1. CIVIL PROCEDURE CLASS 13 Professor Fischer Columbus School of Law The Catholic University of America October 4, 2001

2. WRAP-UP OF LAST CLASS §We discussed rules for joinder of parties and the Kedra case (FRCP 19, 20, 21) §We discussed the rules for adding claims against existing parties (cross-claims and counterclaims) (FRCP 13)

3. WHAT WILL WE DO TODAY? §Do a hypo on compulsory joinder §As a review of counterclaims and cross- claims, we will do Practice Exercise 12 §We will finish learning about impleader under FRCP 14 §We will do Practice Exercise 13 §We will begin our unit on discovery by learning about relevance and privilege

4. HYPO §A & B have the same formal name, Martin Smith. Both A and B claim to be the beneficiaries of a life insurance policy issued by insurance carrier L on the life of C, who has died. A sues L. L fears that if the court orders L to pay the policy to A, B may file another suit against L and L might be again ordered to pay the policy amount to B. Can A be required to include B in his lawsuit vs. L? Why or why not?

5. PRACTICE EXERCISE 12: POSSIBLE COUNTERCLAIM §Shortly after the accident in which Charles was killed, Nancy calls a friend who works at Raytheon (where Randall is employed) and tells her that Randall is an alcoholic. Randall is fired from his job. Does Randall have a defamation claim against Nancy for slander? Would this be a compulsory or permissive counterclaim? Would you need to do some legal research before you could answer this question?

6. PRACTICE EXERCISE 12: CROSS-CLAIM §Assume Nancy’s motion to add Ultimate Auto/City of Lowell has been granted and amended complaint filed. Also assume you represent Randall. Do you have a plausible cross-claim? Prove it. Focus on the language of Mass R. Civ. P. 13(g) which is the same as Fed. R. Civ. P. 13(g). If you do have a plausible cross-claim, how many counts would it have?

7. FRCP 14: IMPLEADER §This governs the procedure whereby the court can allow a defendant to bring a third party (not already a party) into the action §This is known as IMPLEADER §What is the purpose of impleader?

8. FRCP 14: IMPLEADER §What is the defendant called? THIRD PARTY PLAINTIFF §What is the third party called? THIRD PARTY DEFENDANT

9. FRCP 14 v. 13 §What is the difference between impleader and a counterclaim? §What is the difference between impleader and a cross-claim?

10. Who can be joined under FRCP 14? §Persons, not already parties, who, under applicable law, may be obligated to reimburse the D §e.g. tortfeasor seeks contribution or indemnity from others who may be liable but who P has not sued §OR someone as acted a a guarantor of a transaction §MUST SUCH PERSONS BE JOINED?

11. Timing of Impleader Claims §At what stage of the action can a third - party complaint be served? §When is the leave of court required?

12. Relation of third-party claims to original claim §Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D? §NOTE THAT LIABILITY OF THIRD- PARTY D DEPENDS ON OUTCOME OF MAIN CLAIM!

13. YET MORE PARTIES §Can a third-party D implead other parties and if so, in what circumstances? §Can this go on and on forever? §Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this?

14. HYPOTHETICAL §Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that his negligence also caused Souter’s injuries?

15. HYPOTHETICAL §Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that it was Rehnquist who was negligent, not Scalia?

16. PLEADING REQUIREMENTS §A third-party complaint must comply with FRCP 8 and 11

17. SERVICE REQUIREMENTS §What rule governs service of a third-party complaint?

18. RESPONDING TO A THIRD- PARTY COMPLAINT §How does a third-party defendant respond? §Can a third-party defendant move to dismiss? §What rule governs counterclaims by the third-party defendant? §Can third-party Ds cross-claim against each other? If so, which rule governs?

19. SEPARATE TRIALS §What provision of FRCP 14 provides for separate trials?

20. PLAINTIFFS AND THIRD- PARTY Ds §Can a P sue a person joined as a third party D and if so, in what circumstances?

21. THIRD-PARTY D and PLAINTIFF §Can a third-party defendant claim against the original plaintiff and if so, in what circumstances?

22. SUMMARY §3d party D can implead fourth-party D §3d party D can also counter-claim, cross-claim, claim against P (if arises out of same transaction or occurrence) §A P who is a counterclaim-D can implead third parties on 3d party claims related to the counterclaim under FRCP 14(b). §P can also sue persons joined as third party d if claim arises out of same transaction or occurrence – then third party d can counterclaim or cross- claim

23. GROSS V. HANOVER INSURANCE CO. §Federal or state court? §What are the relevant facts? §What is the procedural issue that the court must decide? §How does the court rule on defendant’s motion? §What is the court’s reasoning?

24. PRACTICE EXERCISE 13 §Please see your casebook at p. 334

25. DISCOVERY §What is discovery? What is the purpose of discovery? §Subrin et al describes the role of discovery in the American procedural system as “predominant and all-consuming” §The United States has very BROAD discovery rules under the FRCP

26. A COMPARATIVE LOOK AT DISCOVERY §Discovery is not an inevitable part of a procedural system §To what extent is there discovery in the German legal system? §To what extent is there discovery in the Japanese legal system?

27. WHAT MAY BE OBTAINED THROUGH DISCOVERY? §What Federal Rule of Civil Procedure governs the SCOPE of discovery in most civil actions (other than those set out in Rule 81)?

28. WHAT MAY BE OBTAINED THROUGH DISCOVERY? §FRCP 26(b): Unless other limits by court order, any matter that §1. Is RELEVANT to the CLAIM OR DEFENSE of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action

29. WHAT MAY BE OBTAINED THROUGH DISCOVERY? §2. Is not “unreasonably cumulative or duplicative”, is not available from more convenient source, and is not unduly burdensome §3. Is not PRIVILEGED

30. SUMMARY §Summary: Can obtain discovery of relevant material provided exceptions at subparagraphs (2) and (3) do not apply.

31. RELEVANCE §Current FRCP 26(b) states: “relevant to the subject matter involved in the pending action” - what is “relevance”?

32. RELEVANCE §what is “relevance”? Undefined in rule §Pre-2000 amendments was defined very broadly as e.g. “germane” §Post-2000 amendments appear to narrow concept of relevance §Do these changes broaden or narrow the concept of relevance? §Do you think that these changes will have a real effect on the scope of discovery?

33. RELEVANCE AND ADMISSIBILITY §Includes written matter, things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators §To be discoverable, must information be admissible at trial under applicable rules of evidence?

34. A PROPOSED RULE CHANGE THAT DID NOT MAKE IT §In September 1999, one proposed change to the FRCP was rejected by the Judicial Conference. The proposal would have permitted discovery outside the boundaries of relevant subject matter if the requesting party agreed to bear the cost. The Conference decided judges already have authority to do that.

35. LIMITATIONS ON DISCOVERY OF RELEVANT MATTER §A. UNREASONABLY BURDENSOME MATERIAL §B. PRIVILEGED MATERIAL §

36. LIMITATIONS ON DISCOVERY 1. UNREASONABLY BURDENSOME §Discovery is “unreasonably cumulative or duplicative” §Discovery obtainable from more convenient source §Party seeking discovery has had “ample opportunity” to obtain matter on discovery §Burden of discovery outweighs benefits §(consider needs of case, amount in controversy, parties’ resources, importance of issues at stake, importance of discovery in resolving issues]

37. ASSERTING PRIVILEGE UNDER 26(b)(2) §Objection to discovery request (e.g. interrogatory) §Motion for a protective order under 26(c) accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court

38. LIMITATIONS ON DISCOVERY: 2. PRIVILEGE §Some materials are protected from discovery, e.g.: §attorney-client privilege §or work product privilege §There are other types of legal privilege (e.g. priest/penitent, physician/patient.self- incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence) §Privilege can be waived

39. HICKMAN v. TAYLOR (1947) §What are the key facts of this case? §What 2 kinds of statements were sought on discovery by the Plaintiff from the tug owners? §Is this material relevant? Privileged under attorney-client privilege? §Why was Fortenbaugh held in contempt by the District Court? §What is the procedural issue for the Supreme Court? §Explain how the Supreme Court differentiates between oral and written statements in ruling in this case.

40. HICKMAN v. TAYLOR §Compare the majority argument in this case with the concurrence. §Which rationale is more persuasive, in your view? Why?

41. WORK PRODUCT PRIVILEGE FRCP 26(b)(3) §When Hickman was decided, FRCP did not contain any exception to discovery for attorney work product §Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

42. TYPES OF WORK PRODUCT §1. ORDINARY WORK PRODUCT: Documents prepared in anticipation of litigation by a party’s representative §Are these discoverable? If so, in what circumstances? §2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case §Are these discoverable? If so, in what circumstances

43. WORK PRODUCT PRIVILEGE §Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?

44. WRITTEN STATEMENTS BY PARTIES TO LAWYER §Are these discoverable? If so, in what circumstances? §NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying §What about statements made by nonparties?

45. COMPARING ATTORNEY- CLIENT AND WORK PRODUCT PRIVILEGE §Material privileged under the attorney-client privilege is IMMUNE from discovery in any circumstances (unless waived) §Attorney work product may be discoverable on a sufficient showing of substantial need (or if waived)

46. HYPO §Polly was injured when she was struck by a bus owned by the Blue Bus Company. Polly then sued Blue Bus Co. in federal court. Immediately after the accident, Miles, a vice-president of Blue Bus Co., went to the scene and made a full investigation, including interviews with witnesses and measurements of the accident location. Miles made a written report to the directors of Blue Bus. Can Polly obtain Miles’ report?

47. ANOTHER QUESTION §Same facts as previous hypo, but through the expenditure of more than $10,000, Blue Bus Co.’s attorney has uncovered another eyewitness to the accident. Polly serves an interrogatory asking for the names of all eyewitnesses and Blue Bus objects on the ground of “trial preparation materials”. Must Blue Bus Co. disclose the witness’s name?

48. PRIVILEGE LOGS: FRCP 26(b)(5) §If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log §In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted.