Civil
Procedure Class Notes
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
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
He’s
missing for a while and ultimately the widow Houchens gets him declared dead
under
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
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
Very
little goes to full-blown trial in federal court. Federal courts love to give summary judgment.