Civil Procedure Class Notes 11/20/03


Let’s finish up with discovery and move on to pretrial stuff.


More on discovery


We’re looking at the discovery phase, looking at Butler.  The defendants were trying to prove the existence of a “litigation factory”.  The plaintiffs’ lawyers were allegedly trolling for clients so to send them to doctors who would overstate the seriousness of their injuries.


The court can make protective orders crafted to eliminate unnecessary expense, burden or humilitation.


As to the relevance of the stuff requested by the defendants’ counsel: would having this information from these third parties be relevant in a discovery sense?  Sure!  From a relevance standpoint, we go to Rule 26(b)(1), which tells you what kind of stuff is obtainable in discovery.  You can even request stuff that may be ultimately inadmissible at trial.  We don’t make evidentiary determinations at the pretrial stage.


There were two specific things that come up before the court in the protective order request:


1.     The list of the total number of patients referred to AMG and MHC by the lawyers – this is relevant because it speaks to bias.  Is it burdensome?  You can get a protective order even over something that’s relevant if it’s unduly burdensome.  The court makes a very specific ruling that recognizes some level of burden: the court says that the defense must pay for half the cost of making this list.  Courts won’t force you to create material to be discovered, though you can opt to do this rather than handing all your documents over to the other side.  The court “splits the baby”.

2.     What about the computer printout of all current patients?  Is that burdensome?  You could just print it out!  It’s a button-pushing exercise.  Is this relevant?  Yes, it’s highly relevant because it speaks to bias.  But the clinics argue that the information is privileged under Louisiana law.  But don’t you have to use the Federal Rules of Evidence under Erie?  Yeah, but the Federal Rules answer the Erie questions for us.  The rules tell us that we use the state rules.  You can find this in Rule 501.  But what it is that’s privileged in the computer printouts?  It’s the names!  You have no right to know that I went to see that doctor!  It’s that simple!


What next?


After we get all the information and decide what is and is not relevant and what can and can’t be obtained, you move to disposition on the merits.  There are two ways that can happen: (1) summary judgment, and (2) trial.


Let’s start with…


Summary judgment


This is a way in which cases are resolved on the papers.  It’s like a motion to dismiss.  But while motions to dismiss are limited to the pleadings that are filed, there are lots more things the court can consider when it thinks about summary judgment.  When a court enters summary judgment, it’s all over.  It’s like there was judgment at a trial.  Your only recourse is an appeal.


Houchens v. American Home Assurance Co.


The old widow gets screwed by the insurance company.  If it ain’t a car crash or plane crash, it’s widows getting bilked out of their rightful insurance proceeds.


Where does Mr. Houchens work?  He’s working in Saudi Arabia.  He decides to go to Thailand.  Why?  He’s going to take a vacation.  He goes there.  Then he goes missing!  We don’t know what he was doing there.


He’s missing for a while and ultimately the widow Houchens gets him declared dead under Virginia law.  Virginia has a state provision that says if you’re missing for a certain amount of time, you’ll be presumed dead.  The statute is made for situations precisely like this.  If he’s not presumed dead, Houchens can’t dispose of his property and stuff like that.


Houchens tries to get the insurance company to pay out the policies she has for the accidental death of Mr. Houchens.  The insurance company claims that there’s no way to know how Mr. Houchens died, so they don’t have to pay.


What does the company do next?  The company files for summary judgment.  Either side can seek summary judgment, but it’s typically a defendant’s type of motion.  It’s not limited to that, though.  The insurance company has filed this motion for summary judgment, and we’ll explore just what that means.


In the shortest form, that means that they’re trying to use a procedural mechanism to get a final, binding determination on the merits such that they win.  Implicit in that is that there is no need to go to trial: there is nothing to try in this case because the court has everything it needs to make its decision as a matter of law.


The standards for summary judgment come from Rule 56.  The standard is that there is no genuine issue of material fact.  If there is an issue of fact, the summary judgment must be denied because the factfinder gets to resolve that factual dispute.  Summary judgment says that there’s nothing to trial because all the facts are clear and if we accept those facts they do not amount to a recoverable claim.


The Supreme Court has elaborated on the standard in Celotex.  They said you can get summary judgment if, “after adequate tie for discovery”, the losing party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”.


The insurance company says there is zero evidence of accidental death, therefore there’s nothing to try.  So, they say, let’s all save a bunch of time and money and go home.


What kind of evidence does the court consider on summary judgment?  They can look at the requests for production of documents.  Those documents form evidence that you can use at this stage.  The depositions will create transcripts that you can use as evidence at this stage.  You can also use interrogatories and requests for admissions.  Most importantly, affidavits are very important.  At minimum, you as the attorney will have to write an affidavit that the copies you submitted as evidence were “true and correct” copies of the documents given to you.


The court must consider the evidence in the light most favorable to the person not making the motion, that is, Mrs. Houchens.  This is the way to make sure we’re not robbing her of a trial that she should get.


We have a Virginia law that presumes the husband dead after he’s been missing seven years.  What does Mrs. Houchens have to do to avoid summary judgment?  Does Mrs. Houchens have to prove that he died accidentally?  No.  That’s what she would have to prove at trial.  What is her burden now, on summary judgment?  We’re just trying to make it to trial here.  She needs some evidence—any evidence—that could possibly back up her claims.


The question is: could a reasonable finder of fact find that Mr. Houchens died in an accident with this evidence and not more?


If there’s contradictory evidence, the judge doesn’t get to evaluate it.  It goes to trial and the factfinder weighs the evidence.  If there is a scintilla[1] of evidence, then the case goes to trial.


What if Virginia law said that they presumed a person was dead after being missing seven years and such death is presumed accidental in the absence of evidence to the contrary?  This might be a case where Mrs. Houchens could move for summary judgment.


Very little goes to full-blown trial in federal court.  Federal courts love to give summary judgment.


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[1] Not a flotilla.