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Civ Pro II - Coggle Diagram

- - - - Generally, plaintiff decides who to join in a party - including defendants and co-plaintiffs
        
        Rule 20 governs joinder in federal court (Case: Hohlbein v. Heritage Mutual Insurance)
        
        goal is to allow litigation of related claims to come together where the overlap in the evidence will promote convenience and efficiency
        
        Places some limits on who can be joined:
        
        Plaintiffs
        
        Plaintiffs can sue together IF:
        
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        plaintiffs can sue for different remedies
        
        Once a plaintiff is properly joined under Rule 20, they can add any other claims against the opposing party under Rule 18
        
        Defendants:
        
        Example: Plaintiff is suing two officers because he does not know which one assaulted him -- okay because it arose out of the same occurrence (the assault) AND there is a common question of fact (who assaulted him?)
        
        Defendants may be sued together IF same two criteria are met
        
        How to split after joined:
        
        Rule 42(b) says court can still be split into separate trials later if necessary
        
        Rule 21 allows court to sever claims that are improperly joined into separate cases
    - - Counterclaims: claim against an opposing party
        
        can be permissive or compulsory
        
        Rule 13(a)(1)(A): counterclaim is compulsory if it "arises out of the transaction" that is the subject matter of the opposing party's claims
        
        purpose is to promote efficiency and consistency of judgements
        
        compulsory counter claims have supplemental jurisdiction under 28 USC §1367 - "if a federal court has SMJ over a case, it may also hear other claims in the action that arise out of the same nucleus of facts"
      - Crossclaims: claim against someone on the same side of the v.
        
        Rule 13(g): crossclaim must arise out of the transaction or occurrence that is the subject matter of the original action
        
        Summary: limits crossclaims to the transaction of the original claim when co-parties start fighting
        
        all crossclaims are permissive - lets parties choose when to assert their claims
    - - Rule 14: defendant can add a third party defendant ONLY when the third party is liable to all parts of the claim (Case: Erkins v. Case Power)
        
        Can either be for:
        
        contribution: responsible for part of defendant's liability
        
        indemnity: responsible for all of the defendant's liability
        
        must file a leave to add a third party for impleader if it is not within 14 days of the defendants answer
        
        Once joined, Third Party Defendants can bring claims against plaintiff, assert counterclaims, and crossclaims
        
        can "defend the defendant"
        
        can sue the original plaintiff if it is under the "same transaction or occurrence"
    - - Rule 18(a): plaintiff can assert any claims she has against an opponent - related or unrelated
        
        creates efficiency for the courts - claims will be litigated together unless the court orders otherwise
        
        Rule 42(b) authorizes trial courts to order separate trials for "convenience, to avoid prejudice, or expedite"
        
        court has very broad discretion
        
        Claim Preclusion: can only sue a defendant once for a single set of events
      - Jerry Springer Rule
  - - - Rule 19 addresses situations where a person has not been made a party, but should participate to fairly and adequately resolve the dispute
        
        Three Step Process;
        
        Rule 19(a) - Decide whether the absentee is a required third party
        
        a third party should be joined if either:
        
        the court cannot complete relief among existing parties without the absent party participating
        
        the absence impedes the person's ability to protect their interest
        
        the absence will leave an existing party subject to a substantial risk of multiple inconsistent obligations
        
        does not apply to joint tortfeasors
        
        Determine if joinder is feasible: If yes, join, if no, go to Step 3
        
        evaluate if joinder could cause problems with personal jurisdiction, diversity, or make venue improper
        
        Decide whether to dismiss or continue without the party (Case: Torrington Co. v. Yost)
        
        factor analysis
        
        risk of prejudice to absentee or the existing parties if the case goes forward
        
        ways to lessen prejudice
        
        whether there can be adequate relief without the party
        
        alternative adequate remedy if action is dismissed
        
        really important factor
        
        usually state court is an option
    - - addresses situations when non-parties want to join a case because they are interested in the outcome
        
        frequent in "public law litigatin"
        
        courts have to find a balance for allowing interests to be heard and resolving cases efficiently
        
        Two ways to be added under Rule 24:
        
        Intervener As A Right: if the elements are met, the judge cannot keep the party from joining (Case: Grutter v. Bollinger)
        
        elements
        
        Party has an interst
        
        Interest would be impaired if the case is decided without them
        
        Timely
        
        There must not already be party that would adequately protect the interveners interests
        
        also authorities intervention whenever a statute provides a right to intervene
        
        Permissive: very broad standard that is up to the discretion of the judge to allow joinder
        
        may grant if "has a claim or defense that shares with the main action a common question of law or fact"
        
        very broad and should only be granted when it will not cause "unduly delay or prejudice" to the original parties
        
        Applicants for intervention must attach a pleading to its motion that “sets out the claim or defense for which intervention is sought”
        
        courts can place limits on how involved an intervening party can be in the case
  - - - original claim is the "anchor claim" for supplemental jurisdiction
        
        Basis comes from Article III §2
      - Supplemental jurisdiction is discretionary - the claim is not within the original jurisdiction so the court has discretion to whether they hear it or not
        
        Modern: one statute for supplemental jurisdiction
        
        28 USC §1367:
        (a) provides broad discretion for federal courts to hear state claims if they are related to a federal court case under supplemental jurisdiction
        (b) unless it is a plaintiff's claim against a third party
        (c) factors to determine -- from Gibbs
        
        (c) factors
        
        Federal claims drop out early
        
        State issue is predominate
        
        Complicated state law claim
        
        Likelihood of jury confusion
        
        Historically: two different types of supplemental jurisdiction
        
        Ancillary claim: additional "logically related" claims without original jurisdiction that are asserted by the defendant after the plaintiff files her complaint
        
        Usually counterclaim, cross-claim, or third-party impleader
        
        Does not apply to a plaintiff brining a claim against a third party that was brought in on impleader (Case: Owens v. Kroger)
        
        Summary: if a defendant brings in a third party by an impleader claim, and the plaintiff then files a claim directly against the third party, then the plaintiff’s new claim does not have supplemental jurisdiction
        
        Pendent jurisdiction: additional claims (without original jurisdiction) are asserted by a Plaintiff in a complaint that relate to the claim with original federal jurisdiction
        
        Test: there is pendent jurisdiction if all claims have the same "nucleus of operative fact" (Case: United Mine Workers v. Gibbs)
        
        Still discretionary! Courts may decline to hear a case with pendent jurisdiction if:
        
        Federal claims drop out early
        
        State issue is predominate
        
        Complicated state law claim
        
        Likelihood of jury confusion
  - - - Policy:
        
        General Purpose: goal is to reduce the cost of litigating each claim, which makes the lawsuit more financially viable
        
        Benefits: vindication of rights without attorney fees, fair allocation of funds, supplements public enforcement
      - other class members are not made active parties and are not usually involved
      - Rule 23: codified Class Action requirements and established a certification procedure controlled by the courts
        
        Rule 23 requires plaintiffs file a motion for class certification and have the burden of proof showing that certification is proper
        
        two parts required for certification:
        
        Specific Requirements for Types of Class:
        
        each class has to fall into one of the following categories - and each category has their own set of rules for certification
        
        Prejudice Action: used when there’s a risk that individual lawsuits could lead to different decisions that undermine the overall fairness of the case or legal system
        
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        Actions for Injunction or Declaratory Relief: relief must be appropriate respecting the class as a whole
        
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        Damages Action: focus is on money damages
        
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        General Requirements:
        
        certification elements
        
        class is numerous to where joinder of all members is impractical
        
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        at least one common question of law or facts to the class
        
        Typical representative of class
        
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        Adequate representation:
        
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        Case: Floyd v. City of New York
        
        this is where most of the litigation in a class action case -- at the procedural level for certification instead of the actual merits of the case
      - Decisions in class actions are binding and class members are prevented from suing for the same transaction again
        
        has a preclusive effect on the class representatives and for the rest of the class they represent
        
        But only bound if the class is certified as a class action - required by the Due Process Clause (Case: Hansberry v. Lee)
        
        leads to the class action certification rules
      - Jurisdiction
        
        Personal Jurisdiction: the forum state may exercise jurisdiction even if the plaintiff does not have the minimum contacts with the forum
        
        means that courts have PJ over voluntary class representatives who choose the forum
        
        Subject Matter Jurisdiction:
        
        Class Action Fairness Act (CAFA) of 2005:
        
        minimal diversity (at least one plaintiff must be diverse from the defendant)
        
        amount in controversy must be over $5 million
        
        class members can aggregate claims
        
        limits attorney fees
        
        can remove from state to federal court more than a year after the action was filed
- - - - Response to a Complaint:
        
        Three options after receiving a complaint:
        
        Default: ignore the complaint
        
        Rule 55: Authorizes default judgements if the non-defaulting party and the court follow the procedure
        
        Steps:
        
        Entry of Default (Rule 55a): when a party has failed to plead or defend, the clerk must enter the party's default
        
        Default Judgment (Rule 55b): by default the defendant admits all the facts in the complaint but court has to find that allegations still establish liability in order to rule a default judgment
        
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        Setting Aside a Default:
        
        Can only set aside a default judgment "for good cause" - Rule 55c
        
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        Grounds for relief from a judgment if there was a mistake, inadvertence, surprise, or excusable neglect - Rule 60b
        
        Defend
        
        Rule 12 outlines defenses and objections regarding pleadings
        
        Rule 12(b) lists the most common defenses that can be raised by a motion to dismiss:
        
        lack of subject matter jurisdiction
        
        lack of personal jurisdiction
        
        improper venue
        
        insufficient process
        
        insufficient service of process
        
        failure to state a claim
        
        failure to join a party under Rule 19
        
        6. Failure to State a Claim: defense saying that the plaintiff did not meet Rule 8(a) - Twombly/Iqbal Test (Case: Matos v. Nextran)
        
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        Rule 12(h)(1)(A): requires objection to personal jurisdiction, venue, and service of process be raised in the party’s first responsive pleading (Case: Hunter v. Serv-Tech)
        
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        Most of these motions will result in a dismissal without prejudice - meaning the plaintiff can fix the issue and refile
        
        Rule 12(f): Motion to Strike is to strike a pleading for redundant, immaterial, or scandalous matter (Case: Matos v. Nextran)
        
        should only be used when it is a "getting out the popcorn" level
        
        Motion to Strike is commonly used to try to strike an insufficient defense - but not commonly used to strike a claim (Case: Reis Robotics v. Concept)
        
        Rule 12(e): Motion for a More Definite Statement is for pleadings "so vague or ambiguous that a party cannot reasonably prepare a response" (Case: Matos v. Nextran)
        
        should only be used when you have no idea what is going on (Case: Dioguardi would have been a good example of when to use this)
        
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        Rule 12(g)(2): Waiver Trap a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion
        
        Any defenses that were not waived can be asserted in the answer to the complaint
        
        Answer
        
        Time answers must be served:
        
        within 21 says after being served with summons and complaint OR
        
        60 days if waived service Answers must be filed within OR
        
        14 days after pre-answer motions are ruled on
        
        Options for answers:
        
        assert left over defenses (that were not waived)
        
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        must admit of deny the factual allegations of the complaint (Rule 8(b)
        
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        List reasons why the plaintiff should not recover
        
        Include counterclaims
        
        Rule 7 says courts can further require a reply to an answer, but this rarely happens
  - - - stating facts
      - narrowing issues
      - helps court throw out bogus claims
      - give notice of the nature of a claim or defense
        
        primary focus under FRCP
    - - Basic Pleading Requirements
        
        Historical Pleading Types:
        
        Common law pleadings: function was to narrow the issues that had to be decided
        
        Equity pleading: used to provide evidence to the court
        
        Code pleading: fact pleading where the goal was to weed out insufficient claims
        
        FRCP start in 1938:
        Rule 8 - plaintiff has to state a claim for relief that must contain:
        1) short and plain statement of the ground for the courts jurisdiction
        2) short and plain statement showing pleader is entitled to relief
        3) demand for the relief sought
        
        Modern Federal Baseline: Notice Pleading (Rule 8)
        
        goal is to give notice to parties
        
        Basic requirement: "a short and plain statement of the claim showing the pleader is entitled to relief"
        
        must state a claim that "shows the pleader is entitled to relief"
        
        Case example: Dioguardi v. Durning
        
        "Conley Standard" of Notice Pleading - Possibility Standard (Rule 8)
        
        pleading should be a bare statement of a claim
        
        Possibility standard - "unless it appear beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, we do not allow the complaint to be dismissed at the pleading stage"
        
        Case Example: Doe v. Smith
        
        Current Standard - Twombly/ Iqbal Standard of Plausible Pleadings (Rule 8):
        
        requires enough facts to state a claim to relief that is "plausible on its face"
        
        have to have enough facts to get claim across the line from conceivable to plausible
        
        no longer accepts legal conclusions as true
        
        Case example: Ashcroft v. Iqbal
        
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        Doe court clarifies that pleadings do not have to include all elements of a claim
        
        all procedures must be within the scope of the FRCP rules starting in 1938
      - Heightened Pleadings (Rule 9)
        
        Rule 9: authorizes heightened pleading requirements for specific allegations
        
        Fraud: pleadings require when, where, and how
        
        Needed to provide fair notice and to protect reputations that could be easily damaged by a frivolous fraud claim
        
        Example: securities fraud can make a company's stock bottom out
        
        Rule 9(b) adresses this
        
        Special Damages: damages that would not normally be anticipated
        
        these are damages that would be "unanticipated" by defendant and would require notice but have an actual number that can be proven
        
        Examples: out of pocket costs, medical bills, repairs and replacement of property, lost wages
        
        if you do not plead special damages, you lose the ability to recover these
        
        Only the legislature can impose other reasons for heightened pleading standards (Case: Leatherman v. Tarrant County NICU)
    - - Goal of FRPC is procedures should be flexible enough to allow parties to litigate the entire dispute between them as long as changes do not create prejudice
        
        Rule 15(a): Amending Before Trial - lenient standard
        
        Process:
        
        Amendments can be made once without court approval when:
        
        within 21 days of serving the pleading
        
        within 21 days of a responsive pleading being served
        
        within 21 days after a party files a motion under Rule 12(b, e or f)
        
        If it is not one of these three situations, or amendments need to be made a second time, the amendment must be approved by court - called a "leave"
        
        Leave of Court should be "freely given when justice so requires" (Case: Beeck v. Aquaslide)
        
        2 more items...
        
        Once a pleading has been amended, it is now a new pleading and the opposing party has the same rights to respond that it did for the original pleading
        
        Policy considerations:
        
        Good because it saves the courts time by not adding a second case, everyone can make mistakes
        
        Bad because extends the time of cases, delay means money, creates preparation prejudice
        
        Rule 15(b): Amending During or After Trial
        
        parties chance of obtaining leave to amend narrows after trial starts - but is still encouraged and is a lenient standard
        
        Rule 15(c): Relation Back Amendments - after the statute of limitations situations
        
        Amendments can relate back when:
        
        Amending to add new claims against an existing party
        
        Rule 15(c): amending a complaint after the statute of limitations must relate back to the date of the original pleading - which would bring it within the time set out in the statute of limitations
        
        Should be denied if:
        
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        Should be granted if:
        
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        Relates back if the claim arose out of the conduct, transaction, or occurrence set forth in the original pleading
        
        Amending to add a new party because of a mistake
        
        Rule 15(c)(1)(C): authorizes relation back of an amendment "changing the party against who the claim is asserted" if several requirements are met (Case: Krupski v. Costa Crociere)
        
        no time requirement, but it is a factor evaluated
        
        new party must have had notice of the original action within the limitation period allowed for service (generally 90 days)
        
        evaluates the type of mistake - but still focus. more on notice than the type of mistake made
        
        2 more items...
        
        If state law allows
        
        Rule 15(d): Supplemental Pleadings
        
        adds to a pleading based on facts that occurred after the pleading was filed
      - common scenarios: problem with original pleading, learn new facts, new things happen
  - - - Rule 11 Summary: a pleading has has to be reasonable, warranted by existing law or a good faith argument for its change, and have a proper purpose
        
        Reasonableness: an objective national standard for all lawyers based on factors
        
        no bad faith requirement - "a good heart will not excuse an empty head" (Case: Hays v. Sony Corp)
        
        factors
        
        generally weigh the balance between cost/time and benefits
        
        complexity of the factual and legal issue
        
        extent to which pertinent facts were under the control of opponents and third parties
        
        extent to which the lawyer relied on the client for the facts
        
        extent to which the lawyer relied on the reference lawyer
        
        resources reasonably available to the lawyer
        
        extent to which the lawyer was on notice that further inquiry might be appropriate
        
        Good Faith Arguments for Changes in the Law:
        
        arguments can extend, modify, or have the goal of establishing a new law without being considered frivolous - with support (Case: Hunter v. Earthgrain Co.)
        
        happens most often in civil rights cases
        
        Snapshot Rule: papers compliance with Rule 11 takes into account the legal environment at the time it is filed
        
        Proper Purpose: determined by an objective standard
        
        includes harassment, delays, and extra expenses
    - - provides sanctions for lawyers with the primary purpose of deterring future litigation abuse
    - - Initiated by a party filing a motion: most often
        
        must be served on the offender 21 days before it is filed with the court to give the offender time to reconsider and withdraw or correct
        
        if not amended or withdrawn, then the motion can be filed with the court
        
        must be initiated separately from other motions
      - Sua Sponte: initiated by the court on its own initiative
        
        Court must have the offender show why conduct has not actually violated Rule 11
        
        No 21 day period for the lawyer to amend or withdraw, so therefore court must use "extra care in imposing sanctions"
    - - sanctions must be "limited to what suffices to deter repetition of the conduct or comparable conduct by other similarly situated"
- - - - Voluntary Dismissal
        
        Rule 41(a): parties may voluntarily dismiss a complaint without prejudice
        
        Used to change to a settlement
        
        majority of cases in federal court end in a voluntary dismissal
      - Involuntary Dismissal
        
        Rule 41(b): action based on the same claim cannot be brought again in the same court if involuntarily dismissed
        
        exception: unless dismissed because lack of jurisdiction, venue, or failure to join a required party
        
        involuntary dismissals occur when:
        
        court grants a 12(b)(6) motion to dismiss
        
        Plaintiff fails to prosecute by not making an effort (ex: not serving)
        
        Party fails to comply with the rules
      - Summary Judgement
        
        Cases will only go to trial if there is a dispute about the facts - if there is no dispute about the facts, the judge will just apply the law in a summary judgement
        
        Rule 56: Summary Judgement is only appropriate when a judge decides there is not a genuine dispute to material facts and movant is entitled to a judgement as a matter of law
        
        Rule 56 - Evidence that can be used for summary judgement:
        
        only evidence that could be offered at trial
        
        exception: affidavits (only on personal knowledge, not hearsay) can be used instead of testimony
        
        Process
        
        Step 1: The moving party has the initial burden to demonstrate that no genuine issues of material fact exist.
        
        If not met, no summary judgement
        
        If met, burden shifts
        
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        tried in almost every case by plaintiffs and defendants
        
        Genuine Issue of Material Fact: specific facts must be produced to put credibility in issue to prevent summary judgement
        
        slight doubt is not enough
        
        unsupported allegations is not enough
        
        must be a material fact - disputes over non material facts do not bar summary judgement (Case: Slaven v. City of Salem)
        
        If an inference has to be made by a judge, the inference must be drawn in favor of the non-moving party (Case: Tolan v. Cotton)
  - - - Doctrine that prevents parties from litigating claims that were fully litigated in a previous case
        
        Policy reasons:
        
        fairness for defendants to not worry about repeat defending
        
        public confidence: same claim trials could result in controversy
        
        Promote efficiency
        
        elements:
        
        valid final judgement
        
        on the merits
        
        final judgment by a judge
        
        includes JNOV, default judgements, and 12(b)(6) motions with prejudice
        
        same claim
        
        two tests used by different jurisdictions:
        
        Evidence Based Test: if the evidence needed to sustain the second suit would have sustained the first
        
        Transactional Test: if from a single group of operative facts
        
        broader test - reduces the likelihood of conflicting results
        
        Modern Trend - use this for the exam unless the other is asked about
        
        Case: River Park v. City of Highland Park
        
        same parties
        
        must be same parties in same configuration
        
        exception: landowners in privity
    - - prevents parties from litigating issues that have already been fully litigated
        
        elements:
        
        same issue as a past lawsuit
        
        issue was actually litigated and determined
        
        not from a settlement
        
        valid and final judgement
        
        must have been litigated with full and fair opportunity so that there is substantial confidence in the outcome or the opportunity was reliable for the outcome
        
        necessary or essential to judgement
        
        must be an issue that the judge gave signifiant consideration to in the previous case
        
        often is at issue in a contributory negligence fact pattern, where the case was not fully considered because contributory negligence barred recovery
        
        same parties
        
        Exception: Non-Mutual Issue Preclusion
        
        allows for issue preclusion to be raised in cases that involve different parties but concern the same issue
        
        Defensive
        
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        Offensive
        
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        Case: Felger v. Nichols
        
        Analysis Process:
        
        Are there multiple lawsuits?
        
        Did the first lawsuit reach a final judgement?
        
        Did the issue in lawsuit #1 arise again in lawsuit #2?
        
        Evaluate the circumstances and quality of litigation in lawsuit #1 to determine if there is a preclusive effect for lawsuit #2.
  - - - Policy Reasons:
        
        acts as a corrective safeguard against errors by a lower court
        
        development of law - appellate decisions create or modify common law
      - Standards of Review: from most to least deference
        
        de novo: used for questions of law and mixed questions
        
        mixed question: facts are undisputed but facts related to the question of law or fact
        
        clearly erroneous: fact finding by judge (Rule 52)
        
        Abuse of discretion: discretionary orders which are most things under the FRCP like sanctions
        
        Reasonable Jury: jury verdicts
      - elements for an appeal:
        
        Error in a Final Judgement:
        
        Final order is when it "resolves the contested matter, leaving nothing to be done except execution of the judgement"
        
        Policy Reasons:
        
        avoids delay and disruption
        
        avoids duplication
        
        avoids added expenses and delay of extra appeal
        
        reduces congestion
        
        Exception: Interlocutory Appeal/ Collateral Order Doctrine
        
        elements
        
        separability: issue is unrelated to the merits and is capable of separate review
        
        final: complete resolution of the separate issue
        
        urgent: involves a right incapable of vindication on appeal from final judgement
        
        2 more items...
        
        importance: important and unsettled question of controlling law
        
        Case: Recticel Foam Corp
        
        Prejudice
        
        Issue must have been preserved
        
        Issue must be presented
- - - - takes longer and costs more money than any other part of a civil lawsuit
    - - Discoverable Information:
        
        General Discovery: Rule 26(b) authorizes discovery of any nonprivileged matter that is relevant to any party's claim or defense that is proportional to the needs of the case
        
        generally broad to reduce surprise
        
        elements:
        
        not privileged
        
        privileged information is communication made in confidence because of a relationship
        
        1 more item...
        
        party must claim privilege expressly and then disclose the nature of the document or communication in a way that will not reveal the privileged information
        
        just calling a communication "privileged and confidential" does not make it so
        
        relevant to any party's claim or defense
        
        this was amended in 2000 to narrow the scope of discovery
        
        proportional to the needs of the case
        
        historically needed to be "reasonably calculated" but changed in 2015 to "proportional" to narrow the scope
        
        2 more items...
        
        not a "work product"
        
        work product: documents and tangible things that are prepared in anticipation of litigation or trial
        
        1 more item...
        
        Policy: releasing work product would reduce the qualify and efficiency of trail prep, and would give the requesting party a free ride
        
        1 more item...
        
        can be burdensome, expensive, and boarderline harassment
        
        Exception - Rule 26(b)(2)(c): even if it is within the scope, a court can limit discovery if it is duplicative, or the party had ample opportunity to obtain the information
        
        does not have to be admissible evidence
        
        Expert Witness Discovery
        
        Testifying Experts must produce reports and are subject to pretrial discovery by deposition
        
        identities must be disclosed along with a written report of their opinions without request - usually at least 90 days before the date of the trial
        
        Consulting Expert who is not testifying is usually not discoverable unless for a "special showing" of need because facts could be found by other means
        
        encouraged to be frank and give direct assessments
      - Standard of Review: Abuse of Discretion
      - Procedural:
        
        Trial Courts have lots of protective measures in place for discovery:
        
        In camera review: private review by judge
        
        Redactions or confidentiality controls
        
        Timing/ sequencing control: courts can delay or decide how to sequence discovery
        
        Protective Orders
        
        Sanctions
        
        Common Objections to Discovery Requests:
        
        Relevance: not relevant to claim or defense
        
        hard to win, broad requirement
        
        Privilege
        
        Requests to limit because it is "cumulative, burdensome, had prior opportunity, outside the scope, or unproportional"
    - - General Timeline of Discovery: after filing and service:
        
        Rule 26(f) - Meet and Confer/ Proposed plan
        
        Rule 26(a)(1) - Initial Required Disclosures
        
        Rule 16(b) - Scheduling Conference
        
        Other Discovery Requests
        
        1. Meet and Confer - Rule 26(f):
        
        parties must meet and discuss (usually over phone) a discovery plan at least 21 days before a scheduled conference is held
        
        have to create a discovery plan on subjects, timing, and to solve issues about disclosure, discovery, or ESI
        
        parties cannot seek discovery from any source before the parties have met and confirred
        
        2. Initial Required Disclosures - Rule 26(a):
        
        usually due within 14 days after the meet and confer
        
        intended to arm the party as early as possible with basic information needed to prepare for trial
        
        parties must exchange four things without request:
        
        names of individuals likely to have discoverable information
        
        all documents to support claims or defenses
        
        computation of damages
        
        if defendant - any insurance that might be liable
        
        To Avoid Initial Disclosures:
        
        ask for a delay with consent from the other party
        
        object during the meet and confer, put the reasoning in the discovery plan, and the court will rule on the objection
        
        move for a court order to postpone disclosure
        
        Sanctions - Rule 37(c): If Mandatory Disclosure is not followed without substantial justiciation, sanctions can be put in place without a motion
        
        Duty to supplement or correct a disclosure in a timely manner if the party learns of an error
        
        Other Initial Disclosures at a Later Date:
        
        expert witnesses and reports within 90 days of trial
        
        list of witnesses to call and exhibits before 30 days of trial
        
        3. Scheduling Conference:
        
        must have a pre-trial conference where both parties attend with at least one attorney
        
        court can issue sanctions if there is a failure to appear or for discovery abuse
        
        goal is to set deadlines for key litigation stages and control the cases' course forward
        
        4. Other Discovery Requests - order is commonly:
        
        First, use interrogatories to locate and identify evidence
        
        Next, request documents
        
        Last, depose using collected evidence
        
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    - - Certification - Rule 26: requires certification by an attorney for both requests and disclosures
        
        Certifications for Requests: that requests are not to harass, delay, run up the bill, are unreasonable, or unduly expensive)
        
        Certification for Disclosures: that disclosures are complete and correct
        
        Sanctions can be imposed by a court on their own initiative if violated
      - Protective Order - Rule 26: provide for guarded disclosure granted by the court
        
        must be requested and the party must show it is necessary to protect from "annoyance, embarrassment, oppression, or undue burden"
        
        used for sensitive documents that are not privileged
        
        should be granted by the court when the hardship to the party requesting the protection is greater than the hardship of the party seeking discovery
      - Motion to Compel - Rule 37: request for a court to order a discovery request
        
        Process
        
        requesting party must try to resolve dispute informally
        
        if fails, requesting party can file a motion for compel
        
        court rules on motion to compel
        
        if compeled, and objecting party defies the order, the requesting party can file a motion for sanctions
        
        Sanctions
        
        triggered by a motion from a party, unless it is for failure to participate in a discovery planning meeting
        
        must impose a "just" sanction (Case: Chudasama v. Mazda)
- - - - Step 2: Is the conflict substantive or procedural?
        
        Substantive Law Conflicts
        
        Timeline:
        
        Rules of Decision Act: Congress Ruled that federal courts should apply state law in cases that did not involve federal law.
        
        Old Interpretation -
        Swift v. Tyson:
        
        Supreme Court concluded that RDA required federal courts to apply relevant state statutes, but federal courts were not bound to follow common law rulings of state judges
        
        Held that federal courts could look to all common laws and find the "true" common law rule on the issue, instead of following the state common law
        
        Case: Black and White Taxicab v. Brown and Yellow Taxicab
        
        Modern Interoperation: Erie Doctrine
        Case: Erie Railroad v. Tompkins
        
        Overturned Swift v. Tyson, determining it was unconstitutional for federal courts to create common law in state regulated areas
        
        Rule: RDA mandates federal courts apply state law in diversity cases (statutes or common law)
        
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        Created problems with forum shopping and depreciated authority of the states common law decisions
        
        If there is a federal statute, apply the federal statute instead of the state law
        
        BUT, federal law making power is limited - large areas are only regulated by the state
        
        Procedural Law Conflicts
        
        Erie did not answer if federal courts should follow federal or state procedural law in federal court for a diversity case
        
        Timeline:
        
        Outcome Determinative Test
        Guaranty Trust of NY v. York
        
        if applying a federal procedure rule instead of a state rule would affect the outcome, the federal court should use the state rule
        
        concern was even the most trial differences could be argued to be outcome determinative
        
        Modified Outcome Determinative Test
        Byrd v. Blue Ridge
        
        outcome determinative test is not conclusive if there are other "countervailing considerations"
        
        must balance state interests against federal interests (ex: trial by jury is a federal pillar)
        
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        If unclear if a law is substantive or procedural, use Hanna 1 to resolve (Case: Shadygrove)
      - IF YES: go to step 2
        IF NO, use state law