Civil Procedure Final Exam with
Accurate Solutions
Approach to Discovery - ANS-1. Disclosure: Can the information being requested be
obtained through initial disclosure Rule 26(a)?
2. Scope of Discovery: Is the information requested within the scope of discovery?
Disclosure: Can the information being requested be obtained through initial disclosure
Rule 26(a)? - ANS-Under rule 26(a), parties are required to make initial disclosure
without a formal request. This includes:
1. Identity of each witness likely to have discoverable information to support claims and
defenses?
2. Documents or tangible things a party may use to support claims or defenses?
3. Identity of expert witnesses who will testify at trial (not mandatory, must be motioned
for)
4. Evidence that each party may use at trial (done at least 30 days before trial)
Scope of Discovery: Is the information requested within the scope of discovery? - ANS-
Under rule 26(b), a party may obtain discovery concerning "any matter, not privileged,
which is relevant to subject matter of lawsuit." The information sought not need to be
admissible at trial.
Information is discoverable if it is "reasonably calculated to lead to discovery of
admissible evidence."
Regarding a request for documents which are non-privileged and "reasonably
calculated to lead to discovery of admissible evidence" defendant must product those
documents in responses to a discovery request.
PRIVILEGED MATTER NOT DISCOVERABLE
WORK PRODUCT (Hickman v. Taylor)
PRIVILEGED MATTER NOT DISCOVERABLE - ANS-1. Attorney-client privilege:
communication between attorney and client.
For corporations: Per Upjohn, the control group test is not used. There will be an
attorney-client relationship if:
1) info is unavailable to upper management; and
2) management directs lower level employees to communicate w/attorney;
3) concerning matters w/in scope of employees duties;
4) for purposes of securing legal advice for the corp.
, 2. Testimony against spouse, Privilege against self-incrimination, Doctor-client privilege
SUBSTANTIAL EVIDENCE TEST - ANS-The court will grant the motion unless there is
substantial evidence upon which the jury could render a reasonable verdict for the non-
moving party.
THE SCINTILLA TEST - ANS-The court will deny the motion if there is any shred of
evidence upon which a jury could reasonably render a verdict for the non-moving party.
The court only looks at the non-moving party's evidence.
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (AFTER VERDICT, In
Federal Court, Motion for judgment as a matter of law must be made to preserve this
motion after verdict) - ANS-1) No reasonable jury could have decided the same verdict
2) Moving party must have made a motion for judgment as a matter of law
3) Motion must be made no later than 10 days after jury verdict
JOINDER OF CLAIMS - ANS-1) SINGLE PLAINTIFF vs. SINGLE DEFENDANT
2) COUNTERCLAIMS AND CROSS-CLAIMS
JOINDER OF CLAIMS: SINGLE PLAINTIFF vs. SINGLE DEFENDANT - ANS-Under
Federal practice, a single plaintiff may join any and all claims he has against a single
defendant, even if they are unrelated. Under the Doctrine of RES JUDICATA, a plaintiff
is required to join all related claims or it will be barred in a different suit.
Under State practice, some state claims joinder rule require that claims arise out of the
same transaction or involving common questions of law.
JOINDER OF CLAIMS: COUNTERCLAIMS - ANS-This is where the defendant
counterclaims against the plaintiff. There are two types of counterclaims, (1)
Compulsory counter claims and (2) Permissive counterclaims.
JOINDER OF CLAIMS: COMPULSORY COUNTERCLAIMS - ANS-A counterclaim is
compulsory if it arises out of the same transaction or occurrence. It must be asserted or
the claim will be barred in a subsequent suit under the doctrine of RES JUDICATA.
SAME TRANSACTION & OCCURRENCE?
JOINDER OF CLAIMS: PERMISSIVE COUNTERCLAIMS - ANS-A counterclaim is
permissive if it does not rise out of the same transaction or occurrence. This claim does
not fall into supplemental jurisdiction, but may be brought in through independent
jurisdiction (involving a Federal law/issue).
Accurate Solutions
Approach to Discovery - ANS-1. Disclosure: Can the information being requested be
obtained through initial disclosure Rule 26(a)?
2. Scope of Discovery: Is the information requested within the scope of discovery?
Disclosure: Can the information being requested be obtained through initial disclosure
Rule 26(a)? - ANS-Under rule 26(a), parties are required to make initial disclosure
without a formal request. This includes:
1. Identity of each witness likely to have discoverable information to support claims and
defenses?
2. Documents or tangible things a party may use to support claims or defenses?
3. Identity of expert witnesses who will testify at trial (not mandatory, must be motioned
for)
4. Evidence that each party may use at trial (done at least 30 days before trial)
Scope of Discovery: Is the information requested within the scope of discovery? - ANS-
Under rule 26(b), a party may obtain discovery concerning "any matter, not privileged,
which is relevant to subject matter of lawsuit." The information sought not need to be
admissible at trial.
Information is discoverable if it is "reasonably calculated to lead to discovery of
admissible evidence."
Regarding a request for documents which are non-privileged and "reasonably
calculated to lead to discovery of admissible evidence" defendant must product those
documents in responses to a discovery request.
PRIVILEGED MATTER NOT DISCOVERABLE
WORK PRODUCT (Hickman v. Taylor)
PRIVILEGED MATTER NOT DISCOVERABLE - ANS-1. Attorney-client privilege:
communication between attorney and client.
For corporations: Per Upjohn, the control group test is not used. There will be an
attorney-client relationship if:
1) info is unavailable to upper management; and
2) management directs lower level employees to communicate w/attorney;
3) concerning matters w/in scope of employees duties;
4) for purposes of securing legal advice for the corp.
, 2. Testimony against spouse, Privilege against self-incrimination, Doctor-client privilege
SUBSTANTIAL EVIDENCE TEST - ANS-The court will grant the motion unless there is
substantial evidence upon which the jury could render a reasonable verdict for the non-
moving party.
THE SCINTILLA TEST - ANS-The court will deny the motion if there is any shred of
evidence upon which a jury could reasonably render a verdict for the non-moving party.
The court only looks at the non-moving party's evidence.
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (AFTER VERDICT, In
Federal Court, Motion for judgment as a matter of law must be made to preserve this
motion after verdict) - ANS-1) No reasonable jury could have decided the same verdict
2) Moving party must have made a motion for judgment as a matter of law
3) Motion must be made no later than 10 days after jury verdict
JOINDER OF CLAIMS - ANS-1) SINGLE PLAINTIFF vs. SINGLE DEFENDANT
2) COUNTERCLAIMS AND CROSS-CLAIMS
JOINDER OF CLAIMS: SINGLE PLAINTIFF vs. SINGLE DEFENDANT - ANS-Under
Federal practice, a single plaintiff may join any and all claims he has against a single
defendant, even if they are unrelated. Under the Doctrine of RES JUDICATA, a plaintiff
is required to join all related claims or it will be barred in a different suit.
Under State practice, some state claims joinder rule require that claims arise out of the
same transaction or involving common questions of law.
JOINDER OF CLAIMS: COUNTERCLAIMS - ANS-This is where the defendant
counterclaims against the plaintiff. There are two types of counterclaims, (1)
Compulsory counter claims and (2) Permissive counterclaims.
JOINDER OF CLAIMS: COMPULSORY COUNTERCLAIMS - ANS-A counterclaim is
compulsory if it arises out of the same transaction or occurrence. It must be asserted or
the claim will be barred in a subsequent suit under the doctrine of RES JUDICATA.
SAME TRANSACTION & OCCURRENCE?
JOINDER OF CLAIMS: PERMISSIVE COUNTERCLAIMS - ANS-A counterclaim is
permissive if it does not rise out of the same transaction or occurrence. This claim does
not fall into supplemental jurisdiction, but may be brought in through independent
jurisdiction (involving a Federal law/issue).
