civil procedure 2 outline

8/11/2019 Civil Procedure 2 Outline

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Civil Procedure 2 Outline

Review from Civil Procedure 1

1331 Federal QuestionThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, ortreaties of the United States

1332 Diversit of Citi!enshi"# $%ount in Controvers# Costs&a' The district courts shall have original jurisdiction of all civil actions where the %atter in controverse(ceeds the su% or value of )*+,, e(clusive of interest and costs, and is -etween.

&1' citi!ens of different States#&2' citi!ens of a State and citi!ens or su-jects of a foreign state, e(ce"t that the district courts shallnot have original jurisdiction under this su-section of an action -etween citi!ens of a State andciti!ens or su-jects of a foreign state who are lawfull ad%itted for "er%anent residence in theUnited States and are do%iciled in the sa%e State#&3' citi!ens of different States and in which citi!ens or su-jects of a foreign state are additional"arties# $/D&0' a foreign state, defined in section 13&a' of this title, as "laintiff and citi!ens of a State or of

different States&-' (ce"t when e("ress "rovision therefor is otherwise %ade in a statute of the United States, where the"laintiff who files the case originall in the Federal courts is finall adjudged to -e entitled to recover lessthan the su% or value of )*+,, co%"uted without regard to an setoff or counterclai% to which thedefendant %a -e adjudged to -e entitled, and e(clusive of interest and costs, the district court %a dencosts to the "laintiff and, in addition, %a i%"ose costs on the "laintiff&c' For the "ur"oses of this section and section 1001 of this title.

&1' a cor"oration shall -e dee%ed to -e a citi!en of ever State and foreign state - which it has-een incor"orated and of the State or foreign state where it has its "rinci"al "lace of -usiness,e(ce"t that in an direct action against the insurer of a "olic or contract f lia-ilit insurance,whether incor"orated or unincor"orated, to which action the insured is not joined as a "art4defendant, such insurer shall -e dee%ed a citi!en of.

&$' ever State and foreign state of which the insured is a citi!en#

&5' ever State and foreign state - which the insurer has -een incor"orated# $/D&C' the State or foreign state where the insurer has its "rinci"al "lace of -usiness# and

&2' the legal re"resentative of the estate of the decedent shall -e dee%ed to -e a citi!en onl of thesa%e State as the decedent, and the legal re"resentative of an infant or inco%"etent shall -edee%ed to -e a citi!en onl of the sa%e State as the infant or inco%"etent

13* Su""le%ental 6urisdiction&a' (ce"t as "rovided in su-sections &-' and &c' or as e("ressl "rovided otherwise - Federal statute, inan civil action of which the district courts have original jurisdiction, the district courts shall havesu""le%ental jurisdiction over all other clai%s that are so related to clai%s in the action within suchoriginal jurisdiction that the for% "art of the sa%e case or controvers under $rticle 777 of the UnitedStates Constitution Such su""le%ental jurisdiction shall include clai%s that involve the joinder orintervention of additional "arties

&-' 7n an civil action of which the district courts have original jurisdiction founded solel on section 1332of this title, the district courts shall not have su""le%ental jurisdiction under su-section &a' over clai%s -"laintiffs against "ersons %ade "arties under 8ule 10, 19, 2, or 20 of the F8C:, or over clai%s - "ersons"ro"osed to -e joined as "laintiffs under 8ule 19 of such rules, or see;ing to intervene as "laintiff sunder8ule 20 of such rules, when e(ercising su""le%ental jurisdiction over such clai%s would -e inconsistentwith the jurisdictional re


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&2' the clai% su-stantiall "redo%inates over the clai% or clai%s over which the district court hasoriginal jurisdiction,&3' the district court has dis%issed all clai%s over which it has original jurisdiction, or&0' in e(ce"tional circu%stances, there are other co%"elling reasons for declining jurisdiction

&d' The "eriod of li%itations for an clai% asserted under su-section &a', and for an other clai% in thesa%e action that is voluntaril dis%issed at the sa%e ti%e as or after the dis%issal of the clai% undersu-section &a', shall -e tolled while the clai% is "ending and for a "eriod of 3 das after it is dis%issedunless State law "rovides for a longer tolling "eriod

"Simple" Joinder

1 6oinder 4 the union in one lawsuit of %ulti"le "arties who have the sa%e rights oragainst who% rights are clai%ed as co"laintiffs or codefendants The co%-ination in onelawsuit of two or %ore clai%s, or grounds for relief2 The a-ilit to -ring in %ulti"le "arties or %ulti"le clai%s3 Two 6 for that "articular clai%= ?ill the joinder have an

additional "art that will raise S>6 "ro-le%s=

Rule 18 Joinder of Claims

&a' 7n @eneral$ "art asserting a clai%, counterclai%, crossclai%, or third4"art clai% %a join, as inde"endent oralternative clai%s, as %an clai%s as it has against an o""osing "art

&-' 6oinder of Contingent Clai%s$ "art %a join two clai%s even though one of the% is contingent on the dis"osition of the other# -ut thecourt %a grant relief onl in accordance with the "artiesA relative su-stantive rights 7n "articular, a"laintiff %a state a clai% for %one and a clai% to set aside a conveance that is fraudulent as to that

"laintiff, without first o-taining a judg%ent for the %one

1 8UB. $ "art %a -ring as %an clai%s as it has against an o""osing "art2 >ost t"icall, joinder under this 8ule is :As tring to join %ulti"le clai%s3 Bi%itation co%es in when we loo; to jurisdiction, the 8ule itself creates /li%itations

Rule 13 Counterclaim and Crossclaim

&a' Co%"ulsor Counterclai%&1' 7n @eneral $ "leading %ust state as a counterclai% an clai% that, at the ti%e of its service, the "leaderhas against an o""osing "art if the clai%.

&$' arises out of the transaction or occurrence that is the su-ject %atter of the o""osing "artAsclai%# $/D&5' does not re


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&-' :er%issive Counterclai%$ "leading %a state as a counterclai% against an o""osing "art an clai% that is not co%"ulsor

&c' 8elief Sought in a Counterclai%$ counterclai% need not di%inish or defeat the recover sought - the o""osing "art 7t %a re


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:er%issive Counterclai%a ou can wait and -ring the clai% in a se"arate law suit- 7f "er%issive, there is an inde"endent -asis for S>6c The clai% %ust %eet either federal 6, then su""le%ental jurisdiction %a -e availa-le

Crossclaim Analysis

1 Crossclai% 4 clai% against a co4"art2 The clai% %ust arise out of the transaction or occurrence that is the su-ject %atter ofthe original action or of a counterclai% 8 if the clai% relates to an "ro"ert that is thesu-ject %atter of the original action3 Sa%e Transaction or ccurrence Test

a loo; at core of o"erative facts and deter%ine whether the original law suit andthe crossclai% arise out of the STO or series of STO

0 7f S, then crossclai% is "ro"er

+ 7f /, then crossclai% is not "ro"er 7f "ro"er, then there is su""le%ental jurisdiction -ecause the core of o"erative facts testis %et* 7f there is no S>6, the clai% will -e -rought under su""le%ental jurisdiction and will-e held to the discretion of the court under 13*&c'


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Joinder of Claims Analysis

Rule 2$ Permissive Joinder of Parties

&a' :ersons ?ho >a 6oin or 5e 6oined&1' :laintiffs :ersons %a join in one action as "laintiffs if.

&$' the assert an right to relief jointl, severall, or in the alternative with res"ect to or arisingout of the sa%e transaction, occurrence, or series of transactions or occurrences# $/D&5' an 6

ST &core of o"erative facts'

Co%"ulsor &%ust -e -rought' :er%issive &can wait'


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&2' Defendants :ersons, as well as a vessel, cargo, or other "ro"ert su-ject to ad%iralt "rocess in re%,%a -e joined in one action as defendants if.

&$' an right to relief is asserted against the% jointl, severall, or in the alternative with res"ectto or arising out of the sa%e transaction, occurrence, or series of transactions or occurrences# $/D&5' an easuresThe court %a issue orders, including an order for se"arate trials, to "rotect a "art against e%-arrass%ent,dela, e("ense, or other "rejudice that arises fro% including a "erson against who% the "art asserts noclai% and who asserts no clai% against the "art

1 ou donAt G$H to join "er%issive, ou >$ join2 :As %a join in one action as :As if.

a the assert a right arising out of the sa%e transaction, occurrence, or series oftransaction or occurrences# $/D- an UST ST7BB $SI 7F TG8 7S S>6J0 7f there is no S>6, see if it can -e joined under su""le%ental jurisdiction+ 13*&-'. ?hen su""le%ental anchor clai% is -ased solel on diversit, the courts wonAthave su""le%ental jurisdiction over clai%s - Plaintiff%sagainst "ersons %ade "artiesunder 8ule 10, 19, 2, or 20 8 - :As joined under 8ule 19 8 see;ing to intervene as:As under 8ule 20, when e(ercising jurisdiction would -e inconsistent with thejurisdictional rea 5ring in a Third :art&1' Ti%ing of the Su%%ons and Co%"laint $ defending "art %a, as third4"art "laintiff, serve asu%%ons and co%"laint on a non"art who is or %a -e lia-le to it for all or "art of the clai% against it5ut the third4"art "laintiff %ust, - %otion, o-tain the courtAs leave if it files the third4"art co%"laint%ore than 10 das after serving its original answer&2' Third4:art DefendantAs Clai%s and Defenses The "erson served with the su%%ons and third4"artco%"laint, the Ethird4"art defendantE.

&$' %ust assert an defense against the third4"art "laintiffAs clai% under 8ule 12#&5' %ust assert an counterclai% against the third4"art "laintiff under 8ule 13&a', and %a assertan counterclai% against the third4"art "laintiff under 8ule 13&-' or an crossclai% againstanother third4"art defendant under 8ule 13&g'#&C' %a assert against the "laintiff an defense that the third4"art "laintiff has to the "laintiffAsclai%# $/D&D' %a also assert against the "laintiff an clai% arising out of the transaction or occurrence thatis the su-ject %atter of the "laintiffAs clai% against the third4"art "laintiff

&3' :laintiffAs Clai%s $gainst a Third4:art Defendant The "laintiff %a assert against the third4"artdefendant an clai% arising out of the transaction or occurrence that is the su-ject %atter of the "laintiffAsclai% against the third4"art "laintiff The third4"art defendant %ust then assert an defense under 8ule 12and an counterclai% under 8ule 13&a', and %a assert an counterclai% under 8ule 13&-' or ancrossclai% under 8ule 13&g'


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&0' >otion to Stri;e, Sever, or Tr Se"aratel $n "art %a %ove to stri;e the third4"art clai%, to severit, or to tr it se"aratel&+' Third4:art DefendantAs Clai% $gainst a /on"art $ third4"art defendant %a "roceed under this ruleagainst a non"art who is or %a -e lia-le to the third4"art defendant for all or "art of an clai% against it&' Third4:art Co%"laint in 8e% 7f it is within the ad%iralt or %ariti%e jurisdiction, a third4"artco%"laint %a -e in re% 7n that event, a reference in this rule to the Esu%%onsE includes the warrant ofarrest, and a reference to the defendant or third4"art "laintiff includes, when a""ro"riate, a "erson whoasserts a right under Su""le%ental 8ule C&'&a'&i' in the "ro"ert arrested

&-'?hen a :laintiff >a 5ring in a Third :art?hen a clai% is asserted against a "laintiff, the "laintiff %a -ring in a third "art if this rule would allow adefendant to do so

&c' $d%iralt or >ariti%e Clai%&1' Sco"e of 7%"leader 7f a "laintiff asserts an ad%iralt or %ariti%e clai%s under 8ule 9&h', the defendantor a "erson who asserts a right under Su""le%ental 8ule C&'&a'&i' %a, as a third4"art "laintiff, -ring in athird4"art defendant who %a -e wholl or "artl lia-le, either to the "laintiff or to the third4"art"laintiff, for re%ed over, contri-ution, or otherwise on account of the sa%e transaction, occurrence, orseries of transactions or occurrences&2' Defending $gainst a De%and for 6udg%ent for the :laintiff The third4"art "laintiff %a de%and

judg%ent in the "laintiffAs favor against the third4"art defendant 7n that event, the third4"art defendant%ust defend under 8ule 12 against the "laintiffAs clai% as well as the third4"art "laintiffAs clai%# and theaction "roceeds as if the "laintiff had sued -oth the third4"art defendant and the third4"art "laintiff

1 $uthori!es a defending "art to -ring a third "art defendant in the suit2 $ D %a "ro"erl -ring in a third "art D when the are or %a -e lia-le to the D forall or "art of the clai% against it3 8e


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&1' 8e


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ris; of incurring dou-le, %ulti"le, or otherwise inconsistent o-ligations -ecause of theinterest then the "art >UST 5 67/D 7F F$S75B

a "rotects the D 7f an one of those 3 "ro-le%s occurs #0 must determine is ,oinder is feasi+le?hether there is :6 or S>6=

* 7f joinder 7S F$S75B, then the court will order the "art to -e joined 19&-' 4 7f joinder is not feasi-le Eindis"ensa-le "artEa 7f the "art is so indis"ensa-le that, given their a-sence -ecause the couldnAt-e joined under :6 or S>6 &not feasi-le', should the action -e allowed to continueanwa 8 should the action -e dis%issed -ecause the canAt -e joined=- Court %ust deter%ine, in eUST allow the "art to intervene, there is ver little li%itation


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a if the court goes forward without the a-sent "art, the %a have an interesthar%ed - the judg%ent- >UST intervene in a ti%el %otion, ti%eliness is deter%ined -.

i how long the lawsuit has -een going onii if the "art ;new their interest could -e i%"aired and how long the

;newc intervening "art %ust show that their interest is not alread ade


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d 7F TG $8 /T, the are a EdisinterestedE sta;eholder and the arereleased fro% the suit and do not have to -e involved, the turn the sta;e over tothe court and the court handles the sta;e

* ST: FU8. 7dentif the clai%ants to the sta;e 7f used in federal court TG/ we %ust deter%ine which for% of the device is

availa-le, Rule 22 or Statutory, usuall -ased on S>6 reatter6urisdiction

>ini%al diversit 133+, deter%ined-etween clai%antAs, at least 1 clai%ant %ust-e diverse fro% another clai%ant $/D)+ or %ore

Co%"lete diversit 1332, deter%ined-etween sta;eholder and all clai%ants$/D in e(cess of )*+I

:ersonal6urisdiction

/ationwide service of "rocess 4 as long asou can serve clai%ant within a judicialdistrict in the US the will -e su-ject to :6where the suit is -eing -rought

rdinar jurisdiction rules, 8ule 0&;'&1'&$', contacts with clai%antsre


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ii %a;e sure attornes have e("erience in the su-ject area and havee("erience in doing large class action suits

+ $FT8 S$T7SF7/@ $BB FU8 of the 23&a' "rere


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10 23&f' 4 allows "art to atte%"t to a""eal a decision to certif or not certif a classa it is u" to the discretion of the court to allow that a""eal- %ust -e filed within 10 das after the order is entered

Res Judicata4Claim Preclusion

US Constitution $rticle 7H Section 1 4 Full Faith and CreditFull faith and credit shall -e given in each State to the "u-lic acts, records and judicial "roceedings of everother state $nd the Congress %a - general laws "rescri-e the %anner in which such acts, records and"roceedings shall -e "roved, and the effect thereof

1*3 State and Territorial statutes and judicial "roceedings# full faith and creditThe $cts of the legislature of an State, Territor, or :ossession of the United States, or co"ies thereof,shall -e authenticated - affi(ing the seal of such State, Territor, or :ossession thereto

The records and judicial "roceedings of an court of an such State, Territor or :ossession, or co"iesthereof, shall -e "roved or ad%itted in other courts within the United States and its Territories and:ossession - the attestation of the cler; and seal of the court anne(ed, if a seal e(ists, together with acertificate of a judge of the court that the said attestation is in "ro"er for%

Such $cts, records and judicial "roceedings or co"ies thereof, so authenticated, shall have the sa%e fullfaith and credit in ever court within the United States and its Territories and :ossessions as the have -law or usage in the courts of such State, Territor or :ossession fro% which the are ta;en

1 $""lies when we loo; at a "rior judg%ent and we sa that the judg%ent "recludes a"art fro% -ringing a su-se


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a doesnAt have to -e EidenticalE- includes clai%s that SGUBD G$H -een -rought in the 1st actionc what clai%s SGUBD G$H -een -rought as "art of the sa%e lawsuit

i Transactional definition &notice "leading' 4 deter%ine the underlingtransaction that gave rise to the original clai% and co%"are it to the

transaction that gave rise to the 2nd suit &ti%e, s"ace, origin,%otivation', is it the sa%e core of o"erative facts=ii Sa%e evidence definition &fact "leading' 4 would the sa%e evidence -e

used to "rove the 2nd clai% as would -e used to "rove the 1stclai%= Boo;s at the facts of each ele%ent -eing -rought in the suit

d also includes clai%s that CUBD G$H -een -rought in the 1st actione if ou CUBD /T have -rought the clai% in the 1st action then the clai%will not -e "recluded fro% -eing -rought in a 2nd suitf also includes DF/S and C>:UBS8 CU/T8CB$7>S and if the2nd clai% would /@$T TG 87@GTS that the 1st judg%ent esta-lished

2 Sa%e "arties in 2nd suit as in the 1st suit 8 "arties in "rivit with "arties to the 1st

suit &8ule 19 and 2'a "rivit 4 identical legal rightsi the "erson in the 1st suit has to -e so identified with the interest of

another that he re"resents the sa%e legal right as the "erson in the2nd suit is tring to "resent &Searle Brothers v. Searle'

- circu%stances where "rivit %a;es it so we can -ind so%eone to a judg%enteven though the were not for%all joined as a "art the%selves

i agree%ent - the "arties to -e -ound - a "rior actionii "ree(isting Esu-stantive legal relationshi"sE &such as "receding and

succeeding owners of "ro"ert'iii ade


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Second

Court

"reclusion lawState were

federal court was

sittin! at te time

Federal

Court

State $As "reclusion

law a""lies7138

Federal "reclusion

law a""lies

7f in State $ when

2nd suit is -roughtin State 5, willa""l State $As"reclusion law

State were

federal court was

sittin! at te time

LL

LLUnless using State $As law would inhi-it a strong federal interest in using their"reclusion law

Collateral stoppel4)ssue Preclusion

1 Does not -ar the litigation of the entire clai%, it -ars the "art fro% relitigating anissue on which it has alread litigated and lost2 The o""ortunit to have raised an issue is not enough, the issue had to G$H 5/B7T7@$TD3 ?hen issue "reclusion is raised with the sa%e "arties, 1st issue to address is?GTG8 TG8 7S CB$7> :8CBUS7/0 7f a "art ad%its things in 1st lawsuit the are not -ound - those ad%issions inanother suit -ecause the were not litigated+ $lternative -ases 4 if one of the deter%inations could -e ta;en awa and the suit would

still end in the sa%e wa, then the are alternativesK. 6udge finds -oth no da%ages $/D contri-utor negligence &alternative -ases'a if ou cover one finding can ou still get the sa%e result=- what "reclusive effect should -e given to the alternative -ases=

i under 5irst Restatement the would all -e given "reclusive effectii under Second Restatement none would -e given "reclusive effect

U/BSS the issue was a""ealed and affir%ed on a""eal 0 T"es of 7ssue :reclusion

a %utual offensive 4 sa%e "arties or "arties in "rivit $/D : tring to esto" D- %utual defensive 4 sa%e "arties or "arties in "rivit $/D D tring to esto" :c non4%utual offensive 4 can /B -e used against a "art or in "rivit with a

"art, canAt -e used against a stranger $/D : tring to esto" Dd non4%utual defensive 4 D tring to esto" :K. : sues D in 34car accident : hires lawer who does a -ad jo- and loses thecase :assenger in the other car didnAt want to -e "art of the lawsuit with thatlawer, so the hire a -etter one The should not -e stuc; with the result of the-ad lawer without having their da in court on'mutual-ecause the "assengeris a stranger to the 1st suit against the original D


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Re/uirements for )ssue Preclusion

1 Sa%e issue in 2nd suit as in the 1sta had to have -een actuall litigated $/D- deter%ined

2 >ust have valid final judg%ent in 1st suit3 Deter%ination of the issue was essential to the "rior judg%enta essential 4 necessar to deter%ine the "rior judg%ent- can ou reach the result without the finding= if so, then it is O# SS/T7$Bc if Federal court dis%isses case on :6 grounds, the :6 has alread -eenlitigated and deter%ined and the : would not -e a-le to file in state court -ecauseit would -e dis%issed on issue "reclusion on the :6 issued how to deter%ine whether a state court has to dis%iss a case on lac; ofjurisdiction grounds if Federal court dis%issed on -oth :6 and S>6.

i deter%ine whether the court follows the 1st or 2nd 8estate%enta""roach

ii 7f 5irst Restatement, then all "recluded, dis%iss caseiii 7f Second Restatement, chec; to see if there were a""ealsa )5 O APPAS, no "reclusive effect- )5 #0R 9R APPAS, were the affir%ed= )5 :S,

then there is "reclusive effect0 Deter%ination of "arties against who% issue "reclusion can -e used+ )f any of tese & re/uirements is not met; tere is no issue preclusion )f A & are satisfied; ten we loo< to te discretion of te court= id te partya!ainst wom preclusion is +ein! invo

a Full and Fair ""ortunit to litigate the issuei could "art invo;ing issue "reclusion have feasi-l joined the 1st suit=

1 court will loo; at wh the "erson wasnAt in the 1st suit# if therewas a "ro-le% with the "erson joining in the 1st suit

ii incentive to litigate issue in 1st suit has to -e greater than or e


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&2' 7nstructions The court %ust give the instructions and e("lanations necessar to ena-le the jur to %a;eits findings on each su-%itted issue&3' 7ssues /ot Su-%itted $ "art waives the right to a jur trail on an issue of fact raised - the "leadingsor evidence -ut not su-%itted to the jur 7f the "art does not de%and su-%ission, the court %a %ade afinding on the issue 7f the court %a;es no finding, it is considered to have %ade a finding consistent withits judg%ent on the s"ecial verdict

&-' @eneral Herdict with $nswers to ?ritten Questions&1' 7n @eneral The court %a su-%it to the jur for%s for a general verdict, together with written


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&$' 8e


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&$'7n @eneral (ce"t as e(e%"ted - 8ule 2&a'&1'&5'or as otherwise sti"ulated or ordered -the court, a "art %ust, without awaiting a discover re


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&5' the su-ject %atter of the e("ected action and the "etitionerAs interest#&C' the facts that the "etitioner wants to esta-lish - the "ro"osed testi%on and the reasons to"er"etuate it#&D' the na%es or a descri"tion of the "ersons who% the "etitioner e("ects to -e adverse "artiesand their addresses, so far as ;nown# and&' the na%e, address, and e("ected su-stance of the testi%on of each de"onent

&2' /otice and Service $t least 21 das -efore the hearing date, the "etitioner %ust serve each e("ectedadverse "art with a co" of the "etition and a notice stating the ti%e and "lace of the hearing The notice%a -e served either inside or outside the district or state in the %anner "rovided in8ule 0 7f that servicecannot -e %ade with reasona-le diligence on an e("ected adverse "art, the court %a order service -"u-lication or otherwise The court %ust a""oint an attorne to re"resent "ersons not served in the %anner"rovided in8ule 0and to cross4e(a%ine the de"onent if an unserved "erson is not otherwise re"resented 7fan e("ected adverse "art is a %inor or is inco%"etent, 8ule 1*&c'a""lies&3' rder and (a%ination 7f satisfied that "er"etuating the testi%on %a "revent a failure or dela ofjustice, the court %ust issue an order that designates or descri-es the "ersons whose de"ositions %a -eta;en, s"ecifies the su-ject %atter of the e(a%inations, and states whether the de"ositions will -e ta;enorall or - written interrogatories The de"ositions %a then -e ta;en under these rules, and the court %aissue orders li;e those authori!ed -8ules 30and 3+ $ reference in these rules to the court where anaction is "ending %eans, for "ur"oses of this rule, the court where the "etition for the de"osition was filed&0' Using the De"osition $ de"osition to "er"etuate testi%on %a -e used under 8ule 32&a'in an later4

filed district4court action involving the sa%e su-ject %atter if the de"osition either was ta;en under theserules or, although not so ta;en, would -e ad%issi-le in evidence in the courts of the state where it wasta;en

&-' :ending $""eal&1' 7n @eneral The court where a judg%ent has -een rendered %a, if an a""eal has -een ta;en or %a still-e ta;en, "er%it a "art to de"ose witnesses to "er"etuate their testi%on for use in the event of further"roceedings in that court&2' >otion The "art who wants to "er"etuate testi%on %a %ove for leave to ta;e the de"ositions, onthe sa%e notice and service as if the action were "ending in the district court The %otion %ust show.

&$' the na%e, address, and e("ected su-stance of the testi%on of each de"onent# and&5' the reasons for "er"etuating the testi%on

&3' Court rder 7f the court finds that "er"etuating the testi%on %a "revent a failure or dela of justice,

the court %a "er%it the de"ositions to -e ta;en and %a issue orders li;e those authori!ed - 8ules 30and 3+ The de"ositions %a -e ta;en and used as an other de"osition ta;en in a "ending district4courtaction

&c' :er"etuation - an $ctionThis rule does not li%it a courtAs "ower to entertain an action to "er"etuate testi%on

Rule 28 Persons Eefore 9om epositions -ay Ee #a


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&5' under a letter of rea 5e Ta;en&1' ?ithout Beave $ "art %a, - written


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class or grou" to which the "erson -elongs The notice %ust also state the na%e or descri"tive title and theaddress of the officer -efore who% the de"osition will -e ta;en&0' Questions Directed to an rgani!ation $ "u-lic or "rivate cor"oration, a "artnershi", an association, ora govern%ental agenc %a -e de"osed - written


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7f the answer to an interrogator %a -e deter%ined - e(a%ining, auditing, co%"iling, a-stracting, orsu%%ari!ing a "artAs -usiness records &including electronicall stored infor%ation', and if the -urden ofderiving or ascertaining the answer will -e su-stantiall the sa%e for either "art, the res"onding "art %aanswer -.&1' s"ecifing the records that %ust -e reviewed, in sufficient detail to ena-le the interrogating "art tolocate and identif the% as readil as the res"onding "art could# and&2' giving the interrogating "art a reasona-le o""ortunit to e(a%ine and audit the records and to %a;eco"ies, co%"ilations, a-stracts, or su%%aries

1 33&a'&1' 4 li%itation of nu%-era %a(i%u% of 2+ interrogatories "er "art, including all discrete su-"arts- this li%it will a""l unless there is an order - the court or the "arties agree to%ore interrogatories

2 33&-' 4 the interrogatories >UST -e answered - the "art to who% the are directed8 if a cor"oration, - a% officer or agent a""ointed - the cor"oration

a answers and o-jections %ust -e given within 3 das after -eing served- each interrogator %ust -e answered se"aratel and in writingc if o-jecting, %ust state the grounds for o-jection with s"ecificit

d "erson %a;ing the answers signs the%e o-jections %ust -e signed - the attorne

3 Can onl -e as;ed for fro% "arties, not non4"arties0 7nterrogatories are a set of written


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&-' :rocedure&1' Contents of the 8e


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a if the donAt co%"l, atte%"t to %eet and confer with the "art, and if that doesnot wor; then file a 8ule 3* %otion to co%"el

?hen reust show the court wh the discover is needed 7f a "art %a;es a re


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- failure to ad%it or den %a -e -ecause of lac; of ;nowledge or infor%ationa-out the %atter, /B if the "art states that it has %ade reasona-le inUST -e stateda %a /T o-ject solel on the ground of re


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&$' a court in which the attorne is authori!ed to "ractice# or&5' a court for a district where a de"osition is to -e ta;en or "roduction is to -e %ade, if theattorne is authori!ed to "ractice in the court where the action is "ending

1 0+&a'&1'&C' 4 $ de"osition does not have to -e ta;en if all that is re

civil procedure 2 outline

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