Civil Procedure II Outline - Part 10

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

1. In General.
   1. Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
      1. a party or a party's officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person's deposition; or
      2. a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
   2. Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
2. Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
3. Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)—(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

1. upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
   1. presume that the lost information was unfavorable to the party;
   2. instruct the jury that it may or must presume the information was unfavorable to the party; or
   3. dismiss the action or enter a default judgment.

(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.

• Analysis of 37D
  • The intermediate step of seeking a motion to compel is excused, however if the recalcitrant party has stonewalled discovery by failing to respond to discovery request or to attend its deposition, instead of making particular objections the requesting party can then go straight for sanctions
    • the party from which discovery is requested, the requested “stonewalls”- ((That is fails to make any response (or fails to attend its own deposition))
      • the requesting party may
        • bypass the motion to compel (first step in the usual two step process) and go straight for sanctions under rule 37D.
          • The two steps become a one-step. IN such a case, it is no excuse for the lack of response that the discovery sought was objectionable. The objections come too late.

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.

• Analysis of rule 56(a)-
  • If the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law rule
  • authorizes summary judgment on a part of a claim or defense.
    • A court may grant summary judgment as to one or fewer than all claims or even to part of a claim leaving the rest for trial.

(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.

• Analysis of rule 56(b)-
  • Armed with evidence you can file a motion for summary judgment any time up until 30 days after the close of discovery

(c) Procedures.

1. Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
   1. 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
      • Analysis of 56(c)(1)(a)
        • List materials that may be considered in deciding summary judgment. But all discovery materials do not automatically qualify for consideration on summary judgment.
          • They must be admissible under the rules of evidence before they are properly considered as part of the record for summary judgment.
            • Why should support materials need to be admissible?
              • Applying the admissibility tests to all evidence on a summary judgment motion serves the purpose of summary judgment rule 56 is designed to avoid a trial that would be unnecessary. THe motion could ont serve that function if in deciding whether issues exist for trials, courts were to consider evidence that could not subsequently be admitted at trial.
          • Does not expressly exclude a movant from relying on her own pleadings to support a summary judgment.
          • Depositions are expressly listed as materials in the record that a party may cite on summary judgment
            • Remember that the particular contents must be admissible as well though
   2. 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.
   • Analysis of 56(c)(2)
     • 56c2 provides that the opposing party may object that material “cannot be presented in a form that would be admissible in evidence at trial. The movants own unsworn pleadings are not in such form and could not be offered as evidence by that party at trial.
       • In contrast an opposing party's pleadings could be admitted at trial as admission by the pleader.
         • On rare occasions a party may also rely on its own pleading but only if the party swore to the truth of the pleading allegations made them from personal knowledge and those allegations would be admissible at trial.
           • In other words, if the pleading is the equivalent of an affidavit.
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.
   • Analysis of 56c4
     • Must be made on personal knowledge

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant 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.
   • Analysis of 56(d)
     • Expressly let's parties file an affidavit to obtain a continuance ( a delay before having to respond to the motion) in order to complete any discovery that she needs to respond to the motion.
       • Although IDK yet whether the facts are undisputed is not a sufficient response to defeat summary judgment it can buy an opposing party time.

(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:

1. give an opportunity to properly support or address the fact;
2. consider the fact undisputed for purposes of the motion;
3. grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or
4. issue any other appropriate order.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

1. grant summary judgment for a nonmovant;
2. grant the motion on grounds not raised by a party;or
3. consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
   • Analysis of rule 56(f)
     • A party must resort to rule 56(f) when it is opposing summary judgment and is unable to present a sufficient affidavit because the necessary facts or evidence are possessed or controlled by the moving party.

(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.

(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.