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Agenda for 9th Class• Admin

– Handouts– Name plates

• Experts (continued)• Sanctions

– Phillips– A Civil Action

• Introduction to Summary Judgment

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Next Class• FRCP 56• Yeazell pp. 581-96• Questions to think about / writing assignment for Group 7

– Yeazell pp. 581ff Qs 1, 2c– Briefly summarize Celotex Be sure to discuss what evidence each side

submitted to the court?  Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s  summary judgment motion?  Why was defendant’s evidence possibly sufficient for its summary judgment to be granted?

– Yeazell pp. 588ff Qs 1c, 5– Briefly summarize Bias. Be sure to discuss what evidence each side

submitted to the court?  Why did the court grant summary judgment to the defendant?

– Yeazell p. 596 Q4– Summary Judgment questions on Slide 3

• Optional Glannon Ch 23

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Summary Judgment Questions• In Celotex, what could the plaintiff’s lawyer have done during discovery to

have had a better chance of defeating defendant’s motion for summary judgment?

• In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff?

• In Bias,  is it possible that the plaintiff would have prevailed at trial?  How?  If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion?

• If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment?

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Work Product I• Work Product 26(b)(3)

– No discovery of “documents and tangible things prepared in anticipation of litigation or for trial … [unless] substantial need”

• Policies– Not to discourage writing– To encourage each side to expend effort gathering evidence– Adversary system– Somewhat in tension with policies behind discovery

• Rule is narrower than policies behind doctrine– Restricted to “documents and tangible things.”– But rule is interpreted to cover more than documents and tangible things

• Doctrine was created before rule

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Work Product II• Structure of rule

– Relevant, non-privileged information is discoverable. Rule 26(b)(1)– Unless prepared in anticipation of litigation or for trial. (Word Product).

Rule 26(b)(3)(A)• Unless substantial need. Rule 26(b)(3)(A)(ii)

– If work product is ordered to be produced under Rule 26(b)(3)(A)(ii) (“substantial need”)

• Then court must protect against disclosure of mental impressions, conclusions, opinions, legal theories etc. Rule 26(b)(B)

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3 Kinds of Experts• Expert who will testify at trial

– Heightened discovery– FRCP 26(a)(2)(A). Disclosure of name of testifying expert– FRCP 26(a)(2)(B). Testifying expert must prepare report and report must

be disclosed– FRCP 26(b)(4)(A). Opposing party may depose testifying expert

• Non-testifying expert, hired in anticipation of litigation or to prepare for trial– Treated like other work product– FRCP 26(b)(4)(D). Non-testifying expert, hired in anticipation of litigation

or to prepare for trial, is shielded from discovery • Unless “exceptional circumstances” 26(b)(4)(D)(ii)

• Experts not hired in anticipation of trial– Subject to discovery like ordinary witnesses– E.g. engineer who designed product which may be defective; doctor who

examined patient for treatment (not for litigation purposes)– Disclosure of facts and opinions, 26(a)(2)(D)

• But not as extensive disclosure as required of testifying experts

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Expert Questions• Suppose plaintiff has lung cancer which he thinks might have been caused

by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important?

Rule 35(b)– Can only be used to get doctor’s reports by non-testifying plaintiff’s expert in

very limited circumstances– Defendant must have requested an exam under Rule 35(a)– Plaintiff must have requested a copy of the doctor’s report under Rule 35(b)

(1)• Then Rule 35(b)(3) requires plaintiff to turn over “like reports of all earlier

or later examinations of the same condition”– So plaintiff who wants to avoid disclosing non-testifying expert’s report can

avoid doing so by not asking for copy of exam under Rule 35(a)• Not much harm in not asking, because defendant will have to disclose

report of its expert anyway, if that expert is going to testify

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Discovery Sanctions I• Rule 11 does not apply to discovery. See 11(d)• FRCP 26(g). Very similar to Rule 11, except applies to written aspects of

discovery– Discovery requests, responses, or objections must be signed by lawyer– Disclosure is complete– Requests, responses, or objections are warranted by law or non-

frivolous argument to change the law, not for improper purpose, not unreasonable or unduly burdensome

– Sanctions are mandatory. May include fees to opposing counsel• FRCP 30(c)-(d). Depositions

– In general there are two sets of lawyers in a deposition• Lawyer taking the deposition• Lawyer defending the deposition

– Lawyers can object in deposition, but can only instruct deponent not to answer “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to the court.” 30(c)(2)

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Discovery Sanctions II• Depositions (continued)

– 30(d)(2). Sanctions on person who “impedes, delays, or frustrates” deposition

– 30(d)(3). May terminate or suspend deposition to make motion to judge to limit deposition

• FRCP 37(a) motion to compel– If opposing party refuses requested discovery– If granted, court must award attorneys fees

• FRCP 37(b). Discretionary sanctions for failure to obey court order– Can be severe, including dismissal, default judgment, or contempt

(imprisonment)

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Discovery Sanctions III• Lots of other sanctions provisions

– 37(c) Sanction for failure to disclose, supplement, or admit• Does not apply to depositions

– 37(d) failure to respond to discovery requests• Failure to attend deposition• Failure to respond at all to interrogatories• Failure to respond at all to request for documents or tangible things• 26(g) wouldn’t apply because no paper to sign

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Questions on Sanctions• Yeazell p. 510 Qs 1-5• 1) In Phillips v Manufacturers Hanover Trust, what rule, if any, did

defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid.

• 2) For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary?

• 3) Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do?

• 4) What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently?

• 5) If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

Questions on A Civil Action– Explain how Schlichtmann got information to build his case. What discovery

devices did he use? What methods other than discovery did Schlichtman use to get information?

– Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions?

– Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important?

– If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did?

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Summary Judgment I• Sometimes facts revealed in discovery are so clear that trial is pointless

– Judge renders judgment without trial– Very serious because

• Deprives losing party of jury trial• Deprives losing party of ability to fully present case

• Mechanics– Party that wants summary judgment makes motion

• Memorandum in support of motion includes evidence– documents, excerpts from depositions, affiidavits/declarations…– Affidavit or declaration is statement by friendly witness

• Memorandum argues that materials show no real factual issue• Memorandum argues that law on movant’s side

– Party opposing summary judgment submits memorandum• Points to evidence showing that there is a factual issue that requires

full trial• Argues that law on non-movant’s side

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Summary Judgment II• Legal Standard

– “no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.”

– “movant” = person making SJ motion (usually defendant)– Undisputed facts show that moving party prevails– No reasonable juror could find for non-moving party

• Non-moving party is party opposing motion (usually plaintiff)• Judge is not supposed to determine credibility

– No live witnesses, but affidavits and deposition transcripts– Especially of non-moving party’s witnesses– In theory, non-moving party could prevail by showing the moving party’s

witnesses are not credible (just as could at trial)• But that is rare. Hard to challenge credibility at SJ. Judges usually

believe moving party’s witnesses, unless non-moving party can produce witnesses to contradict them

• Summary judgment forces parties to do thorough discovery– Must depose witnesses etc., so have information to oppose SJ