Disclosure/Discovery

FRCP 26

Duty to Disclose;
General
Provisions
Governing
Disclosure

(b) Discovery Scope and Limits

(1) Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any
non-privileged matter that is relevant to any partys claim or
defense including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter.
For good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action. Relevant information need
not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. All
discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(C) When Required. On motion or on its own, the court must limit
the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs
its likely benefit, considering the needs of the case, the amount
in controversy, the parties resources, the importance of the
issues at stake in the action, and the importance of the discovery
in resolving the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not
discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its
representative (including the other partys attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4),
those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials
to prepare its case and cannot, without undue hardship, obtain
their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of
those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a partys

attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on
request and without the required showing, obtain the persons
own previous statement about the action or its subject matter. If
the request is refused, the person may move for a court order, and
Rule 37(a)(5) applies to the award of expenses. A previous statement
is either:
(i) a written statement that the person has signed or otherwise
adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or
other recording or a transcription of it that recites
substantially verbatim the persons oral statement.
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose
any person who has been identified as an expert whose opinions
may be presented at trial. If Rule 26(a)(2)(B) requires a report
from the expert, the deposition may be conducted only after the
report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclosures.
Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure
required under Rule 26(a)(2), regardless of the form in which the
draft is recorded.
(C) Trial-Preparation Protection for Communications Between a
Partys Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B)
protect communications between the partys attorney and any
witness required to provide a report under Rule 26(a)(2)(B),
regardless of the form of the communications, except to the extent
that the communications:
(i) relate to compensation for the experts study or testimony;
(ii) identify facts or data that the partys attorney provided and
that the expert considered in forming the opinions to be
expressed; or
(iii) identify assumptions that the partys attorney provided and
that the expert relied on in forming the opinions to be expressed.
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known
or opinions held by an expert who has been retained or
specially employed by another party in anticipation of litigation
or to prepare for trial and who is not expected to be called as a
witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the
same subject by other means.
(E) Payment. Unless manifest injustice would result, the court must
require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding
to discovery under Rule 26(b)(4)(A) or (D); and
(ii) for discovery under (D), also pay the other party a fair
portion of the fees and expenses it reasonably incurred in
obtaining the experts facts and opinions.
(5) Claiming Privilege or Protecting Trial Preparation Materials.
(A) Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information is privileged
or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed and do so in a
manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.
(g) Signing Disclosures and Discovery Requests, Responses, and Objections
(1) Signature Required; Effect of Signature. Every disclosure under Rule
26(a)(1) or (a)(3) and every discovery request, response, or objection
must be signed by at least one attorney of record in the attorneys own
name or by the party personally, if unrepresented and must state
the signers address, e-mail address, and telephone number. By signing,
an attorney or party certifies that to the best of the persons knowledge,
information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the
time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or
by a non-frivolous argument for extending, modifying, or
reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the
amount in controversy, and the importance of the issues at stake
in the action.

(2) Failure to Sign. Other parties have no duty to act on an unsigned

disclosure, request, response, or objection until it is signed, and the court
must strike it unless a signature is promptly supplied after the omission
is called to the attorneys or partys attention.
(3) Sanction for Improper Certification. If a certification violates this rule
without substantial justification, the court, on motion or on its own, must
impose an appropriate sanction on the signer, the party on whose behalf
the signer was acting, or both. The sanction may include an order to pay
the reasonable expenses, including attorneys fees, caused by the
violation.
FRCP 30
FRCP 33
FRCP 34
FRCP 36
FRCP 45

Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery
Mechanics of
Discovery

Depositions by Oral Examination.

Interrogatories.
Request for Production of Documents.
Request for Admission.
Subpoenas.

1. Disclosure
a. FRCP 26(a)(1) Scope
i. Past: Had to disclose ALL relevant information related to the disputed
facts.
ii. Now: Only have to disclose documents you plan to use to support your
claims.
1. EXCEPT information that would impeach the other sides
witness. We want the element of surprise.
2. Discovery
a. FRCP 26(b)(1) Scope
i. All non-privileged material that is relevant to any partys claims or
defenses.
ii. May ask for material relevant to the subject matter if there is good
cause for doing so.
iii. Information does not have to be admissible, can be inadmissible if it
will lead to admissible information.
b. FRCP 26(b)(2)(C) Limitations
i. Information may meet discoverability requirements but be
undiscoverable because:
1. It is relevant but cost of getting it is too high or the information
is duplicative.
2. Party had ample time already to get information.

3. Burden or cost of producing is much greater than the benefit.

3. Privileges
a. Privilege against self-incrimination
i. Cannot say I wont testify because it will make me liable. You have to
testify in civil actions.
ii. Can say I wont testify because it will incriminate me.
1. This is why criminal trials often occur first, so what is disclosed
during testimony in the civil action cannot be used against you.
b. Federal Rule of Evidence
i. Federal issue in federal court use federal common law to determine
privileges.
ii. State law in federal court use state court common law to determine
privileges.
iii. ***MSG There is a big difference in privileges, so it does matter
which one it is.
c. Types of Privileges
i. Attorney/Client, Spousal, Priest/Penitent, Doctor/Patient, Work
Product
d. Attorney Client Privilege
i. Restatement (Third) of The Law Governing Lawyers
1. 68. AttorneyClient Privilege
a. [T]he attorney-client privilege may be invoked as
provided in 86 with respect to:
i. (1) a communication
ii. (2) made between privileged persons
iii. (3) in confidence
iv. (4) for the purpose of obtaining or providing
legal assistance for the client.
ii. This is a restatement, but is very consistent with common law.
iii. Hypo: Your client tells you one thing and then on the stand lies and
says another. Attorney Client privilege?
1. Answer: NO. Attorney still has a duty to tell the court. Cannot
use the privilege to allow a client to lie.
iv. Purpose?
1. If client has to testify, and knows if he lies the attorney will
turn him in, wont he just lie to the attorney?
2. Privilege is imperfect; it is still better than nothing.
3. Hypo: Interrogatory asks client whether he ever told you he
was negligent.
a. If client ever told you he thought he was negligent, w/o
the privilege, he would be forced to answer yes.
b. It protects the sphere of communication.
e. Work Product Privilege
i. Created in Hickman v. Taylor (1947). Codified later
ii. FRCP 26(b)(3)(A) Scope

1. Party cannot discover documents and tangible things prepared

in anticipation of litigation or trial by or for the other party or
its representative.
2. Although not in language, includes the information on
document. Cannot say I dont want affidavit, I want info on it.
iii. ***MSG Does NOT have to be created by lawyer to be considered
work product.
iv. FRCP 26(b)(3)(B) Exceptions
1. Privilege can be overcome if:
a. Party can show need for documents and cannot, w/o
undue hardship, obtain the same info elsewhere.
v. FRCP 26(b)(3)(B)
1. If court makes WP discoverable, must ensure it does not
disclose impressions, conclusions, opinions or legal theories.
vi. Why have WP Privilege for opinion-based material?
1. Worried about trial strategies, theories, etc. being turned over
to the opposing party.
vii. Why have WP Privilege for facts?
1. It is too good as impeachment evidence. Witnesses will
invariably have discrepancies in testimony and deposition.
2. Dont want lawyers to go on trial and be asked who is lying.
3. Dont want to impeach witnesses this for every little difference.
viii. Examples
1. Hypo: Opposing counsel asks in an interrogatory if you created
work product while talking to given client. Okay?
a. Answer: Not privileged. Opposing side may need to see
if you interviewed someone before they died. This
would make the work product discoverable.
2. Hypo: What if, unsolicited, a witness to an incident writes a
letter describing what they saw for you to use at trial. WP?
a. Answer: Yes. This is a tangible document created for a
party in preparation/anticipation of litigation.
b. ***WP does not have to be made by the lawyer.
f. Waiver
i. If you waive a privilege, be careful. You waive much more than the
info you present.
ii. You open up questions about wide context, producing much more
than what you wanted.
4. Mechanics of Discovery
a. FRCP 36 Request for Admission
i. Look for an admission because it takes out issues from trial.
ii. Even if you have an admission in a deposition it will be argued at trial.
This completely solves an issue and considers it fact.
iii. Can only request a party for admission. Cant have a non-party admit
something someone else did.
b. FRCP 34 Request for a Production

i. Used to obtain documents (electronic/tangible) and tangible things

for inspection from opposition.
ii. If you want document from third party, first must subpoena them.
c. FRCP 33 Request for Interrogatories
i. Can ONLY be served on parties.
ii. Way for P to determine WHO to ask documents and info for.
1. Especially useful with a big company where the info could be
anywhere.
iii. Done first, so party knows what to ask for in discovery/depositions
iv. Responding party has an obligation to compose reasonable
investigation to provide facts within their control
d. FRCP 30 Deposition by Oral Examination
i. Gets party/witnesses testimony down so they cant change it.
ii. Issues
1. Opposition asks irrelevant Q Lawyer objects, reserves right
to argue if info should be used in court, and then answer.
2. Opposition asks inadmissible Q Cant even object, we know
inadmissible info is discoverable.
3. Opposition asks for confidential info Object, and instruct not
to answer. Even if it cant be used at trial, answering does
damage.
e. FRCP 45
i. Requests for interrogatories, discovery, and deposition can only be
forced upon a party.
ii. Subpoenas are how the court takes power over a third party witness.
iii. Court has power to subpoena a party within 100 miles of the court.
5. Experts
a. FRCP 26(b)(4(C) Testifying Experts
i. Must disclose testify in a written report experts who will testify and
the data and information the expert considered in making his opinion.
ii. This is a less intrusive rule than in the past.
b. FRCP 26(b)(4)(D) Non-Testifying Experts
i. Ordinarily a party cannot discover facts known or opinions held by an
expert retained in anticipation of trial.
ii. Exceptions
1. Only under exceptional circumstances, IE a trial in a small area
where one side buys all of the experts.
2. Medical Exams (FRCP 35(b).
iii. Can be much more liberal in giving information to non-testifying
experts.
6. Sanctions
a. FRCP 26(g) Rule 11 like language
i. By signing a request for discovery, discovery response, and disclosure
response the lawyer is testifying that:
1. The information is complete and correct;

2. Consistent with rules of existing law or is a nonfrivolous

argument to alter current law,
3. Not sued for improper service,
a. IE harass, cause unnecessary delay, increase costs, etc.
4. Not unreasonable, burdensome, or expensive beyond what is
justified by the trial.
b. FRCP 37 Sanctions
i. Disclosure get a motion to compel from court, sanctions issued
immediately.
1. Disclosure is an affirmative responsibility. You are to do it w/o
request.
2. Whatever you are keeping (usually good stuff) you cannot use
at trial.
ii. Discovery
1. Must make good faith effort to work it out, if nothing then get a
motion to compel. If party still doesnt turn over documents,
then sanctions.
2. The bad info you are hiding is decided against you
automatically.

Terminating Litigation Early

FRCP 12

Defenses and
Objections

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but
early enough not to delay trial a party may move for judgment on the
pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.

FRCP 56

Summary
Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may
move for summary judgment, identifying each claim or defense or the part of
each claim or defense on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary judgment at any
time until 30 days after the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Non-movant. If a non-movant shows by
affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
1. Terminating Litigation Before Trial
a. FRCP 12(b)(6) Failure to State a Claim
i. Even if everything P said in complaint is true, does not add up to
violation of the law.
1. Why have a trial if this is the case?
ii. Court does not look at evidence when considering. Looks at the
complaint.
b. FRCP 12(c) Motion for Judgment on the Pleadings
i. Essentially failure to state a claim but occurs after the answer has
been filed.
ii. Runs through discovery before trial.
iii. Hypo: P files claim. D asserts admits the claims but asserts an
affirmative defense. IE the complaint was a R13(a) counterclaim in
previous action.
1. Answer: Ps claim actually not a different T/O. No reason to
continue trial.
iv. Hypo: D asserts multiple defenses, some valid others not.
1. Answer: P can make a motion to strike invalid defenses. Even
though case is ongoing, some things no longer in question.
2. Burdens
a. Burden of Pleading
i. P has responsibility to allege facts that state a claim.
ii. D has burden to allege facts that state a claim in an affirmative
defense.
b. Burden of Production
i. P has burden of proving evidence that a reasonable jury could find in
their favor.
c. Burden of Persuasion
i. If there is doubt that the standard of proof was met, the finder of fact
must find against the party who had the burden.
d. Hypo: P satisfies burden of production at trial concerning every element of
the COA. D offers no evidence. Directed verdict for P?
i. Answer: In most states, NO. By meeting burden of production, P
showed that a reasonable jury could find for P.
e. Hypo: Two cars enter intersection and hit one another killing both parties.
No witnesses. The stoplight was working. Can D move for directed verdict?
i. Answer: Yes. Impossible for P to show a reasonable jury could rule
for him. All he has is a 50/50 shot. Directed verdict appropriate.
3. Summary Judgment
a. Definitions

i. Defendant SJ is justified for D if no reasonable jury could find for P

with respect to at least one of the elements of a COA.
ii. Plaintiff SJ is justified for P if no reasonable jury could find for D on
any element of a COA.
1. If one element could be in Ds favor, no SJ.
b. FRCP 56(c)
i. (1)(A) Must support a SJ claim with depositions, documents,
electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
ii. (B) by showing evidence on record fails to establish a genuine issue of
material fact.
c. This is about the pieces of paper the parties have.
i. Dont see witnesses live, have live testimony, etc.
ii. It is about ending the case before trial.
d. Evidence
i. Is all hearsay because it is testimony given outside of court, but
ii. What is on the paper cannot be hearsay.
e. ***MSG no genuine issue of material fact is inaccurate. Of course there is
dispute. Better wording would be no reasonable jury could find for the nonmovant.
4. Partial Summary Judgment
a. FRCP 56(g)
i. If court does not grant all relief requested, it may enter judgment on
any material fact not genuinely in dispute.
ii. Hypo: COA has three elements, and P is able to show a reasonable
jury could not find for D on two of them.
1. Answer: Although ALL elements have to be met for SJ on whole
case, court can determine 2/3 elements not in dispute.
iii. ***MSG Almost never granted SJ on damages. Hard to say (except in
financial situations) that no reasonable jury could award X amount.
5. Summary Judgment Examples/Explanations
a. Hypo: P sues D for violating the federal antitrust law. P offers Ds parallel
conduct as evidence. D moves for SJ. Granted? (Twombly)
i. Answer: Yes. There are plenty of reasons that could explain Ps
evidence. No reasonable jury could rule for P on that.
b. Hypo: X takes pills to stay alive. If X takes 2 pills at once he will die. X takes
multiple pills and dies. Insurance Co. doesnt want to pay life insurance on
grounds of suicide. Evidence: Suicide note, BUT X made plans to go fishing
the next day.
i. Answer: A reasonable jury could believe one piece of evidence more
damning and could find for either, but court does NOT weigh evidence
during SJ. That is a jury job.
c. Hypo: P sues D for negligence. D moves for SJ. D doesnt offer any evidence
against Ps action. SJ?
i. Moving party has burden of proof to show SJ is appropriate, but:

ii. D can get SJ if he argues why no reasonable jury could find for P.
Argue evidence of P is insufficient.
6. Directed Verdict/Judgment NOV
a. Directed Verdict
i. Granted after evidence is presented at trial. Same standard as SJ.
b. Judgment Notwithstanding the Verdict
i. Same standard as Directed Verdict but is given after the jury decides.
c. Reasoning?
i. How could a Judgment NOV be granted but not a Directed Verdict?
ii. Hypo: D moves for Directed Verdict, judge grants. P appeals and
appellate court remands.
1. There has to be an entirely new trial to present everything that
has already been presented. Time consuming and costly.
iii. Hypo: D moves for DV, denied. D moves for Judgment NOV, granted.
P appeals, appellate court reverses and remands.
1. No new trial, the juries decision is implemented instead. Risk
free.
7. SJ and 7th Amendment
a. 7th Amendment right to trial by jury.
i. If SJ is applied appropriately, it acts like a reasonable jury. Parties
dont have right to unreasonable jury.
ii. SJ is traced back to CL. Always been accepted.
b. ***MSG Twiqbal is worse for violating 7th. There might be a real dispute of
fact and requiring evidence at pleading might infringe rights.

Trial
1

Jury Selection

Presentation of Evidence

Directed Verdict Jury

Verdict Judgment NOV

Motion for New Trial

Motion for Relief from

Judgment

Execution of Judgment

-Process of interviewing juror pool and requesting they be kept/thrown out

for specific reasons.
1. Plaintiff gives opening statement.
2. Plaintiff presents evidence.
-D cross-examines witnesses.
3. D moves for directed verdict.
4. Defense gives opening statement.
5. Defense presents evidence.
-P cross-examines witnesses.
1. After presentation both parties move for directed verdict.
-Both saying no reasonable jury could find for the other side.
-Rarely granted efficiency reasons stated in above.
2. Jury Verdict
3. Judgment NOV
-Losing side says no reasonable jury could have produced that verdict
given the evidence.
-Not necessarily popular, but can occur more than directed verdict.
FRCP 59. Motion for New Trial
-Movant is not saying no reasonable jury could have found the way they did,
but that there should be a redo for a specific reason.
-IE procedural issues, incorrect jury instruction, jury was determined
admissible/inadmissible incorrectly, etc.
-Often over damages. Much easier standard than summary judgment or
directed verdict.
FRCP 60. Motion for Relief from Judgment
-Motion to set aside judgment, collaterally attacking a default judgment, etc.
-Lack of SMJ, PJ, Venue
Rule 69. Execution
(a) In General.
(1) Money Judgment; Applicable Procedure.
A money judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution and in proceedings
supplementary to and in aid of judgment or execution must accord
with the procedure of the state where the court is located, but a federal
statute governs to the extent it applies.
-When you win a judgment what you have won is a debt.
-Still need to collect on that debt, P would use R69 to collect.
-Court issues a writ of execution, requiring loser to pay the judgment or
suffer a fine or jailing.

Erie
28 USC
1652

State laws as
rules of decision

US
Constitution
Art. I Sec. 8

Clause 9 & 18

US
Constitution
Art. III Sec. 1
28 USC
2072

FRCP 41

Rules of
procedure and
evidence; power
to prescribe
Dismissal of
Actions

The laws of the several states, except where the Constitution or treaties of
the United States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the United
States, in cases where they apply.
The Congress shall have Power:
Clause 9:
To constitute Tribunals inferior to the supreme Court; AND
Clause 18:
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof.
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. . . .
(a) The Supreme Court shall have the power to prescribe general rules of
practice and procedure and rules of evidence for cases in the United States
district courts (including proceedings before magistrate judges thereof)
and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any dismissal not
under this rule except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19 operates as an adjudication on the
merits.

1. Erie
a. How the federal courts determine which law to use when hearing cases
concerning a state law cause of action.
i. Therefore must be in diversity or supplemental jurisdiction.
2. State Decision
a. Different states choose which states law to apply on different standards.
i. Lex Loci Delicti Use the states law where the incident occurred.
ii. Some states use the law of the state with the most interest in the case.
1. ***MSG prefers this method.
iii. There are up to six total ways states decide these are the popular.
b. When a federal court decides to use whether to use state or federal
law/procedure, if they choose state law they are choosing the law that the
state where they sit WOULD USE.
i. Not necessarily the states law where the court sits. Difference.

3. Swift v. Tyson Old rule for 100 years.

a. SCOTUS When interpreting the common law of the state law being
prescribed, the federal courts need not follow the opinions of the state court.
b. The state courts allow the federal court to interpret state common law as
they saw fit.
c. ISSUE This led to massive forum shopping. If a plaintiff wanted the federal
courts interpretation of state common law then they would try to create (or
destroy for the opposite) diversity.
i. Led to vertical forum shopping. Federal over state court.
4. Erie RR v. Tompkins Changed the rule in Swift.
a. SCOTUS When entertaining a state law cause of action the federal court
should apply state law as interpreted by the states courts.
i. This applies to common law cases as well.
b. Federal courts had to follow state supreme court decisions and it had to
predict what the state supreme court would do because their decisions could
not be appealed to the state supreme court.
5. Twin Aims of Erie
a. (1) Discourage forum shopping; and
b. (2) Avoid inequitable administration of laws.
c. ***MSG dont worry about the second one, its not always entirely sure
what the court meant there and it is usually wrapped up into the first aim.

CASES
Guaranty Trust v.
York
Ragan v. Merchants

Woods v. Interstate
Realty

Holding
-Court advocated for vertical uniformity to fix the problems of Swift.
-Federal courts have to use the law that the forum state courts would in the
situation IF they were outcome determinative.
-SoL issues.
-State Law tolls upon service of process.
-Federal (FRCP 3) tolling commences upon filing.
Holding This is outcome determinative (case would be dismissed under state but
not federal law), so use state law.
-Mississippi requires corps. to appoint an agent for service of process in order to
bring suit in the state courts.
-Federal law does not.

Cohen v. Beneficial
Industrial

Holding Outcome determinative so use the state law.

-State Law requires minority shareholders bringing a shareholders derivative to
post bond in order to sue.
-Federal law does not.

Byrd v. Blue Ridge

Holding Use the state law because the law is outcome determinative.
-Which procedure should be used?
-There was a fear after Guaranty Trust that the FRCPs would be out in diversity

cases and COA with supplemental jurisdiction.

Holding
1. If US Constitution requires a procedural rule in federal court MUST use it.
2. If the procedure is bound up in the state law COA, the federal court must use it.

Hanna v. Plummer
***Over rules the
language in Guaranty
Trust.

If the procedure does not fit either of those categories then

3. Look to vertical uniformity (outcome determinative test of York) and balance
that with
4. Countervailing federal court interests in favor of uniform federal common law.
-Ruling in Byrd still left a question about what to do in cases concerning the
FRCPs.
-Case dealt with service. Use state law that requires in hand service or FRCP 4(e),
which allows service as we learned it?
Holding
-Vertical uniformity is irrelevant when considering whether a FRCP should be
used.
-Outcome determinative test from Guaranty Trust is OUT.
-The new question is whether or not the choice of procedure is going to motivate
forum shopping.
-If the procedure chosen isnt going to motivate forum shopping then use FRCP.

Walker v. Armco Steel

Semtek v. Lockheed

Now focus on the Twin Aims of Erie

1. Discourage forum shopping; and
2. Avoid inequitable administration of the laws.
Issue whether or not the procedure (when the SoL tolls) federal common law or
is it a FRCP.
-Same issue as Ragan, post Hanna ruling.
-FRCP 3 says that the case begins at filing of complaint at the court.
Holding
-FRCP 3 never mentions the tolling of SoL. The federal rule that tolling starts upon
filing of the complaint is motivated by FRCP 3 but it is federal common law.
-Because the procedure is common law and it would motivate forum shopping
then you need to use the state law.
-HOLDING Application of Hanna is premised on direct collision between
the FRCP and the state law. If it is not directly related then the real federal
law is common law.
Issue claim preclusive effect of a dismissal on SoL grounds from a federal court
sitting in diversity.
***We know this is a federal common law track because the FRCPs dont
address preclusion.
CA state law dismissal for SoL grounds does not have a claim preclusive effect.

Federal law dismissal for SoL grounds does have claim preclusive effect.

Shady Grove v.
Allstate
***What to do when
the federal rule of
procedure is a FRCP.

Holding
-Because this is a federal common law issue we look to twin aims of Erie. This
would definitely motivate forum shopping. If suing in federal court would lead to
claim preclusive SoL dismissal, people are going to sue in state court so they can
sue elsewhere if dismissed for SoL.
-There are NO countervailing federal issues so use state law.
Issue
-NY 901 does not allow a class action suit to recover penalties or statutory
minimum damages.
-FRCP 23 doesnt say anything about this.
Holding
-According to Walker there is a direct collision between the FRCP and state law, so
FRCP should win if it is arguably procedural.
-But what if state law procedure is bound up in the state law COA? Under Byrd
this would mean use the stat law.
Opinions
1. Scalia If the FRCP truly does regulate procedure, it doesnt matter if it affects
the procedure bound up in a state law COA.
***MSG This seems to violate state rights by affecting the COA. NY said
you could sue for these damages, but not as a class action. Scalia rejects
that.
2. Stevens (narrowest opinion) You have to look to state law to see if state law
procedure is bound up in COA. If it were then using FRCP would override a
substantive state law.
Quote about Scalias Opinion But it ignores the second limitation that
such rules also not abridge, enlarge or modify any substantive right,
2072(b), and in so doing ignores the balance that Congress struck
between uniform rules of federal procedure and respect for a States
construction of its own rights and remedies.
***This defines the second prong of the twin aims of Erie. A FRCP abridges or
modifies a substantive right in these situations because the procedure is part of the
COA.
3. Ginsberg Wrote the opinion that Stevens concurred to (idea on when to use
FRCP or when to use state law). But thought that was the situation here.
-Stevens argued that there was no evidence that using the state law
procedure is what the legislature wanted need evidence of that.

MSGs FLOW CHART FOR DETERMINING WHICH LAW TO USE

1. Is the Federal Court hearing a state/foreign COA (sitting in diversity)?
a. ***If NO then use the federal law.
b. This is not an Erie Question.
2. If YES:
a. (1) Federal Constitutional Provisions v. State Law
i. Use the constitutional federal procedure.
b. (2) Federal Statutes v. State Law
i. Use federal law if it is arguably procedural language from Hanna.
1. This means that Congress has the power to enact the specific
Federal Statute.
c. (3) Federal Rule of Civil Procedure v. State Law
i. Have Two Questions:
1. Is it arguably procedural?
2. Does it abridge enlarge or modify substantive rights (must
consider state substantive policies)?
ii. The second portion of this used to be useless essentially. If the FRCP
is arguably procedural, then it didnt abridge, modify, or enlarge
substantive rights.
iii. POST Shady Grove (using Stevens opinion as law) The FRCP
abridges, modifies, or enlarges substantive rights if it overrules a
procedure wrapped in the state law COA.
d. (4) Federal Common Law v. State Law
i. Test
1. If the state rule is bound up in the COA use state law (Byrd).
a. IE SoL in COA or the burden of proof.
2. If it is not bound in COA then look to twin aims of Erie.
a. Would using a federal law different from the state law
lead to (1) forum shopping or (2) inequitable
administration of the laws?
b. No use federal law.
c. Yes use state law.
3. If twin aims of Erie lead us to use state law, still have to
consider if there are countervailing federal interests.
a. Yes use federal law.
b. No stay with the state law.
3. Is the federal procedural law common law or an FRCP?
a. Walker Hanna analysis is premised on a direct collision between the FRCP
and state law.
i. IE tolling of SoL issues in Ragan and Walker. FRCP 3 seems to be in
collision, but it never mentions tolling of SoL. That is a federal
common law derived from FRCP 3.
ii. If the FRCP is not on point with the state law then you are in the
federal law track.
b. ***MSG If states do something and the FRCPs dont mention it and
dont do it then it is considered federal common law.

c. Hypo: Colorado passed a Certificate of Review Statute

i. Anyone suing a licensed professional for malpractice must provide,
with the complaint filed, a certificate stating that an expert in the
licensed professionals area of practice has examined the claim and
has determined that it has substantial justification.
ii. P (a citizen of New York) sues D (a citizen of Colorado) in the Federal
District Court for the District of Colorado for medical malpractice
under New York law.
iii. Ps suit concerns an operation that D performed upon P in New York
City. P does not file a Certificate of Review with her complaint. In his
answer, D asks that the action be dismissed for failure to file a
Certificate of Review. What result and why?
1. Answer: You could reasonably argue for the common law or
FRCP track in this situation.
2. FRCP: There is a direct collision between the state law and the
FRCP. FRCPs dont require any evidence to back up factual
allegations. FRCP 8(a). FRCP 11 also never mentions having
evidentiary support in the complaint. R11 only requires
having evidentiary support behind the complaint or a
legitimate reason to believe you will find it going forward.
a. Since the FRCPs are in direct conflict with the state law
and they are arguably procedural you should use the
FRCP.
3. Common Law: Could also argue the common law track in that
there is no mention of requiring affidavits in the FRCPs on
pleading. When a state does something and the federal courts
dont it is considered to be a federal common law.
a. If you determine it is common law then you have to run
through the questions. It is NOT bound up in the COA
because it is a Colorado procedure when applying NY
law. It would lead to forum shopping because there is
enough of a difference in the procedural rules. And
there dont appear to be any countervailing federal
interests involved.
4. EXAM TIPS
a. When in doubt argue both (FRCP & Common Law tracks). We have limited
FRCP knowledge, but run though the ones we really studied to determine if
they are in direct collision with the state law.
b. Unlikely to be a federal statute but we know no statutes so he would have
to tell us.
i. Just dont forget that it is an option.
c. If the FRCPs dont mention something and the state courts do it and the
federal courts dont it is federal common law.
i. ***MSG Mentioned this a million times. I expect it to play a role
somehow.

d. Claim/Issue Preclusion are COMMON LAW DOCTRINES we know this and

he beat it into us. It could be an issue.
e. Likely to be federal common law question because it is the harder analysis.
i. Spent the most time on it.
f. Use cases from class as examples/reasoning.
g. Follow flow chart specifically. Cover all bases.