Class-Action/Discovery

Question 1

Class action

Answer 1

Class action is a case where a representative sues on behalf of a group.

Question 2

Federal court class actions Requirements

Answer 2

A federal class action is proper if the class meets the following requirements:

1. Numerosity: There are too many class members for joinder to be practical;
2. Commonality: The questions of law or fact are common to the class;
3. Typicality: The representative’s claims or defenses are typical of those in the class;
4. Adequacy of representation such that it will fairly represent the class; and
5. Type of class

Question 3

Federal Class Action-Types of Classes

Answer 3

a. Prejudice: Class treatment is necessary to avoid persons participating in a fund as individuals from depleting the fund; or
b. Injunctive or declaratory relief is sought (e.g., employment discrimination); or
c. Questions of law/ fact common to the class predominate over questions affecting individuals, and a class action is a superior method to resolve the issues (e.g., damages for a mass tort).

Question 4

Federal class action citizenship issues

Answer 4

1. Diversity action: To determine citizenship for class actions based on diversity, the class representative individually must establish the amount in controversy requirement, not the class members as an aggregate.
2. Class Action Fairness Act (2005) applies where there isn’t complete diversity and allows a federal court to hear a class action if the following requirements are met:
   a. Diversity: Any class member is diverse from any defendant; and
   b. Aggregation: The class claims aggregate to exceed $ 5 million; and
   c. 100 members: There are at least 100 class members.

Question 5

California class actions

Answer 5

A California class action is allowed if there is

1. An ascertainable class; and
2. A well-defined community of interest among class members. To analyze this interest the court looks at whether
   a. Common questions of law or fact predominate;
   b. The representative is adequate; and
   c. The class will result in substantial benefit to the parties and the court.

Question 6

California class actions-Type of class

Answer 6

In California there is only one type of class and distinctions are not made based on the purpose the class serves as in federal court.

Question 7

California class actions-Notice

Answer 7

Individual notice is not required and publication is an acceptable method of notice.

Question 8

Federal Rule 26

Answer 8

Federal Rule 26 requires the mandatory disclosure of information about the pending case to the opposing party. There are three types of mandatory disclosures:

1. Initial disclosures
2. Expert testimony information
3. Pretrial disclosures

California does not require the mandatory disclosure of information, though information may be requested.

Question 9

Initial disclosures (FRCP 26)

Answer 9

Initial disclosures that supply information about disputed facts, including

a. Identifying those likely to have discoverable information about the claim or defense;
b. Copies or description of tangible evidence such as documents;
c. A damages computation and supporting documentation; and
d. Copies of applicable insurance documents.

Question 10

Expert testimony information

Answer 10

Including the

a. Identity of the expert,
b. The expert’s qualifications, and
c. The written report.

Question 11

Pretrial disclosures

Answer 11

Including a list of all nonexpert witnesses and a list of documents or exhibits.

Question 12

Discovery Tools

Answer 12

1. Depositions
2. Interrogatories
3. Requests for Admissions
4. Requests to Inspect and Produce
5. Physical or Mental Examination
6. California Limited Cases=Limited Discovery

Question 13

Depositions

Answer 13

An examination of a witness that occurs under oath and is recorded by sound, video, or stenography. Questions can be oral or written but the answers are oral.

1. Parties can be deposed and nonparties can be deposed by means of a subpoena.
2. Once: A person may not be deposed twice without court approval.
3. Limits
   a. Federal rules permit only ten depositions and the deposition cannot exceed one 7-hour day unless the court orders otherwise.
   b. California has no such limits. However, California limited cases allow only one deposition by each party.

Question 14

Interrogatories

Answer 14

Questions propounded in writing to another party, which must be answered in writing under oath and the responding party must respond within 30 days. Interrogatories may not be asked of nonparties.

1. Limits
   a. Federal rules permit no more than 25 questions, including subparts, unless the court orders otherwise.
   b. California allows an unlimited number of form interrogatories and 35 maximum specific interrogatories, unless a court permits additional upon the filing of a “Declaration of Additional Discovery” identifying the special need.

Question 15

Requests for admissions

Answer 15

Request another party to admit the truth of any discoverable matter. The purpose is to identify areas that are not in controversy. Requests for admission may not be asked of nonparties. 1. California allows a maximum of 35 requests for admission, unless a court permits additional upon the filing of a Declaration of Additional Discovery identifying the special need.

Question 16

Requests to inspect and produce

Answer 16

1. Federal: Any party may request another party, or a nonparty with subpoena, to make available for review and copying documents, electronic copies, or other tangible items, or permit entry onto property.
2. California allows for a party, but not for a nonparty to make requests to inspect and produce. However, the same result could be accomplished by taking the nonparty’s deposition and serving a subpoena duces tecum.

Question 17

Physical or mental examination

Answer 17

Physical or mental examination of a party may be sought by an opposing party. A party requesting such an exam must obtain a court order upon a showing of good cause that the examination will provide information about the physical or mental condition of the party where it is at issue. California allows the defendant to have one physical exam of the plaintiff. Other physical or mental examinations require leave of the court. The attorney for the party being examined can attend the physical exam.

Question 18

California limited cases have limited discovery

Answer 18

California limited cases have limited discovery and only allow each party a 35 maximum total for all interrogatories, inspection demands, and requests combined.

Question 19

Scope of discovery-Need not be admissible

Answer 19

Relevant materials can be discovered even if not admissible so long as the item is reasonably calculated to lead to the discovery of admissible evidence.

Question 20

Scope of Discovery-Privileged material

Answer 20

Privileged material is not discoverable California requires the responding party to object with particularity, identifying the document, its author, the date, all recipients, and the specific privilege applicable.

Question 21

Scope of Discovery-Attorney work product is not generally discoverable

Answer 21

1. General rule: Work product is material prepared in anticipation of litigation and is generally not discoverable unless there is substantial need and the inability to obtain the information through other means.
2. Absolute privilege applies to mental impressions, opinions, conclusions, and legal theories.
   a. Federal: Applies if generated by a party or attorney or representative of a party.
   b. California: Applies if generated by an attorney or his agent.

Question 22

Scope of Discovery-California Constitution recognizes a right of privacy

Answer 22

California Constitution recognizes a right of privacy, which is balanced against the need for discovery.

Question 23

Discovery Sanctions

Answer 23

For violations of discovery, sanctions may be imposed including holding a noncomplying party in contempt, striking pleadings, imposing fees and ordering default judgment.