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CIVIL PROCEDURE CLASS 17. Professor Fischer Columbus School of Law The Catholic University of America October 4, 2002. WRAP-UP OF LAST CLASS . We discussed the rules for adding claims against existing parties (cross-claims and counterclaims) (FRCP 13). WHAT WILL WE DO TODAY?.

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civil procedure class 17

CIVIL PROCEDURE CLASS 17

Professor Fischer

Columbus School of Law

The Catholic University of America

October 4, 2002

wrap up of last class
WRAP-UP OF LAST CLASS
  • We discussed the rules for adding claims against existing parties (cross-claims and counterclaims) (FRCP 13)
what will we do today
WHAT WILL WE DO TODAY?
  • We will learn a few additional things about impleader
  • We will do Practice Exercise 13
  • We will begin our unit on discovery by learning about relevance and privilege
plaintiffs and third party ds
PLAINTIFFS AND THIRD-PARTY Ds
  • Can a P sue a person joined as a TPD and if so, in what circumstances?
  • Yes, so long as the P’s claim arises out of the same transaction or occurrence as the original claims. This is discretionary, not mandatory.
  • If the TPD has a counterclaim against the P it is governed by R. 13
  • If more than one TPD is sued by a P the TPDs can cross-claim against each other subject to R. 13(g).
third party d and plaintiff
THIRD-PARTY D and PLAINTIFF
  • Can a TPD claim against the original plaintiff and if so, in what circumstances?
  • Yes, if the claim arise out of the same transaction or occurrence.
  • TPD’s claim(s) against the P are generally permissive unless the P has already sued TPD, in which case the TPD’s claim(s) would likely be compulsory counterclaims
gross v hanover insurance co
GROSS V. HANOVER INSURANCE CO.
  • Who did defendants seek to implead and for what claims?
  • This is a subrogation claim. What does that mean?
gross v hanover insurance co7
GROSS V. HANOVER INSURANCE CO.
  • What arguments does P make in support of their contention that leave to implead should be denied?
  • How does the court rule on defendant’s motion? What is the court’s reasoning?
practice exercise 13
PRACTICE EXERCISE 13
  • Please see your casebook at p. 334
discovery
DISCOVERY
  • What is discovery? What is the purpose of discovery?
  • Subrin et al describes the role of discovery in the American procedural system as “predominant and all-consuming”
  • The United States has very BROAD discovery rules under the FRCP
a comparative look at discovery
A COMPARATIVE LOOK AT DISCOVERY
  • Discovery is not an inevitable part of a procedural system
  • To what extent is there discovery in the German legal system?
  • To what extent is there discovery in the Japanese legal system?
what may be obtained through discovery
WHAT MAY BE OBTAINED THROUGH DISCOVERY?
  • What Federal Rule of Civil Procedure governs the SCOPE of discovery in most civil actions (other than those set out in Rule 81)?
  • Rule 26(b). The R. 81 exceptions are, e.g. bankruptcy proceedings and a few other limited cases
  • Under the American FRCP R. 26(b) when is a party entitled to demand discovey?
what may be obtained through discovery12
WHAT MAY BE OBTAINED THROUGH DISCOVERY?
  • FRCP 26(b): Unless other limits by court order, any matter that
  • 1. Is RELEVANT to the CLAIM OR DEFENSE of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action)
  • AND DOES NOT FALL WITHIN EXCEPTIONS in (2) and (3). What are these exceptions?
what may be obtained through discovery13
WHAT MAY BE OBTAINED THROUGH DISCOVERY?
  • 2. Is not “unreasonably cumulative or duplicative”, is not available from more convenient source, and is not unduly burdensome
  • 3. Is not PRIVILEGED
summary
SUMMARY
  • Summary: Can obtain discovery of relevant material provided exceptions at subparagraphs (2) and (3) do not apply.
relevance
RELEVANCE
  • Current FRCP 26(b) states: “relevant to the subject matter involved in the pending action” - what is “relevance”? Is that term defined in the FRCP?
relevance and admissibility
RELEVANCE AND ADMISSIBILITY
  • Discoverable material includes written matter, things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators
  • To be discoverable, must information be admissible at trial under applicable rules of evidence?
a proposed rule change that did not make it
A PROPOSED RULE CHANGE THAT DID NOT MAKE IT
  • In September 1999, one proposed change to the FRCP was rejected by the Judicial Conference. The proposal would have permitted discovery outside the boundaries of relevant subject matter if the requesting party agreed to bear the cost. The Conference decided judges already have authority to do that.
limitations on discovery of relevant matter
LIMITATIONS ON DISCOVERY OF RELEVANT MATTER
  • When can a court limit discovery under Rule 26(b)(2)?
26 b 2 limitations on discovery unreasonably burdensome
26(b)(2) LIMITATIONS ON DISCOVERY - UNREASONABLY BURDENSOME
  • Discovery is “unreasonably cumulative or duplicative”
  • Discovery obtainable from more convenient source
  • Party seeking discovery has had “ample opportunity” to obtain matter on discovery
  • Burden of discovery outweighs benefits
  • Determining whether discovery should be limited is highly discretionary. Court may consider needs of case, amount in controversy, parties’ resources, importance of issues at stake, importance of discovery in resolving issues.
limiting scope of discovery under 26 b 2 can be done by
LIMITING SCOPE OF DISCOVERY UNDER 26(b)(2) CAN BE DONE BY
  • Objection to discovery request (e.g. answer interrogatory, response to request for documents)
  • Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court
  • Court on own initiative
limitations on discovery privilege
LIMITATIONS ON DISCOVERY - PRIVILEGE
  • Some materials are protected from discovery as privileged under 26(b)(1) and (3) e.g.
  • attorney-client privilege
  • or work product privilege
  • There are other types of legal privilege (e.g. priest/penitent, physician/patient.self-incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence.
  • Privilege can be waived
hickman v taylor 1947
HICKMAN v. TAYLOR (1947)
  • What are the key facts of this case?
  • What 2 kinds of statements were sought on discovery by the Plaintiff from the tug owners?
  • Is this material relevant? Privileged under attorney-client privilege?
  • Why was Fortenbaugh held in contempt by the District Court?
  • What is the procedural issue for the Supreme Court?
  • Explain how the Supreme Court differentiates between oral and written statements in ruling in this case.
hickman v taylor
HICKMAN v. TAYLOR
  • Compare the majority argument in this case with the concurrence.
  • Which rationale is more persuasive, in your view? Why?
work product privilege frcp 26 b 3
WORK PRODUCT PRIVILEGEFRCP 26(b)(3)
  • When Hickmanwas decided, FRCP did not contain any exception to discovery for attorney work product
  • Work product doctrine in Hickman has been codified in FRCP 26(b)(3).
types of work product
TYPES OF WORK PRODUCT
  • 1. ORDINARY WORK PRODUCT: Documents prepared in anticipation of litigation by a party’s representative
  • Are these discoverable? If so, in what circumstances?
  • 2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case
  • Are these discoverable? If so, in what circumstances
work product privilege
WORK PRODUCT PRIVILEGE
  • Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?
privilege logs frcp 26 b 5
PRIVILEGE LOGS: FRCP 26(b)(5)
  • If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log
  • In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted.