1. 1 Agenda for 5th Class Misc. –Name plates out –Slide handout –Thursday office hours canceled this week Today 5-6PM instead Answer Amendment Relation Back Intro to Discovery

2. 2 Assignment for Next Class 1995 Exam, Question 1 –This is for everyone to do, and the writing assignment for Group 1 Discovery I –FRCP 26(b)(1), 26(b)(2), 26(c) –Skim FRCP 26-37 –Yeazell 457-64, 487-90 –Skim Yeazell 469-84 –Questions to think about / Writing assignment for Group 2 Briefly summarize Davis v Precoat Metals and Stefan v Cheney Yeazell pp. 463ff. Q1-4 Yeazell pp. 488ff Q1 Question on Slide 3 –Optional: Glannon 409-413, 417-19, 421-29, 435-71 For W 9/30 A Civil Action through p. 263 Questions on Discovery in A Civil Action (Slide 4)

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? –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? –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? 3

4. Discovery in 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 questions? –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? 4

5. 5 Last Class: Rule 11 11(b)(1). No improper purpose 11(b)(2). Legal claims warranted by existing law or non-frivolous argument to change the law 11(b)(3). Factual allegations have evidentiary support or will likely have evidentiary support after discovery Research must be reasonable under the circumstances Cannot later advocate problematic paper, but need not amend Sanctions –In discretion of judge –Money to court, money to opposing side, non-monetary (apology, etc.) –Monetary penalties limited to what necessary to deter repetition –Imposed on lawyer and/or client, except for 11(b)(2) Opposing part has 21 days to withdraw paper before motion for sanctions filed with court

6. Rules 12(b)(6) and 11 Both are ways that defendant can force plaintiff to reveal legal arguments –Complaint need not cite legal authority or make legal argument –But if defendant brings Rule 12(b)(6) or Rule 11(b)(2) motion, plaintiff will need to set out legal authorities and arguments in memorandum/brief in response Rule 11 for any paper (except discovery) –12(b)(6) just attacks complaint Can avoid Rule 11(b)(2) sanctions if have non-frivolous argument to change law –Can prevail on 12(b)(6) only if you convince the judge that your interpretation of the law is correct Rule 11 gets the movant sanctions (potentially $) –12(b)(6) gets case dismissed Rule 11(b)(3) can challenge factual basis of complaint –Judge on 12(b)(6) assumes facts in complaint are true 6

7. 7 Responding to Complaint I Defendant has 2 options in responding to complaint –Motion to Dismiss (Rule 12) –Answer –If files motion to dismiss first, and granted No need to file answer (at least until / unless plaintiff files amended complaint) –If files motion to dismiss first, and denied Defendant must file answer –Any defense in motion to dismiss can be asserted in answer instead If defense in answer, not called “12(b)(1)” or “12(b)(6)” –Remember, a motion asks the court to do something A pleading (including the answer) just preserves issue for discovery and trial Motions to Dismiss –See grounds in FRCP 12(b)

8. 8 Responding to Complaint II Answer –Must admit or deny all allegations in complaint Part by part, clause by clause, phrase by phrase Or state lack information to admit or deny General denial is very rare Admissions are powerful. –Assumed true; Plaintiff does not have to prove at trial –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

9. 9 Answer Questions Briefly summarize Zielinski v PPI What does Zielinski mean by “defendant is estopped from denying agency” What rule authorized the court to do this? Yeazell pp. 436-7. Q1b, 1c, 2a, 2c, 3, 4a, 6c Is it plausible that PPI acted in good faith without intent to deceive?

10. 10 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?

11. 11 Amendment Questions Summarize Beeck v Aquaslide, Yeazell p. 448ff Qs 1, 3b

12. 12 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 120 days of filing of complaint (plus extensions), defendant had actual notice of lawsuit (even if did not receive service of process) Within 120 days of filing of complaint (plus extensions), defendant knew or should have known that plaintiff made a mistake about identity of proper defendant

13. 13 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

14. 14 Relation Back Questions Summarize Moore v Baker Summarize Bonerb v Caron Foundation Yeazell p. 454ff Qs 4c, 5b

15. 15 Discovery Biggest innovation of 20 th 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 emails) 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

16. 16 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)

17. 17 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?