Discovery
FRCP 26(a)(1) Initial Disclosures
@ the conference for discovery plan
the name, address, and number of any person likely to have relevant information
a copy or description of all documents to be used in support of
computation of damages
notice of insurance
FRCP 30 Oral Depos
oral interview relating to relevant matters of the case, recorded by the court, and must have a chance for cross examinations
- limited to 10 without permission of the court
- after 10 need permission
FRCP 26(c) Protective Orders
responding party can protect from annoyance, embarrassment, undue burden, privacy, etc
- and the court may forbid discovery all together, forbid specifically, or specify discovery only in front of the court, or only specific people can see it, or it must be sealed and only opened certain times, etc
FRCP 23(a) Pre-Reqs
1) numerosity
2) commonality: common question of law or fact among members and named plaintiff
3) typicality: members are typical of the named party (similar claims and issues)
4) fair and adequate representation: named plaintiff will fairly pursue interests of the class and counsel is adequate in experience and management
Res Judicata
final judgment is entered on the merits by a competent court and this claim cannot be raised again by the same parties from the same cause of action
- if you fail to bring a claim in the first suit, but it Could have been brought, too bad it's barred(use it or lose it)
FRCP 26(b)(1) Scope of Discovery
parties are entitled to all relevant material applicable to the case
- electronic discovery must be given unless it is not reasonable accessible because of undue burden
FRCP 33 Rogs
written "q and a" relating to relevant matters of the case
- limited to 25
FRCP 37(a) Motion to Compel
A court can compel a party to disclose when
- the party failed to disclose something
OR
- the party failed to answer a tool of discovery
must show good faith attempt to confer with the party withholding information
FRCP 23(b) Types
1) a) injunctive or declarative relief
b) limited funds
2) injunctive relief for civil rights
3) monetary relief
- predominance: members claims dominate individuals
- superiority: this is the best method compared to other methods (or damages are so small, makes sense to bring them all at once)
Collateral Estoppel
issue preclusion (second issue is identical to the first)
- if the issue was actually litigated, there was a fair and full opportunity to litigate, and the issue was essential to support the final judgment then it is BARRED from being decided again
FRCP 26(b)(4) Experts Disclosure
Non-Testifying: no discovery unless there is a limited number of experts and the analysis cannot be repeated
Testifying: disclose all opinions by expert, any assumptions given by the atty, the facts and data considered by the expert and compensation to be paid
FRCP 35 Phys and Mental Exams
the court may order a physical or mental exam when..
- the party's mental or physical condition is in controversy
- the court can limit what can be asked for privacy reasons
FRCP 26(g) Sanctions on Discovery
Sanctions are imposed if a document isn't signed by the atty AND
- if disclosures were not made at the correct time or there's an error of fact (not the truth)
- if discovery was completed for improper purpose, by non-frivolous argument, or imposed to harass, delay, or pose an undue burden of costs
FRCP 23(c) Motion to Certify
- define the class, claims and issues
interlocutory appeal occurs here
Mutuality Rule
states with this rule do not allow parties to bring the same cause of action or issue against the same exact parties
1st: A v B
2nd: A v B (barred by mutuality)
A/C Privilege
protects communication between attorney and client, does not protect the facts
- if someone requests something privilege, provide privilege log describing nature of the document
FRCP 36 Request for Admission
written request relating to the truth of facts
the answer must fairly respond to the substance of facts or specifically deny
- can admit lack of knowledge after reasonable inquiry
FRCP 37(b) More Disc Sanctions
- disclosure and discovery failures OR
- failure to preserve electronically stored information, an atty mindlessly adheres to routine document destruction or they destroy with improper purpose (to cover up)
FRCP 23(c)(2) Notice
Notice is not required but may be imposed for 1 and 2
Notice is required for 3 to all reasonably identified members (describe the action, claims, issues, etc)
- allows for opt out because judgment is binding on members
Non-Mutuality Rule
someone who was not party to the 1st suit, wants to impose preclusion on party from 1st suit
1st: A v B
2nd: C v B (offensive (b lost 1st): C wants to issue judgment from the 1st on B)
3rd: A v C (defensive (a lost 1st): C wants to issue judgment from the 1st on A)
Work Product Doctrine
protects anything made in anticipation of litigation
- attorney's opinions or strategies that have circulated a law firm
FRCP 34 Request for Production
requesting party needs a document or item
- specify a time and place for the production
State Preclusion
a state must give at least as much credit to the previous state as the current state would
State 1: mutuality
State 2: non-mutuality
- state 2 can impose non-mutuality rule on the 2nd action but if state 2 is mutual then it would bar if the parties were identical
FRCP 23(e) Settlement
- must be fair, adequate, and equitable to all members
- notify members so they can object or opt out
- atty's fees must be fair as well
Federal Preclusion 28 USC 1738
A federal court gives the same credit as a state court would (mutual or non-mutual)
- if it's barred, the only exception can be given by statutory repeal (either implied or expressed)