1. 1 Agenda for 8th Class Admin –Handouts –Name plates –Lunch Discovery –Experts –Sanctions

2. Assignment for Next Class I –Summary Judgment –FRCP 56 –Yeazell pp. 581-96 –Yeazell pp. 581ff Qs 1, 2c –Briefly summarize Celotex. Be sure to discuss what evidence each side submitted to the court? Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s summary judgment motion? Why was defendant’s evidence possibly sufficient for its summary judgment to be granted? –In Celotex, what could the plaintiff’s lawyer have done during discovery to have had a better chance of defeating defendant’s motion for summary judgment? –In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff? –Yeazell pp. 588ff Qs 1c, 5 2

3. Assignment for Next Class II Summary Judgment (continued) –Briefly summarize Bias. Be sure to discuss what evidence each side submitted to the court? Why did the court grant summary judgment to the defendant? –In Bias, is it possible that the plaintiff would have prevailed at trial? How? If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion? –If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment? –Yeazell p. 596 Q4 –Optional Glannon Ch 23 A Civil Action Read through p. 448 by October 22 –Pay special attention to settlement negotiations Finish by October 28 –Pay special attention to fees 3

4. 4 Summary Judgment I Burdens of proof –Burden of production. Who wins if neither side produces any evidence If plaintiff has the burden of production, then defendant wins if plaintiff presents no evidence –Burden of persuasion. Preponderance of evidence (civil), beyond reasonable doubt (criminal) If plaintiff has burden of persuasion and relevant standard is preponderance of evidence, the defendant wins if plaintiff and defendant each present evidence that is equally persuasive –In general Burden of production and persuasion go together Plaintiff usually has both burden of production and persuasion –Except defendant usually has burden of production and persuasion on defenses Burden of proof is very important for SJ –Person without proof has much easier time winning SJ –So SJ is usually defendant’s motion

5. 5 Summary Judgment II Logical Structure of law suit –Plaintiff must usually prove several things to win Negligence: Duty AND Negligence AND Proximate Cause Breach of Contract: Contract AND Breach –Defendant can usually win by proving just one thing Disproving one element of plaintiff’s cause of action –Negligence: Defendant wins if No Duty OR No negligence OR No Proximate Cause –Beach of Contract: Defendant wins if No contract OR No breach Showing that plaintiff hasn’t proven one element –Same logical structure Proving one affirmative defense –Assumption of Risk, Condition precedent, etc. –Another reason SJ is generally defendant’s motion

6. 6 Summary Judgment III Legal Standard –“no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.” –“movant” = person making SJ motion (usually defendant) –Undisputed facts show that moving party prevails –No reasonable juror could find for non-moving party Non-moving party is party opposing motion (usually plaintiff) Judge is not supposed to determine credibility –Especially of non-moving party’s witnesses –In theory, non-moving party could prevail by showing the moving party’s witnesses are not credible (just as could at trial) But that is rare. Hard to challenge credibility at SJ. Judges usually believe moving party’s witnesses, unless non-moving party can produce witness to contract them Summary judgment forces parties to do thorough discovery –Must depose witnesses etc., so have information to oppose SJ

7. 7 Summary Judgment IV Mechanics –Each side submits memoranda discussing evidence and appendix of documents, deposition transcripts, affidavits, and other evidence –Affidavits are sworn written statements –Affidavits and deposition transcripts substitute for live testimony To be useful, statements must be such that, if made live at trial, they would be admissible –First hand knowledge, not hearsay, facts (not opinions, unless expert)

8. 8 Summary Judgment V In general, summary judgment motion is made after discovery is complete, which is usually a few months before trial –If party makes motion for SJ before then, non-moving party may request delay to complete discovery. 56(d) –Party can move for summary judgment anytime between filing of complaint and trial Rule 12(d) says that pre-answer motion which includes matters outside the pleading should be treated as SJ motion Nevertheless, ordinarily, SJ motion filed before completion of discovery will not be considered. See Rule 56(d)(1) –Early SJ is only appropriate when party has conclusive evidence on decisive issue Defendant in promissory note case has canceled check Deposition indicates that condition precedent not satisfied Note also that court can grant partial summary judgment –SJ on one issue, even if not decisive –Plaintiff could get partial SJ on duty, leaving negligence for trial

9. Last Class I Information gathering Private investigation Disclosure / discovery –Work Product Hickman based on policy, not rule –Preserve adversarial incentives to gather evidence –Not discourage lawyers from putting notes in writing 26(b)(4) protects only “documents and tangible things” –i.e. 26(b)(4) applies only to requests under Rule 34 –But most judges interpret 26(b)(4) broadly to include requests for information by other methods (e.g. interrogatories, depositions) »Supported by policies underlying Hickman –If work product not protected by 26(b)(4), then discoverable under 26(b)(1), because relevant and not priviledged Applies to information gathered by lawyers, investigators and others –Unless other side has “substantial need” »Could or could have gathered information on own 9

10. Last Class II –3 kinds of experts –Expert hired in anticipation of litigation who will testify at trial Heightened discovery FRCP 26(a)(2)(A). Disclosure of name of testifying expert FRCP 26(a)(2)(B). Testifying expert must prepare report and report must be disclosed FRCP 26(b)(4)(A). Opposing party may depose testifying expert –Expert hired in anticipation of litigation or to prepare for trial who will NOT testify Treated like other work product Shielded from discovery, unless “exceptional circumstances” FRCP 26(b)(4)(D). –Experts not hired in anticipation of trial Subject to discovery like ordinary witnesses E.g. engineer who designed product which may be defective E.g. doctor who examined patient for treatment (not for litigation purposes) 10

11. Questions on Experts –Briefly summarize Chiquita. Incorporate into your summary answers to p. 502 question 1 –pp. 502ff Qs 2-3 Note that 503 Q3 should refer to 26(b)(4)(B), not 26(a)(2)(B) –Briefly summarize Stalnaker Incorporate into your summary of Stalnaker an answer to p. 506 Q1 –Pp. 506ff Qs 2, 4b –Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important? 11

12. 12 Discovery Sanctions I Rule 11 does not apply to discovery. See 11(d) FRCP 26(g). Very similar to Rule 11, except applies to written aspects of discovery –Discovery requests, responses, or objections must be signed by lawyer –Disclosure is complete –Requests, responses, or objections are warranted by law or non-frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome –Sanctions are mandatory. May include fees to opposing counsel FRCP 30(c)-(d). Depositions –In general there are two sets of lawyers in a deposition Lawyer taking the deposition Lawyer defending the deposition –Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2)

13. 13 Discovery Sanctions II Depositions (continued) –30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition –30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition FRCP 37(a) motion to compel –If opposing party refuses requested discovery –If granted, court must award attorneys fees FRCP 37(b). Discretionary sanctions for failure to obey court order –Can be severe, including dismissal, default judgment, or contempt (imprisonment)

14. 14 Discovery Sanctions III Lots of other sanctions provisions –37(c) failure to disclose or supplement 26(g) wouldn’t apply, because no paper to sign –37(d) failure to respond to discovery requests Failure to attend deposition Failure to respond at all to interrogatories Failure to respond at all to request for documents or tangible things 26(g) wouldn’t apply because no paper to sign Yeazell p. 510 Qs 1-5

15. 15 Questions on Phillips 1)In Phillips v Manufacturers Hanover Trust, what rule, if any, did defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid. 2)For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary? 3)Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do? 4)What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently? 5)If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

16. Questions on A Civil Action –Explain how Shlichtmann got information to build his case. What discovery devices did he use? What methods other than discovery did Schlichtman use to get information? –Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these question? –Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important? –If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did? 16