Discovery Traps… & How to Get out of Them
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GLOSSARY of LEGAL TERMS Ad Damnum
GLOSSARY OF LEGAL TERMS Ad damnum: The technical name of the clause in the complaint that contains a statement by the plaintiff of the amount of the damages he/she is claiming. Additur: The opposite of Remittitur. An increase in an award by the Judge done in the Court's discretion if he or she feel the Jury's judgment is inadequate. Adjudicate: To settle in the exercise of judicial authority; to determine finality. Admissions: Confessions, concessions, or voluntary acknowledgment made by a party of the existence of certain facts. Affiant: The person who makes and subscribes an affidavit. Affidavit: Sworn statement of a witness, which is verified by a Notary Public. Affirmative Defense: A defense that must be specifically pled by the defendant to be asserted at trial. If such a defense is not raised in the answer, it is waived. An example of an affirmative defense is contributory negligence, assumption of the risk, etc. Appellant: The party who takes an appeal from one court or jurisdiction to another in the interest of setting aside or reversing the judgment. Appellee: The party in a case against whom an appeal is taken, that is, the party who has an interest adverse to setting aside or reversing the judgment (some times called the respondent). Arbitration: Alternative dispute resolution in which the case is decided by an arbitrator or panel of arbitrators, usually experienced attorneys, former judges, or administrative law judges. The case is decided after an informal hearing. Arbitration is almost always binding. Assumption of the Risk: This is an affirmative defense. -
Lnstructions / Discraimer Documents, Or the Comprehensiveness of The
REQuEsrFoR PRoDUcloN oF DocuMENTs- lnstructions / Discraimer Once a civillawsuit is commenced,a pafi is permittedto seekto obtaininformation relevant to the lawsuitabout other parties to the suit, during the fact-findingpnase Ueioretrial called !is9o1eV. Generalprovisions goveming Discoverylre found in Rul-eZO ot tne NevadaRules of CivilProcedure ('NRCP"). ln general,pirties mayobtainDiscovery about any matterwhich is relevantto the subjectmatter involved in the pendingaction, so long as the informationis privileged. not Informationabout each of thedifferent Disc.-overy tools avaiiable to partiesto a tawsuit, andhow they may be used,can be foundin NRCp30 thr;ugh36. Requestfgr Productionof Documentsis a discoverytool encompassed in Rule 34, and allows any partyto serve upon any other partya requestto producereievant documents. The party makingthe request(or someoneacting on the requesiingparty's behalf) is permittedto inipeit and copyany designateddocuments. "Documenis" include writings, drawings, graphs, charts, photographs,phonorecords, and otherdata compilationsfromwhicliinformatioi Gn 6e obtained, translated,if necessary,by the respondingparty through detection devices into reasonably usable form. Requestfor Productionof Documentsmay be served upon tfe plaintiffafter the lawsuitis commenced;and uponany other pafi onlyat the timeof or afterthat party is servedwith the summonsand complaint. The party upon whom the Request is served is ihen required to provide a wriftenresponse within thirty (30) days afterservice of the Request.A shorteror longertime may be orderedby the Courtor, in absenceof a Courtorder, agieed to by writtenstipul-ation of the parties,so longas the timeby whichresponse is extendeddoes not interferewit'h any time setfor completionof discovery(see, Rule29). Thepafi reguestingthatdocumenb be copied must pay the reasonablecost therefor, andthe Courtmay direct the respondingparty to lopy the documents. -
4:04-Cv-03384-RGK-CRZ Doc # 450 Filed: 03/11/09 Page 1 of 10
4:04-cv-03384-RGK-CRZ Doc # 450 Filed: 03/11/09 Page 1 of 10 - Page ID # <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CINDY AVILA, individually and as ) 4:04CV3384 Personal Representative of the Estate ) of Steven Avila, Deceased, et al., ) ) Plaintiffs, ) MEMORANDUM v . ) AND ORDER ) CNH AMERICA, LLC, et al., ) ) Defendants. ) This matter is before the court on the plaintiffs’ “motion for reconsideration and for relief pursuant to Fed. R. Civ. P. 59(e) and 60(b)(1)-(2) with request for oral argument” (filing 385). The motion is filed with respect to the court’s memorandum and order entered on January 2, 2009 (filing 382), which granted summary judgment in favor of one of the defendants, Cargill, Incorporated, and also with respect to the court’s judgment entered that same date (filing 383), which dismissed the plaintiffs’ action against Cargill with prejudice. The plaintiffs argue that additional evidence was discovered during Cargill’s corporate deposition on December 9-10, 2008, which makes the granting of summary judgment inappropriate. Alternatively, the plaintiffs argue that they at least should be permitted to complete the corporate deposition, and to depose a former Cargill employee. The plaintiffs also argue that there is a genuine issue as to whether Cargill should have known of the contamination at the Engleman Road facility because, as a manufacturer of chemical pesticides, it should be charged with constructive knowledge of a 1983 study report cited by the plaintiffs’ expert that concerns groundwater contamination caused by the dumping of chlorinated solvents. -
Of Alternative Dispute Resolution
“CONS” OF ALTERNATIVE DISPUTE RESOLUTION I. FORUMS AND PROCEDURES FOR ALTERNATIVE DISPUTE RESOLUTION A. FORUMS 1. Court – A case may be referred by the court to mediation or arbitration, which is usually before an attorney on the court’s mediation/arbitration panel. 2. Contract – The parties to a contract may include a provision that disputes are to be resolved by binding or non-binding mediation and/or arbitration. The parties may specify a forum such as the American Arbitration Association (“AAA”), JAMS/Endispute, or other associations. If no forum is specified by the parties, the rules of Code of Civil Procedure (“CCP”) §1280 et seq. apply. B. PROCEDURES – ADR Path [see Exhibit “A”] 1. Mediation Court – The rules for court-ordered mediation are set forth in CCP § 1775-1775.16, California Rules of Court (“CRC”) 1630- 1639, and in the local court rules. Contract – The rules for “private” mediation (i.e., a mediator required by contract or voluntarily agreed to by the parties) will depend upon the forum specified by the parties, i.e., the AAA, JAMS/Endispute, or other associations and unassociated mediators. 2. Arbitration Court – The procedures for Judicial Arbitration are found in CCP §1141.10 et seq., CRC Rules 1600 et seq., or local court rules. Contract -- If a contract contains a provision requiring disputes to be submitted to arbitration, then the rules governing Document #: 324 1 arbitration are found in CCP §1280 et seq. However, the parties may provide in a contract that disputes are to be submitted to arbitration and then specify the rules applicable to the arbitration. -
Misc. Docket No. 20-9153 ════════════════════
IN THE SUPREME COURT OF TEXAS ════════════════════ Misc. Docket No. 20-9153 ════════════════════ ════════════════════════════════════════════════════ FINAL APPROVAL OF AMENDMENTS TO TEXAS RULES OF CIVIL PROCEDURE 47, 99, 169, 190, 192, 193, 194, 195, 196, 197, AND 198 ════════════════════════════════════════════════════ ORDERED that: 1. On August 21, 2020, in Misc. Dkt. No. 20-9101, the Court preliminarily approved amendments to Rules 47, 169, 190, 192, 193, 194, and 195 of the Texas Rules of Civil Procedure to comply with Act of May 27, 2019, 86th Leg., R.S., ch. 696 (SB 2342), and invited public comment. Following public comment, the Court made revisions to those rules and also revised Texas Rules of Civil Procedure 99, 196, 197, and 198. This Order incorporates the revisions and contains the final version of the rules, effective January 1, 2021. 2. The amendments apply to cases filed on or after January 1, 2021, except for those filed in justice court. The rules amended by this Order continue to govern procedures and limitations in cases filed before January 1, 2021. 3. The Clerk is directed to: a. file a copy of this Order with the Secretary of State; b. cause a copy of this Order to be mailed to each registered member of the State Bar of Texas by publication in the Texas Bar Journal; c. send a copy of this Order to each elected member of the Legislature; and d. submit a copy of the Order for publication in the Texas Register. Dated: December 23, 2020 Nathan L. Hecht, Chief Justice Eva M. Guzman, Justice Debra H. Lehrmann, Justice Jeffrey S. Boyd, Justice John P. -
Case 2:12-Cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27
Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HOWARD KEPHART and DIANE ) KEPHART, ) Civil Action No. 2:12-668 ) Plaintiffs, ) Judge Kim R. Gibson ) v. ) ) ABB, INC., ) ) Defendant; Third-Party ) Plaintiff, ) ) v. ) ) THE BABCOCK & WILCOX ) COMPANY, et al., ) ) Third-Party Defendants ) MEMORANDUM AND ORDER OF COURT I. Synopsis Before the Court in this matter are three motions: (1) a motion to dismiss (ECF No. 94) filed by Third-Party Defendants Babcock & Wilcox Company, Babcock & Wilcox Investment Company, and Babcock & Wilcox Power Generation Group (“B & W” or “B & W Defendants”); (2) a motion for partial summary judgment (ECF No. 108) filed by Defendant/ Third-Party Plaintiff ABB, Inc. (“ABB”); and (3) a motion for consolidation of oral argument (ECF No. 111) filed by Defendant/ Third-Party Plaintiff ABB, Inc. The primary issue argued by the parties is whether Pennsylvania’s statute of repose, 42 Pa. Cons. Stat. § 5536, provides protection from liability in this action to Third-Party Defendants B & W and to Defendant ABB. Based on the record before the Court and after Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 2 of 27 a careful review of Pennsylvania’s statute of repose and the relevant case law, the Court finds that the statute of repose bars ABB’s contribution claims against the B & W Defendants, but does not bar Plaintiffs’ products liability and negligence claims against ABB. Accordingly, and for the reasons explained below, the Court will GRANT B & W’s motion to dismiss and will DENY ABB’s motion for partial summary judgment. -
Eddie C. Pratcher, Jr. V. Methodist Healthcare Memphis Hospitals, 407
IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 8, 2012 Session Heard at Memphis EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL. Appeal by Permission from the Circuit Court for Shelby County No. CT-0070011-00 Donna M. Fields, Judge No. W2011-01576-SC-S09-CV - Filed June 28, 2013 The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
In the United States District Court for the District of Kansas
Case 2:09-cv-02304-JAR Document 77 Filed 09/08/10 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS REGINA DANIELS, ) ) Plaintiff, ) ) v. ) Case No. 09-2304-JAR ) UNITED PARCEL SERVICE, INC., ) ) Defendant. ) MEMORANDUM AND ORDER This matter comes before the Court upon Plaintiff’s Motion to Compel Discovery and for Related Sanctions (Doc. 64). The motion is fully briefed, and the Court is prepared to rule. For the reasons stated below, Plaintiff’s motion is granted in part and denied in part. I. Procedural Requirement to Confer Before considering the merits of Plaintiff’s motion to compel, this Court must first determine whether Plaintiff has complied with the requirements of the Federal Rules of Civil Procedure and this district’s local rules regarding the movant’s duty to confer with opposing counsel prior to filing a motion to compel. Fed. R. Civ. P. 37(a)(1) provides that a motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” D. Kan. R. 37.2 expands on the movant’s duty to confer, stating “[a] ‘reasonable effort to confer’ means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.” In this case, the parties have exchanged correspondence aimed at attempting to resolve the instant discovery dispute without judicial intervention. -
Request for Production of Documents
1 SELARZ LAW CORP. DANIEL E. SELARZ (State Bar No. 287555) 2 [email protected] 11777 San Vicente Blvd., Suite 702 3 Los Angeles, California 90049 Telephone: 310.651.8685 4 Facsimile: 310.651.8681 5 Attorneys for Plaintiff(s), [CLIENT’S NAME(S)] 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF [COUNTY ], [DISTRICT] 9 10 [PLAINTIFF(S)], an individual, Case No. [ ] Honorable [ ] 11 Plaintiff, [Dept. [#]] . vs. 12 PLAINTIFF’S REQUESTS FOR ORP [DEFENDANT(S)], and DOES 1 to [#], PRODUCTION OF DOCUMENTS, C 13 inclusive, SET ONE Blvd., Suite 702 AW 14 Defendants. L Action Filed: [ ] 15 Trial Date: [ ] Los Angeles, California 90049 California Angeles, Los 11777 San Vicente Vicente San 11777 ELARZ 16 Tel: 310.651.8685 • Fax: 310.651.8681 Fax: • 310.651.8685 Tel: S PROPOUNDING PARTY : PLAINTIFF [CLIENT’S NAME] 17 RESPONDING PARTY : DEFENDANT [DEFENDANT’S NAME] SET NUMBER : ONE 18 19 PLAINTIFF [CLIENT’S NAME] (“PLAINTIFF”), requests that Defendant 20 [DEFENDANT’S NAME] (“DEFENDANT”) identify, produce and permit the inspection 21 and copying of the following DOCUMENTS and things, pursuant to California Code of 22 Civil Procedure Section 209.010. PLAINTIFF requests that the following Documents and 23 things be identified, produced and made available for inspection and copying at the law firm 24 of Selarz Law Corp., located at 11777 San Vicente Blvd., Suite 702, Los Angeles, California 25 90049. Alternatively, there may be full compliance with this request by forwarding copies 26 of the items requested herein directly to Selarz Law Corp. If the Defendant chooses to 27 produce the items requested at the office of counsel for PLAINTIFF rather than mail copies, 28 a telephone call or other notice should be provided no less than three (3) days ahead of time 1 PLAINTIFF’S REQUEST FOR PRODUCTION, SET ONE 1 so that definite arrangements can be made for someone to be present to conduct the 2 duplication and have the appropriate equipment available. -
Introduction to Law and Legal Reasoning Law Is
CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150. -
ESSAY QUESTION NO. 9 Answer This Question in Booklet No. 9 Philip
ESSAY QUESTION NO. 9 Answer this question in booklet No. 9 Philip visits Daniel’s Woodworking (a sole proprietorship) in a Fairbanks strip mall. While leaving the shop, Philip slips and falls on the icy curb as he approaches his car that is parked in front of the shop. Two years later, Philip sues Daniel in Fairbanks Superior Court for damages for personal injury. Daniel answers the complaint, discovery begins, and the Court sets a jury trial in one year. A few weeks before trial, after discovery has closed, Daniel moves to amend the pleadings and assert a complaint against his landlord, Blue-Roof Malls, Inc., for apportionment of fault. Daniel attaches to his motion a proposed third-party complaint which alleges Blue-Roof negligently maintained the sidewalk, curb and parking lot where Philip fell, and that Blue-Roof’s negligence, in whole or in part, caused Philip’s injury. Philip files an opposition, arguing (1) it is too late to amend; (2) joinder of a new party now would prejudice Philip; (3) the Statute of Limitations bars Daniel from adding Blue-Roof, and (4) if Daniel is found liable in the present action, he can then seek contribution from Blue-Roof in a separate action. 1. Will the Superior Court grant Daniel’s motion? Why or why not? Explain. 2. Assume for purposes of this question only that Daniel is permitted to join Blue-Roof. Explain how the Superior Court will instruct the jury to determine the respective liability of the parties? Why? July 2011 Page 1 of 1 GRADERS’ GUIDE * * * QUESTION NO.