Civ Pro Final Review

Discovery

Spoliation: duty to preserve evidence if reasonably foresee litigation

Info that may be requested: interrogatories, depositions, doc requests, med exam, etc.
• no need to know all nuances, but see R27-36 generally

Required Disclosures (26a)

• Documents & witnesses
• Supplement if necessary (26e)

Scope (26b)
• Info must be relevant to a claim or defense
• No need to be admissible
• Not discoverable if privileged
1. 5th amendment privilege; attorney/client privilege
2. Waived if info disclosed to 3rd party
• Limits to Discovery (26b2) (Cts weigh harm against benefit)
• Burdensome
• Private, embarrassing, harassment
• Trial prep materials (26b3) (work product)
o Tangible info prepared in anticipation of litigation by party's rep
 Only discoverable if substantial need and undue hardship
Experts (26a2, 26b4) (see flow chart)
• Is s/he an expert? Are you seeking their opinion?
• Will they testify?
• Retained in anticipation of litigation?
• Disclosures: (if no disclose, then can't use the evidence)
o 26a2: identify all experts, but obtain report only from testifying experts
o May depose testifying experts once report submitted.
o If not testifying and retained in anticipation of litigation: Disclose upon request
o If not testifying and just informal consult, then no need to disclose.
Enforcing Discovery
• One party objects, requesting party seeks motion to compel, proceed to sanctions
• BUT must make effort to be grown-ups fist
• Sanctions
• 26g: all parties’ & attorneys’ requests & responses must not be burdensome or for
improper purpose
o If violate, Ct imposes sanction
• 37: if no comply w/ motion to compel and not able to resolve difference, then Ct slaps
non-complying party w "just sanctions" (assume evidence cuts against them, dismiss

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 case, issue default judgment, etc). Ct must grant attorneys’ fees incurred by moving
party unless justified.

Resolution without Trial

Summary Judgment (56)

• Moving party must demonstrate that there is no issue as to material fact and entitled to
judgment as matter of law
o If party w/ burden is moving, then must affirmatively establish with admissible
evidence that there is no issue of material fact
o If party w/o burden is moving (usually D), then:
 Show absence of material fact, or
 Show absence of admissible evidence to support non-moving party's case
o What is a material fact?
 If established, would affect outcome of case.
o What's a genuine issue?
 Whether enough evidence to argue either way.
• Direct evidence: yes
• Circumstantial evidence: maybe

Default Judgment (55): party fails to appear; facts alleged by P are deemed admitted by D
Involuntary Dismissals (41b) (operates Judgment on the Merits)
Voluntary Dismissals (41a) (without prejudice, so P may refile)

Trial

Right to Jury Trial (R38,39)

1. Does statute provide for Jury Trial? (implicit language, description of remedy)
2. 7th Amendment analysis:
• Was there a right to jury trial in 1791?
1. If Legal Claim (e.g., torts): Yes
2. If Equitable Claim (e.g., injunction, complex cases, etc.): No
• Claims that weren't in existence in 1791:
• Analogous claim: relationship between parties (e.g., fiduciary)
• Look at:
• Legal or Equitable Claim?
o Equitable: no right to jury trial
• What is the Remedy being sought?
o Restitution: equitable (non-monetary relief is almost always equitable)
 No right to jury
o Compensatory: legal > right to jury
• If party has right to jury in any of the claims brought, then jury. If no clear
right, then ct will be pragmatic.

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 Challenging Judges & Juries
1. Recusal (Judges)
• If appearance of not being impartial, then grounds for recusal
o Conduct of judge
o Topic of public concern
2. Jury Selection
• Voir dire
• Exclusion
o For cause
 If knowledge of parties or case, then exclude
o Preemptory challenge (each party gets 3)
 Any reason at all (except sex or race discrimination)
3. Control over Jury
1. Jury instructions
2. What is admissible
3. JMOL (50a)
1. Must be before case goes to jury
2. If non-moving party has presented all evidence, other party may move for
JMOL if no reasonable jury could find for non-moving party (high standard)
4. Renewed JMOL (50b)
• Can’t move for RJMOL unless moved for JMOL earlier
• May include request for New Trial
• Must be w/in 28 days of jury verdict
5. New Trial motion (59)
1. not sufficient that Judge just disagrees with verdict
2. Flawed procedures
• Errors in jury instructions
• Misconduct by participants
3. Flawed verdict (similar to JMOL)
 verdict is seriously erroneous (easier standard than JMOL)
• Damages that shock the conscience
• Remitittur: New Trial unless P accepts lower damages
o Addittur not OK
6. Appellate standards
1. De novo

Erie
(see flow chart)
• In fed Ct on diversity J
• There is an issue for which fed ct will differ from state Ct

Appeals
1. Who?

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 • Only a party with an adverse judgment.
o If that issue is reversed, would that change the outcome? If no, then not adverse j.
2. When?
• 1291: Appeals Cts have jurisdiction over final decisions
1. Nothing left for Cts to do but issue judgment
2. Exceptions
1. Multiple Parties, Multiple Claims (54b): Trial judge may allow appeal before he
hears the other parties/claims; discrete claim for relief
2. Injunctions
3. 1292b Certification: controlling question of law over which there is a likely
grounds for disagreement that will materially advance the determination of the
case
4. Certification of Class Action
5. Writ of Mandamus
1. Trial judge rules on issue for Appellate Ct
2. Trial judge abdicates or usurps authority
6. Collateral Order Doctrine (when the fact of the trial itself is the problem)
• Small subset of non-final-decisions considered final/appealable
1. Judge has conclusively settled the decision
2. Important issue of law that is separate from the case
3. Effectively unreviewable at end of case

Scope of Review
1. Issue o f law reviewed de novo
2. Facts decided by judge reviewed under clearly erroneous std
3. Facts decided by jury reviewed by JMOL std (higher std than above)

Claim & Issue preclusion

Claim
1. Same claim
1. Fed: Same transaction or series of transactions (may be diff under State law)
2. Same parties or in privity
1. Legal relationship defined substantively (ward, trustee, etc)
2. Successive property interests
3. Non-party controls suit (i.e., puppeteer; very rare)
3. Valid judgment (i.e., proper jurisdiction)
4. Final Judgment On the Merits (at least had an opportunity to get to the merits
• (Jury Trial, JMOL, Summary J, 12b6 Dismissal)

Issue
1. Same issue
• Literally; substantive issues identical
• consider different burdens of proof
2. Issue was actually litigated and decided
1. If raised as a defense, then look to see if it was decided

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 1. Can be resolved as special verdict
2. If P raised the issue & won, then it was probably decided
3. Issue was essential to judgment
1. But-for test
4. Non-mutuality
1. Which party will be bound by case 1?
1. Must be a party or in privity in case 2
2. Another party could bind a party from case 1
2. Who was doing the binding?
1. Defensive issue preclusion is ok unless P not a party in Case 1
2. If P is trying to bind D, then Offensive
Allowed unless:
1. Wait & see P: Don't incentivize P's to not join; special relationship (e.g.,
spouse)
2. D from case 1 didn't have true incentive to litigate the case and couldn't
foresee case 2 (i.e., Case 2 is for much more $ than Case 1)
3. Inconsistent prior judgments
1. Air plane example
1. If 1st P wins on issue, the others can use that
2. If 1st P loses, then each P must litigate issue again
4. Procedural opportunities available in Case 2 that were not available in Case 1
and would make a difference in outcome (e.g., Case 1 decided by
Administrative Agency)