/Mental exams in Texas
(4) No explicit protection regarding psych exams, but enforced similarly.

Front 46

Duty to Supplement Discovery

When does a party have a duty to supplement written discovery?

Back 46

Parties have a duty to supplement written discovery and disclosures

(1) Fed. R. Civ. P. 26(e)
(2) To the extent they’re incomplete or incorrect when made, or discovered to be incomplete/incorrect after the fact, there is a duty to supplement them.

Front 47

Do non-parties have a duty to supplement written discovery?

Back 47

(4) Non-parties DO NOT have a duty to supplement their discovery
(a) But on some occasions, a non-party may choose to supplement to avoid being impeached, or aggressively CXd,
(b) Or if it was signed by an Atty, atty may choose to protect himself from sanctions

Front 48

(5) Expert testifies to something not included in his expert report: what do you do?

Back 48

(a) 26(e) creates a duty to supplement the expert report
(b) 37(c) has a provision to automatically exclude that opinion, & potentially the entire expert’s testimony

Front 49

Discovery Sanctions

Back 49

In Fed it is the same as TX, your signature means that you are certifying in good faith that everything is correct.

Front 50

Factors to consider before granting default judgment as sanction for discovery misconduct:

Back 50

(i) Violation was willful/bad faith or due to inability to comply?
(ii) are less drastic sanctions available?
(iii) extent of prejudice to opposing party
(iv) whether client knew or participated in the violation, or simply misunderstood a court order or hired derelict counsel

Front 51

(3) Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D.Cal. 2008)
(a) A good moral story

Back 51

(b) In selecting a 30(b)(6) representative, make sure he doesn’t have any incriminating info on his system and prepare him for deposition. Make sure he doesn’t lie.

(c) If you find as-of-yet undisclosed data/e-mails/docs that may be harmful, don’t just look the other way.
(i) And definitely don’t creatively creaft DX questions to avoid letting this info out.

(d) Follow the facts wherever they lead. Client does not have the right to insist on unethical conduct by atty. Pursuit of truth outweighs duty to advocate for atty.