Agenda for 6th Class

1. Agenda for 6th Class • Misc. • Name plates out • Slide handout • Lunch tomorrow • Friday 9/13 12:15-1:15, Library Room 214 • Writing grades • 15% of final grade • Going from 25th percentile to 75th percentile would usually change final grade 0.1 points • Going from lowest to highest would usually change final grade 0.3 points • Do optional writing because it helps you learn the material • Not because of its impact on your grade • If doing optional writing means you don’t get enough sleep or skimp on preparation for other classes • Don’t do the optional writing • Amendment • Relation Back • 1995 Exam • Intro to Discovery

2. Assignment for Next Class • Discovery I • FRCP 26(b)(1), 26(b)(2), 26(c) • Skim FRCP 26-37 • Yeazell 478-92, but skip Cerrato v Nutribullet • Skim Yeazell 462-78, 492-94 • Questions to think about • Briefly summarize Favale (WG1), Wagoner (WG2), Rengifo (WG3) • For each case, your summary should include • What information was requested • What discovery device was used to request the information • On what grounds (e.g. section of the FRCP) the request was challenged • Questions on Slide 3 • Optional: Glannon 409-413, 418-19, 422-29, 435-69

3. Questions on Discovery • Suppose a woman sues her employer claiming a hostile environment, because her supervisor pressured female employees to sleep with him, either through promises of promotion or favorable treatment at work, or through threats of adverse job action. Note that if the supervisor slept with female employees consensually without pressure or work-related incentives or rewards, that would not be evidence of a hostile work environment. In answering the following questions, consider arguments you can make based on FRCP 26(b)(1), (b)(2), or (c). Think of arguments for both sides. • May the plaintiff’s attorney depose other female workers at the same job site and ask them if they slept with the supervisor? (WG4) • May the plaintiff’s attorney depose other female workers at the same job site and ask them to list all the people they had slept with in the last five years? (WG5) • Can you think of a question more directly targeted at uncovering evidence of a hostile environment? If so, is the plaintiff’s attorney required to ask this more targeted question? (WG6 & 7)

4. Responding to Complaint • Defendant has 2 options in responding to complaint • Motion to Dismiss (Rule 12) • Answer • Remember, a motion asks the court to do something • A pleading (including the answer) just preserves issue for discovery and trial • Answer • Must admit or deny all allegations in complaint • Part by part, clause by clause, phrase by phrase • Assert defenses in FRCP 12(b) • Assert affirmative defenses • See 8(c) (1) • May be others. Need to consult substantive law • Rule 11 applies • Issues not raised in Answer or by motion are “waived” • Unless raised in amendments

5. Amendment • Amendment necessary because neither plaintiff nor defendant has all information at beginning of suit • Info gathered in discovery may require changes to complaint or answer • If fail to amend, may not be able to present relevant evidence at trial • Rule 15(a). Amendment is easy • (a)(1). No need to ask permission of court if within 21 days of service or Answer or Rule 12(b) motion • (a)(2). Court should give permission “freely … when justice requires.” • Key factors • Timing • Fault • Prejudice – How much worse off is defendant than if amended pleading had been original pleading?

6. Amendment Questions • Summarize Beeck v Aquaslide. Your summary should include an answer to Yeazell pp. 442-43 Q1. • Yeazell p. 443 Q3b

7. Relation Back • Relevant only if statute of limitations has run out • 15(c)(1)(B). If not changing the party • Relation back if same transaction or occurrence • 15(c)(1)(c). If changing party • 3 part test • Same transaction or occurrence • Within 90 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) • Within 90 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant

8. Relation Back • Technically • Amendment issue should be resolved first • If Amendment allowed and statute of limitations has run out, then defendant should make motion for summary judgment based on statute of limitations • Plaintiff should raise relation back in response to summary judgment motion • In practice • Defendant opposes amendment by arguing that statute of limitations has run out and that relation back does not apply • Judge denies amendment if statute of limitations has run out and relation back does not apply • “justice does not require” amendment if statute of limitations has run out • Waste of time to allow amendment if defendant can bring successful summary judgment motion based on statute of limitations

9. Relation Back Questions • Q1. Summarize Moore v Baker andBonerb v Caron Foundation • Q2. Make an argument based on Rule 15(a) that the motion to amend in Moore should have been denied • Q3. Make an argument based on Bonerb that relation back should have been allowed in Moore • Q4. Make an argument based on Moore that relation back should not have ben allowed in Bonerb • Q5. Yeazell p. 449 Q4b • Q6. Yeazell p. 449 Q4c • 1995 Exam

10. Discovery • Biggest innovation of 20th century procedure • Costs and benefits • Enormously expensive, time consuming, intrusive • Improves accuracy and thus enhances justice, Promotes settlement • Main methods • Depositions, requests for documents (including emails) • Largely unsupervised • Lawyers make requests directly to opposing counsel • Judge’s permission not generally required • Lawyers respond directly to opposing counsel • Judge does not ordinarily see • Lawyers can bring problems to judge’s attention • Motions to compel, motions to protect, motions for sanctions • But judges don’t like to be involved • Often magistrate judges handle • Discovery does not preclude other means of investigation

11. Discovery: Scope • FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense • Privileges – attorney-client, doctor-patient, self-incrimination • Relevance – Information is relevant if it helps prove or disprove a claim or defense • Need not be determinative • Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant • Sufficient that reasonably calculated to lead to admissible evidence • Limitations • Proportionality. 26(b)(1) • Amount at stake, relative access to info, resources, importance to merits, burden/expense versus benefit • Privilege. 26(b)(1) • Special rules for work product and experts. 26(b)(3), (b)(4). Next class • Annoying, embarrassing, oppressive. 26(c)(1) • Court may issue protective order. 26(c)(1)

12. Discovery: Depositions • Much like oral testimony at trial • Deponent sworn, opposing counsel present, court reporter transcribes • Lawyer asks questions, deponent must answer • No judge • Only depose witnesses controlled by or friendly to opposing side • Don’t need discovery to get info from own side or friendly witnesses • Deposition is expensive and other lawyer present • Only supposed to instruct deponent not to answer for 3 reasons. FRCP 30(c)(2) • To protect privilege • To enforce court ordered limitation discovery • To made motion to court under FRCP 30(d)(3) • Otherwise, can object to question (e.g. irrelevant, hearsay, embarrassing, duplicative), but deponent must answer • But if question is really improper, is opposing side likely to complain to judge?