DISCOVERY
Define Discovery
Discovery enables the parties to obtain the evidence necessary to evaluate their case or present their best possible case and their best defense at the trial without any surprises. Through discovery, attorneys can identify facts, evidence, and witnesses.
Define Jurisdiction
Jurisdiction of the court is defined as: The power and authority of a court to hear a particular type of case and amount in controversy and render a legally binding decision over the parties involved.
Define Pleadings
Documents that define the legal issues in the case, state the facts in dispute, and request the court to grant some type of relief
Relation Back Doctrine Definition
Enables a plaintiff to correct a pleading when the amended complaint will relate back to the date the original complaint was filed which satisfies the statute of limitations
Pleading Definition Bonus
gives notice to all parties that there is a controversy between the parties
Discovery Plan
A Discovery plan serves as a blueprint for the ENTIRE discovery process including which particular discovery tool to utilize.
Always consider 3 crucial questions:
-What do I have?
-What do I need?
-How do I get it?
There is no single way to create a discovery plan.
Jurisdiction (in personam, in rem, quasi in rem)
1. In personam: jur. over the person
2. In rem: jur. over the property at issue in the case located within the state
3. Quasi in rem: jur. over the person BUT is restricted to their specific interest in property located within the state
In personam, in rem, and Quasi in rem are 3 types of personal jurisdiction
Identify/Define 3 types of Pleadings
1- Complaint: lawsuit commences when the plaintiff files a complaint against the defendant, "the beginning"
2- Answer: defendant's written response to the complaint
3- Demurrer: motion requesting judicial determination as to the legal sufficiency of the opposing pleading.
Demurrers challenge defects of pleading or bring the court's attention to judicial notice.
RBD- Statute of Limitations (when does it relate back)
If the statute of limitations has run prior to the filing of the amendment, and the amendment is to the name of DOE, then the amended complaint will only relate back (RBD) to the date of filing the original complaint IF ALL of the following are true
- plaintiff was ignorant to their true names
- complaint alleged DOES were responsible for injury
- contained a valid cause of action against DOES
-the amendment is based on the same general facts with the names of the DOES
Jur. Definition Bonus
To have jurisdiction, the presiding court must have BOTH subject matter jur. and either personal, in rem or quasi in rem jur.
Discovery Timing
Discovery "opens" 10 days after the effective date of service for the plaintiff.
For the defendant, it "opens" after being served.
Discovery "closes" 30 days before trial.
Jurisdiction Subject Matter
Subject matter jur. may lie in state, federal or both courts depending on the claim and allocation of authority.
a) federal subject matter jur. includes:
a1 -limited civil cases with limited discovery AND includes
a2 -concurrent jurisdiction: when more than 1 superior court hears the case
b) exclusive jur. - the power of the court to hear a particular kind of case to exclusion of other courts
c) federal question jur. - exists when a type of case arises from violation to U.S. constitution, federal law/federal treaties
d) diversity jur. - only when it exceeds $75,000 or citizens of different states
Anatomy of a Pleading
a) Complaint: has a caption, body, prayer for relief, and subscription
b) Answer: has admissions, denials, and affirmative defenses
c) Demurrer: statement of the grounds for the demurrer, notice of motion, memorandum of points and authorities, and a declaration
RBD- Amending
An amended complaint relates back to the date of filing the original complaint only IF ALL of the following are true:
- based on the same facts
- seeks recovery for the same injuries
- refers to the same occurrence
Amending Pleading (amendment) Bonus
The amendment would be used to insert a name for a DOE or correct the spelling of a parties name
"Scope" of Discovery
The scope of Discovery is defined as any matter, not privileged, that is relevant to the subject matter of the action or motion made in the action, that is admissible or is reasonably calculated* to lead to the discovery of admissible evidence.
*can ask for more as long as it is reasonable/no fishing expedition
Define Personal Jurisdiction
The power and authority of the court to bring a party before it and make a binding decision to person or person's rights in the property involved.
Pleading Devices aka 5 Drafting techniques
1." on or about " (a date)
2. consecutive paragraph numbering
3. alleging facts " on info & belief "
4. incorporation by reference (2 types)
-prior allegations
-attachments
5. inconsistent allegations (unverified complaints)
RBD- DOES
A DOE defendant is a fictitiously named defendant. DOE defendants are commonly named in complaints to substitute for defendants whose identity is not yet ascertained. By holding the place for a later-identified defendant. DOE designations are universally used in state court practice to permit filing an action before the expiration of the SoL. Once the identity of DOE is ascertained, the plaintiff amends the complaint to refer to DOE under real name.
What is 1+1?
2
Discovery Tools
There are 5 Discovery Tools:
1. Interrogatories - Written questions answered in writing under oath
2. Depositions - "oral" question and answer
3. Inspections Demands
4. Request for Admissions
5. Physical and/or Mental Examinations
Personal Jurisdiction (Part 2)
Explain
a)court's personal jur. + 2-prong test
b/c) LAS + minimum contacts
d) each state's right to enact its own LAS
a) For a court to have a personal jur. it must pass the 2-prong test
1-constitutionally sufficient basis; physical presence, general appearance, domicile, and agreement
2-notice; the person must be given notice in a proper manner.
b/c) Long Arm Statute (LAS) allows assertation of personal jurisdiction over defendants outside the border forum state when the party has "minimum contacts" with the forum state as established by International Shoe Co. v Washington.
d) Each state has the right to enact its own LAS in line with the International Shoe Co. California's LAS allows personal jur. over out-of-state defendant has a sufficient relationship and reasonable, personal jur. over out of state, can be general or limited.
Amending Pleadings (Amended/Amendment)
Amended- The amended pleading replaces the previous pleading and therefore must contain a complete statement of allegations.
Amendment- The amendment is simply a supplemental portion to be added to the original pleading and does not replace the original pleading.
Default by Defendant
Unless an extension of time is obtained from opposing counsel or granted by court order, the defendant has 30 days from the effective date of service of the summons and complaint to plead or take steps to defend against the action. When the defendant fails to do so, the plaintiff must start the process to enter the defendant's default and obtain a default judgment against the defendant.
Spell weeeeee.
weeeeee