CO Bar Civil Procedure 2 — Questions and Answers
Question 1: Under FRCP 26(b)(1) as amended in 2015, the scope of permissible discovery is:
- Any information that could lead to the discovery of admissible evidence
- Any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case (Correct answer)
- All documents and electronically stored information in the opposing party's possession
- Information that is relevant and likely to be admitted at trial
Correct answer: Any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case
The 2015 amendment to Rule 26 replaced the 'reasonably calculated to lead to admissible evidence' standard with a proportionality requirement tied to relevance to claims or defenses.
Question 2: Under FRCP 56, summary judgment is appropriate when:
- The moving party shows that the non-moving party has not yet conducted sufficient discovery
- There is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (Correct answer)
- The evidence preponderates in favor of the moving party
- All pretrial dispositive motions have been resolved in the movant's favor
Correct answer: There is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
Summary judgment is proper only when there is no genuine dispute about material facts and the law entitles the movant to judgment without a trial.
Question 3: Claim preclusion (res judicata) bars a subsequent lawsuit when:
- The same legal issue was previously decided in a final judgment
- The same parties litigated a claim arising from the same transaction that resulted in a final judgment on the merits (Correct answer)
- The same evidence would be required to prove both claims
- The first action was dismissed for failure to prosecute
Correct answer: The same parties litigated a claim arising from the same transaction that resulted in a final judgment on the merits
Claim preclusion requires identity of parties, a final judgment on the merits, and that the second claim arises from the same cause of action as the first.
Question 4: Issue preclusion (collateral estoppel) prevents relitigation of an issue when:
- The parties in both actions are identical in all respects
- The issue was actually litigated, necessarily decided, and the party against whom preclusion is sought had a full and fair opportunity to litigate it (Correct answer)
- The same attorney represented the party in the prior proceeding
- The prior court was in the same jurisdiction as the current court
Correct answer: The issue was actually litigated, necessarily decided, and the party against whom preclusion is sought had a full and fair opportunity to litigate it
Collateral estoppel requires that the issue was actually litigated and decided on the merits and that the party to be bound had a full and fair opportunity to contest the issue.
Question 5: Which of the following is a requirement under FRCP 23(a) for class certification but NOT under 23(b)(3)?
- Superiority of the class action over individual litigation
- Predominance of common questions over individual questions
- Typicality of the representative's claims (Correct answer)
- Manageability of the litigation as a class action
Correct answer: Typicality of the representative's claims
Typicality is a 23(a) prerequisite requiring the representative's claims be typical of class members' claims; superiority and predominance are 23(b)(3) requirements.
Question 6: Under 28 U.S.C. § 1446, a defendant seeking to remove a state court action to federal court must:
- File a notice of removal within 30 days of receiving the initial pleading and obtain consent from all properly served defendants (Correct answer)
- File a notice of removal within 60 days and post a removal bond
- Obtain the plaintiff's agreement before filing a notice of removal
- File a notice of removal only after the state court has entered a scheduling order
Correct answer: File a notice of removal within 30 days of receiving the initial pleading and obtain consent from all properly served defendants
Section 1446 requires the removing defendant to file a notice of removal within 30 days of service of the pleading, and all defendants must join or consent to removal.
Question 7: Under the Erie doctrine established in Erie Railroad Co. v. Tompkins, a federal court sitting in diversity must apply:
- Federal substantive and procedural law to ensure uniformity of outcomes
- State substantive law and federal procedural law (Correct answer)
- Federal law on all substantive matters, state law only on matters of local custom
- State law on all matters, including procedure, when the action is filed in that state
Correct answer: State substantive law and federal procedural law
Erie held that federal courts must apply state substantive law in diversity cases while following the Federal Rules of Civil Procedure for procedural matters.
CO Bar Civil Procedure 2
Under FRCP 26(b)(1) as amended in 2015, the scope of permissible discovery is: