1. CIVIL PROCEDURE CLASS 22 Professor Fischer Columbus School of Law The Catholic University of America October 16, 2002

2. WHAT WILL WE DO TODAY? Finish our discussion of discovery sanctions Start a unit on pre-trial adjudication by learning about summary judgment.

3. OTHER SANCTIONS POSSIBLE WITHOUT VIOLATION OF COURT ORDER Rule 37(c) When can court impose sanctions under this provision, and what types of sanctions? Rule 37(d) When can court impose sanctions under this provision, and what types of sanctions?

4. RULE 37(C) (1): AUTOMATIC DISCLOSURES Failure to make automatic disclosures under 26(a) Failure to supplement a prior discovery response under 26(e)(2) Punishment is that party will not be permitted to use evidence at trial OR on motion unless failure is “harmless”. Additionally, after providing the opportunity for a hearing, a court may impose sanctions under 37(b)(2)(A), (B), and (C) as well as payment of reasonable expenses

5. RULE 37(c)(2): FAILURE TO ADMIT After trial, party can move for reasonable expenses including attorney fees that were incurred in proving truth of matter/genuineness of document These must be awarded UNLESS (A) Request objectionable (B) Admission sought was trivial (C) Reasonable grounds or good reason for refusing to admit

6. RULE 37(d): FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWERS TO INTERROGATORIES/RESPOND TO DOCUMENT REQUEST These are sanctions for completely failing to participate in the discovery process They are obtainable on motion Must informally confer with other party/person before moving (except for failing to appear for deposition) Court can impose whatever sanctions are “just” including 37(b)(2)(A)-(C) as well as reasonable expenses including attorney’s fees

7. 37(g): Failure to participate in discovery plan If a party fails to participate in developing a proposed discovery plan as required by 26(f), the court may, after opportunity for a hearing, require the party failing to participate to pay expenses of the other party including reasonable attorney fees caused by the failure

8. PRACTICE EXERCISE 14 Discovery planning in Carpenter See CB 356-358 Initial disclosures Depositions – party/nonparty Interrogatories Document Requests Physical/Mental Exams Requests for Admission Sequence of discovery

9. SUMMARY JUDGMENT What order does the moving party seek on a motion for summary judgment? What is the practical effect of such an order? What FRCP governs summary judgment? What is the purpose of including the summary judgment procedure in the FRCP?

10. ADJUDICATION W/O TRIAL In some circumstances, there may be no genuine legal dispute between the parties. In that case, it would be wasteful to proceed with a trial The purpose of summary judgment is to avoid useless trials

11. What is the procedure for obtaining summary judgment?

12. Usually one party makes a motion: FRCP 7 - generally must be in writing Sometimes both parties make simultaneous summary judgment motions. In that case, the court must rule on these separately Court can enter order for summary judgment sua sponte

13. Rule 56 and Rule 12(b)(6) How does a dismissal for summary judgment differ from a dismissal under Rule 12(b)(6)?

14. Rule 56 and Rule 12(b)(6) Note: A motion to dismiss under Rule 12(b)(6) for failing to state a claim upon which relief can be granted will be converted into a summary judgment motion under Rule 56 if the court considers matters outside the pleadings in ruling on the motion.

15. Timing of summary judgment motions What is the earliest time a plaintiff can move for summary judgment under the federal rules? See FRCP 56(a) What is the earliest time a defendant can move for summary judgment under the FRCP? See FRC 56(b) NOTE - usually summary judgment motions are not made until after discovery. Why not?

16. Outside evidence Is outside evidence generally necessary in support of a summary judgment motion? Is it always necessary? What types of evidence can be presented in support of a summary judgment motion? How, procedurally, is such evidence presented to the court?

17. Timing of Motion When must a summary judgment motion be served?

18. Service of Motion Must be at least 10 days before the hearing Why is this time period required? See local rules for additional timing requirements Does the motion have to be signed? Under what FRCP?

19. Responding to the motion How should the non-moving party respond to the motion?

20. Responding to the motion How should the non-moving party respond to the motion? Possibilities: 1. Rule 56(f) affidavit 2. Do nothing 3. Avoid 56(e) entry of summary judgment by responding setting forth specific facts showing genuine dispute of material fact 4. Cross-motion for summary judgment

21. Oral argument? Is oral argument always required on a summary judgment motion?

22. The Standard For Granting Summary Judgment What is the standard for granting summary judgment and what is the relevant provision of the FRCP? (VERY IMPORTANT!)

23. The Standard For Granting Summary Judgment FRCP 56( c) No genuine issue of material fact AND The moving party is entitled to judgment as a matter of law What’s a material fact? What’s a genuine issue?

24. Confusion Prior to Celotex As to burden of proof As to burden of production As to burden of persuasion ON SUMMARY JUDGMENT MOTIONS