Civ Pro 2021

FRCP 26(c). Duty to Disclose; General Provisions Governing Discovery

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

FRCP 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. (c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial. (1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. (2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.

FRCP 15(a),(b),(c). Amended and Supplemental Pleadings

(a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. (b) Amendments During and After Trial. (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. (2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

FRCP 8(a). General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Rule 59. New Trial

(a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. (b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment. (c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits. (d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.

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. (c) Procedures. (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.

FRCP 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion 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.

FRCP 7. Pleadings Allowed; Form of Motions and Other Papers

(a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.

FRCP 36. Requests for Admission

(a) Scope and Procedure. (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial. (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. (b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

FRCP 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature (instilling the sense of binding to an agreement). Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention. (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; or (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion. (3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation. 5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b); or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

FRCP 26(b)(1). Duty to Disclose; General Provisions Governing Discovery

(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 nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

FRCP 9(b). Pleading Special Matters

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

FRCP 12(b)(6). Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted;

FRCP 54(b). Judgment; Costs

(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

FRCP 16. Pretrial Conferences; Scheduling; Management

(b) Scheduling. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order: (A) after receiving the parties' report under Rule 26(f); or (B) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared. (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure, discovery, or preservation of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502; (v) direct that before moving for an order relating to discovery, the movant must request a conference with the court; (vi) set dates for pretrial conferences and for trial; and (vii) include other appropriate matters. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge's consent.

Rule 8(b). General Rules of Pleading

(b)Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

FRCP 8(d). General Rules of Pleading

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

FRCP 26(e). Duty to Disclose; General Provisions Governing Discovery

(e) Supplementing Disclosures and Responses. (1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.

FRCP 26(g). Duty to Disclose; General Provisions Governing Discovery

(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 attorney's own name—or by the party personally, if unrepresented—and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's 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 nonfrivolous 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 attorney's or party's 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 attorney's fees, caused by the violation.

Claim Perclusion

1) is it the same parties? (Plaintiff v. Defendant) 2) was the judgment final and on the merits? 3) does the claim arise from the same transaction and occurrence of the original claim? (Minority: rights deprived, I.e., person and property)?

Issue Perclusion

1) was the judgment final and on the merits? 2) do the parties have privity? 3) was the issue already litigated?

Jones v. Bock

After an examination of exhaustion requirements in similar federal legislation, the court concluded that inmates are not required to specially plead or demonstrate exhaustion in their complaints. Typically, under the Federal Rules of Civil Procedure, exhaustion is an affirmative defense that the defendant must plead and prove.

Christian v. Mattel, Inc.

An attorney has a duty prior to filing a complaint to conduct a reasonable factual investigation and to perform adequate legal research that confirms whether the theoretical underpinnings of the complaint are warranted by existing law or a good faith argument for an extension, modification or reversal of existing law. Rule 11 does not authorize sanctions for discovery abuses or misstatements made in other matters.

FRCP 26(a),(d),(f). Duty to Disclose; General Provisions Governing Discovery

Parties must disclose information that will be used in support of its claims and defenses. This includes the names and locations of witnesses, the descriptions and location of documents, calculation of damages (Plaintiff), and copies of insurances (Defendant). This must be disclosed during the scheduled conference before discovery begins.

Zielinski v. Philadelphia Piers, Inc.

Philadelphia Piers should have admitted they owned the equipment but denied that they were the operators of the equipment, because a specific denial would have warned Zielinski of his mistake. A general denial is ineffective if some of the claims denied are true and not at issue.

Haddle v. Garrison

Pleading: Shifting from fact to law shows that the facts alleged fit into the law in such a way as to state a claim. Rule 12(b)(6) motion - Supreme Court held Haddle did state a claim under Section 1985 because he did suffer damages (losing his job), which satisfied an element of the statute.

Favale v. Roman Catholic Diocese of Bridgeport

RULE: Both negligent hiring and negligent supervision claims turn upon the type of wrongful conduct that actually precipitated the harm suffered by a plaintiff. It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of the employee's propensity for the type of behavior causing the plaintiff's harm. FACTS: The assistant alleged that the principal of the elementary school where she worked subjected her to sexual harassment. Counsel for the assistant and her husband asked the principal at a deposition about any psychological and psychiatric illnesses she may have had as well as any related medical treatment. Counsel also asked about the principal's alleged anger management history. The diocese objected to the requests on the grounds that the information was irrelevant and privileged. However, the assistant and her husband argued that the information was discoverable because the diocese negligently hired and supervised an individual who was not fit to be a school principal as she had limited experience and emotional issues that presented a risk to the school's students and staff. ISSUE: In a motion to compel, does a party need to prove that information requested is relevant? ANSWER: Yes. CONCLUSION: In this case, any proof related to the anger management issues of Stobierski is not relevant to Favale's claims denying the motion to compel. The motion by the administrative assistant and her husband to compel discovery was denied; the objection by the diocese to the motion to compel discovery was sustained, and the motion by the diocese for a protective order was granted.

Lucy Webb Hayes National Training School v. Geoghegan

RULE: Equity will enjoin a continuing trespass or a series of repeated trespasses where an action for damages would not be an adequate remedy. FACTS: Defendant was a patient for a considerable length of time at Sibley Memorial Hospital, which is maintained and operated by the plaintiff corporation. The hospital is a private hospital. Evidence introduced tended to show that the hospital came to the conclusion that the patient no longer needed hospital care but can be adequately provided for at a nursing home. After a series of negotiations, the president of the hospital corporation made a formal demand on the defendant's husband to transfer his wife. This demand was worded as follows: "I again request you to make arrangements for the transfer of your wife, Ellen Geoghegan, from Sibley Memorial Hospital." The correspondence introduced in evidence shows that the male defendant takes the position that his wife should remain in the hospital for the remainder of her life. Plaintiff filed an action for an injunction to require defendant patient's removal from the hospital as a trespasser. ISSUE: Was plaintiff's action for an injunction the proper remedy? ANSWER: Yes. CONCLUSION: The mere fact that the polite word "request" is used in plaintiff's demand letter does not detract from he tenor of the letter as a demand. A private hospital has a right to accept or decline any patient. It has a moral duty to reserve its accommodations for persons who actually need medical and hospital care and it would be a deviation from its purposes to act as a nursing home for aged persons who do not need constant medical care but who need nursing care. There are homes for the aged, there are nursing homes and similar institutions. Hospitals have a duty not to permit their facilities to be diverted to the uses for which hospitals are not intended. For the hospital to permit that would be to allow a diversion of its facilities to purposes for which they are not intended and would not be in the public interest. An action for damages, of course, would present no solution so far as the plaintiff is concerned because the husband is able and willing to pay whatever the hospital would charge.

Rengifo v. Erevos Enterprises, Inc.

RULE: Fed. R. Civ. P. 26(c) authorizes courts, for good cause, to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters. Fed. R. Civ. P. 26(c). The burden is upon the party seeking nondisclosure or a protective order to show good cause. FACTS: Plaintiff former employee brought an action against defendant former employers to recover unpaid overtime wages under the Federal Labor Standards Act (FLSA) and New York Labor Law. The employee requested that the court issue a protective order pursuant to Fed. R. Civ. P. 26(c) barring discovery related to his immigration status, social security number, and authorization to work in the United States. The employers opposed the request. ISSUE: May an order be issued to prevent certain matters from being inquired into to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense? ANSWER: Yes. CONCLUSION: Courts had recognized the in terrorem effect of inquiring into a party's immigration status and authorization to work in the United States when irrelevant to any material claim because it presented a danger of intimidation that would inhibit plaintiffs in pursuing their rights. The employee's immigration status and authority to work was a collateral issue. The court found that the protective order became necessary as it was entirely likely that any undocumented litigant forced to produce documents related to his or her immigration status would withdraw from the suit rather than produce such documents and face potential deportation. The employee's social security number or tax identification number were not relevant to the claims in the case. Even if they were, however, the employers possessed relevant data on hours and compensation, and there was no reason to assume that the employers' records were less reliable than any records maintained by the employee. Finally, the employers' opportunity to test the credibility of the employee did not outweigh the public interest in allowing employees to enforce their rights.

Cerrato v. Nutribullet, LLC

RULE: Fraud on the court constitutes "only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases." Perjury and fabricated evidence do not constitute fraud upon the court, because they "are evils that can and should be exposed at trial," and "[f]raud on the court is therefore limited to the more egregious forms of subversion of the legal process, . . . those we cannot necessarily expect to be exposed by the normal adversary process." FACTS: On November 1, 2016, Plaintiffs, Phyllis B. Cerrato, German Cerrato (collectively, "the Cerratos") filed this product liability lawsuit against Defendants Nutribullet, LLC and Capital Brands, LLC (collectively, "Nutribullet") for injuries sustained by the Cerratos when Plaintiff Phyllis Cerrato used a blender that was designed and manufactured by Nutribullet. The blender exploded and resulted in hot liquids severely burning Phyllis Cerrato's face and upper body, as well as causing property damage to the Cerratos' kitchen. Nutribullet filed the instant motion to dismiss, arguing that the Cerratos fabricated evidence to support their claims and committed fraud on the court. ISSUE: Should the case filed by the Cerratos be dismissed with prejudice because the Cerratos have fabricated evidence to support their claims? ANSWER: No. CONCLUSION: The court held that evidence showed that at worst, the Cerratos committed perjury and fabricated evidence. Such actions constitute harm between the parties, not harm to the court. The court agreed with Nutribullet that the Cerratos appeared to be changing their story regarding precisely how the incident happened. While the court did not condone such conduct, Nutribullet could point out these inconsistencies to a jury, which could prevent them from being further prejudiced. As such, the court concluded that the extreme sanction of dismissal with prejudice was not warranted.

Walker v. Northwest Corp. (Rule 11 Sanctions)

RULE: It is the plaintiff's burden to plead the citizenship of the parties in attempting to invoke diversity jurisdiction. A plaintiff fails to carry that burden if they do not allege the domicile of the individual defendants or the place of incorporation and principal place of business of all the corporate defendants. For purposes of diversity jurisdiction, the terms "domicile" and "citizenship" are synonymous. FACTS: Plaintiffs, trust beneficiary, his guardian, and their attorney, filed a complaint against defendants, a corporation, trustees, and agents, alleging breach of fiduciary duty and other state law causes of action. The complaint stated that jurisdiction was based on diversity because the trust beneficiary and some defendants, who were a corporation, trustees, and agents, were citizens of different states. The trust beneficiary and the guardian were both citizens of South Dakota. The complaint averred that the corporation was a Minnesota corporation. The complaint stated that many defendants were "residents" of South Dakota. The district court granted a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of jurisdiction and sanctioned the attorney under Fed. R. Civ. P. 11. The sanctions were challenged. The court affirmed the entry of sanctions in the amounts provided. ISSUE: Can an attorney be sanctioned under Rule 11 of the Federal Rules of Civil Procedure for pleading diversity jurisdiction but failing to identify the citizenship of the parties? ANSWER: Yes. CONCLUSION: The court held that it was the trust beneficiary and the guardian's burden to plead the citizenship of the parties in attempting to invoke diversity jurisdiction; they failed to carry that burden because they did not allege the domicile of the individual defendants or the place of incorporation and principal place of business of all the corporate defendants. Federal diversity jurisdiction required complete diversity, so that no defendant was a citizen of the same state as any plaintiff. The court held that the district court did not abuse its discretion in determining that sanctions were appropriate. Also, the district court did not abuse its discretion in entering sanctions for the full amount of expenses and fees claimed.

Moore v. Baker

RULE: Leave to amend a complaint shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend. FACTS: Plaintiff patient filed suit against defendants, doctor and medical center, alleging lack of informed consent one day before the statute of limitations expired. Plaintiff alleged that defendant doctor failed to inform her of therapies available as alternatives to surgery. Defendants moved for summary judgment and plaintiff moved to amend the complaint to add claims of defendant doctor's negligence during and after surgery. Initially, the court granted plaintiff's motion but later vacated said order and granted defendants' motion for summary judgment. The trial court reasoned that the newly-asserted claim was barred by the applicable statute of limitations and that allowing the amendment would, therefore, be futile. ISSUE: Did the amended complaint relate back to the original complaint so as to survive the statute of limitations? ANSWER: No CONCLUSION: Plaintiff's amended complaint did not relate back to the original complaint so as to survive the statute of limitations because it was new and distinct conduct, alleging completely different facts. Summary judgment was proper under Ga. Code Ann. § 31-9-6.1 (1991) because defendants provided overwhelming evidence that alternative therapies were not generally recognized and accepted by reasonably prudent physicians. Therefore, there was no duty to inform plaintiff of the availability of the alternative therapies.

Bonerb v. Richard J. Caron Foundation

RULE: New York's choice-of-law rules require the court to consider the following three elements: the domicile of the plaintiff, the domicile of the defendant, and the place where the injury occurred. When more than one of these is located in the same state, that state's law should ordinarily control. FACTS: Plaintiff, a former patient of a Pennsylvania facility and New York resident, filed a complaint alleging that he was injured due to the defendant rehabilitation facility operator's negligence in maintaining its recreational basketball court. The plaintiff sought to amend his complaint to add a new cause of action against the rehabilitation facility operator for "counseling malpractice." Defendant objected on the grounds that the claim was barred by Pennsylvania's two-year statute of limitations. The magistrate judge granted the former patient's motion for leave to amend. ISSUE: Is Pennsylvania law the proper choice of law for the case at bar? ANSWER: Yes. CONCLUSION: Pennsylvania's statute of limitations, not New York's three-year statute of limitations, applied because the rehabilitation facility operator was domiciled in Pennsylvania and the injury occurred in Pennsylvania.

Hickman v. Taylor

RULE: Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. FACTS: Under the Federal Rules of Civil Procedure, plaintiff in a suit in a federal district court against certain tug owners to recover for the death of a seaman in the sinking of the tug filed numerous interrogatories directed to the defendants, including one inquiring whether any statements of members of the crew were taken in connection with the accident and requesting that exact copies of all such written statements be attached and that the defendant "set forth in detail the exact provisions of any such oral statements or reports." There was no showing of necessity or other justification for these requests. A public hearing had been held before the United States Steamboat Inspectors, at which the survivors of the accident had been examined and their testimony recorded and made available to all interested parties. Defendants answered all other interrogatories, stating objective facts and giving the names and addresses of witnesses, but declined to summarize or set forth the statements taken from witnesses, on the ground that they were "privileged matter obtained in preparation for litigation." After a hearing on objections to the interrogatories, the District Court held that the requested matters were not privileged and decreed that they be produced and that memoranda of defendants' counsel containing statements of fact by witnesses either be produced or submitted to the court for determination of those portions which should be revealed to plaintiff. Defendants and their counsel refused and were adjudged guilty of contempt. ISSUE: Are materials taken in anticipation of litigation and containing the personal recollections and thoughts of counsel protected from discovery? ANSWER: Yes. CONCLUSION: The appellate court reversed, describing the materials as privileged work product under Fed. R. Civ. P. 26. On further appeal, the Court found Fed. R. Civ. P. 26 was inapplicable because no depositions were involved with the interrogatories. However, petitioner's request, made without purported necessity or justification, for materials that were prepared by respondents' attorney in the course of legal representation fell outside of the arena of discovery and contravened public policy.

Wagoner v. Lewis Gale Medical Center, LLC

RULE: Rule 26 of the Federal Rules of Civil Procedure provides that a party may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. FACTS: Wagoner worked as a security guard for Lewis Gale from April 4, 2014 until he was terminated on June 12, 2014. He worked approximately 16 hours per week and earned $12.49 per hour. He filed suit against Lewis Gale alleging that he suffered from dyslexia and that Lewis Gale wrongfully terminated his employment in violation of the Americans with Disabilities Act ("ADA"). Wagoner asserted claims related to discrimination, retaliation, and failure to accommodate in violation of the ADA. Wagoner propounded requests for production of documents to Lewis Gale seeking production of ESI maintained by two custodians, Frank Caballos and Bobby Baker, who were Wagoner's supervisors. Wagoner limited the dates for any ESI search to only four months and requested the following search terms: Jim OR Wagoner AND dyslexia OR dyslexic OR read OR reading OR slow OR ADA OR disabled OR disability OR security OR schedule OR copy OR copying. Lewis Gale conceded that it did not have the capability to perform this global search and obtained an estimate of $21,570 from a third-party vendor to collect the requested ESI, with an additional $24,000 estimated to review the documents retrieved. Lewis Gale argued that the discovery Wagoner sought was not proportional because Wagoner only worked for two months as a security guard, and his potential damages were less than the cost to perform the ESI search. ISSUE: Should the motion to compel be granted? ANSWER: Yes. CONCLUSION: The court granted Wagoner's motion to compel. Lewis Gale largely conceded at the hearing that Wagoner's request was relevant, and argued only that the keyword searches were too broad. Accordingly, it was found that Wagoner's requested ESI search was relevant to the claims and defenses asserted. Admittedly, Lewis Gale had produced e-mail and other documents maintained by Caballos and Baker, but the scope of the computer search by Lewis Gale had been limited to these individuals' search of their own information for discoverable items. Lewis Gale provided no information showing that the search effort would yield deleted or archived ESI which might be available through a keyword search across the relevant electronic formats. Lewis Gale argued that the discovery in this case should not be permitted because it was not proportional, considering the high cost of performing the ESI search compared to Wagoner's limited potential recovery. Relevant ESI may still not be discoverable under Rule 26 if the party can show that the information is not reasonably accessible because of undue burden or cost. Lewis Gale did not carry its burden to show that the data on the seven computers or exchange server was inaccessible. Instead, Lewis Gale stated that it was not capable of performing the ESI searches requested by plaintiff in-house, and would be required to contract with an expensive outside vendor. Finally, because the ESI sought was reasonably accessible without undue burden or expense, cost-shifting to Wagoner was not appropriate.

Beeck v. Aquaslide 'N' Dive Corp.

RULE: The burden is on the party opposing an amendment to show prejudice. In ruling on a motion for leave to amend, a court must inquire into the issue of prejudice to the opposing party, in light of the particular facts of the case. FACTS: Jerry A. Beeck was severely injured on July 15, 1972, while using a water slide. He and his wife, Judy A. Beeck, sued Aquaslide 'N' Dive Corporation, alleging it manufactured the slide involved in the accident, and sought to recover substantial damages on theories of negligence, strict liability and breach of implied warranty. Aquaslide initially admitted manufacture of the slide, but later moved to amend its answer to deny manufacture. The district court granted leave to amend. On motion of the defendant, a separate trial was held on the issue of "whether the defendant designed, manufactured or sold the slide in question." ISSUE: Did the trial court gravely abuse its discretion by permitting defendant to amend its answer? ANSWER: No. CONCLUSION: In the absence of bad faith, prejudice, and undue delay, the "leave to amend " shall be freely given when justice so requires." If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."

Stradford v. Zurich Insurance Co.

RULE: The first sentence of Fed. R. Civ. P. 9(b) requires that the time, place, and nature of the alleged misrepresentations be disclosed to the party accused of fraud. FACTS: Plaintiff dentist filed an action for reimbursement of casualty losses under an insurance policy. Defendant insurer filed counterclaims alleging fraud. The trial court held that the counterclaims did not satisfy the first sentence of Fed. R. Civ. P. 9(b), which required that the time, place, and nature of the alleged misrepresentations be disclosed. in a fraud allegation. Thus, it was unclear from the face of the counterclaims whether defendants asserted that the dentist's claimed losses were improperly inflated, that the dentist's office never even flooded, or that the offices flooded, but not during the term of the policy. Nevertheless, defendants had already moved for leave to amend and submitted a proposed amended pleading. The pleading cured the defects in the counterclaims. ISSUE: Is the counterclaim of the defendant sufficient to allege fraud? ANSWER: No. CONCLUSION: Here, defendants' counterclaims simply fail to identify the statement made by plaintiff that they claim to be false. Thus, it is unclear from the face of the counterclaims whether defendants assert that the claimed losses are improperly inflated, that the office never even flooded, or that the offices flooded, but not during the term of the Policy. In essence, defendants claim that plaintiff lied, but fail to identify the lie. Moreover, The "primary purpose" of Rule 9(b) is to afford a litigant accused of fraud "fair notice of the claim and the factual ground upon which it is based." Id. Here, defendants' counterclaims fail to provide fair notice of precisely which statement, or which aspect of his claim on the Policy, they allege to be false. The counterclaims are therefore insufficient under Rule 9(b), and must be dismissed.

Zubulake v. UBS Warburg LLC

RULE: The scope of a party's evidence preservation obligation can be described as follows: once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of key players to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes. FACTS: Plaintiff employee, an equities trader, sued defendant employer alleging gender discrimination, failure to promote, and retaliation under federal, state, and city law. Plaintiff sought sanctions against the employer for its failure to preserve the missing backup tapes and deleted emails. She sought costs for the restoration of the backup tapes, an adverse inference instruction, and costs for re-depositions. The motion seeking costs for additional depositions were granted, but motion for adverse inference instruction was denied. ISSUE: Does spoliation by the defendant warrant adverse inference instruction? ANSWER: No. CONCLUSION: The court found that the duty to preserve the missing tapes arose when the relevant people at the employer anticipated litigation, four months before the employee filed her Equal Employment Opportunity Commission charge. Because the employer was negligent, and possibly reckless, plaintiff employee satisfied her burden with respect to the first two prongs of the spoliation test. However, plaintiff failed to show that the lost tapes contained relevant information. Under the circumstances, it was inappropriate to give an adverse inference instruction to the jury.

Ashcroft v. Iqbal

RULE: Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable and plausible inference that the defendant is liable for the misconduct alleged, and does not allege a mere possibility. FACTS: Javaid Iqbal (hereinafter respondent) is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners' official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court's decision. ISSUE: Does a complaint need to be non-conclusory to sufficiently state a claim? ANSWER: Yes. CONCLUSION: Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed factual allegations" are not required, Twombly, 550 U.S., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929, but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face,". A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Iqbal's pleadings do not comply with Rule 8 under Twombly. Several of his allegations--that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy's "principal architect"; and that Mueller was "instrumental" in its adoption and execution--are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy's purpose was to target neither Arabs nor Muslims. Even if the complaint's well-pleaded facts gave rise to a plausible inference that Iqbal's arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as "of high interest," but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors.

Bell Atlantic Corp. v. Twombly

RULE: While a complaint attacked by a Fed. R. Civ. P. 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. FACTS: Subscribers of local telephone and Internet services brought an action against local exchange carriers, alleging that the carriers engaged in parallel conduct to preclude competition in violation of § 1 of the Sherman Act. The district court dismissed the complaint, concluding that parallel business conduct allegations, taken alone, do not state a claim under § 1. On appeal, United States Court of Appeals held that the subscribers sufficiently stated a claim. The case was elevated on writ of certiorari to the Supreme Court of the United States. ISSUE: Did the subscribers sufficiently state their claim that the local exchange carriers violate § 1 of the Sherman Act? ANSWER: No. CONCLUSION: The U.S. Supreme Court held that the subscribers' allegations that the carriers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, were insufficient to state a claim under § 1 of the Sherman Act. To state such a violation, allegations of parallel conduct were required to be placed in a factual context which raised a plausible suggestion of a preceding agreement rather than identical independent action. Further, the subscribers' complaint did not indicate that the carriers' resistance to competitors was anything more than the natural, unilateral reaction of each carrier which was intent on keeping its regional dominance. Also, the alleged anti-competitive conduct of the carriers itself indicated that a carrier's attempt to compete in another carrier's market would not be profitable.

Chiquita International v. M/V Bolero Reefer

The court rejected the carrier's assertion that it ought to be able to depose the surveyor since he was the only one who inspected the vessel, because, the court determined, the carrier had equal, if not more, opportunity to inspect its own equipment.

FRCP 26(b)(4). Duty to Disclose; General Provisions Governing Discovery

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 Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's 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 expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's 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 expert's facts and opinions.

FRCP 26(b)(3). Duty to Disclose; General Provisions Governing Discovery

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 party's 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 party's 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 person's 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 person's oral statement.