LAW 521-002 – Civil Procedure I


1 civil procedure tree

Jurisdiction's main ingredients:

  1. Personal Jurisdiction
  2. Subject Matter Jurisdiction
  3. Venue

Other requirements:

Personal Jurisdiction

There are five ways to get personal jurisdiction:

Personal jurisdiction is further divided into general and specific jurisdiction:

  • General jurisdiction allows one to be sued there for any matter.

    • Domicile
    • Long Arm Statute (for foreign companies sometimes)

      • Goodyear set rule for when corporation's affiliation with a state is so continuous and systematic as to render the defendant essentially at home in a state

        • Sounds applicable to, like, every company, but is really only for foreigners.
  • Specific jurisdiction allows one to be sued there for actions specific to that suit.

Domicile

Domicile has two requirements:

  1. Physical presence
  2. Intent to remain indefinitely
    • A combined objective and subjective test

Hawkins v. Masters Farms, Inc.

Domicile is fixed until a new domicile is established. Hanewinkle.

Sub-rules:

For a company, their domicile is their place of incorporation and their principal place of business.

Principal Place of Business

Principal place of business refers to where the corporation's high level officers direct, control, and coordinate the corporation's activities.

It is referred to as the "nerve center."

It is usually the corporation's headquarters.

Hertz.

Unincorporated associations or partnerships are domiciled where each member is domiciled.

Served in Forum State

Serving notice of suit in the forum state gives personal jurisdiction over the defendant. Burnham.

Exceptions:

  • Cannot use served in forum state on a company, as they can only be served in their domicile.
  • Can't serve someone who's tricked into the state
  • Judicial Process Exemption – Can't serve someone who's travelling to state just to attend court

Other controls or limits:

  1. You must serve them within 90 days of filing the complaint in that state.
  2. Class 13 allows:

    1. Federal court to transfer case to another state
    2. State courts have authority to dismiss a case that is too inconvenient; thus, rare for a case to be heard in a state where it is unfair.
Long Arm Statute

A "long arm statute" is a statute state legislatures pass granting their state jurisdiction over non-resident defendants. All states have passed these.

If long arm statute grants jurisdiction (which it might not depending on the state), one must check that it satisfies due process via the minimum contacts test:

Minimum Contacts

Minimum contacts rule:

  1. Due process requires that if a defendant is not physically present in a forum state that they have certain "minimum contacts" with the state such that the maintenance of the suit does not offend traditional notions of "fair play and substantial justice." International Shoe.
  2. Contacts must be continuous and systematic, not irregular or casual. International Shoe.
  3. Sliding scale test of relatedness of contacts within the forum state to the action. International Shoe.
  4. "Benefits and Burdens" – If they enjoyed benefits of state, they must accept the burdens. International Shoe.
  5. It is essential that the defendant "purposefully avails" himself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the forum state. Denckla.
  6. Is the conduct of the defendant and his connection to state such that the defendant reasonably anticipates being haled into forum court? World-Wide Volkswagen.
  7. Contacts must be be the result of defendant's purposeful availment. Others' like unilateral contacts of the plaintiff do not count as contacts for the defendant. World-Wide Volkswagen.
Purposeful Availment

Some intentional act by a party directed toward the forum state by which the party takes advantage of the benefits and privileges of the laws of the state, which justifies the exercise of personal jurisdiction by the forum state's courts over that party.

Alternatives ways of getting purposeful availment exist:

  1. Purposeful availment can be satisfied by purposefully availing of the stream of commerce:

    Stream of Commerce

    Stream of commerce theory permits jurisdiction when the defendant delivers his product into the stream of commerce through a distributor with the expectation that it will be purchased by consumers in the forum state such that he should reasonably anticipate being haled into court there.

    There are two rules on the sufficiency of stream of commerce:

    1. McIntyre Rule

      In J. McIntyre, Ltd. v. Nicastro, the Supreme Court had a 4/2/3 split on stream of commerce.

      The plurality view was that stream of commerce alone is not enough to constitute purposeful availment.

      Differs from the Asahi Rule, but since McIntyre had no majority, Asahi was not overruled.

    2. Asahi Rule

      In Asahi Metal Industry Co. v. Superior Court, the Supreme Court had a 4/4 split on stream of commerce.

      The plurality view was that stream of commerce alone is enough to constitute purposeful availment as long as the defendant was aware that the final product was being marketed in the forum state.

      McIntyre disagreed with this, but there was also no majority, so Asahi was not overruled.

    Courts will likely begin to lean toward McIntyre rule.

    One must check which rule his jurisdiction is following.

    Fourth Circuit follows McIntyre. However, it accepts that sufficient contacts exist if a defendant "targeted the forum" with it goods.

  2. Websites can also meet the purposeful availment requirement. Music Makers.

    There are three types of Internet activity:

    1. Passive site

      • Only provides information
      • Rarely gives jurisdiction unless the site is specifically directed at another state, i.e. defame person in another state (pretty much the only time it will)
    2. Semi-interactive site

      • Can communicate but not buy or sell
      • Look at the totality of the circumstances to see if there's personal jurisdiction, but if this is the only contact with the forum, it's unlikely to meet due process
    3. Interactive Site

      • Allows two-way communication and order
      • It is a contact that may meet minimum contacts. Repeated sales while knowing location will most likely meet due process

    Music Makers held the standard that it must:

    1. Direct electronic activity into state
    2. Have manifest intent of engaging in business
    3. Be that activity that creates a cause of action
  3. Another alternative to purposeful availment is the effects test:

    Effects Test

    The effects test is an alternative to purposeful availment in some jurisdictions.

    The 4th Circuit (and this class) has three elements to the effects test:

    1. Intentional tort
      • i.e. slander
    2. Plaintiff felt brunt of harm in forum, such that it is the focal point of harm
    3. Defendant expressly aim tortuous conduct at forum such that it is the focal point of tort activity

Minimum contacts rule based on:

  1. Protecting defendant from burden of litigating in distant court
  2. Keeping state from going beyond its limits as a one sovereign in system of sovereigns.

Reference: WWVW

After evaluating minimum contacts, double check that it meets WWVW's factors for fairness:

Fairness Factors

If the minimum contacts test is met, the result is evaluated for fairness by balancing the following factors:

  1. The burden of the defendant
  2. Forum state's interest in adjudicating case
  3. Plaintiff's interest in obtaining convenient and effective relief

These factors do not create personal jurisdiction but can revoke it

Reference: World-Wide Volkswagen

(Two more also exist but not for this class:

  1. Overall (interstate) judicial interest in efficiency
  2. Shared interests of the states

Virginia's long arm statute has a lot (four for this class) conditions to which it applies. Those are causes of action arising from the person's:

  1. Transacting any business in this Commonwealth;
  2. Contracting to supply services or things in this Commonwealth;
  3. Causing tortious injury by an act or omission in this Commonwealth;
  4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

Also, #9 gives personal jurisdiction over people in divorces who were domiciled in Virginia at the time of separation. Technically can count as in rem too though.

In Rem

In rem jurisdiction is granted when the cause of action directly concerns some property in the forum state.

Judgments in in rem are limited to the value of property the suit concerns.

Notice

Due process requires notice and opportunity for hearing appropriate to the case.

Personal service (someone hading to the defendant in person) is a classic form of notice that is always ok.

Due process requires notice to be reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford an opportunity to present objections.

Mere gesture is not sufficient; it must seek to actually inform parties.

Publication is okay only if it is not reasonably possible or practical to give more adequate warning.

Reference: Mullane

Rule 12(b)(4) & (5) permit dismissal for lack of process or lack of service of process.

  • Lack of process means some defect in the paperwork
  • Lack of service of process means some defect in the way it was served

Under Rule 4(d), one can waive service to receive 60 days from the date of request until an answer is required, as opposed to the default of 21 days.

If a waiver is requested and not granted, the defendant must pay the costs of being served and will only have 21 days to answer the complaint.

Defendants have 30 days to respond to a waiver.

Statute of limitations does not stop until service, so don't try a waiver request if it's close.

Can't ask US Government for a a waiver—must serve both US Attorney and US Attorney General, but they always receive 60 dyas to answer.

There are a lot of complicated rules for how to do the summons form and stuff, but I doubt that's important, right?

Venue

Venue is the place within a court system that a case can be heard. It is chosen by the plaintiff, but is subject to statutes guiding venue.

The federal court system's concept of venue is based on 28 U.S.C. § 1391.

FRCP 12(h) says venue can be waived like personal jurisdiction. It must be objected to based on 12(b)(3) at the same time any other motions based on 12(b)(2)–(5) are.

28 U.S.C. § 1391(b) says, unless another statute says otherwise, a civil action may be brought in:

  1. a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
  2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  3. if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action
Residency

28 U.S.C. § 1391(c)–(d):

  1. Residency.—For all venue purposes—
    1. a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;
    2. an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and
    3. a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.
  2. Residency of Corporations in States With Multiple Districts.—

    For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

Summarized:

Changing Venue

There are three ways for defendants to change the venue of a suit:

  1. Transfer of Venue

    Transfer of venue moves a case from one court to another within the same court system.

    28 U.S.C. § 1404:

    1. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
    1. Convenience of parties and witnesses
      • Most important factor
    2. Interests of justice
      1. Private factors:
        1. Where the claim arose
        2. Location of physical evidence like documents and property
        3. Whether a forum selection clause involved
      2. Public factors:
        1. Comparative ease between two courts in enforcing any judgment
        2. If one of the two courts is more familiar with the governing law to apply
        3. Whether the judicial economy is best served by keeping or transferring
        4. Local interest in the case

    Plaintiff's selection of the initial forum is also afforded considerable weight.

    Transfers between districts in a state are freely granted upon showing the convenience of witnesses, parties, and evidence.

    A district court can transfer to cure venue. 28 U.S.C. § 1406

    A district court can transfer to cure want of jurisdiction. 28 U.S.C. § 1631

  2. Forum Non Conveniens

    Forum non conveniens is when a court with jurisdiction declines to exercise it due to the fact that another court with equal jurisdiction is significantly more convenient for the parties.

    Forum non conveniens causes a dismissal of a case despite the court having jurisdiction with the expectation that it will be re-filed in a more convenient court system.

    It is usually only used in state courts as they lack the power to transfer to other states.

    • The plaintiff's choice of forum gives a strong presumption. Piper.
    • The law being better in the forum court is not enough to avoid forum non conveniens, but if a "remedy" is not available in the new forum, then substantial weight is given. Piper.
    • It is up to the sound discretion of the court and reversed only if the court clearly abused that discretion.
      • Private Factors:
        1. Relative ease of access to sources of proof
        2. Cost of litigation
        3. Availability and cost of compelling witnesses
        4. Ability to enforce the judgment
        5. Other problems like language issues
      • Public Factors:
        1. Choice of law issues and familiarity of the court with the law to be applied
        2. Local interest in the case
        3. Backlog of respective courts
        4. Burden on local court and community in hearing a case not related to their forum
  3. Removal

    Removal allows defendants to move the entire case from a state court to a federal court. 28 U.S.C. § 1441.

    Removal is only allowed if the district court would have had jurisdiction if the plaintiff chose district court. 28 U.S.C. § 1441.

    Removal is to the district court in the location where the state action was filed. 28 U.S.C. § 1441.

    Hometown Rule

    If based solely upon diversity, defendant cannot remove if he is a citizen of the state where action is brought. 28 U.S.C. § 1441(b)(2).

    If based upon federal question and state law claims are also present, state claims which do not have subject matter jurisdiction are remanded back to state court. 28 U.S.C. § 1441(c).

    All defendants must agree to removal. 28 U.S.C. § 1446(b)(2).

    Each defendant has 30 days from their service of complaint to remove. 28 U.S.C. § 1446(b).

    The amount is controversy for diversity after removal is the amount pled in the complaint unless it seeks non-monetary relief, the state court does not allow the inclusion of a dollar amount, or the state allows recovery beyond what is demanded in the complaint. 28 U.S.C. § 1446(c).

    Venue is automatic for the district court sitting in the locale of the state court action. 28 U.S.C. § 1441(f). But any party can file a motion to transfer the venue of the case to another district court. 28 U.S.C. § 1404.

Subject Matter Jurisdiction

Unlike states, with their ability to any kind of case via their general jurisdiction, federal courts are courts of limited jurisdiction.

Unlike personal jurisdiction and venue, subject matter jurisdiction cannot be waived.

Subject matter jurisdiction is governed by Article III Section 2 of the Constitution.

Federal Jurisdiction is:

  1. Limited
    • Can only hear cases under Article III Section 2.
  2. Concurrent
    • Federal Court share most of their jurisdiction with state courts.
  3. Exclusive
    • Exclusive federal jurisdiction is where only the federal courts can hear a case, not the state courts.
    • Federal courts have exclusive jurisdiction in the following types of cases:

As well as:

  • Proscribed

Federal limited jurisdiction is granted in three cases:

  1. Federal Question Jurisdiction

    28 U.S.C. § 1331:

    The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

    "Arising under" means the claim is “substantially founded” on a federal law.

    The well-pleaded complaint rule says that the federal question must be part of plaintiff's complaint. It cannot be a defense of the defendant's that is merely anticipated. Louisville & Nashville Railroad Co. v. Mottley.

  2. Diversity Jurisdiction

    Diversity jurisdiction is governed by 28 U.S.C. § 1332:

    1. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
      1. citizens of different States;
      2. citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
      3. citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
      4. a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

    If foreigners are on both sides, an American is needed on both sides.

    Must have complete diversity at the time of the complaint.

    Complete Diversity

    To have complete diversity, no defendant can be of the same domicile as any plaintiff. Strawbridge v. Curtis.

    A corporation's domicile is based off their place of incorporation and their principal place of business. 28 U.S.C. § 1332(c). This is the same as for personal jurisdiction.

    An exception is class actions. If the class action is for over $5 million only a minimal diversity is needed. 28 U.S.C. § 1332(d)(2). This means that only any plaintiff has to be from a different state than any defendant. An exception to this exception is if between one-third and two-thirds of the plaintiffs and the primary defendant are both from the forum state, in which case the court may still deny such a class action. 18 U.S.C. § 1332(d)(2)(3)

    Amount in Controversy

    For diversity, the amount in controversy that the plaintiff reasonably expects to receive must exceed $75,000.

    Interest and attorney fees are excluded unless they are part of the cause of action. 28 U.S.C. § 1332(a)

    Defendant can contest the amount for diversity only if there is no legally possible recovery exceeding $75,000.

    When plaintiff seeks non-monetary relief, there are three ways to determine the amount in controversy. The value to plaintiff, defendant, or the one seeking diversity.

    A single plaintiff can aggregate all his various claims against a single defendant. Two plaintiffs may aggregate their claims unless they are separate and distinct.

  3. Supplemental Jurisdiction

    Supplemental jurisdiction gives subject matter jurisdiction over additional claims that do not independently qualify for federal subject matter jurisdiction when the original claim establishes federal question jurisdiction or diversity jurisdiction.

    Under 28 U.S.C. § 1367(a), federal courts shall exercise supplemental jurisdiction over a claim "so related" that the claims "form part of the same case or controversy." This means the claims "derive from a common nucleus of operative fact" and are of such a nature that courts "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs.

    In diversity-only cases, a plaintiff cannot bring a supplemental jurisdiction claim against another defendant or join another suit, when doing so would be inconsistent with complete diversity. 28 U.S.C. § 1367(b).

    Courts have discretion under 28 U.S.C. § 1367(c) to decline supplemental jurisdiction if:

    1. it is a novel/complex issue of state law
    2. the state claim predominates the federal claim
    3. the court has dismissed the original claims upon which jurisdiction was granted
    4. there are other compelling reasons

    If a claim is dismissed under 1367(b) or (c), the statute of limitations is tolled for at least 30 days. 28 U.S.C. § 1367(d)

Erie Doctrine

In diversity cases where there is a conflict between federal and state laws that encourages "forum shopping," federal courts must apply the Erie doctrine.

Federal courts must apply both state substantive and common law to substantive issues in diversity cases when the conflicting state law encourages “forum shopping.” The goal should be to replicate state practices regarding state substantive law when deciding a state law claim. Erie.

To apply state law, the conflict between state and federal laws must be “outcome determinative” (the “outcome determinative” test). Guaranty Trust.

In addition to the outcome determinative test, to apply state law the court must also find that the state rule is "bound up" with state created rights or obligations. If so, the court must balance the state interest against the federal interest in maintaining the integrity of its court system. However, when balancing, the state rule is applied absent a strong countervailing federal interest that would compromise the integrity of the federal court system. Byrd.

When state law would apply using the balancing approach in Byrd, the court must also examine whether it can accommodate or reconcile both the state and federal law. If not, apply the state law as is. Semtek.

If there is a direct and irreconcilable conflict between the state rules and the Federal Rules of Civil Procedure, apply the Federal Rules of Civil Procedure unless it

  1. goes beyond “prescribing general rules of practice and procedure,” or
  2. “abridges, enlarges, or modifies a substantive right.”

Hanna v. Plumer.

State “conflict of laws” rules are “substantive” and thus courts need to apply the conflict of laws rules of the state where the district court is sitting to determine which state law to apply. Klaxon.

Remedy

A remedy cures a legal harm.

There are three types of remedies:

  1. Substitution Remedies

    Substitution remedies are a reasonable substitute, often money, that try to approximate the harm.

  2. Specific Remedies

    Specific remedies are court orders for a specific performance, like an injunction or restoring an item.

    Specific remedies are equitable remedies that require showing that no adequate remedy at law exists.

  3. Declaratory Remedies

    Declaratory remedies declare rights. They do not rule on damages though.

Damages
Compensatory Damages

In a contract case, you can get expectation damages, those you foresaw at the time of the contract.

In contract cases you have a duty to mitigate, e.g. try to get another job.

In a tort case, you can get compensatory damages for all harm flowing from tort.

Insurance companies will usually settle a pain and suffering claim of three times the actual medical bills.

Liquidated Damages

Liquidated damages are damages that were agreed to be paid in advance that represent the harm should the contract be breached.

Liquidated damages still must have some reasonableness to them.

Statutory Damages

Some statutes have damages that you can get written into them.

Punitive Damages

Punitive damages are made to punish the wrongdoer and deter others.

To get punitive damages the behavior must be willful, wanton, or malicious.

In most cases, punitive damages can only be a single digit multiple of compensatory damages.

Injunction

An injunction is a writ by a court that forbids a defendant from doing some act.

The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. Doran v. Salem Inn, Inc..

Rule 65.

Costs

The prevailing party automatically recovers costs. Rule 54.

Costs include things like filing fees, court reporter fees, witness fees, and copying costs. 28 U.S.C. § 1920.

Attorney Fees

The American rule says that no attorney fees are provided to a prevailing party unless they are in a contract between the parties or a statute allows them.

Offer of Judgment

If a defendant offers to settle and the plaintiff refuses to, the plaintiff is responsible for all costs after the offer was made if he recovers less that what was offered. Rule 68.

Complaint

Rule 8 requires a short, plain statement of jurisdiction, claim, and relief.

Complaints must allege "facts", not just "conclusions" and "recitation of the elements", that make relief "plausible" on its face, drawing on the court's "judicial experience and common sense". Iqbal.

This requires more than a mere possibility of liability.

Under 12(b)(6), the court must accept all facts in the pleading as true.

In fraud cases, the circumstances constituting fraud must be stated with particularity. Rule 9(b).

Sanctions

Courts can give sanctions for pleadings or motions that are for an improper purpose or are not supported. Such sanctions are limited to what is sufficient to "deter" and can include striking claims, penalty fees, or paying costs or attorney fees.

There is a 21-day safe harbor for amending or withdrawing the improper pleading/motion, unless the sanctions were initiated by the courts.

Rule 11.

Courts can grant "appropriate sanction", including attorney fees, for discovery abuses. Rule 26(g).

Courts may order very serious sanctions for violating a court order, such as treating a fact as established, barring a claim or defense, dismissing a claim, or finding a party in contempt. Rule 37(b).

Spoliation

Spoliation is the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

  1. upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
  2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
    1. presume that the lost information was unfavorable to the party;
    2. instruct the jury that it may or must presume the information was unfavorable to the party; or
    3. dismiss the action or enter a default judgment.

Rule 37(d).

Courts have an inherent power to appropriate sanction for detailed finding of bad faith.

After being served a complaint, a defendant has four three options:

  1. Default

    A defendant who fails to respond to a complaint can have default judgment entered against him.

  2. Pre-Answer Motion

    A pre-answer motion is a motion filed before the answer.

    Possibles motions that can be made:

    1. Motion to dismiss under 12(b)(1)–(5).
    2. Motion to dismiss for failure to state a claim under 12(b)(6).
    3. Motion for a more definite statement under 12(e).

    Motions to dismiss must be made at the first instance, as per 12(h).

  3. Answer

    An answer is a formal written response to a complaint.

    An answer can include:

    1. Defenses. Rule 8(b).
    2. Affirmative defenses. Rule 8(c).
    3. Motions to strike. Rule 12(f).
    4. Bring in a third-party defendant. Rule 14.

    An answer is required within 21 days of service unless it is waived, in which case the defendant has 60 days.

  4. Counterclaim

    A counterclaim is a claim that a defendant makes against a plaintiff. Rule 13.

Amend

As a matter of right, a complaint or answer can be amended one time within the greater of 21 days or 21 days after the first Rule 12 motion or responsive pleading. Rule 15(a).

Otherwise, amendments should be "freely give[n] when justice so requires". Rule 15(a)(2). The court must weigh the prejudice to the defendant against the need by the plaintiff.

Discovery

There are three categories of required disclosures:

  1. Initial Disclosures

    The required initial disclosures are witnesses, documents, and damage that you intend to use at trial as well as insurance coverage. Rule 26(a)(1).

    If a party learns of new information after producing information, they have a duty to supplement. Rule 26(e).

    Initial disclosures must be made within 14 days of the Rule 26(f) conference with the court.

  2. Expert Disclosures
  3. Pretrial Disclosures
Timeline of Discovery and Initial Disclosures

Initial Order

Early in the case, the court will typically issue an initial order. Among other things, this will include the date of a scheduling conference.

Meet and Confer

At least 21 days before the date of the scheduling conference with the court, the parties must "meet and confer" together to work towards agreeing upon a joint discovery schedule and preparing a joint proposed discovery plan. Rule 26(f)(1).

Initial Disclosures

Within 14 days after the “meet and confer,” the parties must exchange initial disclosures unless:

  1. The parties stipulate to a different date
  2. The Court directs a different date
  3. One of the parties objects that the initial disclosures are not appropriate and states the objections in the joint discovery plan.

Rule 26(a)(1)(C).

Discovery Plan

Also within 14 days after the "meet and confer," the parties must file a joint proposed discovery plan for the court to consider before issuing its scheduling order. Rule 26(f)(1) & 2.




Scheduling Conference

The court holds a scheduling conference to consider the parties' proposed discovery plan and hear any differences or disputes within 60 days after the defendant appears and within 90 days after the complaint is served. Rule 16(b).



Scheduling Order

After the scheduling conference, the court issues a discovery "scheduling order." Rule 16(b).

Methods of Formal Discovery
  1. Deposition

    A deposition allows a party to take a witness's oral testimony outside of the court.

    Each party gets 10 depositions by default. Each deposition can last for up to seven hours on one day.

    Rule 30.

  2. Interrogatory

    An interrogatory is a written question that is formally put to the opposing party that must be answered.

    Each party gets 25 interrogatories by default.

    An interrogatory must be signed by the person with the knowledge, not by the attorney.

    A party has 30 days to respond to an interrogatory.

    A party has the option to produce "business records" that answer the question instead of answering himself.

    Rule 33.

  3. Document Request

    A document request allows a party to force the opposing party to produce any requested documents that are not privileged.

    Each party gets unlimited document requests, as long as they are not unduly burdensome.

    A party has 30 days to respond to a document request.

    A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request

    Rule 34.

    For non-parties, Rule 45 must be used instead.

  4. Examination

    The court may order a party whose mental or physical condition is in controversy to submit to a physical or mental examination for good cause. Rule 35.

  5. Admission

    A party may serve any other party a written request to admit the truth of facts, contentions, or document authenticity.

    Each party gets unlimited admission requests, as long as they are not unduly burdensome.

    A party has 30 days to respond to an admission.

    A party must deny the admission request or it will be deemed admitted and conclusively established unless the party is granted leave to deny.

    Rule 36.

In addition, there is always informal discovery. e.g., Google

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits. Rule 26(b)(1).

  • Information within this scope of discovery need not be admissible in evidence to be discoverable.
Protective Order

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  1. forbidding the disclosure or discovery;
  2. specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
  3. prescribing a discovery method other than the one selected by the party seeking discovery;
  4. forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
  5. designating the persons who may be present while the discovery is conducted;
  6. requiring that a deposition be sealed and opened only on court order;
  7. requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
  8. requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

Rule 26(c).

Privilege
Attorney Client Privilege

Attorney client privilege requires it to be:

  1. A client
    • Or someone seeking to become a client
  2. asking an attorney for legal advice
  3. and no third party is present.
    • And the advice is not later shared with a third party.

If attorney client privilege exists, the lawyer's advice is protected, but can later be waived.

For a corporation the courts are split.

  1. Some say information can only be shared with "members of the corporate control group."
  2. Some say information can only be shared with those that need to know of it.
  3. A few allow it to be shared with every employee without waiving the privilege.

For in-house attorneys, it is required that it be legal advice that is sought, not simply business advice.

Attorney Work Product

The attorney work product doctrine is a "qualified immunity from discovery" for trial preparation, i.e. efforts by the attorney to investigate and prepare a case.

Technically, it is not a doctrine, not a privilege, but it can still prevent disclosure.

Trial preparation can only be obtained if a party has a substantial need, it can be obtained without undue hardship, and they are unable to obtain substantial equivalent info. Even then, they are not entitled to mental impression of the attorney.

Rule 26(b)(3).