CIVIL PROCEDURE CLASS 19

CIVIL PROCEDURE CLASS 19

Professor FischerColumbus School of Law

The Catholic University of AmericaOctober 5, 2005

WRAP UP: Relation of third-party claims to original claim

Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D?

No, the third-party claim must relate to the main claim and must depend on the outcome of the main action. See U.S. v. Olavarrieta at CB p. 332

YET MORE PARTIES

Can a TPD implead other parties and if so, in what circumstances?

If a TPD impleads someone, what is that person called?

That person is a fourth-party defendantDiagram: P-----D/TPP-------TPD------FPD

Counterclaim Ds and impleader

Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this?

PD

T

PLEADING REQUIREMENTS FOR THIRD-PARTY COMPLAINTS

A third-party complaint must comply with FRCP 8 and 11

8(a) “A pleading which sets forth a claim for relief, whether an original claim…or third-party claim shall contain …(2) a short and plain statement of the claim showing that the pleader is entitled to relief”

Rules 12 (defenses) and 13 (counterclaims/cross claims) also apply

PLAINTIFFS AND THIRD-PARTY DsCan a P sue a person joined as a TPD and if so, in

what circumstances?Yes, so long as the P’s claim arises out of the same

transaction or occurrence as the original claims. This is discretionary, not mandatory.

If the TPD has a counterclaim against the P it is governed by R. 13

If more than one TPD is sued by a P the TPDs can cross-claim against each other subject to R. 13(g) – this is permissive

THIRD-PARTY D and PLAINTIFFCan a TPD claim against the original

plaintiff and if so, in what circumstances?Yes, if the claim arise out of the same

transaction or occurrence.TPD’s claim(s) against the P are generally

permissive unless the P has already sued TPD, in which case the TPD’s claim(s) would likely be compulsory counterclaims

PRACTICE EXERCISE 13

There is a Model Answer for this Practice Exercise.

DISCOVERY

What is the purpose of discovery?The United States has very BROAD

discovery rules under the FRCPReform

A COMPARATIVE LOOK AT DISCOVERY

Discovery is not an inevitable part of a procedural system

Steve Subrin, Discovery in a Global Perspective: Are We Nuts?, 52 De Paul L. Rev. 299 (Winter, 2002)

WHAT MAY BE OBTAINED THROUGH DISCOVERY?What Federal Rule of Civil Procedure

governs the SCOPE of discovery in most civil actions (other than those set out in Rule 81)?

Rule 26(b). The R. 81 exceptions are, e.g. bankruptcy proceedings and a few other limited cases

What may be obtained through discovery?

WHAT MAY BE OBTAINED THROUGH DISCOVERY?FRCP 26(b): Unless other limits by court order,

any matter that1. Is RELEVANT to the CLAIM OR DEFENSE

of any party, or (where ordered by court FOR GOOD CAUSE, is RELEVANT to the SUBJECT MATTER involved in the action)

AND DOES NOT FALL WITHIN EXCEPTIONS in (2) and (3). What are these exceptions?

WHAT MAY BE OBTAINED THROUGH DISCOVERY?

2. Is not “unreasonably cumulative or duplicative”, is not available from more convenient source, and is not unduly burdensome

3. Is not PRIVILEGED

SUMMARY

Summary: Can obtain discovery of relevant material provided exceptions at subparagraphs (2) and (3) do not apply.

RELEVANCE

what is “relevance”? Is that term defined in the FRCP?

Note: this rule on the SCOPE of discovery was narrowed by amendments in 2000.

What does Tom Rowe think about this change?

RELEVANCE AND ADMISSIBILITYDiscoverable material includes written matter,

things, ID of persons with knowledge of matter, information about location of persons with knowledge of discoverable materials - including investigators

To be discoverable, must information be admissible at trial under applicable rules of evidence?

LIMITATIONS ON DISCOVERY OF RELEVANT MATTER

When can a court limit discovery under Rule 26(b)(2)?

26(b)(2) LIMITATIONS ON DISCOVERY - UNREASONABLY BURDENSOMEDiscovery is “unreasonably cumulative or duplicative”Discovery obtainable from more convenient sourceParty seeking discovery has had “ample opportunity”

to obtain matter on discoveryBurden of discovery outweighs benefitsDetermining whether discovery should be limited is

highly discretionary. Court may consider needs of case, amount in controversy, parties’ resources, importance of issues at stake, importance of discovery in resolving issues.

LIMITING SCOPE OF DISCOVERY UNDER 26(b)(2) CAN BE DONE BYObjection to discovery request (e.g. answer

interrogatory, response to request for documents)Motion for a protective order under 26(c)

accompanied by a certification that parties met prior to filing of motion and attempted to resolve dispute without intervention by the court

Court on own initiative

LIMITATIONS ON DISCOVERY - PRIVILEGE

Some materials are protected from discovery as privileged under 26(b)(1) and (3) e.g.

attorney-client privilegeor work product privilegeThere are other types of legal privilege (e.g.

priest/penitent, physician/patient.self-incrimination, various government privileges, spousal privilege]. These depend on the applicable rules of evidence.

Privilege can be waived

PRIVILEGE LOGS: FRCP 26(b)(5)

If a party withholds material from discovery on the grounds that it is privileged, that party must make a privilege log

In the log, the party should describe the nature of the documents without revealing privileged information and also state the type of privilege asserted.

WORK PRODUCT PRIVILEGEFRCP 26(b)(3)

When Hickman was decided, FRCP did not contain any exception to discovery for attorney work product

Work product doctrine in Hickman has been codified in FRCP 26(b)(3).

TYPES OF WORK PRODUCT1. ORDINARY WORK PRODUCT:

Documents prepared in anticipation of litigation by a party’s representative

Are these discoverable? If so, in what circumstances?

2. OPINION WORK PRODUCT Attorney’s thought processes in preparing a case

Are these discoverable? If so, in what circumstances

WORK PRODUCT PRIVILEGE

Does the work product doctrine in FRCP 26(b)(3) apply to nonlawyers, such as insurance adjusters and investigators?

WRITTEN STATEMENTS BY PARTIES TO LAWYERThrough a r. 34 document request, a party can

obtain a copy of its own statement without meeting the R. 26(b) showing of substantial need.

A witness can also do so on request. If request refused, the witness can move to compel under R. 37.

NOTE: a party’s statement can always be used as direct evidence at trial by an opposing party even if the party is not testifying