Agenda for 6th Class Misc. Name plates out Slide handout Relation Back 1995 Exam Intro to Discovery

Assignment for Next Class Discovery I FRCP 26(b)(1), 26(b)(2), 26(c) Skim FRCP 26-37 Yeazell 463-67, 481-92 Skim Yeazell 467-81, 493-95 Questions to think about Briefly summarize Favale (WG1), Price v. Leflore (WG2), and Rengifo (WG3) Yeazell pp. 485ff Q1 (WG4), 2 (WG5) Yeazell pp. 491ff Q1 (WG6), 2c-e (WG7), 3 (WG1) Questions on Slide 3 Optional: Glannon 409-413, 418-19, 422-29, 435-69

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 or rewards, 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. (WG2&3) May the plaintiff’s attorney depose other female workers at the same job site and ask them if they slept with the supervisor? (WG4&5) 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? (WG6) 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? (WG7)

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

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?

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

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

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

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 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

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)

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?