Civil Procedure Class Notes 11/19/03


Yesterday, we looked at the joinder rules.Everything thatís encompassed in the survey is essentially what Civ Pro II is all about in detail.If we want to learn more about how procedure works, weíll want to take Civ Pro II.70% of students do.There, youíll see this stuff in more detail.


Some professors start with the survey, some do it in the middle, some do it towards the end.


Jurisdiction is the most important part of this class!


The gist of the Supreme Courtís ruling in Temple is that the lower court went past the threshold question in Rule 19(a) too soon and skipped right to the balancing test of 19(b).


Thereís a procedure by which the Supreme Court gets advice from the Judicial Conference.Itís the chief judges of all the circuits and district courts.They are advised in turn by a standing committee and various advisory committees.These committees include lawyers, judges, and academics.


The Supreme Court then proposes rules to Congress.The Supreme Court issues the rule and Congress has a short window in which to accept or reject the rule.If they take no action, it becomes a federal rule.


So if thereís a proposed new rule it goes from an advisory committee to the judicial conference to the Supreme Court and to Congress, which will generally ignore it.


For example, Fairman will propose the abolition of Rule 9(b) to the advisory committee, and he thinks he will be shot down (why?).


But Congress can also make rules without going through the rules process.Currently, Congress is working on changing the way class action lawsuits progress.Theyíre trying to get heightened pleading for class action lawsuits.The advisory committees are trying to beat Congress to produce a better procedural decision.


Okay, now we have joinder, and everybodyís in there.Now we will engage in discovery, which includes 11 different rules!




This is simply the methods used by a party or potential party in a lawsuit to obtain or preserve information.These are the tools we have to find out stuff or keep stuff from being destroyed.


The purposes of discovery are:


1.     Preservation of information that might not be available at trial.You record it through depositions, interrogatories, and other stuff.

2.     Winnowing down the issues in controversy.We want to start narrowing things down.Some of the issues alleged in the pleadings might not be supportable at trial and you might choose to drop a claim.Or, as a defendant, you might find that youíre going to be liable and so youíll settle.

3.     Obtain information that will lead to admissible evidence.But you can discover lots and lots of stuff that will not be admissible.


Hereís an example: we have a college athlete who is involved in an automobile accident.Heíll be suing.I represent the defendant.Can I go and talk to his coach?Could I go and videotape the practices to see how the player is performing?Can you hire private detectives?You can do whatever you want, more or less.This is sort of informal discovery.Before we look at the formal devices provided for by the rules, there are ways to find out stuff informally.The thing about private surveillance is that itís expensive.


There are certain things that a lawyer canít ethically do.You canít directly communicate with the opposing party.


Once a dispute is called to your attention, you must instruct your clients to retain information.If there isnít a dispute brought to your attention, documents must be saved for a certain amount of time and then destroyed as a matter of course.


Discovery comes in the form of:


1.     Requests for production

2.     Disclosures

3.     Depositions

4.     Interrogatories

5.     Requests for admissions

6.     Mental or physical exams


These are the six main tools of discovery.


With the exception of a deposition or a mental or physical exam, where the party will clearly be involved in giving the testimony or giving the examination, everything else is done by you, as the attorney.A lawyer writes the disclosure, another lawyer writes the answer.A lawyer writes an interrogatory and another lawyer writes the answer.This is a lot of what junior lawyers do.


Itís not like you just give stuff to the client to answer, because you want to be able to control the flow of information that goes from your side to the other.


All of these tools are subject to other general discovery rules, like Rule 37: what do you do if you donít cooperate?This is a sanction rule.For non-compliance with any of the discovery rule, you can get sanctions, such as:


1.     Facts are deemed admitted.

2.     Evidence is prohibited.

3.     Pleadings get stricken or a dispositive ruling is made.

4.     Contempt!

5.     Attorneyís fees and expenses


Butler v. Rigby


This is a run-of-the-mill discovery dispute.This is litigation out of a car accident.The defendantís lawyer asked for some stuff from AMC and MHC, two medical centers.


Weíre in federal district court.What is the federal district court reviewing?Whatís the procedural posture here?This is different than any other case weíre looked at.This is a party-driven dispute, but this dispute has also been resolved.


This is an appeal of a magistrate judgeís ruling to a district court!There is a hierarchy.Thereís magistrate judges, then district court judges, and Court of Appeals judges.Magistrate judges are not Article III judges with lifetime appointments.They are appointed to a term of years by the district courts.They help the district courts do their work.Pre-trial matters are submitted to the magistrate judges.Also, sometimes the whole trial can be tried by a magistrate judge if both parties consent.The reason to do this is that youíll get a faster trial.


When the magistrate judge makes an order about discovery, they can be appealed for abuse of discretion to the regular district court judge.If you go the trial route, thatís your bite of the apple, and you have to proceed directly to the Court of Appeals.

Back to the facts!We have a car accident between
Butler and Rigby.The defendant requests lots oí documents from the medical center.The defendant wants to show that the medical centers are biased.This is a discovery dispute regarding information from non-parties.You can get information both from parties and non-parties.


Whatís a subpoena duces tecum?It means youíre asking people to show up and bring all the relevant documents youíve asked for.Typically, you see this in a deposition.


The defendant wanted a whole bunch of crap!They basically want anything that will prove that the medical centers are Dr. Nick-type operations.


The defendantís theory of the case is that people get hurt, and then ambulance-chasing lawyers get these clients.The lawyers refer the clients to hospitals that will say they got way more hurt than they really did, creating a litigation factory!


What do the hospitals say?They say that the patient list is privileged!They also say that it would be overly burdensome to fork over all the documents!They also say itís not relevant.Whatís relevant to the present lawsuit?Itís the question of whether the plaintiff made up the claims.


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