If Court Orders Discoverable, then must protect against disclosing mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative concerning the litigation. Rule 26(c) Protective Orders What circumstances can court issue protective order to limit or forbid certain forms of discovery: Annoyance, embarrassment, oppression, or undue burden or expense. when they have in good faith attempted to confer with other affected parties in an effort to resolve the dispute without court action. Rule 26(g) Signing Disclosures & Discovery Requests, Responses, & Objections What requires Attorneys to be Honest and Reasonable in their discovery: Signature required on every disclosure of attorney or unrepresented party and MUST state the address, email, telephone number. By signing, shows that it was written to the best of persons knowledge, information, and belief formed after reasonable inquiry: Disclosure compete and correct. Discovery request, response, or objection: Consistent with or extended to nonfriv. arg. to change the rules. No Improper Purpose Niether unreasonably expensive or burdensome. Failure to Sign: party has NO DUTY TO ACT if unsigned disclosure, request, response, or objection until it is signed and court MUST strike unless signature is promptly supplied after called to attention. Sanction: Court MUST (by motion or on its own) issue sanction if certification doesn’t have signature without substantial justification. Rule 26(a) Initial Required Disclosures Information that Must be Volunteered: Name, address, telephone # of each indv. with discoverable information that that may use to support its claims or defenses. All documents containing information that disclosing party has that used for claims or defenses. Computation of damages Insurance, etc. Certain information about expert witnesses must be revealed under Rule a(2). trial
Shortly before trial, other information must be revlead as “pretrial disclosures” under Rule 26(a)(3). The judge will also issue a “final pretrial order” under Rule 16(e) that may also require exchange of exhibits and evidence before trial. Rule 26(b)(4) Experts Expert Witnesses Rule 26(b)(5) Claiming Privileges How a party may object to requests for information that is believed to be protected against discovery as a result of evidentiary privileges or the work product rule. Rule 26(d) Timing & Sequence of Discovery In absence of court order, parties free to schedule their own discovery, subject only to a few limitations in rule 26(d)(1). Rule 26(e) Supplementing Disclosures & Responses Parties are obligated to supplement discovery responses provided earlier in a lawsuit, if they later acquire information that would render their initial answers materially incomplete or incorrect. Rule 26(f) Planning for Discovery Parties are required to meet each other prior to discovery to make a discovery plan. This plan is submitted to judge, who then uses it to create a schedule order under Rule 16(b). EARLY TERMINATION OF LITIGATION Ending an action without ruling on the merits. Ways to Forfeit an Action By Defendant: Rule 55-default judgment 55(a): Default occurs when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. 55(b): Default converted into default judgment. 55(c): of default may be set aside for good cause. Default judgment may be set aside for the reasons in Rule 60(b). Excusable neglect (e.g., defendant was never served). The judgment is void (i.e., court never had jurisdiction). PERALTA v. HEIGHTS MEDICAL CENTER: Medical center initially brought suit against π for hospital debt
Single π’s claims against single ∆ may be aggregated to the amount in controversy. Claims against multiple ∆ may not be aggregated (unless joint liability for a single injury). Counterclaims under Rule 13: Make sure they are counterclaims and not affirmative defenses (i.e., contributory negligence). WHAT A COUNTERCLAIM COMPULSORY IS CLAIM PRECLUSION—LEGAL SYSTEM WANTS TO ENHANCE EFFICIENCY, CONSISTENCY, AND FINALITY. PLANT v. BLAZER FINANCIAL SERVICES: π brought suit against ∆ under the Truth and Lending Act for failure to make required disclosure. ∆ counterclaimed for unpaid debt under the loan. The initial action was under Federal Question jurisdiction and the counterclaim was a state claim. The court allowed the state claim as a compulsory counterclaim under 13(a) because there was a clear factual basis that this was the same transaction and it would frustrate the purpose of compulsory counterclaims if ∆ could not recover (∆ would have to satisfy π’s claim without assurance that his claim will be satisfied in state court). If the two claims are factually related, it will matter for purposes of: Compulsory counterclaim under Rule 13(a)—same transaction or occurrence Supplemental SMJ under 1367(a)—same case or controversy. RULE: A permissive counterclaim must have an independent jurisdictional while it is generally accepted that a compulsory counterclaim falls within supplemental jurisdiction of the federal courts even if it would ordinarily be a mater for state court jurisdiction. Consider Policy when asking whether it is compulsory or permissive.