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CIVIL PROCEDURE CLASS 19

CIVIL PROCEDURE CLASS 19. Professor Fischer Columbus School of Law The Catholic University of America October 5, 2005. WRAP UP: Relation of third-party claims to original claim. Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D?

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CIVIL PROCEDURE CLASS 19

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  1. CIVIL PROCEDURE CLASS 19 Professor Fischer Columbus School of Law The Catholic University of America October 5, 2005

  2. WRAP UP: Relation of third-party claims to original claim • Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D? • No, the third-party claim must relate to the main claim and must depend on the outcome of the main action. See U.S. v. Olavarrieta at CB p. 332

  3. YET MORE PARTIES • Can a TPD implead other parties and if so, in what circumstances? • If a TPD impleads someone, what is that person called? • That person is a fourth-party defendant • Diagram: P-----D/TPP-------TPD------FPD

  4. Counterclaim Ds and impleader • Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this? D P T

  5. PLEADING REQUIREMENTS FOR THIRD-PARTY COMPLAINTS • A third-party complaint must comply with FRCP 8 and 11 • 8(a) “A pleading which sets forth a claim for relief, whether an original claim…or third-party claim shall contain …(2) a short and plain statement of the claim showing that the pleader is entitled to relief” • Rules 12 (defenses) and 13 (counterclaims/cross claims) also apply

  6. 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) – this is permissive

  7. 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

  8. PRACTICE EXERCISE 13 • There is a Model Answer for this Practice Exercise.

  9. DISCOVERY • What is the purpose of discovery? • The United States has very BROAD discovery rules under the FRCP • Reform

  10. A COMPARATIVE LOOK AT DISCOVERY • Discovery is not an inevitable part of a procedural system • Steve Subrin, Discovery in a Global Perspective: Are We Nuts?, 52 De Paul L. Rev. 299 (Winter, 2002)

  11. 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 • What may be obtained through discovery?

  12. 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?

  13. 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

  14. SUMMARY • Summary: Can obtain discovery of relevant material provided exceptions at subparagraphs (2) and (3) do not apply.

  15. RELEVANCE • what is “relevance”? Is that term defined in the FRCP? • Note: this rule on the SCOPE of discovery was narrowed by amendments in 2000. • What does Tom Rowe think about this change?

  16. 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?

  17. LIMITATIONS ON DISCOVERY OF RELEVANT MATTER • When can a court limit discovery under Rule 26(b)(2)?

  18. 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.

  19. 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

  20. 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

  21. 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.

  22. 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).

  23. 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

  24. WORK PRODUCT PRIVILEGE • Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?

  25. WRITTEN STATEMENTS BY PARTIES TO LAWYER • Through a r. 34 document request, a party can obtain a copy of its own statement without meeting the R. 26(b) showing of substantial need. • A witness can also do so on request. If request refused, the witness can move to compel under R. 37. • NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying

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