1. Agenda for 6th Class Misc. Name plates out Slide handout
Office hours this week
Thursday 4-5PM and Friday 3-4PM
NOT Wednesday 2-3PM
Lunch Friday
Rm :30-1:30
Relation Back
1995 Exam
Intro to Discovery

2. Assignment for Next Class
Discovery I
FRCP 26(b)(1), 26(b)(2), 26(c)
Skim FRCP 26-37
Yeazell ,
Skim Yeazell ,
Questions to think about
Briefly summarize Favale (WG5), Price v. Leflore (WG6), and Rengifo (WG7)
Yeazell pp. 485ff Q1 (WG1), 2 (WG2)
Yeazell pp. 491ff Q1 (WG3), 2c-e (WG4), 3 (WG5)
Questions on Slide 3
Optional: Glannon , , ,

3. Questions on Discovery
Suppose a woman sues her employer claiming a hostile environment, because her supervisor pressured female employees to sleep with him, either through promises of promotion or favorable treatment at work, or through threats of adverse job action. Note that if the supervisor slept with female employees consensually without pressure or work-related incentives, that would not be evidence of a hostile work environment. In answering the following questions, consider arguments you can make based on FRCP 26(b)(1), (b)(2), or (c). Think of arguments for both sides.
May the plaintiff’s attorney depose other female workers at the same job site and ask them if they slept with the supervisor? (WG6)
May the plaintiff’s attorney depose other female workers at the same job site and ask them to list all the people they had slept with in the last five years? (WG7)
Can you think of a question more directly targeted at uncovering evidence of a hostile environment? If so, is the plaintiff’s attorney required to ask this more targeted question? (WG1)

4. Responding to Complaint
Defendant has 2 options in responding to complaint
Motion to Dismiss (Rule 12)
Answer
Remember, a motion asks the court to do something
A pleading (including the answer) just preserves issue for discovery and trial
Must admit or deny all allegations in complaint
Part by part, clause by clause, phrase by phrase
Assert defenses in FRCP 12(b)
Assert affirmative defenses
See 8(c) (1)
May be others. Need to consult substantive law
Rule 11 applies
Issues not raised in Answer or by motion are “waived”
Unless raised in amendments

5. Amendment
Amendment necessary because neither plaintiff nor defendant has all information at beginning of suit
Info gathered in discovery may require changes to complaint or answer
If fail to amend, may not be able to present relevant evidence at trial
Rule 15(a). Amendment is easy
(a)(1). No need to ask permission of court if within 21 days of service or Answer or Rule 12(b) motion
(a)(2). Court should give permission “freely … when justice requires.”
Key factors
Timing
Fault
Prejudice – How much worse off is defendant than if amended pleading had been original pleading?

6. Relation Back Relevant only if statute of limitations has run out
15(c)(1)(B). If not changing the party
Relation back if same transaction or occurrence
15(c)(1)(c). If changing party
3 part test
Same transaction or occurrence
Within 90 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process)
Within 90 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant

7. Relation Back Technically Amendment issue should be resolved first
If Amendment allowed and statute of limitations has run out, then defendant should make motion for summary judgment based on statute of limitations
Plaintiff should raise relation back in response to summary judgment motion
In practice
Defendant opposes amendment by arguing that statute of limitations has run out and that relation back does not apply
Judge denies amendment if statute of limitations has run out and relation back does not apply
“justice does not require” amendment if statute of limitations has run out
Waste of time to allow amendment if defendant can bring successful summary judgment motion based on statute of limitations

8. Relation Back Questions
Summarize Moore v Baker
Summarize Bonerb v Caron Foundation
Yeazell p. 456ff Qs 3c, 4
1995 Exam

9. Discovery Biggest innovation of 20th century procedure
Costs and benefits
Enormously expensive, time consuming, intrusive
Improves accuracy and thus enhances justice, Promotes settlement
Main methods
Depositions, requests for documents (including s)
Largely unsupervised
Lawyers make requests directly to opposing counsel
Judge’s permission not generally required
Lawyers respond directly to opposing counsel
Judge does not ordinarily see
Lawyers can bring problems to judge’s attention
Motions to compel, motions to protect, motions for sanctions
But judges don’t like to be involved
Often magistrate judges handle
Discovery does not preclude other means of investigation

10. Discovery: Scope
FRCP 26(b)(1). Any non-privileged matter relevant to claim or defense
Privileges – attorney-client, doctor-patient, self-incrimination
Relevance – Information is relevant if it helps prove or disprove a claim or defense
Need not be determinative
Hit and run accident. Plaintiff says offending car was yellow. Fact that defendant owns yellow car is relevant
Sufficient that reasonably calculated to lead to admissible evidence
Limitations
Proportionality. 26(b)(1)
Amount at stake, relative access to info, resources, importance to merits, burden/expense versus benefit
Privilege. 26(b)(1)
Special rules for work product and experts. 26(b)(3), (b)(4). Next class
Annoying, embarrassing, oppressive. 26(c)(1)
Court may issue protective order. 26(c)(1)

11. Discovery: Depositions
Much like oral testimony at trial
Deponent sworn, opposing counsel present, court reporter transcribes
Lawyer asks questions, deponent must answer
No judge
Only depose witnesses controlled by or friendly to opposing side
Don’t need discovery to get info from own side or friendly witnesses
Deposition is expensive and other lawyer present
Only supposed to instruct deponent not to answer for 3 reasons. FRCP 30(c)(2)
To protect privilege
To enforce court ordered limitation discovery
To made motion to court under FRCP 30(d)(3)
Otherwise, can object to question (e.g. irrelevant, hearsay, embarrassing, duplicative), but deponent must answer
But if question is really improper, is opposing side likely to complain to judge?