Welcome to Civil Procedure II

1. Welcome to Civil Procedure II Introduction

2. Course Website http://law.missouri.edu/devine/civpro.htm

3. Books Yeazell, Civil Procedure (6th Ed., Little Brown, 2004) 2000 Federal Rules of Civil Procedure (Foundation Press, Current Ed.) Devine, Problems in Civil Procedure (West, 2007) A Rules Supplement

4. Where are We

5. ew ules Look at Syllabus: http://law.missouri.edu/devine/W%2008%20Civ.%20Pro.%20Syllab.pdf

6. Discovery Depositions upon oral examination; Applies to any person, including parties; Rule 30(b)(6) makes it clear that a corporation must provide the person who has information, when the person seeking to take a deposition specifies the kind of information sought from the corporation; As the notes tell you, depositions are an effective way of asking questions to witnesses under oath to test what their trial testimony will be; They tend to be expensive, because, to do them, Both sides need their lawyers present; Court reporter; Time consuming; Do not confuse with Rule 27;

7. Discovery II Rule 27 also deals with depositions, but a special kind; Consider the tobacco litigation cases; Plaintiffs in these cases are smokers or former smokers dying of cancer, which they claim was caused by smoking; Many of these plaintiffs died before or shortly after the case began; To get their testimony in a way that could later be presented in court, at a trial of the merits, depositions before the action were taken under Rule 27; Why is it important to separate? Depositions under Rule 30 more wide ranging,

8. Discovery III Depositions upon Written Questions; Almost nobody uses; They can be taken of anyone, the same as depositions; While they have the potential to be helpful; there is no way to construct proper follow up questions; thus they don't produce much more useful information than interrogatories; They were in the news in several lawsuits in which President Clinton was been involved.

9. Discovery IV Interrogatories to Parties, Rule 33; Can be used only with parties; Limited to 25 questions, including all subparts; Good to find out basic information; As a result of the mandatory discovery provisions of Rule 26(a)(1), which requires disclosure at the outset, of a great deal of information, interrogatories are not as useful as they once were; While inexpensive, they tend to produce answers that technically comply, but which are not very helpful;

10. Discovery V Production of Documents and Things; Entry upon Land for Inspection and Other Purposes; In many lawsuits, there is some THING at the heart of the controversy; Products liability suit may focus on design defects; Crashes--air, land, railroad, may focus on the vehicles; Faulty premises will focus on the premises; Contract cases focus on the contract documents; Rule 34 allows for inspection of those things--the thing does not testify directly--as in depositions or interrogatories--but it provides valuable information; Note that the rule deals more with the procedure for inspecting these things;

11. Discovery VI Physical and Mental Examination; Note this rule requires a showing of "good cause;" This avoids needless inquiries that would otherwise violate individual liberty interests;

12. Discovery VII Requests for Admissions; a party can request that another party admit: facts; the genuineness of documents or things; If admitted, those things are taken out of the trial; In that regard, admissions are more evidentiary substitutes than they are discovery; An important aspect of the Admissions rule is the second paragraph, second sentence: "The matter is admitted unless ... it is denied;" This rule literally means that when a party does not answer a request for admission, the matters requested are deemed to be admitted;

13. Timing Rule 26(a)(1) requires that disclosure of the material mentioned in 26(a)(1) be made within 10 days after the planning meeting described in Rule 26(f); That meeting (under Rule 26(f)) must take place at least 21 days before a scheduling conference held under rule 16(b) The scheduling conference under Rule 16(b) can be held no later than 90 days after appearance of the defendant or 120 days after service on the defendant; Thus, the disclosures required under Rule 26(a)(1) must be made at least 21 days before the scheduling conference, which will be held no later than 120 days after service upon the defendant;

14. Next Wednesday Continue Discovery; Devine Problem: Kendall v. Brown, p 93 Discovery Relevance Davis v. Precoat Metals, p 409 Steffan v. Cheney, p 411 Devine Problem: Condit v. Dunne, p 95