1.

Introduction and Overview

i. Supreme Court has
1. U.S.
2. S. ct.
3. L Ed.
ii. Federal Court of Appeal
1. F
2. F.2nd
3. F.3d
iii. Federal Trial Court
1. F. Sup.
2. F. 2 Sup.
b. Procedure versus Substance
i. Substance Law defines legal rights and suites in everyday conduct.
Procedural law set out the rules for enforcing those substantive rights in
the courts.
c. Procedural Justice / The Objectives of Procedural
i. Uniform
ii. Consistent
iii. Efficient
iv. Expedient
v. Fairness
vi. Accurate
vii. Advancing
d. Rule 1
i. These rules govern the procedure in all civil actions and proceedings in
the United States district courts, except as stated in rule 81. They should
be constructed, administrated, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of
every action and proceeding.
e. The basics of the court system
f. The anatomy of lawsuit
i. Compliant
ii. Motions to Dismiss (Pre-Answers)
iii. Answer
iv. Discovery
1. Most time consuming and expensive
v. Summary Judgement
vi. Trial
vii. Judgement
viii. Appeal
 1. Most of the time you go through the steps you are narrowing
down the issue.
2. Pleading - has only three pleads (Professor Davies)
i. Rule 7 (a) Pleadings. Only these pleadings are allowed
1. Complaint
2. Answer to the Complaint;
3. Answer to a Counterclaim;
a. Where both the π and ∆ sues one another
4. an answer to a Crossclaim;
a. π sues ∆1 however ∆1 sues ∆2
5. 3rd Party Complaint;
a. π sues ∆1 however ∆1 allegedly liable to original ∆
6. Answer to a third-party complaint (impleader);
7. If ordered by the courts, a reply to an answer (rare)
b. Complaints
i. Rule 8
1. (a) Claim for Relief. A pleading that states a claim for must
contain:
a. A short and plain statement of Jurisdiction
Jurisdiction
i. Personal Jurisdiction
1. Can the ∆ be sued there?
2. Fairness
b. Subject Matter Jurisdiction
i. Federal Question Jurisdiction
1. Federal Question
2. Diversity - Different States over $75,000.00
c. A short and plain of their claim showing that the pleader is
entitled to relief; and
i. Facts
ii. Gives rise to legal theory or right that can be
asserted
d. A demand for relief sought, which may include relied in
the alternative or different type of relief.
i. Is what you want out of the case.
2. (d) pleadings to be concise and direct; Alt statement;
inconsistency
a. (1) In General. Each allegation must be simple, concise,
and direct. No technical form is required.
b. (2) Alternative Statements of a claim or Defense. A party
may set out 2 or more statements of a claim or defense
alternatively or hypothetically, wither in a single count or
defense or separate ones. If a party makes alternative
 statements, the pleadings is sufficient if any one of them
is sufficient.
c. (3) Inconsistent Claims or Defenses. A party may state as
many separate claims or defenses as it has, regardless of
consistency.
3. (e) Constructing Pleadings. Pleadings must be construed so to do
justice.
c. Premier of Jurisdiction
i. Two Kinds of Jurisdiction
1. Subject Matter Jurisdiction - The. court's power to hear the case
2. Personal Jurisdiction - the court's power to have defendant
before it
ii. SMJ
1. FEDERAL QURSTION - YOU CAN SUE ABOUT FEDERAL LAW IN
FEDERAL COURT; THE PARTIES AND AMOUNT IN CONTROVERSY
DONT MATTER.
2. DIVERSITY - YOU CAN SUE GEOGRAPHICALLY DIVERSE PARTIES IN
FEDERAL COURT FOR LESS THAN 75,000; THE TYPE OF LAW AT
ISSUE DOES NOT MATTER
3. SUPPLEMENTAL YOU CAN TACK ON ADDIOTINAL PARTIES OR
CLAIM TO DIVERSITY OR FEDERAL QUESTIONA JURISDICTION I.E
PIGGYBACK OR YODA JURISDICTON
iii. PJ
1. CONSTITUTIONALLY, YOU CAN SUE SOMEONE WHERE THEY LIVE
FOR ANYTHING
2. IF YOU WANT SUE THEM WHERE THEY DON'T LIVE, IT IS TRICKER
iv. Rule 2
1. There is one form of action - the civil action
v. Complaints
1. Counterclaim is when the ∆ brings a claim
2. a Cross-claim is when the π sues two ∆ A sues ∆ B
3. Third Party π v. ∆ sues new ∆ is liable
4. π sues but ∆ does not answer the compliant.
d. Conley v. Gibson
i. [T]he Federal Rules of Civil Procedure do not require a claimant to set out
in detail the facts upon which he bases his claim. To the contrary, all the
rules require is 'a short and plain statement and of the claim’ that will
give the ∆ fair notice of what the plaintiff's claim is and the grounds
upon which it rests."
ii. In appraising the sufficiency of the complaint, we follow, of course, the
accepted rule that a complaint should be dismissed for failure to state a
claim unless it appears beyond doubt that the π can prove no set of facts
in support of his claim which would entitle him to relief.
e. Bell Atlantic Corp v. Twombly
 i. [W]e does not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.
Because the πs have not nudged their claims across the line from
conceivable to plausible, their complain must be dismissed.
ii. once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the
complaint.
1. All cases - plead more facts
2. Make cases with unequal access to information - discourage /
make more difficult to bring (shunting effect)
f. Ashcroft v. Iqbal
i. To survive a motion to dismiss, a complaint must contain enough factual
matter, accepted as true, to 'state a claim to relief that is plausible on its
face."
ii. A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the ∆ is liable
for the misconduct alleged.
iii. A pleading that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.
1. Rules
a. Must ignore conclusionary statements of law and focus on
allegation of facts.
b. Facts must be supported by plausible claims and not
possible claims
i. Judges uses their own experience and
commonsense to determine if it is plausible
c.
iv. Requirement
a.
2. Baseline Requirement
a. s
3. Pleading Requirement
a. s
v. (In)consistency in allegations
1. Pleading Standards (Allegations) (Information) (Assertations)
a. (d) Pleading to Be Concise and Direct; Alternative
Statements; Inconsistency
i. (2) Alternative statements of a claim or defense. A
party may set out 2 or more statement of a claim
or defense alternatively or hypothetically, either in
a single count or defense or in separate one. If a
 party makes alternative statements, the pleading is
enough if any one of them is sufficient.
ii. (3) Inconsistent Claims or Defenses. A party may
state as many separate claims or defenses as it has,
regardless of consistency.
2. McCormick v. Kopmann - A claim may be in the alternative
regardless of consistency.
a. Rule: permits a party to plead alternative theories of
relief under both legal and equitable grounds, even if the
theories are inconsistent
g. Rule 11
i. (a) Applies to all written pleadings except discovery motions, other paper
and advocating.
ii. Procedural Points
1. Every time you are advocating something that has documentation
presented you are saying everything is factual and correct.
a. Violations
i. Failing to adequately to investigate the facts.
ii. Reasonable evidentiary support
iii. Make arguments not supported by the law -> a
nonfrivolous argument for extending, modifying, or
reserving existing law or for establish new law.
(nonfrivolous def.) - basis.
iv. Bad Acts
1. delays
2. harassment
3. etc.
2. Sanctions are discretionary (imposed on attorneys)
a. Courts can impose but limited by what type of sanction
they can impose (Sua Sponte)- issue a show of cause order.
b. by Motion
i. Motion for sanction cannot be filled right away
3. (C)(2) Draft Motion give to other party and must give them 21
days in which to fix the alleged problem. After 21 days, if the
problem has not been corrected, the attorney can continue with
the rule 11 motion.
4. Violation
a. Sanctions
b. nonmonetary directives
c. Attorney Fees
d. Pay a fine to the court
e. Other fees
 iii. Zuk v. EPPP
1. Rule: Sanctions imposed under Federal Rule of Civil Procedure
11 are intended to deter future violators, rather than to
compensate the opposing party.
h. Remedies
i. Demand for relief sought in Court.
ii. Remedies has two types of outcomes Monetary and Non-Monetary
(See Slides Outline for types of remedies).
iii. Monetary
1. Compensatory - a harm that I suffered
i. General - undefined damages that you cannot see
(no number for physical damages)
1. Pain and Suffering
ii. Special - Bills can hold up to the court
1. Medical Bills
2. Car Repair
2. Punitive - Punish the ∆/π for doing something egregious
outrageous conduct/ for the defendant evil motive and reckless
and an device of others.
a. Money that a person gets without being occurred.
b. Due Process Limit Test - Forbids a state to use a punitive
damages award to punish a defendant for injury that it
inflicts upon nonparties or those whom they directly
represent, i.e., injury that it inflicts upon those who are,
essentially, strangers to litigation.
i. The degree of reprehensibility (SEE SLIDES TO
DETERMINE DEGREE) of the ∆ misconduct
1. *Physical v. economic
2. *Repeated v. isolated
3. *Accident v. Intentional
4. *Indifference or recklessness
5. *Financial vulnerability of target
ii. the disparity between the actual or potential
harm suffered by the π and the punitive damages
award; and
1. * When there are large compensatory
damages, few awards past 1:1 will pass
 2. * 4:1 "might be close to the line of
constitutional impropriety
3. * Few awards past a single-digit ratio will
satisfy due process
iii. the difference between the punitive damages
awarded by the jury and the civil penalties
authorized or imposed in comparable cases
1. Great care must be taken to avoid use of
the civil process to assess criminal penalties
that can be imposed only after the
heightened protections of a criminal trial
have been observed.
c. Restatement of Torts
i. To Punish for:
1. Egregious
2. Malicious
3. Intentional
4. Willful
5. Reckless
ii. Outrageous evil motive reckless indifference
iii. Threshold Limits
1. 9;1
2. 4;1
3. 1;1
3. Nominal - Minimal damages awarded to a plaintiff to show that
he was correct, usually in instances where the plaintiff has not
suffered substantial injuries. You only can get only $1.00.
iv. Nonmonetary
1. Declaratory -declare your legal rights (Denied Due Process)
2. Equitable - Keep the cat away from me.
a. Injunctions - You are asking the court to do something that
the person may not do on their on.
i. TRO (see) - Temporary Restraining Order- preserve
the status quo
1. Success on its merits - test.
 a. EX Partee -without the other side
being there
b. TPO -Domestic Cases
c. Early on with the case
ii. Preliminary Injunctions (see)-Relief from the court
before you won the case.
1. Injunction Test
a. Irreparable harm (stop harm that is
occurring or will occur) (future
damages)
b. Likely success on its merits
c. Balance of harms in its favor
i. ∆ v. π
d. Public Interest
i. Public v. Plaintiff
iii. Permanent (see) - Remain in place forever.
1. Injunction Test
a. Irreparable Harm (stop harm that is
occurring or will occur) (future
damages)
b. Actual Success on its merits
c. Balance of harms in its favor
d. Public Interest
b. Other Equitable Remedies
i. Rescission
ii. Reformatory
iii. Specific Performance
v. Carey v. Piphus
1. π filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 had been
suspended without due process of law in violation of the 14
Amendment.
2. Rule: In an action under 42 U.S.C. § 1983 for the deprivation of
procedural due process, the plaintiff must prove that he was
injured by the deprivation before he may recover more than
nominal damages
i. Rule 12 motions
i. Motions are not pleadings (request for a court order)
1. 12 (e) Motion for a More Definite Statement
2. 12(f) -Motion to Strike
a. The Court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter
3. 12(b) seven defense motions
a. (1) Subject Matter Jurisdiction - Court lacks power over
case (sue in state, not federal, court).
b. (2) Personal Jurisdiction - Court lacks power over
defendant (sue somewhere else, not here).
c. (3) Improper Venue - you have sued in right court (federal)
but wrong location (e.g., sued in S.D. Cal instead S.D.
Ohio).
d. (4) Improper Process (Summary and Complaints) -
Summons is in error.
e. (5) Improper Service of Process (Serve was improper) -
How you delivered summons is in error.
f. (6) Motion to Dismiss - Failure to State a Claim upon which
relief can be granted (Can keep some of allegations but
can throw some away) - You have no case / claim.
g. (7) Failure an indispensable party - You sued only some of
the people you need to sue.
4. 12 (G) (H)
a. 12(b) 2, 3, 4, 5 must be the first rule 12(h)(1) response
prior to or in answer.,
b. 12(b) 6, 7 can be raised prior to or in answer; or at during
trial.
c. 12(b) 1 is never waived you can raise this at any time.
5. 12(b)(6)
a. Your alleged facts get you to a viable legal theory
i. Required to accept only well- pleaded facts as true;
Is not required to accept legal conclusions that may
be alleged.
b. Your legal theory is not viable.
6. 12(d) - Resulting of Presenting Matters Outside the Pleadings. If,
on a motion under Rule 12(b)(6) or 12(c), matters outside the
 pleadings are presented to and not excluded by the court
(EVIDENCE), the motion must be treated as one for summary
judgement under rule 56. All parties must be given reasonable
opportunities to present all the material that is pertinent to
motion.
a. Evidence
i. Additional Video (harder to disprove statement)
ii. Material Witness
iii. Statement
j. Answers - (Are pleadings)
i. Options
1. Move to Dismiss
2. Answer
3. Counterclaim
4. ADR
5. Settle
6. Do nothing (David v. Crompton & Knowles) - If defendant fails to
answers a compliant, the general rule is that the court would
interpret it as an admit.
ii. Requirement
1. Rule 8 General Rules of Pleading
a. (b) Defenses; Admissions and Denials
i. (1) In General. In responding to a pleading, a party,
a party must:
1. (A) state in short and plain terms its
defenses to each claim asserted against it;
and
2. (B) admit or deny the allegations asserted
against it by an opposing party.
iii. How to Deny
a. (2) Denials ––Responding to the Substance. A denial must
fairly respond to the substance of the allegations
b. (3) A party that intends in good faith to deny all the
allegations of a pleadings-may do so by a general denial. A
party who don’t must either deny designated allegations
or general deny all except those specifically admitted.
 c. (4) Deny Part of Allegation. A party that intends in good
faith to deny only part of allegation must admit the part is
true and deny the rest.
d. (5) A party that lacks knowledge or information enough to
form a belief about the truth of allegation must so state,
and the statement has the effect of a denial.
iv. Failure to Deny
1. (6) is admitted if a responsive pleading is required and the
allegations not denied. If a responsive is not required, an
allegation is considered denied or avoided.
2. Alternative Statements of a Claim or Defense. A party may set out
2 or more statements of a claim or defense alternatively or
hypothetically, wither in a single count or dense or in separate
ones. if a party makes alternative statements, the pleadings is
sufficient if anyone them is sufficient.
3. Inconsistent Claims of Defenses. A party may state as many
separate claims or defenses as it has regardless of consistency.
v. Intersection with Rule 11
vi. Failure to Answer (See Picture)
1. Default
a.Does not end ligation. You show the employee of the court
that the ∆ fell to answer.
2. Default Judgement
a. Example of (SUM CERTAIN/Calculable) if you are suing due
on a contract and breach it and damages are $80,000. You
must point to section. You can go to the clerk and you are
done.
b. Example of (DAMAGES NOT CERTAIN) such as pain and
suffering, or any other damages such as information you
have go to a judge.
vii. How to Answer
k. Counterclaims and cross-claims
i. Rule 13 - Permissive Counterclaims
1. (B) Permissive Counterclaim. A pleading may state as a
counterclaim against an opposing party any claim that is not
compulsory.
2. (a) Compulsory counterclaim (
 a. (1) In General. A pleading must state as a counterclaim any
claim that ––at the time of its service ––the pleader has
against an opposing party if the claim:
i. (a) arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim;
and
ii. (b) does not require adding another party over
whom the court cannot acquire jurisdiction
b. Exceptions
i. The pleader need not state the claim if:
1. (A) when the action was commenced, the
was the subject of another pending action;
or
2. (B) the opposing party sued on its claim by
attachment or other process that did not
establish person jurisdiction over the
pleader on the claim, and the pleader does
not assert any counterclaim under the rule
3. Crossclaims (Permissive) (You can bring them in that lawsuit or
later)
a. Rule 13 - Permissive Counterclaims
i. (g) Crossclaim Against a Coparty. A pleading may
state as a crossclaim any claim by one party against
a coparty if the claim arises out of the transaction or
occurrence that is the subject matter of the original
action or of a counterclaim, or if the claim relates to
any property that is the subject matter of the
original action. The crossclaim may include a claim
that the coparty is or may be liable to the cross-
claimant for all or part of a claim asserted in the
action against the cross-claimant.
l. Amendments and relation back
i. Ways to Amend
1. As of right
2. By the opposition's consent
3. By motion
4. To conform to the evidence adduced at the trial.
ii. Amendments -change you change the pleadings
1. undue delay, bad faith or dilatory motive on the part of the
movement, repeated failure to cure deficiencies by amendments
previously allowed undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
 etc. - the leave sought should, as the rules require, be ‘freely
given’
iii. Relation Back
1. Has nothing to do with Amendments, but only to the claim.
a. If STL while in lawsuits, can the person file an amendment
to relate back to the original claim.
b. If complaint comes in February 14 and may 18 STL runes
for a claim that not in the complaint original. If you amend
on June 1 then it is like you amend before the STL.
c. 15(c)(1)(c)
3. Discovery
a. Formal versus informal discovery
i. Informal
1. Talk to Clients
2. Talk to Experts
3. Public Record
4. Site Investigation
ii. Mandatory
1. Initial
a. In General. Except as exempted by Rule 26(a)(1)(B) or as
otherwise stipulated or ordered by the court, a party must,
without awaiting a discovery request, provide to the other
parties:
i. (i) the name and, if known, the address and
telephone number of each individual likely to have
discoverable information...that the disclosing party
may use to support its claims or defenses, unless
the use would be solely for impeachment;
1. If not going to use it to help your case
(but it can be the smoking gun in your
case), then you do not have to disclose it.
2. Impeachment of a witness is when they lie.
a. You can call someone to discredit
someone but you do not have to
disclose.
ii. (ii) a copy—or a description by category and
location—of all documents...and tangible things that
the disclosing party has in its possession, custody,
or control and may use to support its claims or
defenses, unless the use would be solely for
impeachment;
1. Documents
a. Flash Drive
b. Emails
2. Material
 a. Cars
b. Bank Documentation
3. You must describe the document and tell
them where it is.
iii. (iii) a computation of each category of damages
claimed by the disclosing party...; and
iv. (iv) ...any insurance agreement under which an
insurance business may be liable to satisfy all or
part of a possible judgment in the action...
1.
b. Initial Disclosures Rule 26(a)(1)
i. (E) Basis for Initial Disclosure; Unacceptable
Excuses.
ii. A party must make its initial disclosures based on
the information then reasonably available to it. A
party is not excused from making its disclosures
because it has not fully investigated the case or
because it challenges the sufficiency of another
party’s disclosures or because another party has not
made its disclosures.
c. (C) Time for Initial Disclosures—In General.
i. A party must make the initial disclosures at or
within 14 days after the parties’ Rule 26(f)
conference unless a different time is set by
stipulation or court order, or unless a party objects
during the conference that initial disclosures are not
appropriate...and states the objection in the
proposed discovery plan. In ruling on the objection,
the court must determine what disclosures, if any,
are to be made and must set the time for disclosure.
d. Relevance - FRE 401
i. "Relevant evidence" means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence.
ii.
2. Expert
a. Needs to be Qualified
i. Experts are not considered witness because they are
testifying on their own opinion.
ii. Can testified about their opinion.
iii.
b. (2) Disclosure of Expert Testimony
i. (a) In General, in addition to the disclosure
required by Rule 26(a)(1), a party must disclosure
 to the other parties the identity of any witness it
may use at trial to present evidence under FRCP
ii. (b) Witness Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the
court, this disclosure must be accompanied by a
written report
1. Prepared and Signed by Witness –– if the
witness is one retained or specially
employeed to provided expert testimony in
the case or one whose duties as the party's
employee
a. Statement of all opinions will
express and basis and reasons.
b. Facts or data
c. exhibits
d. qualifications
i. Resume
ii. Publications
iii. Other cases you testified
iv. Other (Rule 26)
e. Statement of Compensations
i. You don’t just give out bill
iii. (c) Witness who Do Not Provide a Written Report.
Unless otherwise stipulated or ordered by the
court, witness must disclose:
1. subject matter what they are going to
testified on evidence
2. a summary of the facts and opinions to
which the witness is expected to testify.
3. Pre-Trial
b. Discovery as a tool, discovery as a weapon (Invoke)
i. RFAs - Request for Admission (Rule 36)
1. Admit, Deny, Deny for Lack of insignificant information any
discoverable matter to the case.
2. Failure to respond equals an admission
3. 30 days
4. ONLY AVAILABLE TO PARTIES.
5. An admission is conclusively established for litigation purposes of
the litigations
a. (b) Effect of an Admission; Withdrawing or Amending It.
A matter admitted under this rule is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended. Subject to Rule
16(e), the court may permit withdrawal or amendment if it
 would promote the presentation of the merits of the action
and if the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on
the merits. An admission under this rule is not an
admission for any other purpose and cannot be used
against the party in any other proceeding.
ii. Interrogatories (Rule 33) -
1. Narrative, Written questions answered under oath.
2. Propounded by one side to another
3. Limited to 25 unless otherwise ordered by court or stipulated by
parties.
4. 30 days to respond
a. Must be signed by person answering, under oath.
b. Background information that you may use to depose
c. ONLY CAN GO TO PARTIES
iii. RFPDs - Request for Production of Doc (RULE 34)
1. Unlimited in number
2. Can get documentations - or the inspection of property or tangible
things.
a. Documentations
b. Expect things
3. Can request specially or by category
4. 30 days to responds
5. Can be combined with subpoena
6. RULE 34 (C)
a. You can use get things from non-parties but you should
subpoena the non-party.
7. Rule 34
a. (a) In General. A party may serve on any other party a
request within the scope of Rule 26(b):
i. (1) to produce and permit the requesting party or
its representative to inspect, copy, test, or sample
the following items in the responding party’s
possession, custody, or control:
1. (A) any designated documents or
electronically stored information—
including writings, drawings, graphs,
charts, photographs, sound recordings,
images, and other data or data
compilations—stored in any medium from
which information can be obtained either
directly or, if necessary, after translation by
the responding party into a reasonably
usable form; or
2. (B) any designated tangible things; or
 ii. (2) to permit entry onto designated land or other
property possessed or controlled by the responding
party, so that the requesting party may inspect,
measure, survey, photograph, test, or sample the
property or any designated object or operation on
it. ***
8. (b) Procedure.
a. (1) Contents of the Request. The request:
i. (A) must describe with reasonable particularity
each item or category of items to be inspected;
ii. (B) must specify a reasonable time, place, and
manner for the inspection and for performing the
related acts; and
iii. (C) may specify the form or forms in which
electronically stored information is to be produced.
iv.
b. (2) Responses and Objections
i. (E) Producing the Documents or Electronically
Stored Information. Unless otherwise stipulated or
ordered by the court, these procedures apply to
producing documents or electronically stored
information:
1. (i) 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; ***
iv. Deposition
1. Oral questions asked before the court reporter or other person
authorized to administer oaths
2. Answers are oral
3. Limited to 10 unless otherwise ordered by court or stipulated by
parties.
4. Each deposition limited to 7 hours in 1 day unless otherwise
ordered by court or stipulate to by parties.
5. Can be recorded by video or steno graphically
a. Party of a case
i. You do not have to subpoena
b. Non-party of a case
i. Subpoena because she is not required to show up.
(Requirement)
6. Testified under Oath
7. Live Questions (Rule 30) (30)(B)
8. Written Questions (Rule 31)
9.
 v. Exam Physical and Mental Examination (Rule 35)
1. You must receive permission from court (hard to get)
a. Plaintiff must show that medical controversy is in
controversy.
b. Must show good cause (Rule 35) (a)
2. Must be conducted by a suitable “suitably licensed or certificated
examiner”
3. Examiner drafts report
4. Examined party is entitled to report and all other “like reports of all
earlier examination”
5. If able to obtained, then you are only limited to:
a. Party
b. Party's custody or legal control
i. Parent and Child
ii. Example of not in control
1. Not include an employer and not employee
6. Something like an expert for the defendant.
vi. Subpoenas (cannot be used against parties)
1. Used on persons / entities that are not party to the suit
2. Court clerk or lawyer can issue
3. Can be used to:
a. Command production of documents or inspection of things
b. Command attendance at a deposition
c. Command attendance at a hearing or trial
4. Comes with an obligation to minimize imposition on subpoenaed
person / entity
5. Rule 45. Subpoena***
a. (d) Protecting a Person Subject to a Subpoena;
Enforcement
i. (1) Avoiding Undue Burden or Expense; Sanctions.
A party or attorney responsible for issuing and
serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a
person subject to the subpoena. The court for the
district where compliance is required must enforce
this duty and impose an appropriate sanction—
which may include lost earnings and reasonable
attorney's fees—on a party or attorney who fails to
comply.
6.
c. Disclosures / Relevance
i. Rule 26(b)
1. Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: 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 benefit.
Information within this scope of discovery need not be
admissible in evidence to be discoverable.
d. Privileges
i. Attorney-client privilege
ii. Attorney work product
iii. Various other privileges that apply in specific situations
1. Non-testifying experts
2. Spousal communications
3. Doctor-patient privilege
iv. Attorney Client Privilege
1. “The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law. Its
purpose is to encourage full and frank communication between
attorneys and their clients. The privilege recognizes that sound
legal advice or advocacy. . . depends on the lawyer’s being fully
informed by the client.”
a. Test for Privilege (conjunctive test)
i. A communication between an attorney and their
client that
ii. Is for the purpose of providing legal advice, or to
obtain information to provide legal advice, and
that
iii. Is it confidential?
v. Work Product Doctrine
1. “Here is simply an attempt, without purported necessity or
justification, to secure written statements, private memoranda and
personal recollections prepared or formed by an adverse party’s
counsel in the course of his legal duties. As such, it falls outside
the arena of discovery. Not even the most liberal of discovery
theories can justify unwarranted inquiries into the files and the
mental impressions of an attorney.” It must be memo, notes, or
something in regards of written.
a. Test for Work Product Doctrine (expectations of Privity)
i. Information or materials prepared in anticipation
of litigation
ii. By an attorney, or under the attorney’s direction,
that
iii. By their nature reflect the mental impressions of
the attorney
 2. if the attorney ask what that person knows about a case, then
you must tell and object, but you do not have to disclose
anything that you and your attorney discussed.
vi. Upjohn v. U.S.
1. Facts
a. Corporate investigated employees who were paying
foreign governments bribes.
b. Government wanted to collect memos from attorney but
attorney said "No"
2. Rule
a. In the corporate context, the attorney-client privilege
applies to not only those high-level employees who have
the authority to act on the legal advice of the attorney, but
also to any of those employees who provide information to
the attorney so that he may give such legal advice.
vii. Non-Testify Experts Rule 26 (b)(4)(D)
1. Expert Employed Only for Trial Preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known or
opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness
at trial. But a party may do so only: (i) as provided in Rule 35(b);
or (ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the
same subject by other means.
viii. Expert Reports

1. (B) Trial-Preparation Protection for Draft Reports or Disclosures.

Rules 26(b)(3)(A) and (B) protect drafts of any report or
disclosure required under Rule 26(a)(2), regardless of the form in
which the draft is recorded.
2. (C) Trial-Preparation Protection for Communications Between a
Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B)
protect communications between the party’s attorney and any
witness required to provide a report under Rule 26(a)(2)(B),
regardless of the form of the communications, except to the
extent that the communications:
3. (i) relate to compensation for the expert’s study or testimony;
4. (ii) identify facts or data that the party’s attorney provided and
that the expert considered in forming the opinions to be
expressed; or
5. (iii) identify assumptions that the party’s attorney provided and
that the expert relied on in forming the opinions to be expressed.
4. Response Options – Objected-to Discovery
 a. Let it go (and then you get nothing)
b. Try again / draft altered discovery (but then you must wait)
c. Negotiate with the other side (and then you might get something)
d. Move to compel (but see conferral obligation first)
i. Produce
1. Can refused to produce if it is a trade secret such as Coco- Cola
Receipt. (valuable)
ii. Can you go file the motion to compel/ protective Order?
1. 37(A) (1)
a. In General. The movant has in good faith conferred or
attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it
without court action.
5. Motion to Compel (See Slides)
a. (B) To Compel a Discovery Response. A party seeking discovery may move for
an order compelling an answer, designation, production, or inspection. This
motion may be made if:
i. (i) a deponent fails to answer a question asked under Rule 30 or 31;
(Depo)
ii. (ii) a corporation or other entity fails to make a designation under Rule
30(b)(6) or 31(a)(4);
iii. (iii) a party fails to answer (an interrogatory) submitted under Rule 33; or
iv. (iv) a party fails to produce (documents) or fails to respond that inspection
will be permitted—or fails to permit inspection—as requested under Rule
34.
v. Missing from this list is a request for admission and medical exams
(cannot do it without going to the court).
b. (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this
subdivision (a), an evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer, or respond.
i. (a) Motion for an Order Compelling Disclosure or Discovery. (1) In
General. On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion must
include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action.
c. Motion for Protective Order
i. (c) Protective Orders.
1. (1) . . . 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:
2. (A) forbidding the disclosure or discovery;
3. (B) specifying terms, including time and place or the allocation of
expenses, for the disclosure or discovery;
4. (C) prescribing a discovery method other than the one selected by
the party seeking discovery;
 5. (D) forbidding inquiry into certain matters, or limiting the scope
of disclosure or discovery to certain matters;
6. (E) designating the persons who may be present while the
discovery is conducted;
7. (F) requiring that a deposition be sealed and opened only on court
order;
8. (G) 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
9. (H) requiring that the parties simultaneously file specified
documents or information in sealed envelopes, to be opened as the
court directs.
d. Davis v. Ross
i. Facts
1. Ross produced a letter about Davis. Davis asked for income but
failed. Ross filed a motion to discover evidence about psychiatrist.
2. Discover shifted the burden on the case.
ii. Rule
1. Evidence of a plaintiff’s mental health is discoverable in a suit
where the plaintiff is seeking to recover for mental pain and
anguish.
e. Kozlowski v. Sears (Failure to Respond, Failure to Evasive)
i. Facts
1. Pajamas caught on fire. Plaintiff wanted to gets some documents
about pajamas and complaints.
2. Sears refused, but cave in and told plaintiff they could investigate
the documentation in their warehouse.
ii. Rule
1. Once it is determined the items are within the scope if discovery,
the party from whom the discovery is sought has the burden of
showing some sufficient reason why the discovery should not be
allowed.
f. Possible Consequences - Discovery Recalcitrance
i. Failure to Produce / Disclose
1. May not be Able - 37(c) & (d) -
2. Attorney’s Fees & Sanctions under 37(b)(2)(A)(i)-(vi)
ii. Lose Motion to Compel / Protective Order
1. Produce the Info
2. Attorney’s Fees & Sanctions under 37(b)(2)(A)(i)-(vi)
iii. Defy a Court Discover Order
1. Attorney’s Fees & Sanctions under 37(b)(2)(A)(i)-(vi)
2. Contempt - 37(b)(2)(A)(vii)
6. Summary Judgement (More like a 12(c) than 12(b)(c))
a. Mechanics (allegations on 12(b)(6) on Summary Judgement
evidence of the allegations)
 i. Rule 56. Summary
1. (a) Motion for Summary Judgment or Partial Summary Judgment.
***The court shall grant summary judgment if the movant shows
that
a. there is no genuine dispute as to any material fact, and
b. the movant is entitled to judgment as a matter of law.
ii. Either Party may move
iii. A party may move with or without affidavits and other supporting
evidence
iv. Supporting evidence may include materials from discovery
v. A party may move “at any time until 30 days after the close of all
discovery”
vi. SJ may be granted in whole or in part (as to claims or parties)
vii. Party opposing motion must supply facts, not mere allegations.
viii. (allegations on 12(b)(6) on Summary Judgement is about the evidence
of the allegations) (Trial preponderance of evidence that you at)
ix. Ways to Win Summary Judgement!!!
1. Factual Legal Claims
a. Jackson v. Mateus (Dog Bite Statute) v. Cat bite
2. Factual Insufficient
a. Failure to Produce
3. Unrebutted Facts
a. No rebutted of facts. (Admitting on Motion)
x. How to setup Summary Judgement?
1. Motion for Summary Judgement
2. Memorandum in Support if Motion for Summary Judgement
3. Evidence (Material)
a. Is there enough evidence that jury can go wither way?
i. Yes, you are not entitled to Summary Judgment
ii. No, you are entitled to Summary Judgement
b. Genuine Facts
b. Burdens and burden shifting
i. 12(b)(6) Motion
1. Legal Sufficiency
a. You got bad law
i. (a) fails to allege sufficient facts to establish the
claims) it seeks to raise or
ii. (b) relies on law that does not afford relief
ii. Summary Judgement Motion
1. Legal Sufficiency of Case
a. (a) facts the parties agree upon or
b. (b) the evidence construed in the non-party’s favor; the
non-moving party relies on law that does not
accomplish what it seeks
2. Factual Sufficiency of Case
a. Unrebutted facts
 i. one side produces key evidence that the other side
does not rebut
b. Factual Insufficiency
i. One side shows that the other side has failed to
produce essential evidence to its case.
c. Relationship to Rule 12
7. Trial
8. Judgement and Appeals
a. Motions for Judgment as a Matter of Law (Rule 50)
i. “‘We review a denial of judgment as a matter of law de novo, viewing the
evidence in the light most favorable to the prevailing party.’ Ordinarily, a
court may grant a judgment as a matter of law contrary to the verdict only
if ‘the record is critically deficient of the minimum quantum of
evidence’ to sustain the verdict. Thus, the usual formulation of the
standard of review on an appeal from the denial of a defendant’s motion
for judgment as a matter of law requires an appellate court to determine
‘whether the evidence is sufficient to sustain liability,’ and in considering
that issue the court ‘may not weigh the evidence, determine the
credibility of witnesses, or substitute its version of the facts for the jury’s
version.’”
ii.
b. Renewed Motion for Judgement as a Matter of Law
c. Appellate review and finality
i. The Final Judgement Rule
1. A judgment must be final to be appealed, unless it falls into one of
the narrow exceptions.
2. 2. A judgment is final if it:
a. Ends the litigation on the merits, and
b. Leaves nothing for the court to do but execute judgment
3. 3.Three narrow exceptions to the final judgment rule include:
a. Interlocutory appeals
b. Practical finality
c. The collateral order rule
d. How to Appeal?
i. Federal Rule of Appellate Procedure 3:
1. “An appeal permitted by law as of right from a district court to a
court of appeals may be taken only by filing a notice of appeal
with the district clerk within the time allowed by Rule 4.”
e. The Notice of Appeal
i. Federal Rule of Appellate Procedure 3(c):
1. “The notice of appeal must:
2. (A) specify the party or parties taking the appeal by naming each
one in the caption or body of the notice, but an attorney
representing more than one party may describe those parties with
 such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B,
et al.,’ or ‘all defendants except X’;
3. (B) designate the judgment, order, or part thereof being appealed;
and
4. (C) name the court to which the appeal is taken.”
9. Preclusion
a. Claim Preclusion - Requirements
i. 1. Mutuality of the Parties - both cases must involve the same parties or
their privies
ii. Identity of claims - the second case must involve the same causes of
action that were, or could or should have been, litigated in the first case
iii. Finality - there must have been a final judgement on the merits in first
suit
b. Issue Preclusion - Requirement
i. Identity of the Party - the party against whom issue preclusion is
asserted must be the dame party or the privy of the party involved in the
first suit.
ii. Identity of Issues - the issue at hand in the second suit must be identical
to an issue in the first suit.
iii. Actual Litigation of the Issue - the issue at hand must have been
completely, fully, and fairly litigated in the first suit
iv. Finality - there must have been a final judgment on the merits in first suit
10. Jurisdiction
11. Rule 8
a. Short and Plain Statement of Jurisdiction
i. Personal Jurisdiction
ii. Subject Matter Jurisdiction
iii. Venue
12. Due Process Clause
a. “. . . nor shall any state deprive any person of life, liberty, or property, without
due process of law . . . .”
13. Personal Jurisdiction
a. You must analyze Personal Jurisdiction to each defendant.
i. Pennoyer v. Neff
1. Facts
2. Rule
a. Territory ( Living in the state or have property within
the state)?
i. Theory: Sovereignty of the state
ii. Legal Basis: International / Public Law
iii. Type of Rule: Bright-Line Rule
ii. International Shoe
1. Facts
2. Rule
 a. Minimum contacts (such that jurisdiction will not violate
traditional notions of fair play and substantial justice)
i. Theory: Fairness / Justice
ii. Legal Basis: Due Process
1. 14th Amendment
a. “...nor shall any state deprive any
person of life, liberty, or property,
without due process of law...”
iii. Type of Rule: Standard
iv. What Constitutes Minimum Contacts?:
1. Four types of contacts a defendant might
have with a state:
a. Continuous and related (minimum
contacts, International Shoe)
b. Isolated and Related (minimum
contacts, usually- McGee)
c. Continuous and unrelated (only
meets minimum contacts when very
strong, Perkins, maybe Asahi, not
Helicopteres
d. Isolated and unrelated (no minimum
contacts
b. Long -arm Statutes
i. A statute that extends one jurisdiction across state lines. Personal
Jurisdiction that applies to non-resident. (non-residents)
1. California
a. Jurisdiction applies as far as due process allows.
i. Test
1. Does the long-arm statute apply?
a. If you have a California statute in the
state, then you are done if it passes
due process.
b. If you have an Illinois statute, then
does the behavior match the things
articulated in the statute.
i. if Yes, then you go to due
process.
ii. If No, then you are done
because long-arm statute
does not extend jurisdiction
that far.
2. Limited (Illinois)
a.
ii. World-Wide Volkswagen (WWV) v. Woodson
1. Facts
 a. Car was in an accident. Woodson sued four defendants
based on product-liability of defective design on the car.
WWV made a special appearance to challenge the suit.
i. Audi (manufacturer)
ii. Volkswagen (importer)
iii. WWV (Regional Distributor)
iv. Seaway (Retail)
2. Rule
a. Foreseeability alone is not enough to authorize a state
court’s assertion of personal jurisdiction over a non-
resident defendant that has no contacts, ties, or relations
with the forum state
iii. Burger King Corp. v. Rudzewicz
1. Facts
a.
2. Rule
a. When determining if a defendant satisfies the minimum
contacts requirement for personal jurisdiction, the court
must look to the purposefully directed activities of the
defendant toward the forum state and whether the harms
arising out of or relating to those activities are the cause of
the litigation.
iv. Calder v. Jones
1. Facts
a. Enquire libel Jones.
b. Business was in Florida, but employees went to California
to get information.
2. Rule:
a. Personal jurisdiction is proper over a defendant where the
defendant has certain minimum contacts such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.
v. Calder
1. “Contact” with a state need not be physical. Purposeful contact
is enough, even if reputational, when targeted at a plaintiff in a
state.
vi. Nicastro
1. Even if you know something you sell could end up in a state, that’s
not enough unless you intentionally contact the state.
vii. Shaffer
1. In rem is not quasi in rem. And quasi in re is pretty darn close to
just be in personam.
14.
a. Venue and forum non conveniens
i. Look at slides
ii. Transfer
 1. 28 U.S.C. § 1404. Change of Venue
a. (a) 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.
iii. Forum Non Conveniens
1. “[A] plaintiff’s choice of forum should rarely be disturbed.
However, when an alternative forum has jurisdiction to hear the
case, and when trial in the chosen forum would ‘establish . . .
oppressiveness and vexation to a defendant . . . out of all
proportion to plaintiff’s convenience,’ or when the ‘chosen forum
[is] inappropriate because of considerations affecting the
court’s own administrative and legal problems,’ the court may,
in the exercise of its sound discretion, dismiss the case.”
a. Private Interest Factors
i. Relative ease of access to sources of proof
ii. Availability of compulsory process for the
attendance of unwilling witnesses
iii. The cost of obtaining attendance of willing
witnesses
iv. The possibility of viewing the premises, if
appropriate
v. All other practical problems that make trial easy,
expeditious, and inexpensive
b. Public Interest Factors
i. Administrative difficulties flowing from court
congestion
ii. The local interest in having localized controversies
decided at home
iii. The interest in having the trial of a diversity case in
a forum that is at home with the law that governs
iv. Avoidance of unnecessary problems in conflict of
laws, or in the application of foreign law
v. Unfairness of burdening citizens in an unrelated
forum with jury duty
b. Subject matter Jurisdiction
i. Diversity Jurisdiction
1. 28 U.S.C. §1332
a. (a) The district courts shall have original jurisdiction of all
civil action where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs,
and is between
i. (1) citizens of different States:
ii. (2) citizens of a State and citizens or subjects of a
foreign state;
 iii. (3) citizens of different States and in which citizens
or subjects of a foreign state are additional parties;
and
iv. (4)a foreign state, defined in section 1603(a) of this
title, as plaintiff and citizens of a State or different
States.
ii. Rule Summary
1. Parties on each side of the “v.” cannot be from the same state
(“complete” diversity)
2. More than $75k must be in dispute
3. Injunctive relief gets measured by value of injunction (sometimes
from P's perspective, sometime from D'S)
4. A single P can aggregate any and all claims against a single D - but
not by multiple Ps and not against multiple Ds (“aggregation”)
c. Removal
15. Litigation with Multiple Parties: Supplemental Jurisdiction
and Joinder
16. Litigation in the Long