Civil Procedure 2 Outline

Review from Civil Procedure 1

1331 Federal Question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States
1332 Diversit of Citi!enshi"# $%ount in Controvers# Costs
&a' The district courts shall have original jurisdiction of all civil actions where the %atter in controvers
e(ceeds the su% or value of )*+,,,,, e(clusive of interest and costs, and is -etween.
&1' citi!ens of different States#
&2' citi!ens of a State and citi!ens or su-jects of a foreign state, e(ce"t that the district courts shall
not have original jurisdiction under this su-section of an action -etween citi!ens of a State and
citi!ens or su-jects of a foreign state who are lawfull ad%itted for "er%anent residence in the
United States and are do%iciled in the sa%e State#
&3' citi!ens of different States and in which citi!ens or su-jects of a foreign state are additional
"arties# $/D
&0' a foreign state, defined in section 11,3&a' of this title, as "laintiff and citi!ens of a State or of
different States2
&-' 3(ce"t when e("ress "rovision therefor is otherwise %ade in a statute of the United States, where the
"laintiff who files the case originall in the Federal courts is finall adjudged to -e entitled to recover less
than the su% or value of )*+,,,,, co%"uted without regard to an setoff or counterclai% to which the
defendant %a -e adjudged to -e entitled, and e(clusive of interest and costs, the district court %a den
costs to the "laintiff and, in addition, %a i%"ose costs on the "laintiff2
&c' For the "ur"oses of this section and section 1001 of this title.
&1' a cor"oration shall -e dee%ed to -e a citi!en of ever State and foreign state - which it has
-een incor"orated and of the State or foreign state where it has its "rinci"al "lace of -usiness,
e(ce"t that in an direct action against the insurer of a "olic or contract f lia-ilit insurance,
whether incor"orated or unincor"orated, to which action the insured is not joined as a "art4
defendant, such insurer shall -e dee%ed a citi!en of.
&$' ever State and foreign state of which the insured is a citi!en#
&5' ever State and foreign state - which the insurer has -een incor"orated# $/D
&C' the State or foreign state where the insurer has its "rinci"al "lace of -usiness# and
&2' the legal re"resentative of the estate of the decedent shall -e dee%ed to -e a citi!en onl of the
sa%e State as the decedent, and the legal re"resentative of an infant or inco%"etent shall -e
dee%ed to -e a citi!en onl of the sa%e State as the infant or inco%"etent2
131* Su""le%ental 6urisdiction
&a' 3(ce"t as "rovided in su-sections &-' and &c' or as e("ressl "rovided otherwise - Federal statute, in
an civil action of which the district courts have original jurisdiction, the district courts shall have
su""le%ental jurisdiction over all other clai%s that are so related to clai%s in the action within such
original jurisdiction that the for% "art of the sa%e case or controvers under $rticle 777 of the United
States Constitution2 Such su""le%ental jurisdiction shall include clai%s that involve the joinder or
intervention of additional "arties2
&-' 7n an civil action of which the district courts have original jurisdiction founded solel on section 1332
of this title, the district courts shall not have su""le%ental jurisdiction under su-section &a' over clai%s -
"laintiffs against "ersons %ade "arties under 8ule 10, 19, 2,, or 20 of the F8C:, or over clai%s - "ersons
"ro"osed to -e joined as "laintiffs under 8ule 19 of such rules, or see;ing to intervene as "laintiff sunder
8ule 20 of such rules, when e(ercising su""le%ental jurisdiction over such clai%s would -e inconsistent
with the jurisdictional re<uire%ents of section 13322
&c' The district courts %a decline to e(ercise su""le%ental jurisdiction over a clai% under su-section &a'
if.
&1' the clai% raises a novel or co%"le( issue of State law,
&2' the clai% su-stantiall "redo%inates over the clai% or clai%s over which the district court has
original jurisdiction,
&3' the district court has dis%issed all clai%s over which it has original jurisdiction, or
&0' in e(ce"tional circu%stances, there are other co%"elling reasons for declining jurisdiction
&d' The "eriod of li%itations for an clai% asserted under su-section &a', and for an other clai% in the
sa%e action that is voluntaril dis%issed at the sa%e ti%e as or after the dis%issal of the clai% under
su-section &a', shall -e tolled while the clai% is "ending and for a "eriod of 3, das after it is dis%issed
unless State law "rovides for a longer tolling "eriod2
"Simple" Joinder
12 6oinder 4 the union in one lawsuit of %ulti"le "arties who have the sa%e rights or
against who% rights are clai%ed as co"laintiffs or codefendants2 The co%-ination in one
lawsuit of two or %ore clai%s, or grounds for relief2
22 The a-ilit to -ring in %ulti"le "arties or %ulti"le clai%s
32 Two <uestions for deter%ining joinder.
a2 7s there a rule that authori!es the joinder=
-2 7s there a source of S>6 for that "articular clai%= ?ill the joinder have an
additional "art that will raise S>6 "ro-le%s=
Rule 18 Joinder of Claims
&a' 7n @eneral
$ "art asserting a clai%, counterclai%, crossclai%, or third4"art clai% %a join, as inde"endent or
alternative clai%s, as %an clai%s as it has against an o""osing "art2
&-' 6oinder of Contingent Clai%s
$ "art %a join two clai%s even though one of the% is contingent on the dis"osition of the other# -ut the
court %a grant relief onl in accordance with the "artiesA relative su-stantive rights2 7n "articular, a
"laintiff %a state a clai% for %one and a clai% to set aside a conveance that is fraudulent as to that
"laintiff, without first o-taining a judg%ent for the %one2
12 8UB3. $ "art %a -ring as %an clai%s as it has against an o""osing "art2
22 >ost t"icall, joinder under this 8ule is :As tring to join %ulti"le clai%s
32 Bi%itation co%es in when we loo; to jurisdiction, the 8ule itself creates /C
li%itations2
Rule 13 Counterclaim and Crossclaim
&a' Co%"ulsor Counterclai%
&1' 7n @eneral2 $ "leading %ust state as a counterclai% an clai% that, at the ti%e of its service, the "leader
has against an o""osing "art if the clai%.
&$' arises out of the transaction or occurrence that is the su-ject %atter of the o""osing "artAs
clai%# $/D
&5' does not re<uire adding another "art over who% the court cannot ac<uire jurisdiction
&2' 3(ce"tions2 The "leader need not state the clai% if.
&$' when the action was co%%enced, the clai% was the su-ject of another "ending action# C8
&5' the o""osing "art sued on its clai% - attach%ent or other "rocess that did not esta-lish
"ersonal jurisdiction over the "leader on that clai%, and the "leader does not assert an
counterclai% under this rule2
&-' :er%issive Counterclai%
$ "leading %a state as a counterclai% against an o""osing "art an clai% that is not co%"ulsor2
&c' 8elief Sought in a Counterclai%
$ counterclai% need not di%inish or defeat the recover sought - the o""osing "art2 7t %a re<uest relief
that e(ceeds in a%ount or differs in ;ind fro% the relief sought - the o""osing "art2
&d' Counterclai% $gainst the United States
These rules do not e("and the right to assert a counterclai%, or to clai% a credit, against the United States
or a United States officer or agenc2
&e' Counterclai% >aturing or $c<uired $fter :leading
The court %a "er%it a "art to file a su""le%ental "leading asserting a counterclai% that %atured or was
ac<uired - the "art after serving an earlier "leading2
&g' Crossclai% $gainst a Co"art
$ "leading %a state as a crossclai% an clai% - one "art against a co"art if the clai% arises out of the
transaction or occurrence that is the su-ject %atter of the original action or of a counterclai%, or if the
clai% relates to an "ro"ert that is the su-ject %atter of the original action2 The crossclai% %a include a
clai% that the co"art is or %a -e lia-le to the cross4clai%ant for all or "art of a clai% asserted in the
action against the cross4clai%ant2
&h' 6oining $dditional :arties
8ules 19 and 2, govern the addition of a "erson as a "art to a counterclai% or crossclai%2
&i' Se"arate Trials# Se"arate 6udg%ents
7f the court orders se"arate trials under 8ule 02&-', it %a enter judg%ent on a counterclai% or crossclai%
under 8ule +0&-' when it has jurisdiction to do so, even if the o""osing "artAs clai%s have -een dis%issed
or otherwise resolved2
12 13&a'&1' 4 $t the ti%e the answer is served, the ti%e the counterclai% is asserted, the
clai% %ust -e availa-le
22 13&a'&2'&$' 4 7f the clai% was alread -rought in another court, then the clai% would
not -e considered a co%"ulsor counterclai%2
Counterclaim Analysis
12 Counterclai% 4 clai% against an o""osing "art
22 o!ical Relations"ip #est
a2 Deter%ines whether counterclai% is co%"ulsor or "er%issive
-2 Boo; at the core of o"erative facts and deter%ine whether the original law suit
and the counterclai% co%e out of the same transaction or occurrence
32 7f D3S. Co%"ulsor &sa%e STC'
02 7f /C. :er%issive &not sa%e STC'
+2 Co%"ulsor Counterclai%
a2 7f ou donAt -ring the clai% in the original law suit then ou lose it
-2 7f co%"ulsor, then there is no inde"endent jurisdictional -asis and the clai%
will -e joined under su""le%ental jurisdiction -ecause it Earises out of the sa%e
case or controversE &core of o"erative facts'
c2 Since the clai% is joined under su""le%ental jurisdiction it is held to the
discretion of the court under 131*&c'
12 :er%issive Counterclai%
a2 Dou can wait and -ring the clai% in a se"arate law suit
-2 7f "er%issive, there is an inde"endent -asis for S>6
c2 The clai% %ust %eet either federal <uestion or diversit jurisdiction
d2 7f no S>6, then su""le%ental jurisdiction %a -e availa-le
Crossclaim Analysis
12 Crossclai% 4 clai% against a co4"art
22 The clai% %ust arise out of the transaction or occurrence that is the su-ject %atter of
the original action or of a counterclai% C8 if the clai% relates to an "ro"ert that is the
su-ject %atter of the original action
32 Sa%e Transaction or Cccurrence Test
a2 loo; at core of o"erative facts and deter%ine whether the original law suit and
the crossclai% arise out of the STO or series of STO
02 7f D3S, then crossclai% is "ro"er
+2 7f /C, then crossclai% is not "ro"er
12 7f "ro"er, then there is su""le%ental jurisdiction -ecause the core of o"erative facts test
is %et2
*2 7f there is no S>6, the clai% will -e -rought under su""le%ental jurisdiction and will
-e held to the discretion of the court under 131*&c'
Joinder of Claims Analysis
Rule 2$ Permissive Joinder of Parties
&a' :ersons ?ho >a 6oin or 5e 6oined
&1' :laintiffs2 :ersons %a join in one action as "laintiffs if.
&$' the assert an right to relief jointl, severall, or in the alternative with res"ect to or arising
out of the sa%e transaction, occurrence, or series of transactions or occurrences# $/D
&5' an <uestion of law or fact co%%on to all "laintiffs will arise in the action
6oinder of Clai%s
5 :laintiff 5 Defendant
8ule 1F 6oinder of
Clai%s
8ule 13 Counterclai%
&clai% against o""osing "art'
8ule 13&g' Crossclai%
&clai% against co4"art'
Bogical 8elationshi" Test
&core of o"erative facts, STC'
Des STC, su""le%ental
jurisdiction
/o STC, inde"endent -asis
for S>6
STC &core of o"erative facts'
Co%"ulsor &%ust -e -rought' :er%issive &can wait'
&2' Defendants2 :ersons, as well as a vessel, cargo, or other "ro"ert su-ject to ad%iralt "rocess in re%,
%a -e joined in one action as defendants if.
&$' an right to relief is asserted against the% jointl, severall, or in the alternative with res"ect
to or arising out of the sa%e transaction, occurrence, or series of transactions or occurrences# $/D
&5' an <uestion of law or fact co%%on to all defendants will arise in the action
&3' 3(tent of 8elief2 /either a "laintiff nor a defendant need -e interested in o-taining or defending against
all the relief de%anded2 The court %a grant judg%ent to one or %ore "laintiffs according to their rights,
and against one or %ore defendants according to their lia-ilities2
&-' :rotective >easures
The court %a issue orders, including an order for se"arate trials, to "rotect a "art against e%-arrass%ent,
dela, e("ense, or other "rejudice that arises fro% including a "erson against who% the "art asserts no
clai% and who asserts no clai% against the "art2
12 Dou donAt G$H3 to join "er%issive, ou >$D join
22 :As %a join in one action as :As if.
a2 the assert a right arising out of the sa%e transaction, occurrence, or series of
transaction or occurrences# $/D
-2 an <uestion of law or fact co%%on to all :As will arise in the action
32 ?hen 8ule 2, is %et, >UST ST7BB $SI 7F TG383 7S S>6J
02 7f there is no S>6, see if it can -e joined under su""le%ental jurisdiction2
+2 131*&-'. ?hen su""le%ental anchor clai% is -ased solel on diversit, the courts wonAt
have su""le%ental jurisdiction over clai%s - Plaintiff%s against "ersons %ade "arties
under 8ule 10, 19, 2,, or 20 C8 - :As joined under 8ule 19 C8 see;ing to intervene as
:As under 8ule 20, when e(ercising jurisdiction would -e inconsistent with the
jurisdictional re<uire%ents of section 1332
12 7f a%ount in controvers is %et - one : and there are %ulti"le clai%s against D, as
long as there is co%"lete diversit, the clai%s that do not %eet the a%ount in controvers
re<uire%ent will -e allowed to join under su""le%ental jurisdiction2
Rule 1& #"ird'Party Practice ()mpleader*
&a' ?hen a Defending :art >a 5ring in a Third :art
&1' Ti%ing of the Su%%ons and Co%"laint2 $ defending "art %a, as third4"art "laintiff, serve a
su%%ons and co%"laint on a non"art who is or %a -e lia-le to it for all or "art of the clai% against it2
5ut the third4"art "laintiff %ust, - %otion, o-tain the courtAs leave if it files the third4"art co%"laint
%ore than 10 das after serving its original answer2
&2' Third4:art DefendantAs Clai%s and Defenses2 The "erson served with the su%%ons and third4"art
co%"laint, the Ethird4"art defendantE.
&$' %ust assert an defense against the third4"art "laintiffAs clai% under 8ule 12#
&5' %ust assert an counterclai% against the third4"art "laintiff under 8ule 13&a', and %a assert
an counterclai% against the third4"art "laintiff under 8ule 13&-' or an crossclai% against
another third4"art defendant under 8ule 13&g'#
&C' %a assert against the "laintiff an defense that the third4"art "laintiff has to the "laintiffAs
clai%# $/D
&D' %a also assert against the "laintiff an clai% arising out of the transaction or occurrence that
is the su-ject %atter of the "laintiffAs clai% against the third4"art "laintiff2
&3' :laintiffAs Clai%s $gainst a Third4:art Defendant2 The "laintiff %a assert against the third4"art
defendant an clai% arising out of the transaction or occurrence that is the su-ject %atter of the "laintiffAs
clai% against the third4"art "laintiff2 The third4"art defendant %ust then assert an defense under 8ule 12
and an counterclai% under 8ule 13&a', and %a assert an counterclai% under 8ule 13&-' or an
crossclai% under 8ule 13&g'2
&0' >otion to Stri;e, Sever, or Tr Se"aratel2 $n "art %a %ove to stri;e the third4"art clai%, to sever
it, or to tr it se"aratel2
&+' Third4:art DefendantAs Clai% $gainst a /on"art2 $ third4"art defendant %a "roceed under this rule
against a non"art who is or %a -e lia-le to the third4"art defendant for all or "art of an clai% against it2
&1' Third4:art Co%"laint in 8e%2 7f it is within the ad%iralt or %ariti%e jurisdiction, a third4"art
co%"laint %a -e in re%2 7n that event, a reference in this rule to the Esu%%onsE includes the warrant of
arrest, and a reference to the defendant or third4"art "laintiff includes, when a""ro"riate, a "erson who
asserts a right under Su""le%ental 8ule C&1'&a'&i' in the "ro"ert arrested2
&-'?hen a :laintiff >a 5ring in a Third :art
?hen a clai% is asserted against a "laintiff, the "laintiff %a -ring in a third "art if this rule would allow a
defendant to do so2
&c' $d%iralt or >ariti%e Clai%
&1' Sco"e of 7%"leader2 7f a "laintiff asserts an ad%iralt or %ariti%e clai%s under 8ule 9&h', the defendant
or a "erson who asserts a right under Su""le%ental 8ule C&1'&a'&i' %a, as a third4"art "laintiff, -ring in a
third4"art defendant who %a -e wholl or "artl lia-le, either to the "laintiff or to the third4"art
"laintiff, for re%ed over, contri-ution, or otherwise on account of the sa%e transaction, occurrence, or
series of transactions or occurrences2
&2' Defending $gainst a De%and for 6udg%ent for the :laintiff2 The third4"art "laintiff %a de%and
judg%ent in the "laintiffAs favor against the third4"art defendant2 7n that event, the third4"art defendant
%ust defend under 8ule 12 against the "laintiffAs clai% as well as the third4"art "laintiffAs clai%# and the
action "roceeds as if the "laintiff had sued -oth the third4"art defendant and the third4"art "laintiff2
12 $uthori!es a defending "art to -ring a third "art defendant in the suit
22 $ D %a "ro"erl -ring in a third "art D when the are or %a -e lia-le to the D for
all or "art of the clai% against it2
32 8e<uires that the clai% - the D -e a clai% of derivative lia+ility, E7f 7 as D have a
lia-ilit to the :, then third "art D has an o-ligation under a se"arate legal relationshi"
-etween us to "a %e so%e or all of what 7 have had to "a to the :2E
02 10&a'&2' 4 Third "art D can defend on the clai% using an defense under 8ule 12 C8
raise defenses in the original case of : v2 D
a2 if the release lia-ilit -etween the : and D in the original case then, -
definition, the third "art D cannot -e lia-le
-2 third "art D C$//CT -e lia-le if the original D is not lia-le
+2 10&-' 4 $ : can -ring in a third "art D as long as the are using derivative lia-ilit and
are in a defending "osition &counterclai% - D, crossclai% - another :, etc2'
12 7f 8ule 10 authori!es the i%"leader, the third "art still "as to +e su+,ected to PJ and
S-J in the court where the action is "ending
*2 131*&-' DC3S /CT disallow clai%s - DAs see;ing to use su""le%ental jurisdiction
-ased solel on diversit
F2 8ule 0&;'&1'&$' 4 :6 of the federal court is where the "art is su-ject to general
jurisdiction
92 8ule 0&;'&1'&5' 4 if the third "art D can -e served within 1,, %iles of the courthouse
where the action is "ending then the court will have jurisdiction even if the would not
%eet the long4ar% statute or the 10th $%end%ent or have sufficient %ini%u% contacts
Rule 1. Re/uired Joinder of Parties
&a' :ersons 8e<uired to 5e 6oined if Feasi-le
&1' 8e<uired :art2 $ "erson who is su-ject to service of "rocess and whose joinder will not de"rive the
court of su-ject4%atter jurisdiction %ust -e joined as a "art if.
&$' in that "ersonAs a-sence, the court cannot accord co%"lete relief a%ong e(isting "arties# or
&5' that "erson clai%s an interest relating to the su-ject of the action and is so situated that
dis"osing of the action in the "ersonAs a-sence %a.
&i' as a "ractical %atter i%"air or i%"ede the "ersonAs a-ilit to "rotect the interest# or
&ii' leave an e(isting "art su-ject to a su-stantial ris; of incurring dou-le, %ulti"le, or
otherwise inconsistent o-ligations -ecause of the interest2
&2' 6oinder - Court Crder2 7f a "erson has not -een joined as re<uired, the court %ust order that the "erson
-e %ade a "art2 $ "erson who refuses to join as a "laintiff %a -e %ade either a defendant or, in a "ro"er
case, an involuntar "laintiff2
&3' Henue2 7f a joined "art o-jects to venue and the joinder would %a;e venue i%"ro"er, the court %ust
dis%iss that "art2
&-' ?hen 6oinder 7s /ot Feasi-le
7f a "erson who is re<uired to -e joined if feasi-le cannot -e joined, the court %ust deter%ine whether, in
e<uit and good conscience, the action should "roceed a%ong the e(isting "arties or should -e dis%issed2
The factors for the court to consider include.
&1' the e(tent to which a judg%ent rendered in the "ersonAs a-sence %ight "rejudice that "erson or the
e(isting "arties#
&2' the e(tent to which an "rejudice could -e lessened or avoided -.
&$' "rotective "rovisions in the judg%ent#
&5' sha"ing the relief# or
&C' other %easures#
&3' whether a judg%ent rendered in the "ersonAs a-sence would -e ade<uate# and
&0' whether the "laintiff would have an ade<uate re%ed if the action were dis%issed for nonjoinder2
&c' :leading the 8easons for /onjoinder
?hen asserting a clai% for relief, a "art %ust state.
&1' the na%e, if ;nown, of an "erson who is re<uired to -e joined if feasi-le -ut is not joined# and
&2' the reasons for not joining that "erson2
&d' 3(ce"tion for Class $ctions
This rule is su-ject to 8ule 232
12 >UST -e joined, not >$D -e joined li;e 8ule 2,
22 8ule states that ou cannot leave out a "art who could -e joined in this case if their
a-sence would create an of the 3 "ro-le%s identified in the 8ule
32 19&1'&$' 4 if we go forward with the lawsuit as structured, in the a-sence of the "art,
co%"lete relief cannot -e afforded -etween the "arties, then the "art >UST 53
6C7/3D 7F F3$S75B3
a2 3K. if there are undivided ownershi" rights in a "iece of "ro"ert then all the
owners %ust -e involved in the suit, canAt give co%"lete relief to one owner if
there is undivided ownershi" rights - others
-2 "rotects : and the sste%
02 19&a'&1'&5'&i' 4 if the a-sentee clai%s interest in the su-ject %atter in the suit and is so
situated that judg%ent without the "art as a "ractical %atter i%"airs or i%"edes the
"ersonAs a-ilit to "rotect their interest the "art >UST 53 6C7/3D 7F F3$S75B3
a2 "rotects the outsider to the lawsuit
+2 19&a'&1'&5'&ii' 4 if the a-sentee clai%s interest in the su-ject %atter in the suit and is so
situated that judg%ent without the "art leaves an e(isting "art su-ject to su-stantial
ris; of incurring dou-le, %ulti"le, or otherwise inconsistent o-ligations -ecause of the
interest then the "art >UST 53 6C7/3D 7F F3$S75B3
a2 "rotects the D
12 7f an one of those 3 "ro-le%s occurs #012 must determine is ,oinder is feasi+le2
?hether there is :6 or S>6=
*2 7f joinder 7S F3$S75B3, then the court will order the "art to -e joined2
F2 19&-' 4 7f joinder is not feasi-le Eindis"ensa-le "artE
a2 7f the "art is so indis"ensa-le that, given their a-sence -ecause the couldnAt
-e joined under :6 or S>6 &not feasi-le', should the action -e allowed to continue
anwa C8 should the action -e dis%issed -ecause the canAt -e joined=
-2 Court %ust deter%ine, in e<uit and good conscience
92 19&-'&140' 4 Factors for deter%ining whether a "art is indis"ensa-le
a2 e(tent of "rejudice against a-sentee or e(isting "arties &how -ad is the "ro-le%
identified under 19&a'='
-2 e(tent to which "rejudice can -e lessened or avoided -.
i2 "rotective "rovisions in the judg%ent, sha"ing the relief C8 other
%easures
c2 whether judg%ent would -e ade<uate
d2 whether : would have ade<uate re%ed if action were dis%issed &alternative
foru%, etc2'
1,2 Cnce a "ro"er 8ule 10 clai% is done, 8ule 1F ;ic;s in and ou can join additional
clai%s 5UT the first clai% %ust %eet 8ule 13&g' or 8ule 10 $/D >UST ST7BB >33T
S>6
Rule 2& )ntervention
&a' 7ntervention of 8ight
Cn ti%el %otion, the court must "er%it anone to intervene who.
&1' is given an unconditional right to intervene - a federal statute# or
&2' clai%s an interest relating to the "ro"ert or transaction that is the su-ject of the action, and is so
situated that dis"osing of the action %a as a "ractical %atter i%"air or i%"ede the %ovantAs a-ilit to
"rotect its interest, unless e(isting "arties ade<uatel re"resent that interest2
&-' :er%issive 7ntervention
&1' 7n @eneral2 Cn ti%el %otion, the court may "er%it anone to intervene who.
&$' is given a conditional right to intervene - a federal statute# or
&5' has a clai% or defense that shares with the %ain action a co%%on <uestion of law or fact2
&2' 5 a @overn%ent Cfficer or $genc2 Cn ti%el %otion, the court %a "er%it a federal or state
govern%ental officer or agenc to intervene if a "artAs clai% or defense is -ased on.
&$' a statute or e(ecutive order ad%inistered - the officer or agenc# or
&5' an regulation, order, re<uire%ent, or agree%ent issued %ade under the statute or e(ecutive
order2
&3' Dela or :rejudice2 7n e(ercising its discretion, the court %ust consider whether the intervention will
undul dela or "rejudice the adjudication of the original "artiesA rights
&c' /otice and :leading 8e<uired
$ %otion to intervene %ust -e served on the "arties as "rovided in 8ule +2 The %otion %ust state the
grounds for intervention and -e acco%"anied - a "leading that sets out the clai% or defense for which
intervention is sought2
12 20&a' 4 the court >UST allow the "art to intervene, there is ver little li%itation2
a2 if the court goes forward without the a-sent "art, the %a have an interest
har%ed - the judg%ent
-2 >UST intervene in a ti%el %otion, ti%eliness is deter%ined -.
i2 how long the lawsuit has -een going on
ii2 if the "art ;new their interest could -e i%"aired and how long the
;new
c2 intervening "art %ust show that their interest is not alread ade<uatel
re"resented - a "art in the suit
22 20&-' 4 the court >$D "er%it a "art to intervene, co%"letel discretionar
a2 function of efficienc
-2 if there is an overla" regarding clai%s and defenses that are alread in the
lawsuit, it would -e efficient to solve the% all in one lawsuit
c2 5UT ?7BB /CT $BBC? to the detri%ent of the e(isting "arties.
i2 if it would result in undue dela it will hurt : and wonAt -e allowed
ii2 will not allow if there is anwa it will i%"air how the suit will go
forward - the : C8 D
32 20&c' 4 %otion %ust state grounds for intervention $/D a "leading that sets out the
clai% or defense for which intervention is sought
a2 if intervening as :, %otion would -e acco%"anied - "ro"osed co%"laint
-2 if intervening as D, %otion would -e the answer
Rule 22 )nterpleader
&a' @rounds
&1' 5 a :laintiff2 :ersons with clai%s that %a e("ose a "laintiff to dou-le or %ulti"le lia-ilit %a -e
joined as defendants and re<uired to inter"lead2 6oinder for inter"leader is "ro"er even though.
&$' the clai%s of the several clai%ants, or the titles on which their clai%s de"end, lac; a co%%on
origin or are adverse and inde"endent rather than identical# or
&5' the "laintiff denies lia-ilit in whole or in "art to an or all of the clai%ants
&2' 5 a Defendant2 $ defendant e("osed to si%ilar lia-ilit %a see; inter"leader through a crossclai% or
counterclai%2
&-' 8elation to Cther 8ules and Statutes
This rule su""le%ents, and does not li%it, the joinder of "arties allowed - 8ule 2,2 The re%ed this rule
"rovides is in addition to, and does not su"ersede or li%it, the re%ed "rovided - 2F USC 133+, 139*, and
23112 $n action under those statutes %ust -e conducted under these rules2
12 7n the language of inter"leader, the "ool of %one is called the Esta;eE
22 The "erson in "ossession of the "ool of %one is called the Esta;eholderE
32 The sta;eholder is the one who uses inter"leader
02 ST3: C/3. 7s inter"leader a""ro"riate=
a2 $re there %ulti"le adverse clai%s to the sta;e=
-2 7s there a "ossi-ilit of dou-le or %ulti"le lia-ilit=
c2 7f a""ro"riate then go to ste" two
+2 ST3: T?C. Deter%ine the Esta;eE
12 ST3: TG833. Deter%ine the Esta;eholderE, the "erson in "ossession of the sta;e
a2 Deter%ine whether the sta;eholder the%selves have a clai% to the sta;e
-2 7F TG3D DC, then the are an EinterestedE sta;eholder
c2 7F TG3D $83, then the are a clai%ant as well
d2 7F TG3D $83 /CT, the are a EdisinterestedE sta;eholder and the are
released fro% the suit and do not have to -e involved, the turn the sta;e over to
the court and the court handles the sta;e
*2 ST3: FCU8. 7dentif the clai%ants to the sta;e
F2 7f used in federal court TG3/ we %ust deter%ine which for% of the device is
availa-le, Rule 22 or Statutory, usuall -ased on S>6 re<uire%ents
92 ST3: F7H3. Bitigation on the %erits, go forward with the litigation and deter%ine who
should get the sta;e
)2#1RP1A31R
)ssue "Statutory" )nterpleader "Rule" )nterpleader
Federal Su-ject
>atter
6urisdiction
>ini%al diversit 133+, deter%ined
-etween clai%antAs, at least 1 clai%ant %ust
-e diverse fro% another clai%ant $/D
)+,, or %ore
Co%"lete diversit 1332, deter%ined
-etween sta;eholder and all clai%ants
$/D in e(cess of )*+I
:ersonal
6urisdiction
/ationwide service of "rocess 4 as long as
ou can serve clai%ant within a judicial
district in the US the will -e su-ject to :6
where the suit is -eing -rought
Crdinar jurisdiction rules, 8ule 0&;'
&1'&$', contacts with clai%ants
re<uired
Henue 6udicial district where $/D clai%ant
resides
Crdinar venue rules, 1391
7njunction Statutor authori!ed injunctions against
other suits, %ust show that statutor
inter"leader is a""ro"riate and injunction
will -e given
$nti47njunction $ct, "rohi-ited fro%
enjoining state court actions unless ou
can show injunction is necessar in
aiding courtAs jurisdiction
De"ositing the
state with court
8e<uired, "art of esta-lishing 133+ S>6,
"rere<uisite to esta-lishing and hearing
inter"leader action
/o re<uire%ent, e<uita-le "ower,
usuall used when sta;eholder is
disinterested
Rule 23 Class Actions
12 Class actions are re"resentative litigations2 The "eo"le designated as the clients, the
class re"resentatives, are going to re"resent the interests of everone else in that class2
Their decisions will effect how the rest of the classAs rights are "resented in the class
action suit
22 53FC83 deter%ining 23&a'&1' and &2' ou %ust identify t"e class
32 53FC83 deter%ining 23&a'&3' and &0' ou %ust identify t"e class representatives
02 23&a' 4 "rere<uisites that have to -e %et for a class action to "otentiall -e certified
a2 23&a'&1' /u%erosit 4 it would not otherwise -e "ractical to join all the "arties,
not just nu%-ers 5UT nu%-ers are i%"ortant
-2 23&a'&2' Co%%onalit 4 re<uires that $BB of the class share co%%on <uestions
of law or fact
c2 23&a'&3' T"icalit 4 loo;s at the class re"resentatives clai%s and defenses
i2 %a;e sure that the re"resentatives are standing in the sa%e shoes as the
rest of the class
d2 23&a'&0' $de<uac of 8e"resentation 4 loo;s at the class re"resentatives $/D
the attornes
i2 %a;e sure the donAt have conflicts of interest with the rest of the class
ii2 %a;e sure attornes have e("erience in the su-ject area and have
e("erience in doing large class action suits
+2 $FT38 S$T7SFD7/@ $BB FCU8 of the 23&a' "rere<uisites, then the class %ust fit in
one of the 23&-' t"es of class actions
12 23&-'&1'&$' 4 if se"arate actions would esta-lish inco%"ati-le standards of conduct for
the o""osing "art
a2 3K. 2 se"arate suits against a cit for issuing a -ond, -oth win, one for the -ond
and one against it2 This would -e an inco%"ati-le standard of conduct2 5
-ringing the actions in a class action with 2 different su-sets of classes, the
judg%ent for or against the -ond would -e -inding on everone in the action
*2 23&-'&1'&5' 4 if se"arate actions, as a "ractical %atter, %a i%"air or i%"ede those not
"arties and the a-ilit to "rotect their interests
a2 3K. allows 1,,,,,, injured "arties to -e re"resented in a class action suit and
the )+ %illion will -e distri-uted throughout the class, instead of -ringing
se"arate suits and onl the first 1,, :As getting an %one re%edies -efore the
co%"an goes -an;ru"t
F2 23&-'&2' 4 injunctive or declarator relief
92 23&-'&3' 4 co%%on <uestion class actions
a2 "redo%inance 4 %ust have a co%%on <uestion of law or fact of class %e%-ers
that "redo%inates over an <uestions affecting onl individual %e%-ers $/D
-2 su"eriorit 4 class action %ust -e su"erior to other availa-le %ethods for fairl
and efficientl adjudicating the controvers
c2 %atters "ertinent to these findings include.
i2 23&-'&3'&$' 4 class %e%-ers interests in individuall controlling the
"rosecution or defense of se"arate actions
ii2 23&-'&3'&5' 4 e(tent and nature of an litigation concerning the
controvers alread -egun
iii2 23&-'&3'&C' 4 having all the %e%-ers of the class fro% around the
countr, would -e -etter to use this rule to resolve it all at once
iv2 23&-'&3'&D' 4 %anagea-ilit, difficulties in %anaging a class action
1,2 23&c'&2'&5' 4 for 23&-'&3' cases, re"resentatives have an o-ligation of actual notice to
all individuals and those individuals %ust have the o"tion to o"t out of the class action,
therefore not -inding the% to the judg%ent of the class action
112 23&c'&2'&5'&i4vii' 4 the notice %ust clearl and concisel state in "lain, easil
understood language.
i2 the nature of the language
ii2 the definition of the class certified
iii2 the class clai%s, issues, or defenses
iv2 that a class %e%-er %a enter an a""earance through an attorne if the
%e%-er so desires
v2 that the court will e(clude fro% the class an %e%-er who re<uests e(clusion
vi2 the ti%e and %anner for re<uesting e(clusion $/D
vii2 the -inding effect of a class judg%ent on %e%-ers under 8ule 23&c'&3'
122 )f certification is 312)13, the case usuall goes awa -ecause the %e%-ers arenAt
willing to -ring the individual clai%s -ecause the are so s%all
132 )f certification is ACC1P#13, it usuall results in a settle%ent
102 23&f' 4 allows "art to atte%"t to a""eal a decision to certif or not certif a class
a2 it is u" to the discretion of the court to allow that a""eal
-2 %ust -e filed within 10 das after the order is entered
Res Judicata4Claim Preclusion
U2S2 Constitution $rticle 7H Section 1 4 Full Faith and Credit
Full faith and credit shall -e given in each State to the "u-lic acts, records and judicial "roceedings of ever
other state2 $nd the Congress %a - general laws "rescri-e the %anner in which such acts, records and
"roceedings shall -e "roved, and the effect thereof2
1*3F State and Territorial statutes and judicial "roceedings# full faith and credit
The $cts of the legislature of an State, Territor, or :ossession of the United States, or co"ies thereof,
shall -e authenticated - affi(ing the seal of such State, Territor, or :ossession thereto2
The records and judicial "roceedings of an court of an such State, Territor or :ossession, or co"ies
thereof, shall -e "roved or ad%itted in other courts within the United States and its Territories and
:ossession - the attestation of the cler; and seal of the court anne(ed, if a seal e(ists, together with a
certificate of a judge of the court that the said attestation is in "ro"er for%2
Such $cts, records and judicial "roceedings or co"ies thereof, so authenticated, shall have the sa%e full
faith and credit in ever court within the United States and its Territories and :ossessions as the have -
law or usage in the courts of such State, Territor or :ossession fro% which the are ta;en2
12 $""lies when we loo; at a "rior judg%ent and we sa that the judg%ent "recludes a
"art fro% -ringing a su-se<uent lawsuit
22 Co%"ulsor counterclai% 4 -ased on "reclusion, if ou donAt use it, ou lose it
32 ?hen "recluding a clai%, the entire lawsuit is "recluded
02 The clai% should have -een -rought in a "rior action and wasnAt, therefore the clai%
can no longer -e -rought in another suit
+2 De"ending on the jurisdiction that renders a judg%ent, the clai% "reclusive effect can
-e different in a su-se<uent lawsuit2 Different jurisdictions are going to a""l different
tests or different definitions of the "rior clai%
12 7f the 2nd court is in a different jurisdiction, Section 1*3F of the Constitution re<uires
sister states to give full faith and credit to the judg%ent of the courts of the sister states
*2 7f ou had a court availa-le to ou where ou could have -rought -oth clai%s -ut ou
instead went to a court of li%ited jurisdiction, then there are so%e states where the will
"reclude ou -ecause ou had an o"tion availa-le to -ring -oth clai%s -ut didnAt
F2 $n defenses that should have -een -rought in the 1st action have to -e -rought in the
1st action
92 6udg%ents entitled to "reclusive effect.
a2 full jur trial
-2 judg%ent as a %atter of law
c2 su%%ar judg%ent
d2 Federal law 12&-'&1' dis%issal
Re/uirements for Claim Preclusion
12 Sa%e clai% in 2nd suit as in the 1st suit &8UB3 13 and 1F'
a2 doesnAt have to -e EidenticalE
-2 includes clai%s that SGCUBD G$H3 -een -rought in the 1st action
c2 what clai%s SGCUBD G$H3 -een -rought as "art of the sa%e lawsuit
i2 Transactional definition &notice "leading' 4 deter%ine the underling
transaction that gave rise to the original clai% and co%"are it to the
transaction that gave rise to the 2nd suit &ti%e, s"ace, origin,
%otivation', is it the sa%e core of o"erative facts=
ii2 Sa%e evidence definition &fact "leading' 4 would the sa%e evidence -e
used to "rove the 2nd clai% as would -e used to "rove the 1st
clai%= Boo;s at the facts of each ele%ent -eing -rought in the suit
d2 also includes clai%s that CCUBD G$H3 -een -rought in the 1st action
e2 if ou CCUBD /CT have -rought the clai% in the 1st action then the clai%
will not -e "recluded fro% -eing -rought in a 2nd suit
f2 also includes D3F3/S3 and CC>:UBSC8D CCU/T38CB$7>S and if the
2nd clai% would /3@$T3 TG3 87@GTS that the 1st judg%ent esta-lished
22 Sa%e "arties in 2nd suit as in the 1st suit C8 "arties in "rivit with "arties to the 1st
suit &8ule 19 and 2,'
a2 "rivit 4 identical legal rights
i2 the "erson in the 1st suit has to -e so identified with the interest of
another that he re"resents the sa%e legal right as the "erson in the
2nd suit is tring to "resent &Searle Brothers v. Searle'
-2 circu%stances where "rivit %a;es it so we can -ind so%eone to a judg%ent
even though the were not for%all joined as a "art the%selves
i2 agree%ent - the "arties to -e -ound - a "rior action
ii2 "ree(isting Esu-stantive legal relationshi"sE &such as "receding and
succeeding owners of "ro"ert'
iii2 ade<uate re"resentation - so%eone with the sa%e interests who was a
"art &such as trustees, guardians, or other fiduciaries'
iv2 a "art Eassu%ing controlE over "rior litigation
v2 "art who loses an individual suit then suing again, this ti%e as the
re"resentative of a class
vi2 s"ecial statutor sche%es such as -an;ru"tc and "ro-ate "roceedings,
"rovided those "roceedings co%"ort with due "rocess
c2 %utualit
32 Final judg%ent Eon the %eritsE
a2 judg%ent where- there is nothing left to do -ut e(ecute that judg%ent
?hich :reclusion Baw $""lies=
1st Court (Jud!ment renderin! court*
State $ Federal Question
Court
Federal Diversit
Court
State 5 State $As "reclusion
law a""lies
556C
Constitution
Federal "reclusion
law a""lies
Reverse of 71838
7f in State $ when
2nd suit is -rought
in State 5, will
a""l State $As
Second
Court
"reclusion law
State w"ere
federal court was
sittin! at t"e time
Federal
Court
State $As "reclusion
law a""lies
71838
Federal "reclusion
law a""lies
7f in State $ when
2nd suit is -rought
in State 5, will
a""l State $As
"reclusion law
State w"ere
federal court was
sittin! at t"e time
LL
LLUnless using State $As law would inhi-it a strong federal interest in using their
"reclusion law
Collateral 1stoppel4)ssue Preclusion
12 Does not -ar the litigation of the entire clai%, it -ars the "art fro% relitigating an
issue on which it has alread litigated and lost
22 The o""ortunit to have raised an issue is not enough, the issue had to G$H3 533/
B7T7@$T3D
32 ?hen issue "reclusion is raised with the sa%e "arties, 1st issue to address is
?G3TG38 TG383 7S CB$7> :83CBUS7C/
02 7f a "art ad%its things in 1st lawsuit the are not -ound - those ad%issions in
another suit -ecause the were not litigated
+2 $lternative -ases 4 if one of the deter%inations could -e ta;en awa and the suit would
still end in the sa%e wa, then the are alternatives
3K. 6udge finds -oth no da%ages $/D contri-utor negligence &alternative -ases'
a2 if ou cover one finding can ou still get the sa%e result=
-2 what "reclusive effect should -e given to the alternative -ases=
i2 under 5irst Restatement the would all -e given "reclusive effect
ii2 under Second Restatement none would -e given "reclusive effect
U/B3SS the issue was a""ealed and affir%ed on a""eal
12 0 T"es of 7ssue :reclusion
a2 %utual offensive 4 sa%e "arties or "arties in "rivit $/D : tring to esto" D
-2 %utual defensive 4 sa%e "arties or "arties in "rivit $/D D tring to esto" :
c2 non4%utual offensive 4 can C/BD -e used against a "art or in "rivit with a
"art, canAt -e used against a stranger $/D : tring to esto" D
d2 non4%utual defensive 4 D tring to esto" :
3K. : sues D in 34car accident2 : hires lawer who does a -ad jo- and loses the
case2 :assenger in the other car didnAt want to -e "art of the lawsuit with that
lawer, so the hire a -etter one2 The should not -e stuc; with the result of the
-ad lawer without having their da in court2 2on'mutual -ecause the "assenger
is a stranger to the 1st suit against the original D2
Re/uirements for )ssue Preclusion
12 Sa%e issue in 2nd suit as in the 1st
a2 had to have -een actuall litigated $/D
-2 deter%ined
22 >ust have valid final judg%ent in 1st suit
32 Deter%ination of the issue was essential to the "rior judg%ent
a2 essential 4 necessar to deter%ine the "rior judg%ent
-2 can ou reach the result without the finding= if so, then it is 2O# 3SS3/T7$B
c2 if Federal court dis%isses case on :6 grounds, the :6 has alread -een
litigated and deter%ined and the : would not -e a-le to file in state court -ecause
it would -e dis%issed on issue "reclusion on the :6 issue
d2 how to deter%ine whether a state court has to dis%iss a case on lac; of
jurisdiction grounds if Federal court dis%issed on -oth :6 and S>6.
i2 deter%ine whether the court follows the 1st or 2nd 8estate%ent
a""roach
ii2 7f 5irst Restatement, then all "recluded, dis%iss case
iii2 7f Second Restatement, chec; to see if there were a""eals
a2 )5 2O APP1AS, no "reclusive effect
-2 )5 #01R1 91R1 APP1AS, were the affir%ed= )5 :1S,
then there is "reclusive effect
02 Deter%ination of "arties against who% issue "reclusion can -e used
+2 )f any of t"ese & re/uirements is not met; t"ere is no issue preclusion
12 )f A & are satisfied; t"en we loo< to t"e discretion of t"e court= 3id t"e party
a!ainst w"om preclusion is +ein! invo<ed "ave a 5ull and 5air Opportunity to
liti!ate>
a2 Full and Fair C""ortunit to litigate the issue
i2 could "art invo;ing issue "reclusion have feasi-l joined the 1st suit=
12 court will loo; at wh the "erson wasnAt in the 1st suit# if there
was a "ro-le% with the "erson joining in the 1st suit
ii2 incentive to litigate issue in 1st suit has to -e greater than or e<ual to
that of the 2nd suit
iii2 "rocedural o""ortunities availa-le in the 2nd suit that were not
availa-le in the 1st suit that could reall lead to a different result
iv2 "rior inconsistent judg%ents, %a;e sure that there are no
inconsistencies with the judg%ent that the "art invo;ing is tring
to use
*2 )f t"e court +elieves it is fair; t"en issue preclusion will apply
Rule &. Special ?erdict@ Aeneral ?erdict and Buestions
&a' S"ecial Herdict
&1' 7n @eneral2 The court %a re<uire a jur to return onl a s"ecial verdict in the for% of a s"ecial written
finding on each issue of fact2 The court %a do so -.
&$' su-%itting written <uestions susce"ti-le of a categorical or other -rief answer,
&5' su-%itting written for%s of the s"ecial findings that %ight "ro"erl -e %ade under the
"leadings and evidence# or
&C' using an other %ethod that the court considers a""ro"riate2
&2' 7nstructions2 The court %ust give the instructions and e("lanations necessar to ena-le the jur to %a;e
its findings on each su-%itted issue2
&3' 7ssues /ot Su-%itted2 $ "art waives the right to a jur trail on an issue of fact raised - the "leadings
or evidence -ut not su-%itted to the jur2 7f the "art does not de%and su-%ission, the court %a %ade a
finding on the issue2 7f the court %a;es no finding, it is considered to have %ade a finding consistent with
its judg%ent on the s"ecial verdict2
&-' @eneral Herdict with $nswers to ?ritten Questions
&1' 7n @eneral2 The court %a su-%it to the jur for%s for a general verdict, together with written <uestions
on one or %ore issues of fact that the jur %ust decide2 The court %ust give the instructions and
e("lanations necessar to ena-le the jur to render a general verdict and answer the <uestions in writing,
and %ust direct the jur to do -oth2
&2' Herdict and $nswers Consistent2 ?hen the general verdict and the answers are consistent, the court
%ust a""rove, for entr under 8ule +F, an a""ro"riate judg%ent on the verdict and answers2
&3' $nswers 7nconsistent with the Herdict2 ?hen the answers are consistent with the each other -ut one or
%ore is inconsistent with the general verdict, the court %a.
&$' a""rove, for entr under 8ule +F, an a""ro"riate judg%ent according to the answers,
notwithstanding the general verdict2
&5' direct the jur to further consider its answer and verdict# or
&C' order a new trial2
&0' $nswers 7nconsistent with 3ach Cther and the Herdict2 ?hen the answers are inconsistent with each
other and one or %ore is also inconsistent with the general verdict, judg%ent %ust not -e entered# instead,
the court %ust direct the jur to further consider its answers and verdict, or %ust order a new trial2
12 @eneral verdict 4 just deter%ining whether : or D wins the suit, no other infor%ation
22 S"ecial verdict 4 jur has a verdict for% with a series of <uestions and the jur gives
answers to those s"ecific <uestions
a2 the do not find for : or D, the just answer the <uestions on the for%
-2 the judge then ta;es the answers and a""lies the su-stantive law to the answers
and %a;es a deter%ination on the a""lication
c2 allows the court to see what issues were actuall deter%ined in the case
32 @eneral verdict with answers to written <uestions 4 verdict for% with list of <uestions
a2 jur answers the <uestions, then enters a general verdict for either : or D
Rule C2 5indin!s and Conclusions +y t"e Court
&a' Findings and Conclusions
&1' 7n @eneral2 7n an action tried on the facts without a jur or with an advisor jur, the court %ust find the
facts s"eciall and state its conclusions of law se"aratel2 The findings and conclusions %a -e stated on
the record after the close of the evidence or %a a""ear in an o"inion or a %e%orandu% of decision filed
- the court2 6udg%ent %ust -e entered under 8ule +F2
Rule 1D Pretrial Conference@ Sc"edulin!@ -ana!ement
&-' Scheduling
&1' Scheduling Crder2 3(ce"t in categories of actions e(e%"ted - local rule, the district judge, or a
%agistrate judge when authori!ed - local rule, %ust issue a scheduling order.
&$' after receiving the "artiesA re"ort under 8ule 21&f'# or
&5' after consulting with the "artiesA attornes and an unre"resented "arties at a scheduling
conference or - tele"hone, %ail, or other %eans2
&2' Ti%e to 7ssue2 The judge %ust issue the scheduling order as soon as "ractica-le, -ut in an event within
the earlier of 12, das after an D has -een served with the co%"laint or 9, das after an D has a""eared2
&3' Contents of the Crder2
&$' 8e<uired Contents2 The scheduling order %ust li%it the ti%e to join other "arties, a%end the
"leadings, co%"lete discover, and file %otions2
&5' :er%itted Contents2 The scheduling order %a.
&i' %odif the ti%ing of disclosures under 8ule 21&a' and 21&e'&1'#
&ii' %odif the e(tent of discover#
&iii' "rovide for disclosure or discover of electronicall stored infor%ation#
&iv' include an agree%ents the "arties reach for asserting clai%s of "rivilege or of
"rotection as trial4"re"aration %aterial after infor%ation is "roduced#
&v' set dates for "retrial conferences and for trial# and
&vi' include other a""ro"riate %atters2
&0' >odifing a Schedule2 $ schedule %a -e %odified onl for good cause and with the judgeAs consent2
12 The 21&f' conference ta;es "lace when the 11&-' scheduling order is due fro% the court
a2 either 12, das fro% D -eing served C8 9, das fro% D a""earing, whichever
is earlier
Rule 2D 3uty to 3isclose@ Aeneral Provisions Aovernin! 3iscovery
12 Discover 4 devices authori!ed - the rule to gather facts and infor%ation
22 Disclosures 4 %andated - the rules, facts and infor%ation that >UST -e disclosed
32 >ost discover orders will never -e a-le to -e a""ealed, unless there is a situation li;e
in Steffan where there is a dis%issal of the lawsuit
02 $dding additional clai%s %a o"en u" additional discover o""ortunities
+2 This rule discusses the for%al rules for gathering infor%ation, there is a lot of infor%al
fact gathering &loo;ing through records, surveing the scene of the cri%e, assets, wor;,
etc2'
12 7f not sure what to disclose, want to err on the side of over4disclosure as o""osed to
under4disclosing and losing a witness or ad%issi-le docu%ents or tangi-le ite%s
*2 T"icall for%al discover wonAt -egin until after for%al disclosures -ecause ou can
get an idea of what the other side has as infor%ation
F2 7f discover has wor;ed effectivel, the suit should settle or have su%%ar judg%ent
92 The discover evidence itself does not have to -e ad%issi-le, itAs whether the
infor%ation ou get could lead to ad%issi-le evidence
&-' Discover Sco"e and Bi%its
&1' Sco"e in @eneral2 Unless otherwise li%ited - court order, the sco"e of discover is as follows. :arties
%a o-tain discover regarding an non"rivileged %atter that is relevant to an "artAs clai% or defense 4
including the e(istence, descri"tion, nature, custod, condition, and location of an docu%ents or other
tangi-le things and the identit an location of "ersons who ;now of an discovera-le %atter2 For good
cause, the court %a order discover of an %atter relevant to the su-ject %atter involved in the action2
8elevant infor%ation need not -e ad%issi-le at the trial if the discover a""ears reasona-l calculated to
lead to the discover of ad%issi-le evidence2 $ll discover is su-ject to the li%itations i%"osed - 8ule
21&-'&2'&C'2
12 21&-'&1' 4 rule that governs the sco"e of discover
a2 a fle(i-le standard that the rules have enacted with regard to the availa-ilit of
discover
&a' 8e<uired Disclosures
&1' 7nitial Disclosure2
&$' 7n @eneral2 3(ce"t as e(e%"ted - 8ule 21&a'&1'&5' or as otherwise sti"ulated or ordered -
the court, a "art %ust, without awaiting a discover re<uest, "rovide to the other "arties.
&i' the na%e and, if ;nown, the address and tele"hone nu%-er of each individual li;el to
have discovera-le infor%ation44along with the su-jects of that infor%ation44that
the disclosing "art %a use to su""ort its clai%s or defenses, unless the use would
-e solel for i%"each%ent#
&ii' a co"44or a descri"tion - categor and location44of all docu%ents, electronicall
stored infor%ation, and tangi-le things that the disclosing "art has in its
"ossession, custod, or control and %a use to su""ort its clai%s or defenses,
unless the use would -e solel for i%"each%ent#
&iii' a co%"utation of each categor of da%ages clai%ed - the disclosing "art44who
%ust also %a;e availa-le for ins"ection and co"ing as under 8ule 30 the
docu%ents or other evidentiar %aterial, unless "rivileged or "rotected fro%
disclosure, on which each co%"utation is -ased, including %aterials -earing on the
nature and e(tent of injuries suffered# and
&iv' for ins"ection and co"ing as under 8ule 30, an insurance agree%ent under which
an insurance -usiness %a -e lia-le to satisf all or "art of a "ossi-le judg%ent
in the action or to inde%nif or rei%-urse for "a%ents %ade to satisf the judg%ent2
&5' :roceedings 3(e%"t fro% 7nitial Disclosure2 The following "roceedings are e(e%"t fro%
initial disclosure.
&i' an action for review on an ad%inistrative record#
&ii' a forfeiture action in re% arising fro% a federal statute#
&iii' a "etition for ha-eas cor"us or an other "roceeding to challenge a cri%inal
conviction or sentence#
&iv' an action -rought without an attorne - a "erson in the custod of the United States,
a state, or a state su-division#
&v' an action to enforce or <uash an ad%inistrative su%%ons or su-"oena#
&vi' an action - the United States to recover -enefit "a%ents#
&vii' an action - the United States to collect on a student loan guaranteed - the United
States#
&viii' a "roceeding ancillar to a "roceeding in another court# and
&i(' an action to enforce an ar-itration award2
&C' Ti%e for 7nitial Disclosures447n @eneral2 $ "art %ust %a;e the initial disclosures at or within
10 das after the "artiesA 8ule 21&f' conference unless a different ti%e is set - sti"ulation or court
order, or unless a "art o-jects during the conference that initial disclosures are not a""ro"riate in
this action and states the o-jection in the "ro"osed discover "lan2 7n ruling on the o-jection, the
court %ust deter%ine what disclosures, if an, are to -e %ade and %ust set the ti%e for disclosure2
&D' Ti%e for 7nitial Disclosures44For :arties Served or 6oined Bater. $ "art that is first served or
otherwise joined after the 8ule 21&f' conference %ust %a;e the initial disclosures within 3, das
after -eing served or joined, unless a different ti%e is set - sti"ulation or court order2
&3' 5asis for 7nitial Disclosure# Unacce"ta-le 3(cuses2 $ "art %ust %a;e its initial disclosures
-ased on the infor%ation then reasona-l availa-le to it2 $ "art is not e(cused fro% %a;ing its
disclosures -ecause it has not full investigated the case or -ecause it challenges the sufficienc of
another "artAs disclosures or -ecause another "art has not %ade its disclosures2
*2 21&a'&1' 4 %andator initial disclosures
F2 21&a'&1'&$' 4 a "art >UST, without awaiting a discover re<uest, "rovide to the other
"arties.
a2 21&a'&1'&$'&i' 4 the na%es, addressed and tele"hone nu%-ers of all individuals
li;el to have discovera-le infor%ation and su-jects of infor%ation used to
su""ort clai%s or defenses U/B3SS solel for i%"each%ent
i2 do not have to disclose adverse infor%ation
-2 21&a'&1'&$'&ii' 4 an docu%ents or tangi-le ite%s that a "art %a use to
su""ort their clai%s or defenses, U/B3SS used solel for i%"each%ent
i2 if there are a lot of docu%ents, the "art can give a descri"tion -
categor and location of all the docu%ents
c2 21&a'&1'&$'&iii' 4 calculation of an da%ages that are -eing sough and the
docu%ents su""orting the clai% for da%ages
d2 21&a'&1'&$'&iv' 4 the co" of an lia-ilit "olic that a "art %a loo; too to
satisf a clai%
92 21&a'&1'&5' 4 list of "roceedings e(e%"t fro% initial disclosures
a2 also where there is an agree%ent -etween the "arties or
-2 the court can e(e%"t a case fro% disclosure u"on %otion
1,2 21&a'&1'&C' 4 to deter%ine when 21&a'&1' initial disclosures are due, %ust deter%ine
when the 21&f' conference is ha""ening
a2 disclosures >UST 53 >$D3 within 10 das of the 21&f' conference U/B3SS
a different ti%e is set - sti"ulation or court order
&f' Conference of the :arties# :lanning for Discover
&1' Conference Ti%ing2 3(ce"t in a "roceeding e(e%"ted fro% initial disclosure under 8ule 21&a'&1'&5' or
when the court orders otherwise, the "arties %ust confer as soon as "ractica-le44and in an event at least 21
das -efore a scheduling conference is to -e held or a scheduling order is due under 8ule 11&-'2
&2' Conference Content# :artiesA 8es"onsi-ilities2 7n conferring, the "arties %ust consider the nature and
-asis of their clai%s and defenses and the "ossi-ilities for "ro%"tl settling or resolving the case# %a;e or
arrange for the disclosures re<uired - 8ule 21&a'&1'# discuss an issues a-out "reserving discovera-le
infor%ation# and develo" a "ro"osed discover "lan2 The attornes of record and all unre"resented "arties
that have a""eared in the case are jointl res"onsi-le for arranging the conference, for atte%"ting in good
faith to agree on the "ro"osed discover "lan, and for su-%itting to the court within 10 das after the
conference a written re"ort outlining the "lan2 The court %a order the "arties or attornes to attend the
conference in "erson2
&3' Discover :lan2 $ discover "lan %ust state the "artiesA views and "ro"osals on.
&$' what changes should -e %ade in the ti%ing, for%, or re<uire%ent for disclosures under 8ule
21&a', including a state%ent of when initial disclosures were %ade or will -e %ade#
&5' the su-jects on which discover %a -e needed, when discover should -e co%"leted, and
whether discover should -e conducted in "hases or -e li%ited to or focused on "articular issues#
&C' an issues a-out disclosure or discover of electronicall stored infor%ation, including the
for% or for%s in which it should -e "roduced#
&D' an issues a-out clai%s of "rivilege or of "rotection as trial4"re"aration %aterials, including44
if the "arties agree on a "rocedure to assert these clai%s after "roduction44whether to as; the court
to include their agree%ent in an order#
&3' what changes should -e %ade in the li%itations on discover i%"osed under these rules or -
local rule, and what other li%itations should -e i%"osed# and
&F' an other orders that the court should issue under 8ule 21&c' or under 8ule 11&-' and &c'2
&0' 3("edited Schedule2 7f necessar to co%"l with its e("edited schedule for 8ule 11&-' conferences, a
court %a - local rule.
&$' re<uire the "artiesA conference to occur less than 21 das -efore the scheduling conference is
held or a scheduling order is due under 8ule 11&-'# and
&5' re<uire the written re"ort outlining the discover "lan to -e filed less than 10 das after the
"artiesA conference, or e(cuse the "arties fro% su-%itting a written re"ort and "er%it the% to
re"ort orall on their discover "lan at the 8ule 11&-' conference2
12 $t this %eeting "arties agree on a discover date and develo" a "ro"osed discover
"lan
22 The %eeting ta;es "lace when the 11&-' scheduling order is due fro% the court
a2 either 12, das fro% D -eing served or 9, das fro% D a""earing, whichever is
earlier
32 $fter the %eeting the "arties have 10 das to give their discover to the other "arties
02 * das later will -e the scheduling conference
a2 set su%%ar judg%ent dates, e("ert disclosure due dates, etc2
+2 21&f'&3' 4 discover "lan %ust include the "artiesA views and "ro"osals on.
a2 21&f'&3'&$' 4 state%ent of when initial disclosures were %ade or will -e %ade
-2 21&f'&3'&5' 4 when discover should -e co%"leted, whether it should -e
conducted in "hases, and the su-jects of discover
c2 21&f'&3'&C' 4 issues a-out electronicall stored infor%ation and the for%s in
which it should -e "roduced
d2 21&f'&3'&D' 4 issues a-out clai%s of "rivilege or "rotection of trial4"re"aration
%aterials
e2 21&f'&3'&3' 4 changes to -e %ade in the li%itations on discover, what other
li%itations should -e i%"osed
f2 21&f'&3'&F' 4 an other orders the court should issue
&d' Ti%ing and Se<uence of Discover
&1' Ti%ing2 $ "art %a not see; discover fro% an source -efore the "arties have conferred as re<uired
- 8ule 21&f', e(ce"t in a "roceeding e(e%"ted fro% initial disclosure under 8ule 21&a'&1'&5', or when
authori!ed - these rules, - sti"ulation, or - court order2
&2' Se<uence2 Unless, on %otion, the court orders otherwise for the "artiesA and witnessesA convenience and
in the interests of justice.
&$' %ethods of discover %a -e used in an se<uence, and
&5' discover - one "art does not re<uire an other "art to dela its discover
12 21&d'&1' 4 21&f' %eeting will -e the trigger date for when ou can -egin for%al
discover
3epositions in Aeneral
12 De"ositions are ver-ati% underoath interviews
22 Cne of the %ost effective discover tools, -ut t"icall the %ost e("ensive
32 ?itnesses are "re""ed -efore the de"osition
02 Dou can ta;e de"ositions fro% a "art C8 a non4"art
+2 :art is re/uired to attend "ursuant to "ro"er 8ule 32 notice
12 De"osition of a non'party %ust -e served with a su-"oena
*2 ?hile the attorne %a -e "resent for their de"onent, their role is li%ited
F2 7f the attorne o-jects to a <uestion, the "art will still answer the <uestion -ut then the
o-jection is on record and when the o""osing "art tries to use the answer in court the
can raise the o-jection
Rule 28 3epositions to Perpetuate #estimony
&a' 5efore an $ction 7s Filed
&1' :etition2 $ "erson who wants to "er"etuate testi%on a-out an %atter cogni!a-le in a United States
court %a file a verified "etition in the district court for the district where an e("ected adverse "art
resides2 The "etition %ust as; for an order authori!ing the "etitioner to de"ose the na%ed "ersons in order
to "er"etuate their testi%on2 The "etition %ust -e titled in the "etitionerAs na%e and %ust show.
&$' that the "etitioner e("ects to -e a "art to an action cogni!a-le in a United States court -ut
cannot "resentl -ring it or cause it to -e -rought#
&5' the su-ject %atter of the e("ected action and the "etitionerAs interest#
&C' the facts that the "etitioner wants to esta-lish - the "ro"osed testi%on and the reasons to
"er"etuate it#
&D' the na%es or a descri"tion of the "ersons who% the "etitioner e("ects to -e adverse "arties
and their addresses, so far as ;nown# and
&3' the na%e, address, and e("ected su-stance of the testi%on of each de"onent2
&2' /otice and Service2 $t least 21 das -efore the hearing date, the "etitioner %ust serve each e("ected
adverse "art with a co" of the "etition and a notice stating the ti%e and "lace of the hearing2 The notice
%a -e served either inside or outside the district or state in the %anner "rovided in 8ule 02 7f that service
cannot -e %ade with reasona-le diligence on an e("ected adverse "art, the court %a order service -
"u-lication or otherwise2 The court %ust a""oint an attorne to re"resent "ersons not served in the %anner
"rovided in 8ule 0 and to cross4e(a%ine the de"onent if an unserved "erson is not otherwise re"resented2 7f
an e("ected adverse "art is a %inor or is inco%"etent, 8ule 1*&c' a""lies2
&3' Crder and 3(a%ination2 7f satisfied that "er"etuating the testi%on %a "revent a failure or dela of
justice, the court %ust issue an order that designates or descri-es the "ersons whose de"ositions %a -e
ta;en, s"ecifies the su-ject %atter of the e(a%inations, and states whether the de"ositions will -e ta;en
orall or - written interrogatories2 The de"ositions %a then -e ta;en under these rules, and the court %a
issue orders li;e those authori!ed - 8ules 30 and 3+2 $ reference in these rules to the court where an
action is "ending %eans, for "ur"oses of this rule, the court where the "etition for the de"osition was filed2
&0' Using the De"osition2 $ de"osition to "er"etuate testi%on %a -e used under 8ule 32&a' in an later4
filed district4court action involving the sa%e su-ject %atter if the de"osition either was ta;en under these
rules or, although not so ta;en, would -e ad%issi-le in evidence in the courts of the state where it was
ta;en2
&-' :ending $""eal
&1' 7n @eneral2 The court where a judg%ent has -een rendered %a, if an a""eal has -een ta;en or %a still
-e ta;en, "er%it a "art to de"ose witnesses to "er"etuate their testi%on for use in the event of further
"roceedings in that court2
&2' >otion2 The "art who wants to "er"etuate testi%on %a %ove for leave to ta;e the de"ositions, on
the sa%e notice and service as if the action were "ending in the district court2 The %otion %ust show.
&$' the na%e, address, and e("ected su-stance of the testi%on of each de"onent# and
&5' the reasons for "er"etuating the testi%on2
&3' Court Crder2 7f the court finds that "er"etuating the testi%on %a "revent a failure or dela of justice,
the court %a "er%it the de"ositions to -e ta;en and %a issue orders li;e those authori!ed - 8ules 30
and 3+2 The de"ositions %a -e ta;en and used as an other de"osition ta;en in a "ending district4court
action2
&c' :er"etuation - an $ction
This rule does not li%it a courtAs "ower to entertain an action to "er"etuate testi%on2

Rule 28 Persons Eefore 9"om 3epositions -ay Ee #a<en
&a' ?ithin the United States
&1' 7n @eneral2 ?ithin the United States or a territor or insular "ossession su-ject to United States
jurisdiction, a de"osition %ust -e ta;en -efore.
&$' an officer authori!ed to ad%inister oaths either - federal law or - the law in the "lace of
e(a%ination# or
&5' a "erson a""ointed - the court where the action is "ending to ad%inister oaths and ta;e
testi%on2
&2' Definition of MCfficerN2 The ter% MofficerN in 8ules 3,, 31, and 32 includes a "erson a""ointed - the
court under this rule or designated - the "arties under 8ule 29&a'2
&-' 7n a Foreign Countr
&1' 7n @eneral2 $ de"osition %a -e ta;en in a foreign countr.
&$' under an a""lica-le treat or convention#
&5' under a letter of re<uest, whether or not ca"tioned a Mletter rogatorN#
&C' on notice, -efore a "erson authori!ed to ad%inister oaths either - federal law or - the law in
the "lace of e(a%ination# or
&D' -efore a "erson co%%issioned - the court to ad%inister an necessar oath and ta;e
testi%on2
&2' 7ssuing a Better of 8e<uest or a Co%%ission2 $ letter of re<uest, a co%%ission, or -oth %a -e issued.
&$' on a""ro"riate ter%s after an a""lication and notice of it# and
&5' without a showing that ta;ing the de"osition in another %anner is i%"ractica-le or
inconvenient2
&3' For% of a 8e<uest, /otice, or Co%%ission2 ?hen a letter of re<uest or an other device is used
according to a treat or convention, it %ust -e ca"tioned in the for% "rescri-ed - that treat or
convention2 $ letter of re<uest %a -e addressed MTo the $""ro"riate $uthorit in Ona%e of countrP2N $
de"osition notice or a co%%ission %ust designate - na%e or descri"tive title the "erson -efore who% the
de"osition is to -e ta;en2
&0' Better of 8e<uest44$d%itting 3vidence2 3vidence o-tained in res"onse to a letter of re<uest need not -e
e(cluded %erel -ecause it is not a ver-ati% transcri"t, -ecause the testi%on was not ta;en under oath, or
-ecause of an si%ilar de"arture fro% the re<uire%ents for de"ositions ta;en within the United States2
&c' Dis<ualification
$ de"osition %ust not -e ta;en -efore a "erson who is an "artAs relative, e%"loee, or attorne# who is
related to or e%"loed - an "artAs attorne# or who is financiall interested in the action2
Rule 2. Stipulations A+out 3iscovery Procedure
Unless the court orders otherwise, the "arties %a sti"ulate that.
&a' a de"osition %a -e ta;en -efore an "erson, at an ti%e or "lace, on an notice, and in the %anner
s"ecified 4 in which event it %a -e used in the sa%e wa as an other de"osition# and
&-' other "rocedures governing or li%iting discover -e %odified 4 -ut a sti"ulation e(tending the ti%e for
an for% of discover %ust have court a""roval if it would interfere with the ti%e set for co%"leting
discover, for hearing a %otion, or for trial2
Rule 3$ 3epositions +y Oral 1Famination
Rule 31 3epositions +y 9ritten Buestions
&a' ?hen a De"osition >a 5e Ta;en
&1' ?ithout Beave2 $ "art %a, - written <uestions, de"ose an "erson, including a "art, without leave
of court e(ce"t as "rovided in 8ule 31&a'&2'2 The de"onentAs attendance %a -e co%"elled - su-"oena
under 8ule 0+2
&2' ?ith Beave2 $ "art %ust o-tain leave of court, and the court %ust grant leave to the e(tent consistent
with 8ule 21&-'&2'.
&$' if the "arties have not sti"ulated to the de"osition and.
&i' the de"osition would result in %ore than 1, de"ositions -eing ta;en under this rule or
8ule 3, - the "laintiffs, or - the defendants, or - the third4"art defendants#
&ii' the de"onent has alread -een de"osed in the case# or
&iii' the "art see;s to ta;e a de"osition -efore the ti%e s"ecified in 8ule 21&d'# or
&5' if the de"onent is confined in "rison2
&3' Service# 8e<uired /otice2 $ "art who wants to de"ose a "erson - written <uestions %ust serve the%
on ever other "art, with a notice stating, if ;nown, the de"onentAs na%e and address2 7f the na%e is
un;nown, the notice %ust "rovide a general descri"tion sufficient to identif the "erson or the "articular
class or grou" to which the "erson -elongs2 The notice %ust also state the na%e or descri"tive title and the
address of the officer -efore who% the de"osition will -e ta;en2
&0' Questions Directed to an Crgani!ation2 $ "u-lic or "rivate cor"oration, a "artnershi", an association, or
a govern%ental agenc %a -e de"osed - written <uestions in accordance with 8ule 3,&-'&1'2
&+' Questions fro% Cther :arties2 $n <uestions to the de"onent fro% other "arties %ust -e served on all
"arties as follows. cross4<uestions, within 10 das after -eing served with the notice and direct <uestions#
redirect <uestions, within * das after -eing served with cross4<uestions# and recross4<uestions, within *
das after -eing served with redirect <uestions2 The court %a, for good cause, e(tend or shorten these
ti%es2
&-' Deliver to the Cfficer# CfficerAs Duties
The "art who noticed the de"osition %ust deliver to the officer a co" of all the <uestions served and of
the notice2 The officer %ust "ro%"tl "roceed in the %anner "rovided in 8ule 3,&c', &e', and &f' to.
&1' ta;e the de"onentAs testi%on in res"onse to the <uestions#
&2' "re"are and certif the de"osition# and
&3' send it to the "art, attaching a co" of the <uestions and of the notice2
&c' /otice of Co%"letion or Filing
&1' Co%"letion2 The "art who noticed the de"osition %ust notif all other "arties when it is co%"leted2
&2' Filing2 $ "art who files the de"osition %ust "ro%"tl notif all other "arties of the filing2
12
8ule 32 Using De"ositions in Court :roceedings
Rule 33 )nterro!atories to Parties
&a' 7n @eneral
&1' /u%-er2 Unless otherwise sti"ulated or ordered - the court, a "art %a serve on an other "art no
%ore than 2+ written interrogatories, including all discrete su-"arts2 Beave to serve additional
interrogatories %a -e granted to the e(tent consistent with 8ule 21&-'&2'2
&2' Sco"e2 $n interrogator %a relate to an %atter that %a -e in<uired into under 8ule 21&-'2 $n
interrogator is not o-jectiona-le %erel -ecause it as;s for an o"inion or contention that relates to fact or
the a""lication of law to fact, -ut the court %a order that the interrogator need not -e answered until
designated discover is co%"lete, or until a "retrial conference or so%e other ti%e2
&-' $nswers and C-jections
&1' 8es"onding :art2 The interrogatories %ust -e answered.
&$' - the "art to who% the are directed# or
&5' if that "art is a "u-lic or "rivate cor"oration, a "artnershi", an association, or a govern%ental
agenc, - an officer or agent, who %ust furnish the infor%ation availa-le to the "art2
&2' Ti%e to 8es"ond2 The res"onding "art %ust serve its answers and an o-jections within 3, das after
-eing served with the interrogatories2 $ shorter or longer ti%e %a -e sti"ulated to under 8ule 29 or -e
ordered - the court2
&3' $nswering 3ach 7nterrogator2 3ach interrogator %ust, to the e(tent it is not o-jected to, -e answered
se"aratel and full in writing under oath2
&0' C-jections2 The grounds for o-jecting to an interrogator %ust -e stated with s"ecificit2 $n ground
not stated in a ti%el o-jection is waived unless the court, for good cause, e(cuses the failure2
&+' Signature2 The "erson who %a;es the answers %ust sign the%, and the attorne who o-jects %ust sign
an o-jections2
&c' Use
$n answer to an interrogator %a -e used to the e(tent allowed - the Federal 8ules of 3vidence2
&d' C"tion to :roduce 5usiness 8ecords
7f the answer to an interrogator %a -e deter%ined - e(a%ining, auditing, co%"iling, a-stracting, or
su%%ari!ing a "artAs -usiness records &including electronicall stored infor%ation', and if the -urden of
deriving or ascertaining the answer will -e su-stantiall the sa%e for either "art, the res"onding "art %a
answer -.
&1' s"ecifing the records that %ust -e reviewed, in sufficient detail to ena-le the interrogating "art to
locate and identif the% as readil as the res"onding "art could# and
&2' giving the interrogating "art a reasona-le o""ortunit to e(a%ine and audit the records and to %a;e
co"ies, co%"ilations, a-stracts, or su%%aries2Q
12 33&a'&1' 4 li%itation of nu%-er
a2 %a(i%u% of 2+ interrogatories "er "art, including all discrete su-"arts
-2 this li%it will a""l unless there is an order - the court or the "arties agree to
%ore interrogatories
22 33&-' 4 the interrogatories >UST -e answered - the "art to who% the are directed
C8 if a cor"oration, - a% officer or agent a""ointed - the cor"oration
a2 answers and o-jections %ust -e given within 3, das after -eing served
-2 each interrogator %ust -e answered se"aratel and in writing
c2 if o-jecting, %ust state the grounds for o-jection with s"ecificit
d2 "erson %a;ing the answers signs the%
e2 o-jections %ust -e signed - the attorne
32 Can onl -e as;ed for fro% "arties, not non4"arties
02 7nterrogatories are a set of written <uestions to which ou will receive written answers
or o-jections
+2 $dvantage. ine("ensive device of discover
12 Downfall. if ou receive a vague answer, ou donAt have the o""ortunit to nail down
the infor%ation ou were tring to get with a follow u" <uestion
*2 Crafting the <uestions is i%"ortant so that ou can get the infor%ation that ou are
see;ing
F2 The "art will answer the <uestions initiall, the answers will then go to the attorne
and the attorne will review all the infor%ation and %a;e sure that the "art is not giving
too %uch infor%ation
92 Usuall used for ver -asic infor%ation &identifing all witnesses at the accident,
identifing the nature of the :As jo-, identifing who owned the car, location of an
docu%ents or tangi-le ite%s, etc2'
Rule 3& Producin! 3ocuments; 1lectronically Stored )nformation; and #an!i+le
#"in!s; or 1nterin! onto and; for )nspection and Ot"er Purposes
&a' 7n @eneral
$ "art %a serve on an other "art a re<uest within the sco"e of 8ule 21&-'.
&1' to "roduce and "er%it the re<uesting "art or its re"resentative to ins"ect, co", test, or sa%"le the
following ite%s in the res"onding "artAs "ossession, custod, or control.
&$' an designated docu%ents or electronicall stored infor%ation44including writings, drawings,
gra"hs, charts, "hotogra"hs, sound recordings, i%ages, and other data or data co%"ilations44stored
in an %ediu% fro% which infor%ation can -e o-tained either directl or, if necessar, after
translation - the res"onding "art into a reasona-l usa-le for%# or
&5' an designated tangi-le things# or
&2' to "er%it entr onto designated land or other "ro"ert "ossessed or controlled - the res"onding "art,
so that the re<uesting "art %a ins"ect, %easure, surve, "hotogra"h, test, or sa%"le the "ro"ert or an
designated o-ject or o"eration on it2
&-' :rocedure
&1' Contents of the 8e<uest2 The re<uest.
&$' %ust descri-e with reasona-le "articularit each ite% or categor of ite%s to -e ins"ected#
&5' %ust s"ecif a reasona-le ti%e, "lace, and %anner for the ins"ection and for "erfor%ing the
related acts# and
&C' %a s"ecif the for% or for%s in which electronicall stored infor%ation is to -e "roduced2
&2' 8es"onses and C-jections2
&$' Ti%e to 8es"ond2 The "art to who% the re<uest is directed %ust res"ond in writing within 3,
das after -eing served2 $ shorter or longer ti%e %a -e sti"ulated to under 8ule 29 or -e ordered
- the court2
&5' 8es"onding to 3ach 7te%2 For each ite% or categor, the res"onse %ust either state that
ins"ection and related activities will -e "er%itted as re<uested or state an o-jection to the re<uest,
including the reasons2
&C' C-jections2 $n o-jection to "art of a re<uest %ust s"ecif the "art and "er%it ins"ection of the
rest2
&D' 8es"onding to a 8e<uest for :roduction of 3lectronicall Stored 7nfor%ation2 The res"onse
%a state an o-jection to a re<uested for% for "roducing electronicall stored infor%ation2 7f the
res"onding "art o-jects to a re<uested for%44or if no for% was s"ecified in the re<uest44the "art
%ust state the for% or for%s it intends to use2
&3' :roducing the Docu%ents or 3lectronicall Stored 7nfor%ation2 Unless otherwise sti"ulated or
ordered - the court, these "rocedures a""l to "roducing docu%ents or electronicall stored
infor%ation.
&i' $ "art %ust "roduce docu%ents as the are ;e"t in the usual course of -usiness or
%ust organi!e and la-el the% to corres"ond to the categories in the re<uest#
&ii' 7f a re<uest does not s"ecif a for% for "roducing electronicall stored infor%ation, a
"art %ust "roduce it in a for% or for%s in which it is ordinaril %aintained or
in a reasona-l usa-le for% or for%s# and
&iii' $ "art need not "roduce the sa%e electronicall stored infor%ation in %ore than
one for%2
&c' /on"arties
$s "rovided in 8ule 0+, a non"art %a -e co%"elled to "roduce docu%ents and tangi-le things or to
"er%it an ins"ection2
12 Deals with re<uests for docu%ents, tangi-le ite%s, and docu%ents allowing the
ins"ection of land2
22 Used to have a "art C8 non4"art "roduce the ite%s
32 30&-'&1' 4 %ust send a written re<uest to the "arties fro% which ou see; the ite%s
with
a2 a descri"tion of the ite%s -eing re<uested
-2 a reasona-le ti%e, "lace and %anner for ins"ection or for "erfor%ing related
acts and
c2 the for% or for%s in which electronicall stored infor%ation is to -e "roduced
02 30&-'&2' 4 the "art to who% the re<uest is directed >UST res"ond in writing, to each
ite%, within 3, das after -eing served with "er%ission or o-jection
a2 if o-jecting %ust include the reason
-2 if a re<uest does not s"ecif how the wish to receive the files the "art can
"rovide the% as the are ;e"t in the ordinar course of -usiness C8 the can
organi!e the% regarding each re<uest
+2 ?hen re<uesting fro% a :$8TD, ou onl have to follow 8ule 30 "rocedure -ecause
the are alread a "art to the suit
a2 if the donAt co%"l, atte%"t to %eet and confer with the "art, and if that does
not wor; then file a 8ule 3* %otion to co%"el
12 ?hen re<uesting fro% a /C/4:$8TD, ou %ust follow 8ule 30 "rocedure, $BC/@
?7TG serving a su-"oena duces tecu%
Rule 3C P"ysical and -ental 1Famination
&a' Crder for an 3(a%ination
&1' 7n @eneral2 The court where the action is "ending %a order a "art whose %ental or "hsical
condition44including -lood grou"44is in controvers to su-%it to a "hsical or %ental e(a%ination - a
suita-l licensed or certified e(a%iner2 The court has the sa%e authorit to order a "art to "roduce for
e(a%ination a "erson who is in its custod or under its legal control2
&2' >otion and /otice# Contents of the Crder2 The order.
&$' %a -e %ade onl on %otion for good cause and on notice to all "arties and the "erson to -e
e(a%ined# and
&5' %ust s"ecif the ti%e, "lace, %anner, conditions, and sco"e of the e(a%ination, as well as the
"erson or "ersons who will "erfor% it2
&-' 3(a%inerAs 8e"ort
&1' 8e<uest - the :art or :erson 3(a%ined2 The "art who %oved for the e(a%ination %ust, on re<uest,
deliver to the re<uester a co" of the e(a%inerAs re"ort, together with li;e re"orts of all earlier e(a%inations
of the sa%e condition2 The re<uest %a -e %ade - the "art against who% the e(a%ination order was
issued or - the "erson e(a%ined2
&2' Contents2 The e(a%inerAs re"ort %ust -e in writing and %ust set out in detail the e(a%inerAs findings,
including diagnoses, conclusions, and the results of an tests2
&3' 8e<uest - the >oving :art2 $fter delivering the re"orts, the "art who %oved for the e(a%ination
%a re<uest44and is entitled to receive44fro% the "art against who% the e(a%ination order was issued li;e
re"orts of all earlier or later e(a%inations of the sa%e condition2 5ut those re"orts need not -e delivered -
the "art with custod or control of the "erson e(a%ined if the "art shows that it could not o-tain the%2
&0' ?aiver of :rivilege2 5 re<uesting and o-taining the e(a%inerAs re"ort, or - de"osing the e(a%iner,
the "art e(a%ined waives an "rivilege it %a have44in that action or an other action involving the sa%e
controvers44concerning testi%on a-out all e(a%inations of the sa%e condition2
&+' Failure to Deliver a 8e"ort2 The court on %otion %a order44on just ter%s44that a "art deliver the
re"ort of an e(a%ination2 7f the re"ort is not "rovided, the court %a e(clude the e(a%inerAs testi%on at
trial2
&1' Sco"e2 This su-division &-' a""lies also to an e(a%ination %ade - the "artiesA agree%ent, unless the
agree%ent states otherwise2 This su-division does not "reclude o-taining an e(a%inerAs re"ort or de"osing
an e(a%iner under other rules2
12 3+&a'&1' 4 The court %a order a "art to su-%it to a "hsical or %ental e(a%ination if
the "artAs "hsical or %ental condition 7S 7/ CC/T8CH38SD
22 3+&a'&2' 4 The order has to -e %ade with good cause and $BB "arties and the "erson to
-e e(a%ined %ust -e notified A23 ti%e, "lace, %anner, condition, sco"e of the
e(a%ination, and the "erson who will "erfor% the e(a%ination
32 Cannot -e used on a non4"art, can C/BD -e used on a "art to the suit
02 Unless the "art agrees to an e(a%ination, ou %ust get a court order
+2 >ust show the court wh the discover is needed
12 7f a "art %a;es a re<uest for e(a%ination, then the re<uesting "art o"ens all the
doors for the "roducing "art to re<uest all the docu%ents relating to the re<uesting
"artAs injuries
Rule 3D Re/uests for Admission
&a' Sco"e and :rocedure
&1' Sco"e2 $ "art %a serve on an other "art a written re<uest to ad%it, for "ur"oses of the "ending
action onl, the truth of an %atters within the sco"e of 8ule 21&-'&1' relating to.
&$' facts, the a""lication of law to fact, or o"inions a-out either# and
&5' the genuineness of an descri-ed docu%ents2
&2' For%# Co" of a Docu%ent2 3ach %atter %ust -e se"aratel stated2 $ re<uest to ad%it the genuineness
of a docu%ent %ust -e acco%"anied - a co" of the docu%ent unless it is, or has -een, otherwise
furnished or %ade availa-le for ins"ection and co"ing2
&3' Ti%e to 8es"ond# 3ffect of /ot 8es"onding2 $ %atter is ad%itted unless, within 3, das after -eing
served, the "art to who% the re<uest is directed serves on the re<uesting "art a written answer or
o-jection addressed to the %atter and signed - the "art or its attorne2 $ shorter or longer ti%e for
res"onding %a -e sti"ulated to under 8ule 29 or -e ordered - the court2
&0' $nswer2 7f a %atter is not ad%itted, the answer %ust s"ecificall den it or state in detail wh the
answering "art cannot truthfull ad%it or den it2 $ denial %ust fairl res"ond to the su-stance of the
%atter# and when good faith re<uires that a "art <ualif an answer or den onl a "art of a %atter, the
answer %ust s"ecif the "art ad%itted and <ualif or den the rest2 The answering "art %a assert lac; of
;nowledge or infor%ation as a reason for failing to ad%it or den onl if the "art states that it has %ade
reasona-le in<uir and that the infor%ation it ;nows or can readil o-tain is insufficient to ena-le it to
ad%it or den2
&+' C-jections2 The grounds for o-jecting to a re<uest %ust -e stated2 $ "art %ust not o-ject solel on the
ground that the re<uest "resents a genuine issue for trial2
&1' >otion 8egarding the Sufficienc of an $nswer or C-jection2 The re<uesting "art %a %ove to
deter%ine the sufficienc of an answer or o-jection2 Unless the court finds an o-jection justified, it %ust
order that an answer -e served2 Cn finding that an answer does not co%"l with this rule, the court %a
order either that the %atter is ad%itted or that an a%ended answer -e served2 The court %a defer its final
decision until a "retrial conference or a s"ecified ti%e -efore trial2 8ule 3*&a'&+' a""lies to an award of
e("enses2
&-' 3ffect of an $d%ission# ?ithdrawing or $%ending 7t
$ %atter ad%itted under this rule is conclusivel esta-lished unless the court, on %otion, "er%its the
ad%ission to -e withdrawn or a%ended2 Su-ject to 8ule 11&e', the court %a "er%it withdrawal or
a%end%ent if it would "ro%ote the "resentation of the %erits of the action and if the court is not "ersuaded
that it would "rejudice the re<uesting "art in %aintaining or defending the action on the %erits2 $n
ad%ission under this rule is not an ad%ission for an other "ur"ose and cannot -e used against the "art in
an other "roceeding2
12 $d%issions will tell the jur will -e told that a s"ecific was ad%itted
22 Deals with evidentiar issues ahead of ti%e
32 3K. re<uest for ad%ission with set of docu%ents attached as;ing the other "art to
ad%it the authentication of the docu%ents
02 :laces an o-ligation on a "art to ad%it, unless the have a legiti%ate -asis for
refusing to ad%it2 7f the intend to contest the issue at trial, the do not have to ad%it2
+2 31&a'&3' 4 a "art has within 3, das fro% receiving the re<uest to res"ond
a2 can res"ond - either ad%itting or o-jecting
-2 if no res"onse within 3, das, the %atter is ad%itted
c2 can change the length of ti%e for res"onse under 8ule 29 or - court order
12 31&a'&0' 4 if %atter not ad%itted it >UST 53 denied or s"ecified as to wh it cannot -e
ad%itted or denied
a2 7F D3/7$B. %ust fairl res"ond to the su-stance of the %atter
-2 failure to ad%it or den %a -e -ecause of lac; of ;nowledge or infor%ation
a-out the %atter, C/BD if the "art states that it has %ade reasona-le in<uir and
that the infor%ation it ;nows is insufficient to ad%it or den
*2 31&a'&+' 4 grounds for o-jecting >UST -e stated
a2 %a /CT o-ject solel on the ground of re<uest "resenting a genuine issue for
trial
F2 31&a'&1' 4 re<uesting "art %a %ove to deter%ine the sufficienc or an answer or
o-jection
a2 if court finds that answer 7S/AT justified, it %ust order an answer -e served
-2 if court finds answer did not co%"l, the %ust order the %atter ad%itted or
that an a%ended answer -e served
92 31&-' 4 an ad%ission is /CT an ad%ission for $/D CTG38 "ur"ose and cannot -e
used against the "art in an other "roceeding
Rule 38 5ailure to -a<e 3isclosures or to Cooperate in 3iscovery@ Sanctions
Rule &C Su+poena
&a' 7n @eneral
&1' For% and Contents2
&$' 8e<uire%ents447n @eneral2 3ver su-"oena %ust.
&i' state the court fro% which it issued#
&ii' state the title of the action, the court in which it is "ending, and its civil4action
nu%-er#
&iii' co%%and each "erson to who% it is directed to do the following at a s"ecified ti%e
and "lace. attend and testif# "roduce designated docu%ents, electronicall
stored infor%ation, or tangi-le things in that "ersonAs "ossession, custod, or control# or
"er%it the ins"ection of "re%ises# and
&iv' set out the te(t of 8ule 0+&c' and &d'2
&5' Co%%and to $ttend a De"osition44/otice of the 8ecording >ethod2 $ su-"oena co%%anding
attendance at a de"osition %ust state the %ethod for recording the testi%on2
&C' Co%-ining or Se"arating a Co%%and to :roduce or to :er%it 7ns"ection# S"ecifing the For%
for 3lectronicall Stored 7nfor%ation2 $ co%%and to "roduce docu%ents, electronicall stored
infor%ation, or tangi-le things or to "er%it the ins"ection of "re%ises %a -e included in a
su-"oena co%%anding attendance at a de"osition, hearing, or trial, or %a -e set out in a se"arate
su-"oena2 $ su-"oena %a s"ecif the for% or for%s in which electronicall stored infor%ation is
to -e "roduced2
&D' Co%%and to :roduce# 7ncluded C-ligations2 $ co%%and in a su-"oena to "roduce
docu%ents, electronicall stored infor%ation, or tangi-le things re<uires the res"onding "art to
"er%it ins"ection, co"ing, testing, or sa%"ling of the %aterials2
&2' 7ssued fro% ?hich Court2 $ su-"oena %ust issue as follows.
&$' for attendance at a hearing or trial, fro% the court for the district where the hearing or trial is
to -e held#
&5' for attendance at a de"osition, fro% the court for the district where the de"osition is to -e
ta;en# and
&C' for "roduction or ins"ection, if se"arate fro% a su-"oena co%%anding a "ersonAs attendance,
fro% the court for the district where the "roduction or ins"ection is to -e %ade2
&3' 7ssued - ?ho%2 The cler; %ust issue a su-"oena, signed -ut otherwise in -lan;, to a "art who
re<uests it2 That "art %ust co%"lete it -efore service2 $n attorne also %a issue and sign a su-"oena as
an officer of.
&$' a court in which the attorne is authori!ed to "ractice# or
&5' a court for a district where a de"osition is to -e ta;en or "roduction is to -e %ade, if the
attorne is authori!ed to "ractice in the court where the action is "ending2
12 0+&a'&1'&C' 4 $ de"osition does not have to -e ta;en if all that is re<uested is
docu%ents, ou can just as; the non4"art to "roduce docu%ents or tangi-le ite%s
a2 Dou can, however, ta;e the de"osition of so%eone at the sa%e ti%e as
instructing the% to "roduce docu%ents or tangi-le ite%s
-2 Dou can co%-ine the re<uest for infor%ation $/D attendance at de"osition in
one su-"oena
8ule 0,1 Test for 8elevant 3vidence
3vidence is relevant if.
&a' it has an tendenc to %a;e a fact %ore or less "ro-a-le than it would -e without the evidence#
and
&-' the fact is of conse<uence in deter%ining the action