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Law Outlines Civil Procedure Outlines

Discovery And Exemptions Outline

Updated Discovery And Exemptions Notes

Civil Procedure Outlines

Civil Procedure

Approximately 89 pages

Detailed outline and notes from a 1L Civil Procedure class. Includes detailed case summaries, charts and diagrams where appropriate, and the professor's policy discussions interspersed throughout. Would be very helpful for any 1L tackling Civ Pro for the first time....

The following is a more accessible plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Discovery

Relevant Rules

  1. FRCP 26: Duty to Disclose; General Provisions Governing Discovery

  2. FRCP 27: Depositions to Perpetuate Testimony

    1. NOTE: FRCP 27 pre-suit discovery to assist in commencing litigation. Courts resisted using FRCP 27 to fulfill FRCP 11 (sanctions) requirements. CB 345.

  3. FRCP 30(a): When a Deposition May Be Taken

  4. FRCP 30(b)(1): Notice of the Deposition

  5. FRCP 30(c): Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

  6. FRCP 30(d): Duration; Sanction; Motion to Terminate or Limit.

  7. FRCP 33: Interrogatories to Parties

  8. FRCP 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

  9. FRCP 35(a): Physical and Mental Examinations: Order for an Exam

  10. FRCP 36: Requests for Admission

  11. FRCP 37(c): Failure to Disclose, to Supplement an Earlier Response, or to Admit.

Historical Evolution of Discovery (1938 – 1980)

  1. THEME: Started very broadly and optimistically, narrowed over time as cost and time increased.

  2. 1938: “revolution” in creating FRCP, very broad. Included every type of discovery used in America and England.

    1. (NOTE: Nearly no other country has discovery as broad as US)

  3. 1947: First major discovery SCOTUS case; very optimistic. Hickman v. Taylor (see below on work product immunity)

  4. 1960s: Optimism dimmed, lawyers motivated to conceal information.

  5. 1970s: Concerns about rising costs.

  6. 1980: Powell/Rehnquist/Stewart dissented from FRCP amendments because not limiting enough.

  7. 1981: Analogy of law firms to “fifteenth century Italian armies ventured from warring city-states” – avoiding direct confrontation, etc. (Lundquist)

  8. 1983 Amendments to limit discovery, make more efficient and decrease cost/delay.

    1. In Re Convergent Technologies Securities Litigation (1987, N. D. CA, magistrate judge bemoaning more than 1000 interrogatory questions, > $40k spent. Essence of Rule 1 violated by excessive discovery.) CB 347-9.

  9. 1993: Added limitations, e.g. no more unlimited interrogatories.

  10. By 1997, median discovery costs is 3% of amount at stake in the case; about 50% of total litigation cost.

  11. Alternatives

    1. German/Continental System: judge as center of fact-finding

    2. British System: More pleadings in more detail, then document exchange. (No presumption of interrogatories, etc.)

    3. “Game theory” informal discovery:

      1. If there is a smoking gun memo, don’t turn documents over. Go to trial, will come out eventually.

      2. If there is no smoking gun memo, turn over everything you have for nonsuit.

Discovery Devices

Mandatory Initial Disclosure – FRCP 26(a)(1) [added 1993]

  1. Before 2000:

    1. Disclose all information “relevant to disputed facts.” (Might have obligation to turn over smoking gun)

    2. Local rules can no longer opt-out of national rules.

  2. Now:

    1. 26(a)(1)(A)(i): Name/Address of witnesses who may be used to support claims, unless using solely for impeachment

  3. 37(c)(1): Forbids use of materials that should have been disclosed but weren’t. Erodes elements of surprise in depositions, etc.

Discovery in general FRCP 26

  1. 26(b)(1): relevant evidence, need not be admissible at trial.

Interrogatory Interrogatories – FRCP 33

  1. Written questions to be answered under oath.

    1. Easily abused. “For each person who applied to a job in 2006-2008, list…”

  2. 33(a)(1) now limits to 25 interrogatories per party, absent stipulation or court order.

  3. 33(a)(2) “contention” interrogatory. OK to ask opinion, even if about application of law to fact.

  4. 33(b)(2) Judge can postpone requirement to answer as appropriate (to later in discovery or beginning of trial)

Request for Admission – FRCP 36

  1. Ask about truthiness of facts, application of law to facts, opinions, genuineness of documents.

  2. Analogous to pleadings (more about defining dispute and facts, than document discovery)

Document Inspection – FRCP 34

  1. Request with “reasonable particularity.” Often categorical descriptions (“all documents about ___ meeting”).

  2. Rule 26(a)(1)(A)(ii): Initial Disclosure, some pertinent information about materials before discovery, help opposing party identify/describe what they want with specificity.

  3. Must produce documents that are in “possession, custody or control.” 34(a)(1)

    1. Control -> “influence test.” (Societe Internationale v. Rogers, SCOTUS 1958. CB 354, 428). Control = most advantageous position to acquire documents.

  4. Nonparty: 34(C) and 45(a)(1)(C) judge authorize a subpoena. 45(c)(1), requires to take reasonable steps to avoid imposing undue burden or expense on nonparty.

    1. No interrogatories, no court-ordered exams under Rule 35.

  5. 34(b)(2)(E): Organize & label electronically stored information

Depositions

  1. Rules:

    1. 30(b)(1): any party allowed to schedule with reasonable written notice.

    2. 30(a)(2)(A): 10 depositions per side.

    3. 30(d)(1): Session = one day of seven hours

    4. 37(b) sanctions if party fails to appear. (cf. 37(d)). Otherwise, FRCP 45 subpoena

    5. Objections: 32(d)(3)(B). And 30(c)(2): still proceed and testimony taken. No off-the-record advice between lawyer and client during deposition. 30(d)(2) sanctions for impeding fair deposition.

    6. 30(b)(3)(A): videotape or audiotape OK. 30(b)(3)(B): other party can designate another method at its own expense.

    7. 31: Deposition by written questions

  2. Paramount Comms Inc. v. QVC Network Inc. (Del. 1994). Supp. 10-15

    1. Acted out in class. Inappropriately aggressive deposition in Texas, couldn’t sanction, attorney not admitted to Delaware bar (not even pro hac vice: temporary admission).

  3. Strategy: When to do depositions?

    1. Early: Less time for witness to be prepped

    2. Late: Hard to call back a witness; want to have all key evidence at hand.

Physical/Mental Examinations – Rule 35

  1. Need a court order. Questions of privilege and privacy.

  2. Needs to meet “good cause” and “in controversy” requirements.

    1. Schlagenhauf v. Holder (SCOTUS 1964). CB 360. Truck driver in a rear-end collision, submitted list of nine possible specialists. Inexplicably, District Court...

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