1) Discovery



Practice Court

(Two)

Outline

Our Motto: You’ve made it thus far, it’s too late to give up. Huh?

Notable Quotables

“I think you’re going to be a miserable failure.” -- ( Bill Underwood, concluding the second-ever pep talk I heard him give. To be fair, the other was quite uplifting.

“You’re going to have to start making good use of your time because big trial is scheduled to start.” – ( Bill Underwood, commenting on how our “light” schedules were about to get busy. Now instead of PC I, Evidence, Mini trials, juror-ing and studying, we’d have Big Trial, too.

“You can expect a single PC II session to be the exception rather than the rule.” --Hearsay of ( Bill Underwood on our PC schedules from the start of PC II until Christmas.

“&*%$#!” --Bankruptcy students after hearing the above.

“My daughter was born at 5:00 in the morning and I was at the office by 8:30.” -- ( Bill Underwood to a father who missed two days of class for the birth of his daughter.

“Ever heard of Aristotle, Plato, Socrates? Fools! Imbeciles! Morons! …when compared to the likes of me!” --The Sicilian Vizzini on The Princess Bride (gotcha, didn’t I?).

“If you ever come to my class unprepared again, you’ll feel like you’ve been pissed on by a mongrel dog. And you won’t like it.” --Our kinder, gentler, and beloved Professor Powell.

“I’d like you all to prepare a memorandum, due…” --( Bill Underwood, at least once a week during PC II.

“You all should be studying for finals. I mean, I believe Professor Powell’s evidence exam is the hardest test in the country.” --( Bill Underwood on how foolish we were for asking whether we were required to begin discovery before finals. Another uplifting P.C. moment.

“There’s so many holidays now it’s hard to find a day to work anymore.” ( Bill Underwood, in benevolently informing us he wouldn’t “go out of [his] way” to have an extra afternoon session on the Wednesday before Thanksgiving, because unlike all the other holidays, he liked Thanksgiving.

“This is the one area on the charge where Professor Muldrow and I disagree. And I’m clearly right.” ( Bill Underwood.

Discovery

1 Scope of Formal Discovery

1 Relevance

1 FRCP 26b1

a) Nexus between claims & defenses pleaded and the discovery

b) Not as broad as Texas relevance standard

2 TRCP 192.3a

c) Elements

i) Not privileged

ii) Relevant (any logical connection, but see 192.4 limits on breadth)

iii) Reasonably calculated to lead to discovery of admissible evidence

d) Limits: 192.4

i) Overly broad: weigh usefulness v. burden of producing

1. Useful = no other way to get it, helpful, very important, expensive or small case?

2. Burden: cost of claim, time to gather, rebut usefulness factors, sheer mass of stuff

ii) Unduly Burdensome

e) Drafting Tips: Time, Type, Place

1. See hypos, 10/30 class notes

i) not waived (no voluntary disclosure part of PF case in civil cases)

2 Work Product 192.5

1 What:

f) Material prepared

g) Communications made &/or

h) Mental impressions (by party, party reps)

2 When: in anticipation of litigation for preparation for trial

i) Objective: reasonable person would have concluded from totality of cirx

j) Subjective: good faith belief there is a substantial chance lit. will ensue (more than unwarranted fear or speculation)

k) Primary Purpose: primary purpose of the work (investigation) must be to prepare for litigation

3 Waiver by disclosure

l) Voluntary disclosure waives

m) Waiver only extends to portion actually disclosed

n) WP only waived if disclosure was to opposing counsel & only to extent actually disclosed

3 Automatic Sanction

1 Failure to timely/properly respond to written discovery ( 193.6

2 Sanction: If you don’t properly respond in timely manner you can’t intro. evidence not disclosed

3 Exception:

o) Standard: show good cause or lack of unfair surprise or unfair prejudice

p) BOP on proponent of non-disclosed information

q) Application: very strict (hard to meet the exception reqs)

i) Failure to sign R 11 ag. modifying discovery deadlines not good cause to not timely answer discovery request

ii) Failure to respond w/ address but only name was not enough b/c party offering W didn’t meet burden.

iii) Unfair surprise not shown by saying other party didn’t object to the inadequacy of your response (e.g. in a contention interrog).

iv) Unfair surprise: some courts require a mini-evidentiary hearing but other courts do not.

4 Exceptions to the Work Product Doctrine

1 Need exception:

r) Substantial need for materials to prepare the case and

s) Unable w/out undue hardship to obtain substantial equivalent through other means

t) Unless core WP

i) Mental impressions, opinions, conclusions, or legal theories

1. Be creative an almost anything is mental impressions

2. Pictures: Texas is core WP, federal is not WP

ii) of an attorney or attorney representative

2 Witness Statements (192.3h)

u) Written statement, signed or

v) Any type of recording or substantially verbatim transcript (prob. not attorney notes, but best to throw in some ops.)

i) Texas: if anything privileged then whole doc privileged

ii) Federal: redact privileged portion

3 Witnesses, Potential Parties, Witness statements

w) What witnesses you expect to call at trial

x) Absent the exception, this would be WP

y) “potential parties” also under this exception

4 Contentions (192.3j)

z) Contention: a party’s belief as to how the law applies to the facts in a particular case

aa) But for the exception, contentions are WP

ab) How to discover:

i) RFD (says “in general” so you’ll probably only get what’s in the pleadings)

ii) Interrogatories (be v. specific about what you want)

iii) RFA (can eliminate things w/ this)

iv) (probably not depos b/c express in other rules but not mentioned in depo rule)

ac) Drafting contention interrogs:

i) Don’t just state the contention and ask for “reasons” why contend that or “basis” for that contention. That will get you conclusory, pleading-like answer.

ii) Do state the contention then ask for each act taken that was “x, y, z” or “each person” who witnessed those acts.

ad) Contents:

i) name address phone

ii) subject matter

iii) opinions to be testified to

iv) basis for those opinions

5 Exceptions to WP: Discovery of Experts

1 Retained Testifying Experts

ae) informal discovery: DR 4.02 covers retained testifying experts as “represented persons” so don’t contact, but can get old transcripts of their testimony, etc.

af) formal discovery tools:

i) RFD’s (R 194)

1. always serve this as it’s the only way to find out who to depose or get report from

2. content:

a. name, addy, phone

b. s.m. of testimony

c. general substance of opinions

d. brief summary of basis for opinions

e. if retained:

i. all data provided to testifying expert!

ii. data prepared by testifying expert in anticipation of testifying

iii. current resume and bibliography

3. incomplete disclosure in response to RFD:

a. automatic sanction unless

i. good cause (e.g. info not avail to me when I made disclosure) or

ii. no unfair surprise, prejudice

b. so if you take depositions, they can’t argue no unfair surprise & you might get expert excluded

4. due: 195.2, experts must be “designated by” later of

a. 30 days after RFD served or

b. 90 days before end of discovery period [see (5)] if expert for party seeking affirmative relief (and testifying on affirm. relief claim) (Plaintiffs, (’s for counterclaims, etc.)

c. 60 days before end of discovery period, if not testifying for affirmative relief

5. Calculating Discovery Period:

a. level 3: scheduling order (but ( first, then (, then ( rebuttal W’s)

b. level 2: earlier of

i. 30 days before trial setting or

ii. nine months after date of first oral depo or due date of first response to written discovery (the first)

c. level 1: 30 days before trial setting (so experts must be designated 30 + 90 = 120 days pretrial for (’s)

ii) Depos (192.3)

1. what can you discovery from an expert depo?

a. facts known by expert or made known to regardless of how acquired

b. mental impressions & opinions made in connection w/ case & methods used to derive

c. bias of the W (how often he testifies, for whom, etc.)

2. when may you depose?

a. if not seeking affirm relief: reasonably promptly after designated

b. if seeking affirmative relief:

i. no report furnished: reasonably promptly after designated

ii. if furnish report: reasonably promptly after all other expert’s designated

3. subpoena deuces tecum

a. need v. burden

b. particularize your showing of need (not “fishing”)

4. Change testifying => consulting expert?

a. 192.7 “testifying expert is an expert who may be called to testify as an expert W at trial.”

b. can change then and you will only have waived WP information to the extent disclosed

c. can’t claim WP privilege for opinions formed for the benefit of another party (hypo D1 and ( settle; later ( tries to redesignate D1’s experts as (-consulting experts & when D2 tries to depose, not allowed b/c privilege; result? can’t do that. 894//548)

iii) Reports

1. voluntary

2. made by expert, not attorney

3. practice: don’t give report b/c easier to impeach w/ report b/c expert is making it not the attorney

4. Federal: see 8(a)(iii) infra; have to give for testifying experts

iv) Interrogatories

1. Texas: Not interrogs for testifying experts! (you can’t ask “who will you call, who are your experts”)

2. Federal: you may use interrogs to discover testifying experts

2 Non-Retained Testifying Experts

ag) who?

i) employees of the corp.

ii) police officers

iii) emergency personnel

iv) investigators (fire marshal)

v) anyone you haven’t been informed are retained by opponents

ah) informal discovery: not covered by 4.02 (but if they are employees they are “employed or retained by” and covered by 4.02)

ai) formal discovery:

i) no WP privileged b/c not party representatives & mental impressions not for the purpose of litigation

ii) RFD’s: don’t get anything b/c not in control of the other party, so get it yourself (194.2(f)4 doesn’t apply if not retained)

iii) depositions:

1. you can take from moment suit filed until discovery period ends

2. you have to pay

3. don’t have to supplement their testimony b/c not in either party’s control, but if you all them at trial then a RFD would cover any opi9nions not disclosed that the expert wants to testify to

3 Consulting Experts

aj) privilege: consulting expert privilege is not WP but is generally the same…

i) consultants are covered by special privilege as party representatives

ii) firsthand knowledge exception:

1. if the “consulting expert” has firsthand knowledge of something, that is discoverable b/c no privilege for “factual basis” per comment 3

2. secondhand knowledge is even discoverable if not obtained in anticipation of litigation or prep for trial

3. firsthand knowledge of facts = discoverable but impossible to draw the line between facts & opinions!

4. but attorneys don’t have to disclose firsthand knowledge (WP and a/c)

5. solution: get in-house consultants (covered by WP and a/c)

iii) reviewed by testifying expert:

1. anything done by consulting expert & reviewed by testifying expert is discoverable

2. need not be relied on

3. if T expert review’s consultant’s opinions or mental impressions, then everything by the consultant can be discovered because need to be able to challenge T expert’s bases

iv) Remember on exam: if an employee reviews something to help a corp. prepare for trial that is not consulting expert privilege b/c not hired for trial (Axelson) but! probably is covered by WP privilege and you can keep it secret

ak) no RFD

al) interrogs allowed

am) procedures to protect consulting experts:

i) if unauthorized RFD made => assert WP privilege (b/c if not authorized by rule then no WP exception)

ii) if depo noticed of consulting expert:

1. move for protective order

2. opponent can argue voluntary disclosure = wavier (you can w/draw testifying expert designations only to extent things are not disclosed by them)

4 Dual Capacity Experts: if they are at all to testify then they don’t qualify for consulting expert privilege

6 Resisting Discovery:

1 Two options:

2 Objecting

iii) timely: by deadline for discovery response; may amend to add ground if newly arisen or discovered

iv) specific: if obscured by numerous, unfounded => waived unless who good cause

v) potential grounds for objection:

1. not w/in scope of discovery

2. not relevant or will not lead to discovery of admissible evidence (need v. burden)

3. not permissible form of discovery

4. not reasonably available

5. not specific request

6. improper procedure

7. same information already provided

3 Assert claim of privilege:

vi) this is not done by objecting, but must be done per 193.3

vii) claim privilege:

1. withhold the information

2. file a withholding statement

3. (exemption: materials created for this litigation, created by or for attorneys)

viii) response: request privilege log

ix) file a privilege log w/in 15 days, in which you

1. assert privilege

2. describe info/material withheld

x) inadvertent disclosure: 10 days to get back

an) if hearing needed for either, must request a hearing

4 Witness you have control over: object based on unreasonable notice & let opponent know that you will not appear for deposition on that date (then they would have to move to compel to get depo to occur then)

5 W you have no control over = protective order (192.6)

ao) if opponent noticed depo of a W I have no control over & I don’t want him deposed or don’t like the time/place (file, have hearing & get ruling before scheduled date)

ap) too late to get protective order:

i) Federal court: don’t appear @ depo & argue not given “reasonable notice”; court has discretion to exclude (risky!!)

ii) Texas: 199.4

1. file a motion by 3rd bsns day &

2. state why notice is unreasonable &

3. give alternative, reasonable time/date/place

4. = automatic stay until hearing

6 protective order to protect secret information:

aq) federal: see local court rules

i) apply for protective order (seal records)

ii) will be granted

iii) unless opponent shows good cause why should not be grated (hard)

iv) you can designate certain docs as “sensitive”

ar) Texas: 192.6, 76a

i) file motion for protective order

1. id information sought

2. how public disclosure would be damaging

3. request ct to enter protective order to preclude public disclosure and opposing counsel from sharing it w/ his own client (attach proposed order)

ii) seal?

1. BOP shifts to party opposing protective order to show they are “public records”

2. if public records, then ct can’t seal them unless notice, public hearing and showing that damage to party outweighs public interests

a. “threat to public welfare” is adverse affect on health

b. Upjohn v. Freeman 906//92 docs contained info re potential health consequences of using the drug & denied motion for protective order

c. Continental General Tire 979//609 no public need for docs & motion for protective order granted

7 Objective to Discovery Responses:

as) motion to compel

at) request for sanctions

au) request for expenses

7 Discovery Control Plans

1 Level one

av) applies to: AIC less than $50k (exclusive interest/costs) & not seeking anything but monetary relief (this is an exception to the “don’t plead amount in controversy” rule)

aw) oral depos:

i) 6 hours for each party

ii) can agree to expand up to 10 w/o court order

iii) may be modified to ensure no unfair advantage

ax) interrogatories:

i) each party can serve 25 on each party

ii) can rely on others’ interrogs

2 Level two

ay) applies to: all cases unless

i) level 3 requested or

ii) level 1 properly requested (improper if request but don’t ask for amt. of damages or if request and also are seeking non-monetary relief)

az) oral depositions:

i) 50 hours per side

ii) doesn’t apply if you take trial depo of own W or to neutral W’s not under either party’s control

iii) “side” = common interests

ba) interrogatories

i) 25 per side

ii) subparts are separate questions

iii) object to too many interrogs: answer the first 25 and object to the rest (811//746)

3 Level three

bb) applies to: any case where party or court invokes (any party can invoke)

bc) include: ??

bd) ( “Smiling Bill” Underwood says: Always invoke level three so you don’t make mistakes computing deadlines – it’s easier to have set date deadlines. You can always invoke level three and the only thing the ( can do is argue for deadlines that would be under level two.

2 Written Discovery

1 Timing, Service, Agreements

1 Serve by:

2 30 days before end of discovery

be) serve on all parties

3 Certificate of Service:

bf) who served

bg) how served (in person, cert mail, etc.)

bh) when served

4 Rule 11 agreements:

bi) written

bj) signed by all bound parties

bk) filed

bl) need permission if will affect court’s calendar

5 Filing:

bm) to file:

i) things served on nonparties

ii) motions & responses re: discovery matters

iii) agreements re: discovery matters (R 11)

bn) not to file:

i) discovery/responses served on nonparties

ii) withholding statements per 193.3b

bo) exceptions (file anyway)

i) if necessary for appeal

ii) to support motion

6 Deadline to respond to written discovery:

bp) 30 days from date served

bq) if mailed => +3 days from date of mailing

br) fax => +3 days from date of faxing (by 5 pm)

bs) 50 days if served before answer due

bt) can make agreement to extend

bu) court order to extend time to respond to discovery if you show good cause

bv) failure to meet deadline: waive objections

7 Answers to written discovery:

a) must be preceded by request

b) signed by attorney

c) verify: interrogatories (see infra)

d) serve on attorney in charge

2 Requests for Disclosure (194)

1 Texas

bw) serve at beginning of case

bx) serve “pursuant to rule” or ( set out text of rule then specific examples

by) what is included?

i) correct names of parties

ii) address, phone of potential parties

iii) legal theories & in general factual bases (this one not a good contention interrog.)

iv) amt & method of calculating damages (this only includes economic damages)

v) persons w/ knowledge of relevant facts & their connection w/ the case (supplement w/ other targeted interrogs)

vi) experts: use RFD b/c can’t serve interrogs. on testifying experts

vii) insurance

viii) settlement agreements

ix) W statements

x) medical records & bills

bz) assert WP if someone propounds an improper RFD

2 Federal (R. 26)

ca) disclosures req’d without request

cb) what?

i) parties likely to have discoverable information that the disclosing party may use to support claims or defenses

1. Texas: have to disclose those w/ relevant kn.

2. Fed: only have to disclose if used to support your claims/defenses

3. ex. in Federal court don’t have to disclose someone who is bad for you

ii) all documents used to support claims/defenses: nothing like this in Texas

iii) computation of damages & docs supporting the computation (that aren’t privileged)

1. Texas only gets you the amt & method; specifically gets you medical records & bills

2. Federal gets you the computation (category by category); gets you more than medical records & bills but gets you all supporting documentation

iv) insurance

v) experts

1. federal: no request req’d; this automatically must be disclosed; if you don’t disclose testifying experts they are not allowed to testify

2. Texas:

cc) exempt proceedings: administrative, habeas, pro se, by US, to enforce arbitration award

cd) deadline:

i) 14 days after 26f discovery conference uoa

1. conference must be 21 days before req’d to submit proposed schedule order…

2. which is within 120 days after complaint filed or 90 days after appearance of first (

ii) if joined after conference must disclose w/in 30 days after being served (uoa)

iii) must make fullest disclosure possible @ the time but don’t have to supplement

iv) see hypo

ce) pretrial disclosure:

i) 30 days before trial must disclose if you may use at trial:

1. name, address, phone of W you expect to call & who you may call if need arises (regular & rebuttal W’s)

2. designated W who may be presented by deposition

3. report required if:

a. expert specifically employed to give expert T

b. or if duties as eee regularly involve giving expert T

c. report contents: complete stmt of all opinions, bases, data considered, exhibits, qualification of W, compensation and other cases testified in

3 Interrogatories

1 send to:

cf) must send to attorney or else you are violating 4.02

cg) do not file w/ the court

ch) send copy to all parties (b/c all can rely)

2 appropriate uses:

ci) can’t depose (legal contentions, trial witnesses, discoverable consulting expert information b/c you can’t depose them)

cj) research

ck) explanations to responses to other discovery requests

cl) to find out if docs responsive to a request has been destroyed

3 drafting

cm) identify w/ respect to persons requires the name, address, phone number and if known the current place of employment

cn) identify w/ respect to communications means the party, when, where and the s.m. of the communication

co) communication means the transmittal of information (in the form of facts, ideas, inquiries or otherwise)

cp) documents & tangible things means papers, books, accounts, drawings, graphs, charts, photographs, electronics or videotape recordings, data, and data compilations

cq) include only actual interrogs unless you title it a RFP, too

cr) interrogs are HS, but ABPOs

4 due:

cs) 30 days from service to serve back to opponent

ct) if mailed, + 3 days

cu) failure to timely respond:

i) waives objections

ii) waives privileges

iii) possible but unlikely sanctions if you acted unrzbly

iv) if you can’t meet deadline:

1. R 11 agreement or

2. assert objections, privileges & explain why you will answer later

5 verification

cv) federal: must be verified by

i) competent

ii) personal knowledge of facts being verified (attorney’s have clients verify contention interrogs on info & belief although that is improper b/c no choice)

iii) who can swear to truth and correctness of the facts

cw) Texas:

i) don’t have to verify answers that would be work product were it not for some WP exception (e.g. contention interrogs)

ii) apparently don’t have to be based on personal knowledge find this in rules

4 Requests for Admissions

1 proper uses:

cx) narrow issues

cy) est. foundation for a dispositive issue

cz) est. admissibility exceptions

2 limits:

da) state each separately

db) can’t do RFA’s re: law (only facts or application of law to fact)

3 answers:

dc) admit

i) party who admitted can’t present contrary evidence

ii) to use:

1. if admitted, file admission w/ the court,

2. get MIL that they can’t present

iii) if you admit, low probative value to intro evidence of that and can argue 403

iv) applies to party making admission only and only to that case

dd) deny

de) don’t know after conduct reasonable inquiry “I can neither admit or deny b/c I lack sufficient info or kn; I have made reasonable inquiry but the info known or easily obtainable to me was insufficient to enable me to admit or deny” (can’t just lack info – that is impermissible response)

df) object or assert privilege

dg) ignore or impermissible or evasive response = deemed admission

4 incorrect responses!

dh) Texas

i) express admission but wrong: must immediately file motion to w/draw (198.3)

1. BOP on movant to show good cause (mere negligence enough as long as not conscious disregard)

2. no undue prejudice (BOP on ??) &

a. not prepared to prove the fact now and it’s too late to prepare

b. costs that otherwise would have been avoided

c. reliance on admission prejudices claim against other party (D1 admits sole prox. cause then D2 nonsuited & SOL runs)

3. presentation on the merits will be subserved by allowing w/drawal

a. there is a meritorious answer or rzbn to allow change

b. tc can make a determination on the merits

c. ex allowing w/drawal and change of RFA so that a doc is a HS exception will not subserve merits of the case

ii) deemed admission: file 198.3 motion to w/draw

di) Federal (don’t have to show good cause)

i) unfair/undue prejudice: BOP on opponent

ii) merits subserved: BOP on movant

5 sanctions, GF

dj) CPRC ch. 10 inapplicable b/c discovery not filed w/ court

dk) can get 215.4b attorneys fees on cost of prove ups if not authenticated

5 Requests for Production

1 unltd. number

2 deadline:

dl) serve: 30 days before end of discovery period

dm) respond: 30 days of service (50 days if answer not due yet)

3 drafting

dn) form:

i) definitions

ii) requests (specify in request)

1. individually or by category thing requested

2. describe w/ reasonable particularity

3. time & place for production

4. manner & procedure for testing, if applicable

iii) instructions: time, place

do) can require a party to create a document only if:

i) expert report

ii) medical authorization

iii) data stored electronically

4 response:

dp) responses:

i) will be permitted as requested

ii) items being served w/ response

iii) will take place at different time/place or at time/place to be agreed on by the parties

iv) no items are responsive after diligent search (nothing in your possession, custody or control)

dq) object: WP, a/c, fails to id w/ reasonable particularity

dr) what must you produce?

i) documents w/in your possession, custody or control

ii) don’t have to produce things not “reasonably available” to party/party’s attorney

iii) produce as requested or as kept in bsns

ds) automatically authenticated 193.7

i) self authenticated for use against producing party

ii) must object to authenticity w/in 10 days of actual notice of intended use

5 subpoena deucus tecum

dt) usual rules; may request anything w/ in the scope of discovery & w/ in W’s control (notice depo & serve subpoena deuces tecum)

du) nonparty:

i) with deposition if notice of depo + subpoena for docs

ii) w/o depo:

1. notice to nonparty & to all parites (205.3b)

a. name of person requesting production from

b. reasonable time/place of inspection and

c. items to be produced (particularity)

2. 10 days after notice

a. serve subpoena

b. (10 day interim gives time to file motion to quash)

3. 30 days from subpoena until time/place of production

6 payment:

dv) party producing pays

dw) except requesting party must pay nonparty for costs!

dx) you pay for own copies, tests…

6 Preservation and Presentation of Objections to Written Discovery (R 193)

1 production waives to objections:

dy) if you produce doc you must object to authenticity w/in 10 days of actual notice that doc will be used 193.7

dz) ( send letter after RFP that you may use any docs produced

ea) after you’ve produced, you’ve voluntarily disclosed & therefore waived any objection to privilege not asserted

2 make objection to written discovery (RFD, RFP, RFA, Interrogs)

eb) in writing (w/ response or alone)

ec) objections preceded by request to which they apply (can’t have blanket objection)

ed) due when response to discovery due

ee) procedure:

i) movant requests info

ii) responder objects (see infra (e))

iii) movant served written request to “identify” the material w/held

iv) responder must serve response

1. in the form of a privilege log

a. describes info w/o revealing the content, but that enables other parties to assess the applicability of the privilege and

b. assert specific privilege for each item or group

2. w/in 15 days (else waiver) privilege log

v) movant files motion to compel & requests hearing

ef) state specific legal/factual basis for objection

i) must enable tc to understand precise grounds so as to make an informed ruling & give other party opp. to remedy defect

ii) objections:

1. privilege: “( objects to Interrog 1 because it seeks information that is privileged under the work product privilege, which information is being withheld.”

a. work product

b. attorney client

c. elements of assertion:

i. state info w/held (Texas only – not req’d to say “which info is being w/held” in federal court)

ii. request related to &

iii. privilege asserted

2. TRE special privileges (H&W, doctor, etc)

3. vagueness objections

a. fails to identify the documents with reasonable particularity as required by R 196

b. fails to set forth separately each matter on which an admission is sought

c. too vague in general

4. relevance objections “( objects to RFP 1 on the grounds that it seeks information that is irrelevant, in that it is not calculated to lead to the discovery of admissible evidence, because it is (a-c).”

a. overly broad

b. unduly burdensome

c. unreasonably cumulative or duplicative – obtainable from some other source

iii) must state extent of the refusal to comply

eg) must comply with as much as is unobjectionable 193.2

eh) examples

i) “all docs re: university’s decision to deny tenure to the (”

1. file memo prepared by general counsel while evaluating potential claims that might be asserted if ( was denied tenure

a. WP

b. a/c

c. vagueness: request not state w/ reasonable particularity

“( objects to this RFP on the grounds that it fails to identify the documents sought w/ reasonable particularity.”

d. relevance: overly broad These are all relevant as they incorporate the relevance standard in the request by saying “regarding…decision”

“( objects further that it calls for information privileged under the WP doctrine, which information is being withheld.”

2. memo from general counsel to U President

a. WP

b. a/c

c. vagueness: not state w/ reasonable particularity

d. relevance: overly broad

3. memo from general counsel to retained outside counsel after lawsuit was filed reporting his evaluation of the claims actually asserted by the (

a. WP (exemption applies so don’t have to plead privilege)

b. vagueness: not state w/ reasonable particularity

c. relevance: overly broad

4. file memo created by chair of tenure committee after being informed of the lawsuit recording his recollections of committee’s deliberations

a. WP (exemption does not apply b/c WP of party-rep)

b. vagueness: not state w/ reasonable particularity

c. relevance: overly broad

5. memo prepared by general counsel in course of defending a suit regarding a prior tenure denial evaluating U’s obligations under tenure policy

a. WP (last forever) (exemption does not apply b/c different lawsuit)

b. a/c (lasts forever unless waived if communication to client)

c. vagueness: not state w/ reasonable particularity

d. relevance: overly broad

ii) “Produce all documents created by the University tenure committee in the course of evaluating (’s application for tenure.”

1. “( objects to this RFP because it seeks information privileged under the WP and a/c privileges, which information is being withheld.”

2. ( objects to this RFP on the grounds that it seeks information that is irrelevant, not calculated to lead to the discovery of relevant evidence, because it is unduly burdensome.”

3. Exemption?

a. maybe…

i. fact question whether this was prepared in anticipation of litigation (may not even be WP?)

ii. is a/c privilege but don’t know if exemption applies b/c depends on “objective manifestation”

b. Don’t assert, just act like those documents don’t exist.

c. If something discovered later, result is to waive your privilege objection.

iii) All documents constituting communications between you and your attorney regarding this lawsuit.

1. This is a/c privileged.

2. Exemption? probably not b/c stuff here that happened before suit filed.

3. Note: if request specifically targets privileged docs covered by exemption you must plead; privileged b/c legal fiction doesn’t work so well.

ei) exemption where you don’t have to plead privilege (( version)

i) exemption applies to only certain types of privilege information

1. a/c communications or

2. WP of attorney or attorney-rep

3. (does not apply to WP of a party or party representative)

ii) privileged communication or WP must have been made in representing client in asserting/defending specific claim/defense (not abstract legal issue) (don’t have to have suit filed, but need some objective manifestation of intent to sue)

iii) same specific claim/defense that is being asserted in suit now

3 timeliness

ej) due when response to discovery due

ek) if not timely asserted, objections waived

el) exceptions

i) document to which objection applies didn’t exist at time discovery due (=> object reasonable time after created)

ii) find document responsive to request that you didn’t know about & prove to ct you exercised reasonable diligence in searching for the document (=> object reasonable time after found)

4 objections are waived if obscured by numerous, unfounded objections (hard to do)

5 challenging objection/privilege assertion (193.4)

em) objector timely & correctly plead objection

en) try to confer w/ opposing counsel so you have a certificate of conference (that you have made reasonable effort to resolve dispute w/ opposing counsel) 191.2

eo) file motion to compel w/ certificate of conference & when you want compliance compelled

ep) request a hearing

eq) file affidavits at least 7 days before hearing or present evidence to support objection at hearing

i) burden on party asserting privilege/objection

ii) evidence: file all necessary evidence; what is necessary?

1. form: if you object to form of discovery, evidence not necessary (vagueness, failure to id w/ reasonable certainty, too many interrogs, etc.)

2. relevance: need v. burden

a. if you argue “no need” at all, evidence unnecessary

b. if you argue burden, then need evidence of burden (at least affidavits)

3. attorney client privilege:

a. need to produce evidence because there are elements that are fact specific

b. (in a very rare instance you may not need evidence – would occur if request quoted a/c privilege elements)

4. work product

a. general rule: usually need evidence

b. sometimes facially apparent that the request would necessarily call for WP (often to est. “anticipation of lit” element)

iii) procedure:

1. produce affidavit or live testimony

2. submit privileged document to court for in camera inspection

3. give documents to judge & witness, but not to opposing counsel to prove up privilege elements

er) accidental waiver: can argue for equitable result, but probably no luck because good cause in the discovery context means newly discovered evidence/grounds.

3 Oral & Written Depositions

1 Preparing a Witness

1 nothing wrong w/ these common answers!

es) I don’t understand.

et) I don’t remember.

eu) I don’t know.

2 Only answer what is asked so that every word said is accurate.

3 Beware of traps:

ev) answer yes or no

ew) don’t agree w/ summaries

ex) don’t make agreements w/ opposing counsel

4 Breaks:

ey) 199.5d recess or agreed break is a break where I can talk to my client (coach them)

ez) but witness can ask for a “break” anytime they want (but attorney can’t talk to them)

2 Objecting at Depositions:

1 leading (if direct examination)

2 form:

fa) “objection, form” is all that is allowed but only consequence of doing more is waiving objection

fb) can be grounds for suspending depo & sanctions if egregious

3 nonresponsive

4 all others are preserved for trial

5 privilege: tell W not to answer (else waiver) and give concise explanation

3 scheduling:

1 send notice to W and all parties

2 reasonable time before depo

3 of whom

fc) people

i) any relevant person (need v. burden…see Apex section)

ii) if not relevant, file motion for protective order saying they don’t know anything (then ct weighs need v. burden)

fd) entity named

i) must include s.m. of what will be covered (w/ reasonable particularity) (if you’re not specific the org. will just give you their best deponent and you won’t get much info!)

ii) if you notice depo of entity they pick deponent(s), but if you name ppl, you can take their depo

iii) if you take depo of entity, you can take in county where corp. is but if you pick ppl, may have to travel to their county

4 when?

fe) pre-filing depos (R 202) BAR EXAM

i) file verified petition w/ court

1. can file where suit may be brought or where W resides

2. name the person you want to depose (In re Britta Liukonen)

3. state purpose for depositions (can only be…)

a. to preserve testimony that may otherwise be lost or

b. to investigate a potential claim b/c you need to know if that claim is valid

4. s.m. of anticipated suit

5. those w/ potentially adverse interests (must give them opp. to cross else can’t use depo)

6. person to be deposed & general s.m. of deposition

7. prayer for relief: order depo allowed

ff) ( on when to take a depo

i) lawyer’s creed says try to agree before you schedule a depo

ii) soln: send notice w/ cover letter saying we’ll change this if no good

iii) why? so opponent doesn’t notice depo first

fg) notice

i) serve on person to be deposed

ii) serve on all “parties” if it is to preserve testimony

iii) when must you serve notice? reasonable time

1. must give reasonable notice

2. used to be 10 days and many people still follow this

3. if you don’t object to notice give you waive objections to notice unless time was unreasonable per se (no meaningful opportunity to object)

iv) objecting to notice of depo

1. motion to quash (filed)

2. motion for protective order (filed)

a. if filed w/in 3 days, then automatic stay until hearing

3. serve a written response & object in writing (served)

a. no order would be granted/denied if you only serve & don’t file, so can use this if you control the W

5 where? 199.2b(2)

fh) where W lives

fi) where W employed or regularly transacts bsns

fj) county where case filed if party (or deponent that party-corporation designated)

fk) non-residents of Texas: if W personally served in the county, then you can take depo in that county (or w/in 150 mi of where served)

6 who attends?

fl) can attend w/o notice

i) the W

ii) parties

iii) spouses of parties

iv) counsel for parties & witness

fm) procedure to have others there

i) Texas: 199.5a3

1. give advance notice of other attendees

2. object & file motion for protective order if you don’t want them there

ii) Federal

1. bring them; opponent will object & attempt to invoke the “rule” …bring the case that you need(

2. but court needs to admonish to invoke the rule, BCI v. Bell

3. but you can invoke the rule at a depo: Lumpkin v. Bilo 117 FRD 451

7 method of taking the depo:

fn) Texas

i) give notice 5 days before if method is anything other than stenographic

ii) get protective orders to agree on w/ opposing counsel to stop video depo tricks

fo) federal court (30(b)2)

i) must state method of recording in depo notice

ii) other parties may notice additional ways to record depo

4 conduct at the deposition

1 agreements:

fp) you can make “Rule 11 agreements” at deposition per R 191.1

fq) “usual agreements”:

i) no one knows what they are but often

ii) they change rules for preservation of objections (don’t do this)

iii) signature right

1. Texas: W has the right to examine depo, make changes & sign it (unless waived – which is a dumb thing to do)

2. federal: only have this right if requested on the record

2 signing:

fr) Texas signature automatic; must request this right in federal court

fs) procedure:

i) court reported makes & sends you transcript & change sheet

ii) reason for change:

1. Federal: if you don’t give reason for change (or conclusory reason like over-and-over “I was mistaken & confused”) then change ineffective!

2. Texas: don’t know – probably the same

3. Reason for change & old answer can be read to the jury.

iii) 20 days from date transcript provided, must be back to court reporter (or can be used w/o changes)

3 Texas objections allowed: form, leading, nonresponsive, privilege

4 Federal objections: (32d)

ft) object to any errors of any kind that might be obviated or cured if promptly objected to (if no objection => waiver)

fu) examples of errors that might be obviated:

i) failure to est. personal knowledge

ii) failure to lay proper predicate (expert’s qualifications, included)

iii) all form objections

iv) improperly administered oath

v) manner of taking depo

vi) conduct of the parties

fv) you can agree that the Texas rules will apply; should you? yes if you are unfamiliar w/ objections & you are defending

fw) So, you must object to avoid waiving your objection (if curable). But should you object? If a party fails to lay qualifications for expert and you think they can’t qualify the expert, then do object. If you think they can (especially if trial depo) then don’t object because you don’t want the jury to know the qualifications.

5 Apex Depositions Crown Central case

1 Notice depo

2 Motion for protective order & affidavit that no personal kn. (then grant)

fx) apex official (high ranking official & there are others under apex-official who know about things & that would be less burdensome)

fy) deponent has no knowledge of relevant facts

i) “relevant” here means need v. burden relevance – very little knowledge compared to others

fz) affidavit: sworn, over 18, competent, personal knowledge and swear to a&b

3 Burden shifts to show he has unique, superior knowledge of discoverable information

ga) meet that burden => motion for protective order denied

gb) no showing => grant protective order…

gc) later, re-notice apex depo & show GF efforts

i) Reasonable indication apex depo will lead to discovery of admissible evidence

ii) Less intrusive methods of discovery insufficient

4 Independent Medical Examinations

1 of whom:

1 only against parties (and not against parties in name only!)

2 doesn’t have to be a party seeking affirmative relief

3 can get of dead person in a wrongful death case even though the deceased is not a party 112 FRD 427

2 requirements

1 in controversy

gd) has been denied

ge) is material condition

gf) evidentiary basis for assertion:

i) req’d showing to get physical exam:

1. physical condition is in controversy

a. filing any suit alleging personal injury puts physical condition in controversy

b. can’t place physical condition in controversy with a naked allegation of “poor eyesight” or something like that

c. req’d to:

d. plead relevant condition and

e. have reasonable evidentiary basis to support belief that the condition exists (circumstantial evidence is enough)

ii) req’d showing to get mental exam

1. pleading mental anguish is not enough to require mental examination

2. can get mental exam if party opposing exam has:

a. plead something more than usual mental anguish or

b. designate mental health expert that will testify to your mental anguish claim (so then ( can have indy exam to put his expert on equal footing)

3. psychologist or psychiatrist? sure seems like state-certified psychologist is good enough (204.1(a))

2 + good cause

gg) relevant: need v. burden (in tc’s discretion whether to grant exam)

gh) nexus: reasonable nexus between condition in controversy and exam

gi) not possible to get the information you seek by less intrusive means

i) use expert’s affidavit to support this

ii) you must show less intrusive means you’ve tried:

1. you’ve asked & not admitted by party

2. medical records don’t have this info (or not enough or not current)

3. no other less intrusive methods

5 Duty to Supplement Discovery

1 policy: to avoid having to serve duplicative requests

2 scope:

1 duty to supplement applies to all written discovery

2 does not apply to depositions

3 unless expert witness exception

gj) must supplement testifying expert depos and reports to the extent their opinions have changed

gk) must give bases for new mental impressions/opinions

4 exception:

gl) does not apply to additional witnesses!

gm) if information provided by depo, in writing, or via discovery responses, you don’t have to supplement

3 when due: reasonably promptly

1 if less than 30 days pretrial, presumptively unrzbl

2 if over 30 days pretrial, presumptively rzbl

3 overcome presumption:

gn) show good cause & no unfair surprise for late supplementation or for why supplementation w/in 30 days will unfairly surprise

go) if can’t show good cause, then move for continuance – if granted, then supplement

4 failing to supplement:

1 to force the other party to supplement, move to compel (you would do this if the supplemental information is helpful to you)

2 if unhelpful to you, you don’t want to compel production, but would rather just exclude the evidence if they try to use it;

gp) does failing to move to compel waive exclusion-remedy? sometimes

gq) if you know that the discovery response is incomplete, you must move to compel supplementation; if you fail to, you have waived any objection to failure to supplement because no unfair surprise

gr) if you don’t know discovery response was incomplete, you can argue it can’t be introduced at trial because then you can show unfair surprise

6 Miscellaneous Discovery Provisions

1 Sanctions 215

1 grounds

gs) no corporate designation of witness

gt) don’t show up for depo or makes argumentative or suggestive objections during depo

gu) failure to answer:::::!!!!!???????????

gv) pattern of abuse of discovery tools

gw) false certification

gx) false testimony

gy) offensive use of privilege

2 to impose sanctions: two part test

gz) direct relationship between sanction & abuse

ha) necessary severity: lesser sanctions applies first & no more severe than necessary

3 sanction

4 if granted => reasonable expenses incurred in getting order, attorney fees, unless opposing the motion was substantially justified

hb) if denied => ct may require moving party to pay costs, attorney fees until making motion substantially justified

2 International Discovery

1 Texas R. 201

e) can take depo (orally or in writing), by court order or by other treaty (like Hague Evidence Convention)

f) parties must notice before a person authorized to administer oaths (but this leaves you no power to copmel & may violate local country’s laws)

g) you can make letter of request per Hague evidence Convention, if the country is a member

h) letter rogatory: if not member of Hague evidence convention, must get letter rogatory to allow you to take depo in foreign country; this is a judicial request addressed to foreign authority asking it to compel attendance

i) must have an officer present at depo (consulate, notary, etc.)

2 Fed. 28(b) Depos in foreign countries

j) per treaty, convention

k) by letter of request or

l) on notice by person authorized to give notice in the country or US law or

m) by court order

3 Hague Evidence Convention 28 USC 1781

n) Dept of State has power to:

i) receive interrogs. by foreign tribunal & transmit them

ii) receive letters interrogs issued by a US tribunal and transmit to foreign tribunal

iii) but you can still transmit directly from foreign tribunal & to US and vice versa

3 Freedom of Information

1 Tex. Gov’t code 552.201

o) says who the public info. officers are (the chief admin officer, or someone selected as custodian of records)

2 Sharp case (904//668): TORA case says Texas SCt has exclusive jx over M proceedings against executive officers except the governor

4 Mandamus

1 Walker v. Packer (827//833)

2 is avail. for discovery abuses when:

p) clear right to relief requested & demands that right

q) tc had clear legal duty (ministerial duty or clear abuse of discretion)

r) no adequate remedy at law:

i) when error can’t be cured on appeal (privileged information or error will materially affect rights of a party)

ii) when ability to present claim or defense is severely compromised (dely, inconvenience, expense not enough)

iii) if the tc disallows discovery, therefore the discovery can’t be made part of appellate record (should be rare per TRCP 193.4)

Summary Judgment (SJ)

1 Burden of Proof (BOP) (read McD’s 18.1-.34)

1 Traditional Motion: BOP on Movant

1 ( moves for SJ that ( can’t est. his claim (burden on ( to show no genuine issue of material fact on a or b)

2 ( moves for SJ that ( can’t est. his affirm defense (burden on ( to show no genuine issue of material fact re 1 or 2 (all elements of aff. defense))

3 ( moves for SJ that it can est. as a matter of law 1 and 2 (or you could partially get SJ on only 2 and still prove 1 at trial)

4 ( moves for SJ that it can est. as a matter of law a & b

s) if ( relies on affirm defense to defeat this (e.g. SOL), then ( must (

i) raise the affirmative defense in response to the MSJ Torres

ii) present evidence in support of each element of its affirm. defense

t) if ( relies on matter in avoidance to defeat affirmative defense (e.g. discovery rule) then (

i) ( must respond to response & assert matter in avoidance

ii) ( must present evidence to negate matter in avoidance Clear Creek

2 No Evidence Motion: BOP on party w/ burden @ Trial

1 BOP on party w/ burden at trial

u) to show they can’t est. a claim(s): ( raises => burden shifts to ( to produce evidence raising an issue of material fact

v) affirmative defenses: ( raises => burden shifts to (

2 Can’t have no Evidence MSJ to prove, as a matter of law, the elements of your own case.

3 Federal Burden

1 for type 1 & 2, burden of proof is on the movant

2 for types 3 & 4, burden of proof rests as it does in Texas traditional MSJs???

3

2 Requisites of Motion Draft a Perfect MSJ on Exam!

1 procedure & pleading

1 Texas:

w) file written motion anytime after adverse party answers (( may file at any time)

x) State specific grounds for SJ McConnell

i) don’t have to ID each element of claim

ii) but do have to state the element you will negate (or conclusively establish) so other party can respond & b/c court can’t grant more relief than requested

iii) can’t be in brief supporting – must be in motion (maybe okay if you incorporate brief by reference)

y) Present evidence in support of MSJ

i) who has BOP (see above)

ii) standard: must conclusively prove all elements as a matter of law

z) No evidence MSJ

i) wait to file until after a time for adequate discovery (don’t have to plead this)

ii) plead no evidence by raising an element of claim/affirmative defense on which you think the opponent has no evidence

iii) label MSJ as “no evidence MSJ”

iv) “no evidence” is a term of art and means legally insufficient evidence for the rzbly juror to find in favor of the party w/ the BOP

2 Federal

aa) do above and

ab) must point to something in the record that will justify my conclusion that ( can’t produce evidence of an essential element in (’s coa Celotex

3 Summary Judgment Evidence

1 admissible form

1 rules of evidence apply fully

2 exception: affidavits, though hearsay, may be used in place of live testimony

2 types of SJ proof

1 pleadings: yours are hearsay, but opponent’s are admissions by party opponent (ABPO)

2 deposition transcripts: can be used; no special authentication needed

3 other discovery responses:

ac) interrogatories: opponent’s are not HS, but are ABPO’s

ad) RFA’s: opponent’s are not HS, but are ABPO’s

ae) RFD’s: opponent’s are usually HS, but sometimes (rare) are ABPO’s

af) RFP’s: opponent’s are HS – may be able to authenticate as bsns records or something

4 stipulations: as long as they satisfy R. 11 (can’t even be on MSJ record but must be R. 11)

3 filing

1 discovery: must be filed or set our word for word in SJ motion/response or attached

2 pleadings, affidavits, stipulations, other evidence must be on file at the time of the hearing

4 deadline: 21 days before hearing set & served (and do add 3 days for mail/fax just in case)

4 Response to Motion

1 timing: file with the court at least 7 days before hearing

2 are you req’d to file a response?

a) if no evidence motion, yes, because non-movant has burden of showing there is a genuine issue of material fact

b) if traditional MSJ, you don’t have to (but ( says that would be stupid) Clear Creek

3 Issues to raise in response to defeat an MSJ

c) avoidance

d) form objections

i) (because substance only objections to an affidavit need not be asserted at tc, but can be asserted for the first time on appeal) - ( thinks this is strange

ii) ( says “form” is a defect that can be corrected if called to the party’s attention

5 Hearing & Form of Judgment

1 moving on the facts

1 assume all the non-movant’s proof is true

2 indulge every reasonable inference in favor of the non-movant

3 Resolve all doubts about the existence of a genuine issue of material fact against the movant

2 moving on the pleadings

3 How much evidence is required?

1 Texas no evidence motions

ag) req’d to plead “no evidence” and burden shifts

ah) ( must show that there is enough evidence that a rzbl juror could find in your favor on each essential element that ( claims “no evidence” on

2 Texas traditional MSJ

ai) movant has BOP at the trial, so movant has BOP at the MSJ hearing

aj) must have enough evidence to show that a rzbl juror must find in your favor on each essential element of your claim/affirmative defense

3 Which one to use?

ak) If you don’t have the BOP at trial, use a no evidence MSJ.

al) Unless there hasn’t been an adequate time for discovery.

am) ( says consider a combo of traditional and no evidence MSJ’s

4 Federal MSJ’s (different standard of proof!)

5 In a “no evidence” type motion (where movant does not have the BOP), you must prove that no rzbly jury could find by (__standard of proof at trial__) in your favor. Anderson v. Liberty Lobby

an) In a MSJ where you want to establish each of your claims/affirmative defenses, the Federal rule mirrors the Texas rule??: that you must put on enough evidence to show that a rzbl jury must find in your favor (and to “find in your favor” incorporates the standard of proof req’d at trial).

4 form of judgment

1 total SJ

2 partial SJ 12-10 class notes missed!

Dismissal

1 Involuntary Dismissal

1 Legal Insufficiency of Pleading

1 requirements

2 procedure

3 reinstatement?

2 Lack of Prosecution: Dismissal for want of prosecution (3 types)

1 type one?

2 conscious indifference (165a)

3 mens rea: ( actually aware of trial setting & made conscious decision not to attend

4 court acting pursuant to its inherent power:

e) mens rea:

i) ( filed to act w/ due diligence

ii) negligence is enough to allow dismissal

f) good cause

g) reinstatement: 165a3

i) file 165a3 motion to reinstate

1. grounds

2. verify by movant or atty (if the atty is only one w/ personal knowledge)

3. deadline: 30 days from date dismissal jj signed (or R. 306 extension if no actual notice w/in 20 days after date signed)

ii) Standard is the same as for dismissal: negligence (( says this is strange – you can dismiss on a showing of mere negligence but you can reinstate by showing it was mere negligence. I agree!)

iii) Timetables: use 165a

iv) mistakes in motion to reinstate:

1. if you call it wrong thing (like MNT), that’s okay

2. if not verified, must be denied b/c no jx

3. What if you filed motion to reinstate w/in 15 days and have hearing 20 days after? tc still has plenary power, so tc can grant.

2 Nonsuit, Voluntary Dismissal

1 Right to Nonsuit (( thinks this is a big (’s tool!)

1 problems w/ nonsuit procedure:

h) nonsuit until you get the rotating judge you want (in counties w/ multiple judges)

i) (can’t do that in federal court)

ii) local court rules: often will not allow this

i) removal problems:

i) file suit in Texas state court, remove based on diversity, then nonsuit & re-file w/ a Texas resident added as a (

ii) when you nonsuit, it is a federal nonsuit (because done in federal court) so pursuant to FRCP 41, you can only nonsuit once and you can only do it before answer or MSJ filed (( says this is another reason to answer & then remove)

j) nonsuit after you pick a jury if you don’t like them b/c P hasn’t rested.

2 Requirements for nonsuit: 162

hc) Plaintiff

hd) at any time before he has introduced all his evidence (one case says P must say “P rests.”) besides rebuttal evidence

he) 21a notice on all parties who have answered or been served

2 Claim for Affirmative Relief

1 Limits on right to nonsuit: (few!)

hf) can’t prejudice the right of an adverse party on a pending claim for affirmative relief (counterclaim) or

hg) eexcuse the payment of costs, sanctions, attys, fees, etc. (see infra)

2 Affirmative relief:

hh) advisory opinion not affirm. relief

hi)

3 Reinstatement after Nonsuit

1 Wittig & McClendon cases

2 Move to Reinstate

hj) this is ordinarily inappropriate for nonsuit b/c there is an absolute rt to nonsuit

hk) can use if P takes nonsuit when nonsuit improper but ct. signed the nonsuit

hl) can use if P seeks to reinstate his own nonsuit

i) P’s burden to reinstate:

1. P must show good cause.

a. ( thinks showing P has a valid coa where he didn’t think he had one is enough (566//49)

b. ( says that if you used nonsuit to your strategic advantage, you probably couldn’t show good cause

2. + w/in the 30 days of the tc’s plenary power (the jx of the tc)

ii) P must nonsuit entire case; should simply amend petition to get rid of single claims

iii) If P gets rid of all claims against one party or amends to delete a party, then that party is not nonsuited, but is dismissed. Can D2 argue he was prejudiced unfairly by the party being dropped (say it’s too late to add him)?

1. probably not because under CPRC today you can add him as a R3P

2. and you can‘t be prejudiced by not being able to remove (until he was dropped) b/c it’s the joinder that prejudiced him

3 compulsory counterclaim seeking affirmative relief

hm) this keeps your counterclaim in the court and filed where it is

hn) this does not keep the other party from nonsuiting their own claims, but it may influence them

i) P files claim A.

ii) P tries to nonsuit.

iii) Immediately (w/in 30 days of tc’s plenary power) file a compulsory counterclaim (arises out of same transaction, occurrence, series of same).

iv) P files in another court.

v) Dominant Jx. D files plea in abatement to abate the second suit while his suit is pending. This will be granted as long as compulsory counterclaim (transactionally related)

vi) Once first case is decided and abatement lifted, assert res judicata on second case (P’s claims) & file motion for SJ based on affirmative defense of res judicata.

ho) Attorney’s fees and costs are not compulsory counterclaims. Dooley

4 Proper declaratory judgment request (allow parties to avoid future harm).

4 Effect on time for Appeal

1 order granting nonsuit, not the filing of nonsuit, starts clock running for tc’s plenary power to expire (you have 30 days or 75 days if a MNT is filed)

2 the tc can delay signing the motion and thereby extend it’s plenary power

5 Effect on SJ: MSJ survives nonsuit

1 hypo: ( files partial MSJ on coa 1-3. Judge grants on coa 1. ( decides he wants a new judge. ( can nonsuit.

k) ( has res judicata – valid, final jj on coa 1 (b/c MSJ treated like trial)

l) What about coa’s 2 & 3? You may be able refile.

i) These coa’s were not dismissed per MSJ so there is no valid final jj on them.

ii) But the other coa was dismissed…so if It arose out of the same transaction/occurrence, series of transactions or occurrences so that it was a compulsory counterclaim

2 hypo: ( v. ( 1 and ( 2. D1 files MSJ & wins. That has no res judicata effect v. ( 2. Collateral estoppel? No, b/c not actually litigated & necessarily decided.

3 hypo: ( files in Texas state court. ( files MSJ. ( misses deadline to respond, so decides to announce nonsuit @ MSJ hearing. Allowed?

m) Traditional MSJ: Since you’re not req’d to put on evidence, you can nonsuit anytime before SJ signed. Halle Farro 804//548.

n) No Evidence MSJ: Since you are req’d to put on evidence, you can only nonsuit until your SJ response is due (or else you have passed the deadline because SJ is treated as a “trial” so the trial has begun from time you must put on evidence.)

6 Effect on Venue (( likes this topic) Geochem 962//541

1 b/g rules:

hp) venue facts plead by Plaintiffs + and not specifically denied + are taken as true, and can’t be relitigated

hq) venue is P’s option, unless he picks improper venue, then D can transfer as long as to a proper venue

hr) 2 ways to conclusively “establish” venue facts:

i) plead & not specifically denied

ii) plead & supported by affidavit

2 hypo: If P files in improper county. D moves to transfer venue to proper county. (Once P filed in improper county, P waived first choice of venue and venue is now proper in D’s county of choice, so long as D picked a proper county.) Can P now nonsuit and get new venue determination?

hs) P originally alleged D was resident of Tarrant Cty.

ht) But D specifically denied residence in Tarrant county, so that is not established.

hu) D alleges he resides in Cooke and Johnson counties. He transfers venue to Cooke.

hv) D supports venue in C&J counties with an affidavit, so it is conclusively established that D is a resident of Cooke and Johnson counties. (Had D not supported venue facts with an affidavit, P should have simply specifically denied the venue facts (residence in C&J counties) plead by D.)

hw) P nonsuits & refiles in McLennan county.

i) P could allow D to have case in Johnson.

ii) P could nonsuit and choose Cooke county for new suit.

iii) Can P add more venue facts and have the case in McLennan county (unless D proves not resident of McLennan cty.)?

1. ( says: P can also add to the venue facts and have the case in McLennan.

2. This is an open question, so the other side argues to take the venue record as you find it at the moment of nonsuit.

iv) P cannot have the case in Tarrant county, since the venue fact of “nonresident of Tarrant” was plead by D and not specifically denied.

3 hypo: what if P waits until after the case is transferred ti a new county and then takes the nonsuit in the new county? Even though the venue facts are similarly established, we now have a new court, and the old court lost its plenary power. I don’t understand venue & nonsuit nor why this hypo is different nor the affirm. relief stuff and why any venue facts become “established.” I guess because a nonsuit is a final judgment.

4 why do the venue facts survive when they are short of a final venue determination?

5 ( doesn’t know!

6 there are old cases stating that when a party was seeking to compel arbitration, it is seeking affirmative relief (and that survives); by analogy, the motion to transfer venue would survive (( thinks this is nonsense b/c this is not really seeking affirmative relief)

7 Effect on Sanctions

1 if the sanction was intneded to remedy or mitigate effects of unfair surprise, it will not survive the nonsuit (e.g. discovery sanctions)

hx) ex. notice depo of nonparty but fail to subpoena. Sanctioned. This will survive because sanction is to pay other atty for costs of your no show depo.

2 if the sanction was intended to deter wrongdoing or punish, it will survive (e.g. Ch. 10 or R. 13 sanctions)

hy) If expert stricken due to improper notice of expert, that would allay with new trial (if proper notice given in new trial) so that would disappear w/ nonsuit.

3 Alternative Dispute Resolution

Trial

1 Trial Settings

1 Notice

1 Who gives notice?

hz) the party who requested a trial setting

ia) or the court

2 What must be in notice?

ib) that a trial setting has been requested for xx date Mansfield

ic) must comply w/ rule 21a for service

i) violation of rule 21a is only grounds for reversal if you were actually prejudiced (didn’t receive actual notice of setting)

ii) it will appear on the record b/c the proper way to give notice requires sending certified and a certified mail will be in file

3 Burden on party complaining of improper notice. Trevino

4 You didn’t get certified notice (and got no notice), so after default you file MNT.

id) There is a presumption of proper notice.

ie) You both file affidavits (that you didn’t get notice & he says he did send notice).

if) Affidavits conflict, so neither overcomes burden, so MNT denied b/c not by undisputed evidence.

2 Motions for Continuance

1 Requirements of motion for continuance

1 affidavit: party seeking continuance must affie

ig) allege in affidavit:

i) material

ii) due diligence

iii) cause of failure

iv) etc.

ih) who makes affidavit:

i) atty will be only party w/ personal knowledge of many of these things

ii) atty can make affidavit as agent for the party (R 14)

iii) does not become a material fact witness b/c these issues not in dispute at trial

2 motion (elements) based on want of testimony (r. 252)

ii) name and residence of W

ij) what party expects to prove by the W

ik) not sought for delay only, but that justice would be done

il) first motion (if not, that T can’t be procured from any other source)

im) due diligence used: describe the steps you have taken to procure the missing testimony & why those steps have been unsuccessful

3 due diligence

in) if you have taken the deposition of the expert, then you cannot establish due diligence because the depo can be offered in lieu of live testimony

io) requirements of due diligence Fritsch

i) witness within subpoena range:

1. must have timely subpoenaed the witness if within subpoena range (and 11th hour subpoena not sufficient)

2. unless (can still establish due diligence even w/o getting the depo if)

a. witness resides w/in 100 miles of the courthouse &

b. diligence has been used (subpoenaed) but

c. age, sickness or official duty (or has left state, county) keeps W from attending

ii) witness not within subpoena range:

1. take deposition

2. page two 12/17 notes

3 Right to Jury trial

1 Scope of Right

1 Texas State Court

2 Federal Court

2 Waiver & Preservation of Right

1 Presuit Waiver

2 Texas Post-Suit Waiver

3 Federal Post-Suit Wavier

4 Voir Dire

1 Selection of Panel

2 Challenging the Panel

3 Questioning the Panel

4 Challenges for Cause

5 Peremptory Challenges

5 The Charge ( says this is very complicated procedurally. Better study.

1 The Rules

2 Broad Form Submission

-----------------------

No Communication w/ Rep’d People

1. while representing a client

2. no communication w/ a person known to be represented (incl. experts)

3. re: subject matter of representation

4. unless consent / authorization (e.g. depos) --(DR 4.02)

Ex. Suit filed 1/02. File RFD w/ petition. First depo 1/29. Trial set for 11/01.

1) what level discovery? level 2

2) Date RFD served: 4/25

3) When is discovery period over?

a) 30 days before trial setting: 10/01 or

b) 9 mos. after

i) first oral depo: 1/29 + 9 mos = 10/29

ii) written discovery response due: 50 days (b/c served w/ petition) => 1/02 + 50 days = 2/29 + 9 mos = 11/29

c) earliest = 10/01

4) designate by later of:

a) 30 days after RFD = 5/25

b) seeking affirm relief? yes => 90 days before 10/01 = 7/01

c) due = 7/01 !

Relevance = Need v. Burden

Attorney Client (a/c) Privilege

1. existence of a/c relationship

2. communication made for the purpose of providing legal services

3. communication was confidential when made

4. not waived (objector’s BOP in civil cases)

Work Product (WP)

• anticipation of litigation

• by attorney or client

• material prepared or mental impressions

Affidavits

• sworn,

• over 18,

• competent

• swear to truth based on personal kn

• jurat

• on this date

• blah Aaron’s memo

Reasons to use Protective Order

1. undue burden

2. harassment

3. invades protected rts.

(’s elements (’s elements

coa’s affim. defenses

a. 1.

b. 2.

These burdens change for no evidence MSJ (& are different in federal ct)

• compound,

• calls for narrative,

• argumentative,

• misleading,

• speculative,

• Q lacks proper foundation,

• vague

res judicata

a. valid

b. final

c. jj

d. same parties

e. same claims

Collateral Estoppel:

1. party to be estopped

2. had valid final jj

3. on same exact issue

4. actually litigated

5. necessarily decided

Affidavit

1. competent W

2. affirmation of truth of testimony in affidavit

3. notarized

4. based on personal knowledge

5. jurat

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