Civ Pro II Outline- Stumpf (Spring 2009)4/29/2009 9:15:00 AM
I. Discovery
 Three tiers of discovery:
o First tier- initial disclosures; required by Rule 26(a)(1)
 Matters a party may use to support claims or defenses
 Required disclosures listed in Rule 26 (a)(1)(A)
o Second tier- disclosures available through basic discovery
 Rule 26(b)(1)- non-privileged matter that is relevant to
the claim or defense of either party
o Third tier- disclosures available with court assistance and
good cause showing
Rule 26(b)(1)- any matter relevant to the subject
matter involved in the action
o Rule 26(a)(1) compared with Rule 26(b)(1)
 Initial disclosures (26(a)(1))- a party must disclose
matter that she “may use to support” her claims or
defenses
 General discovery (Rule 26(b)(1))- A party may seek
discovery of any unprivileged matter that’s “relevant to
the claim or defense of either party.” Plus, for good
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cause and with the court’s ok, any matter “relevant to
the subject matter involved in the action.”
 General discovery requires action by the other party,
but has a broader scope than initial disclosures
Limitations on discovery
o Limits on what is initially disclosed
o Limits on what is discoverable without getting the judge
involved
 Subject matter

Discovery devices
 Five tools for seeking discovery:
 1. Initial disclosures R. 26(a)(1)
o Witnesses who may be used to
support the disclosing party’s claims
or defenses
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o Documents that may be used to
support the disclosing party’s claims
or defense
o Damage calculations
o Liability/indemnity insurance
agreements
2. Production of documents R. 34 & 45
o For parties, send a request under R.
34
o For non-parties, use a subpoena
under R. 45
o No numerical limitations
3. Depositions R. 28, 30, 31, 32
o Limited to 10
o Maximum one day of 7 hours
o One shot at the witness
o Expensive
o R. 30(b)(6)- corporations designate
people with knowledge to answer
questions
4. Written interrogatories R. 33
o Limited to 25 without permission from
other party or court
o Can only direct them to other parties
o Cheap
5. Physical and mental examinations R. 35
Requests for admissions R. 36
o Applies only to parties
o Useful for the pending lawsuit only
o Options:
 Admit
 Deny categorically
 Deny in part, and admit or
qualify the remainder
 Can’t admit or deny, and say
why
 Object (with reason)
o Allows party to narrow issues for trial
o Limits on what is discoverable at all
 Three most popular objections to discovery:
 1. Irrelevant
 Is the discovery requested relevant R.
26(b)(1)?
o A. No- deny request
o B. Yes- consider following questions Is it privileged? R. 26(b)(1)
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Is it unreasonably cumulative or
duplicative? R. 26(b)(2)
Is it obtainable from another
source that’s more convenient,
less burdensome, or more
expensive? R. 26(b)(2), OR
Does the burden or expense
outweigh the likely benefit? R.
26(b)(2)
If the answer to any of these is
“yes,” request is denied
“Relevance” both (1) grants power to a
party to obtain any relevant info and (2)
imposes a limit- can’t get irrelevant info
Info sought must be “relevant to the claim
or defense of any party”
Relevant information need not be admissible
at trial if the discovery appears “reasonably
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calculated to lead to the discovery of
admissible evidence”
Need to know the substantive law of the
case (claims and defenses) to determine
what is relevant
Both substantive information and
information about the credibility of the
source is considered relevant
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2. Privileged
 Four major privileges
o 1. Self-incrimination
o 2. Attorney-client
 Protects communications
between attorneys and clients
concerning the matters the
lawyer is handling for the client
 Upjohn defines who the “client”
is for corporate attorney-client
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privilege; can extend to lower
level employees
o 3. Doctor- patient
o 4. Psychotherapist-patient
Limitations on invocation of privilege
o Waiver- a party puts the privileged
information at issue (e.g. claim of
emotional distress may waive
psychotherapist-patient privilege)
o Request for facts- privilege protects
sources of information, not the
underlying facts themselves
 3. Burdensome
Is information relevant?
 If so, is it privileged?
 Privilege always trumps relevance; even if it
is incredibly relevant, if it is privileged, it
won’t be allowed
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If not, is a limitation on discovery implicated?
 Work product- prepared in anticipation of
litigation R. 26(b)(3)
 Non-testifying expert- retained or specially
employed in anticipation of litigation, but
not to testify R. 26(a)(2)
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Privacy- will annoyance, embarrassment, or
oppression will result from discovery
R.26(c)
o Balance evidentiary payoff against the
likelihood of embarrassment, or argue
that discovery should be barred
altogether
o Rule 26(g)- protects from discovery
that is interposed for any improper
purpose, such as to harass
If work product or non-testifying expert, does an
exception apply?
 A party doesn’t have to disclose something if it is
used solely for impeachment
Privilege and work product
 Ordinary work product- documents and tangible
things prepared in anticipation of litigation by
party or party’s representative
 Discoverable if other party can show that
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there is a substantial need for the materials
in the preparation of the party’s case and
they would be unable without due hardship
to get the substantial equivalent by other
means R. 26(b)(3)(A)(ii)
 However, if both parties had equal access
and one failed to act in time, court won’t
force other party to share
Opinion work product- mental impressions,
conclusions, opinions, or legal theories of attorney
or other representative of party
 Probably not discoverable R. 26(b)(3)
Where do you look to determine whether a discovery
request is relevant? Davis, Steffan
 The discovery request- what does it ask for?
 The pleadings- what are the claims and defenses?
The legal standard- does the info requested tend
to prove or disprove something related to the
law?
 How to seek protection from discovery
 Rule 26(c)- protective orders
 Or, object and wait for a motion to compel
o Sanctions
 R. 26(g)- Requires parties to certify that the discovery
request, response, or objection is:
 Consistent with the rules and warranted by law,

Is not made for an improper purpose, and
Is not unreasonable or unduly burdensome or
expensive
 R. 37(d)&(f)- Some sanctions imposed as a direct result
of the misbehavior
 R. 37(b)- Other sanctions apply when a party violates a
court order
o Experts
 Categories of witnesses
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Ordinary fact witness- somebody who saw what
happened
 Discoverable if relevant R. 26(b)(1)
Testifying expert- retained or specially employed
to provide expert testimony in the case R.
26(a)(2)(B)
 Discovery available to other party plus
affirmative obligations to disclose identity
and written report, and submit to deposition
R. 26(a)(2) & 26(b)(4)
Non-testifying expert- retained or specially
employed in anticipation of litigation but not to
testify R. 26(b)(4)(B)
 No discovery unless exceptional
circumstances- impracticable to obtain facts
or opinions on the same subject by other
means R. 26(b)(4)
o Three situations in which relevant material is not discoverable
 When the balance between the value of discovery and
privacy shifts in favor of privacy (Stalnaker)
 When attorney-client privilege or work product
protection apply (Hickman)
 When the rules regarding non-testifying experts are in
play
II. Resolution Without Trial
 Two ways in which cases are resolved outside of litigation
o Party-driven methods: settlement, mediation, arbitration
As a party moves from no complaint to negotiation to
mediation to arbitration to litigation, their control over
the outcome and the process diminishes; third parties
(court, arbiter take on a greater role)
o Rules- driven methods: default judgments and involuntary
dismissal
 R. 56- Summary judgment
 The case is so one-sided that trial would be
pointless
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Summary judgment motions should be granted
when the record shows that there is no genuine
issue as to any material fact and that the movant
is entitled to judgment as a matter of law
 Compared to 12(b)(6)- failure to state a
claim upon which relief can be granted
 A 12(b)(6) can be denied and summary
judgment can still be granted
 12(b)(6)- before discovery; 56- after
discovery
Court always construes the evidence in the light
most favorable to the non-moving party
Two parts to a SJ analysis:
 1. Moving party’s burden- must show there
is no genuine issue as to any material fact
and that it is entitled to SJ as a matter of
law R. 56(c)
o Responsibility to identify basis of its
motion
o Does not need to offer evidence to
negate aspects of the case on which
the non-movant will carry the burden
of proof at trial (Celotex)
o If moving party does not bear the
burden of proof at trial, they can meet
their SJ burden by pointing out to the
district court that there is an absence
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of evidence to support the nonmoving party’s case
o If moving party does bear the burden
of proof at trial, they meet their SJ
burden by producing sufficient
evidence such that a reasonable jury
must find for the moving party
2. Opposing party’s burden- then, burden
shifts to the party opposing SJ to show
there is a genuine issue of material fact (a
conflict in the evidence about an issue that
matters to the outcome of a trial) R. 56(e)
o R. 56(e)(2)- opposing party can’t rely
merely on allegations or denials in its
own pleading; it’s response must set
out specific facts showing a genuine
issue for trial (by affidavits, etc.)
o Opposing party should bring credibility
into issue- there needs to be a trial to
judge credibility
o Must be adequate time for discovery
R. 56(f); can move for a continuance
under 56(f)(2) if there is a good
reason they haven’t been able to get
evidence yet

o If opposing party doesn’t respond, SJ
should, if appropriate, be granted
o Non-moving party can either present
evidence showing a genuine issue of
material fact OR argue that moving
party didn’t meet their burden of
proving a deficiency in the evidence
Bringing a SJ motion
 No genuine issue of material fact
o Testing facts
Use affidavits, material gained
through discover (documents,
depositions, answers to
interrogatories)
 Affidavits must be from personal
knowledge and not conclusory
 Essentially, these are the facts
that would be proved at trial
o Movant is entitled to judgment as a

matter of law
 Testing law
III. Trial
 1. Jury selection
 2. Opening statements
 3. Plaintiff’s case in chief
o After this, defendant may move for judgment as a matter of
law (JMOL, aka directed verdict)
 4. Defendant’s case in chief
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o After this plaintiff may move for JMOL
5. Plaintiff seeks to rebut defendant’s case
6. Defendant seeks to rebut plaintiff’s case
7. Both parties rest
o Now, either party can move for JMOL
8. Closing arguments
9. Judge gives jury instructions
10. Parties’ objections to jury instructions
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11. Verdict
o After verdict, loser can move for JNOV- judgment
notwithstanding the verdict
12. Appeal (or rarely, motion to set aside verdict under R. 60(b))
JMOL (“directed verdict” and JNOV) R. 50(a)(1)
o Grant motion for JMOL when a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party
against whom the motion for JMOL is made
o Standard- where the evidence points with equal force to two
things, one of which leads to liability and the other not, the
judge must direct the verdict (cow case)
o Courts tend not to accept statistical probability when there is
reason to suspect that there is more ordinary proof available
Juries
o The right to a jury trial attaches to claims that would have
been heard by a court at common law
 Common law- money damages (and ejectment,
replevin, habeas corpus, mandamus)
 Courts of chancery- injunctions (and constructive trust,
rescission of contract, quiet title, etc.); sometimes
money damages as a substitute
o When determining whether there is a 7th Amendment right to
a jury trial, examine the nature of the issues and the remedy
sought to figure out whether it would have been heard at
common law or in a court of chancery (remedy is more
important)
 If damages award is so entangled with injunctive relief,
there is no right to a jury
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Even if all plaintiff’s claims are equitable, if defendant’s
counterclaims are legal, there is a right to a jury
If counterclaim isn’t compulsory, though, just look at
plaintiff’s claims
If there are mixed claims, a jury may hear legal ones
and judge would hear equitable ones
Legal claims would be heard first and jury’s
findings of fact would be binding on judge when
deciding equitable claims
Have to assert desire for a jury trial during pleadings stage,
or else it is waived
reasons to grant a new trial
Flawed procedures- improperly admitted or newly discovered
evidence, improper statements by counsel, jury improperly
given the wrong legal instructions, etc.
Flawed verdict- verdict is against the great weight of the
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o
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Two
o
o
evidence
o Directed verdict and JNOV (R. 50(b)) vs. new trial
 Both are tools for handling an irrational jury verdict
 Directed verdict and JNOV- grant when no evidentiary
support for at least one element of the other party’s
case
 New trial (R. 59)- grant when the verdict is against the
great weight of the evidence
 Not as easy as the judge acting as a 13th juror or
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as hard as standard for JNOV, somewhere in the
middle
Miscarriage of justice- seriously erroneous result
Factors that may influence decision of where case
falls on the spectrum:
 What kind of evidence is the jury reviewing?
Credibility is within the province of the jury
 Is the case complex or simple? Judge has
more discretion to grant new trial in
complex cases (about chemistry or
something)
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Appeals
o Who may appeal? Adversity- must be a loser
 However, if a party wins a case, but loses on a separate
theory of relief that would have provided additional
damages, they can appeal that part of it
o When may they appeal? Only after a final judgment
o How does the court of appeals review the district court’s
decisions?
 De novo (questions of law)
 Appellate court can look at questions of law the
same way the trial court looked at it
 Clearly erroneous (questions of fact)
 Appellate court will only overturn findings of fact if
they are clearly erroneous (no evidentiary
support)
IV. Respect for Judgments

Preclusion- the quest for finality
o Claim preclusion (res judicata)- prevents a party from relitigating a claim that was decided in a prior case
 Usually involves claims that were not decided or even
raised in the first lawsuit
 Prevents litigating whole claims based on same
operative nucleus of facts
o Issue preclusion (collateral estoppel)- prevents a party from
re-litigating an issue that was decided in a prior case
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Goals of preclusion
o Efficiency- comes into play when plaintiff in first suit seeks to
bring a related claim in a second suit; precluded because
inefficient to bring claims in separate suits (Frier)
o Consistency- comes into play when a defendant to the first
suit seeks to raise a claim in the 2nd suit that was a defense
to the plaintiff’s claim in the 1st suit; preclusion ensures that
the second suit doesn’t undermine the outcome of the first
(Martino)
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Claim preclusion
o Precludes re-litigating:
 The same claim
 Between the same parties
 After a final judgment on the merits
o Always consider whether there was a full and fair opportunity
to litigate the claim in the previous suit
o Requirements for 1st suit to preclude the 2nd
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Same claim- same transaction or common core of
operative facts
 Same transaction test (federal courts)- precludes
all transactions or series of connected
transactions out of which the action arose
 Transaction- all legal theories and claims
arising out of a common core of operative
facts
 Same cause of action test (some states)- focuses
on whether the same evidence would be used in
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the two causes of action
Plaintiffs can be precluded from litigating claims
that they could have brought in a prior suit, but
chose not to
Defendants can be precluded from bringing
counterclaims that they could have brought in a
prior suit R. 13(a)
 Compulsory counterclaims- arises out of the
same transaction or occurrence as the
opposing party’s claim
Same parties- even family members have individual
rights to day in court
 Three circumstances in which a non-party may be
precluded from later suit
 1. Substantive legal relationship between
the non-party and a party to the first suit
(e.g. successive owners of land, trustees
and beneficiaries, heirs and executors of
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estates)
2. When the non-party agrees to be bound
by the first suit (e.g. settlement agreement)
3. Procedural representation (e.g. class
actions, virtual representation)
o Virtual representation
 Beneficiaries of future or
contingent interests in property
Non-party so guides and
controls the litigation that court
treats them as if they were a
party
First suit must have provided a full and fair opportunity
to litigate the claim in the second suit
 Final judgment on the merits
 A judgment is final even if it is being
appealed
 It is on the merits if the party had an
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opportunity to litigate the merits or if
preclusion is needed for court to enforce
procedural rules (e.g. noncompliance with
discovery orders)
o Not a judgment on the meritsdismissal for lack of JD, improper
venue, or failure to join a party
o Full faith and credit 28 USC § 1738
 Does a judgment have preclusive effect?
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1. Does federal or state preclusion law apply (was
the 1st suit brought in federal or state court)?
 If federal court, was it brought under
federal question or diversity JD?
o If federal question- apply federal
preclusion law
o If diversity- apply the law of the state
where, in the absence of federal
diversity JD, the action would have
been brought
 Unless state rule is incompatible
with federal interests (Semtek)
 If state court, apply the preclusion law of
that state
2. Under that jurisdiction’s law, are the same
parties raising the same claim, and is there a final
judgment on the merits?
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If applying federal preclusion law:
o Same claim- same transaction test
o On the merits- is the judgment an
adjudication on the merits under R.
41
If applying state preclusion law:
o Same claim: does state use
transaction or cause of action test?
o On the merits- is the judgment an
adjudication on the merits under that
state’s law?
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Issue Preclusion
o Unlike claim preclusion, opportunity is not enough, must have
actual litigation and determination
o Dual purposes:
 Finality- protects litigants from re-litigating identical
issues
 Judicial economy- simplify litigation by trying only the
“new issues”
o Elements
 When:
 An issue of fact or law is
 Actually litigated and determined by
 A valid and final judgment, and
 The determination is essential to the judgment
 The determination is conclusive in a subsequent
action between the parties, whether on the same
or a different claim
o Same issue
 As a substantive matter, are they the same issue?
(citizenship example)
 As a procedural matter are they the same issue?
(preponderance of the evidence vs. reasonable doubt)
o Actually litigated and determined
 Issue preclusion is inappropriate when the prior
judgment is ambivalent; if we do not know whether the
1st suit actually decided the issue, we will not preclude a
party from litigating it in the 2nd suit
o Nonmutual collateral estoppel
 Step 1: Was there a full and fair opportunity to litigate?
(was the victim of preclusion a party to suit 1?)
 If not, no preclusion
 Step 2: If so, who is seeking preclusion in suit 2: the
plaintiff or defendant?
 If defendant: defensinve, non-mutual collateral
estoppel: defendant seeks to use CE against a

plaintiff who was a party in a prior suit (BlonderTongue)
If plaintiff: Offensive, non-mutual collateral
estoppel: plaintiff seeks to use CE against a
defendant who was a party in a prior suit
(Parklane)
 A plaintiff can use CE against a defendant
who was a party in the prior suit if it:
o Promotes judicial economy (not a
“wait and see” plaintiff)
o Is not unfair to defendant
 Sufficient stakes in first
suit/later suits foreseeable
 No prior inconsistent judgments
 Adequate procedural
opportunities in 1st suit
Suit 1
A v B (wins)
A (wins) v B
A (wins) v B
A v B (wins)
Suit 2
A v C (CE)
A (CE) v C
C (CE) v B
C v B (CE)
Defensive or
offensive CE?
Possible?
Defensive.
Yes
BlonderTongue
Offensive.
No
Offensive.
Maybe
Parklane
Defensive.
No (unless C
and A were in
privity)
Why?
A had a full
and fair
opportunity
C hasn’t had
an
opportunity
Depends on
C didn’t have
considerations a full and fair
listed above
opportunity
to litigate.
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to litigate.
to litigate.
Critical question is whether the victim of issue preclusion had a full
and fair opportunity to litigate
o Full faith and credit (Durfee)
 Full faith and credit requires every state to give to a
judgment the preclusive effect that the court in the 1st
suit would have rendered
 Preclusion applies even to question of JD so long as the
victim of preclusion had a full and fair opportunity to
litigate the issue in the first suit
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Litigants are entitled to try the issue of JD once,
but only once
When will JD issues be precluded?
 Appeared and litigated?
 Yes for both personal JD and SMJ
 Didn’t appear or no notice of suit
 No for both personal JD and SMJ
 Appeared but didn’t raise it or defaulted
 Yes for personal JD, it’s been waived under

R. 12(h)
Maybe for SMJ
o Not if there is a statutory exception or
an important reason
V. Joinder
 The joinder universe
o Rule 13- Counterclaims
o Rule 14- Impleader- 3rd party practice
o Rule 15- Amending pleadings
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o Rule 18- Joinder of claims and remedies
o Rule 19- Mandatory joinder of parties (never comes up)
o Rule 20- Permissive joinder of parties
o Rule 21- Misjoinder
o Rule 23- Class actions
o Rule 24- Intervention
o The solution- Rule 20(b) & 42- consolidation or separate trials
Joinder of claims: a two-part inquiry
o 1. Do the Rules permit combining the claims?
o 2. If so, does the federal court have JD over the joined claim?
 Original JD (§1331, 1332)
 Supplemental JD (§ 1367)
 1. If not all claims have original SMJ, do the
claims form part of the same case or controversy?
If so…
 2. What’s the basis of original JD?
 If federal question- allow joinder
 If diversity JD, go to step 3
3. Is the plaintiff or the defendant seeking to
invoke supplemental JD?
 If defendant, allow joinder
 If plaintiff, go to step 4
 4. What Rule authorizes the joinder of the party
or claim over which supplemental JD is sought?
 If Rule 14, 19, 20, 24 and joinder would
destroy diversity- no JD per § 1367(b)
Personal JD
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o Compulsory counterclaims and JD (Plant)
 Logical relation test- is there any logical relation
between the claim and counterclaim? It depends on
whether the counterclaim arises from the same
“aggregate of operative facts”:
 Same operative facts serve as the basis of both
claims, or
 Aggregate core of facts upon which the claim
rests activates additional legal rights, otherwise
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dormant, in the defendant
1367(a)- there is supplemental JD over all compulsory
counterclaims- claims arising from the same transaction
or occurrene
 May sweep in some permissive counterclaims if
“same case or controversy” in 1367 is broader
than “same transaction or occurrence” from R.
13(a)
Permissive counterclaims have to have an indenpendant
jurisdictional basis
o Diversity JD and § 1367
 Diversity JD requires that each plaintiff be diverse from
each defendant §1332
 1367(b) prohibits plaintiffs from joining state law claims
if joinder would destroy diversity (Kroger)
 But 1367(a)&(b) allow defendants to join state
law claims even if joinder would destroy diversity
o R. 20 Permissive joinder of plaintiffs and defendants
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A two-part test:
 1. A right to relief must be asserted by, or
against, each plaintiff or defendant relating to or
arising out of the same transaction or occurrence,
or series of transactions or occurrences, and
 2. Some question of law or fact common to all the
parties must arise in the action
Joinder of parties is discretionary- R. 20(b) & 42(b),
even if rules allow it, court doesn’t have to
o R. 20 and preclusion
 Broad joinder rules impose ethical burdens on attorneys
to consider issues of preclusion to ensure that all
related claims are brought when filing a lawsuit
o Joinder by defendants- third party claims R. 14 (impleader)
 Impleader requires derivative liability: if the defendant
is liable to the plaintiff, the third party may be liable to
the defendant
 So impleader focuses on the third party’s liability to the
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defendant, not to plaintiff
Litmus test: An impleader attempt will fail if the
defendant can win the case against the main plaintiff
and still have a case against the third party defendant
 Third party doesn’t owe a duty to the plaintiff,
only the defendant does
Two ways to have derivative liability:
1. Contribution- joint tortfeasors, both defendant
are liable
 2. Implied contractual indemnity
The 1st cross-claim, or third party defendant claim,
must meet the transaction or occurrence tests of R.
13(a) & 14; R. 18 says any additional claim doesn’t
have to- can piggyback onto the 1st claim
Step 1: Is R. 14 satisfied?
 If the substantive law permits indemnification,
then R. 14 permits joinder
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Step 2: Does court have jurisdiction?
 If no original JD, does court have supplemental JD
under §1367?
 If defendant is seeking joinder, we don’t
care if it destroys diversity
 If plaintiff is seeking joinder, it’s not valid if
it destroys diversity; however, if they seek
to implead third party on the defendant’s
counterclaim, they are acting as a
counterclaim-defendant and it is ok
 A plaintiff can’t assert a claim against an
impleaded third-party if they are from the
same state (Kroger)
o An impleaded third-party can assert a
claim against the plaintiff, though,
because they are the defendant and
have been haled into court
o Joinder rules as tools:
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Plaintiff’s tools: Join parties under Rule 20 and claims
under Rule 18
Defendant’s tools: Join counterclaims under Ruler 13,
claims under Rule 18, and parties under Rule 14
All parties can use Rule 21 to challenge joinder
Judge’s tools: (1) Rule on parties’ motions under Rules,
(2) consolidate or sever claims under Rule 40 and 20(b)
4/29/2009 9:15:00 AM
4/29/2009 9:15:00 AM