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43 UCLA L. Rev. 1393 (1995-1996)
Predicting the Unpredictable under Rule 11(B)(3):When Are Allegations Likely to Have Evidentiary Support

handle is hein.journals/uclalr43 and id is 1407 raw text is: PREDICTING THE UNPREDICTABLE UNDER RULE 1 l(B)(3):
WHEN ARE ALLEGATIONS LIKELY TO HAVE
EVIDENTIARY SUPPORT?
Lisa Pondrom*
INTRODUCTION  . ..............................................  1394
I. THE EVOLUTION OF RULE lI's FACTUAL CERTIFICATION
PROVISION: FROM GOOD GROUND TO SUPPORT TO LIKELY TO
HAVE EVIDENTIARY SUPPORT .. ................................  1396
A. The History of Rule I l's Factual Certification Provision
and the Interrelationship of Pleading, Discovery, and Rule 11 ...... 1396
B.  The 1993 Revision of Rule 11 . .............................  1398
C.  The Issue Posed by Rule 11(b)(3) ............................  1401
II. How SHOULD RULE 11(B)(3) BE INTERPRETED AND APPLIED? .......... 1402
A. Analysis Pursuant to the Text of Rule 11(b)(3) ................. 1403
B. Analysis Pursuant to Rule 1 l(b)(3)'s Advisory
Committee's Note .......................................  1406
1.  A  Fruitless, but Reasonable, Inquiry  ......................  1407
2.  A  Sufficient Factual Basis  .............................  1409
a. Information Supporting the Allegations ............... 1410
b. The Absence of Contradictory Evidence ............... 1412
C. Harmonizing the Text, the Advisory Committee's Note, and
the Purpose Behind the Revision and Rule 11 .................. 1415
1. Evidence Exclusively in the Hands of the Adversary or
Third  Parties  . ......................................  1417
2.  Time Limitations . ...................................  1420
3. Evaluating an Interpretation of Rule 1 I(b)(3) That Looks
at a Party's Need for Discovery  .........................  1421
III. THE IMPLEMENTATION  OF RULE 1 1(B)(3) .........................  1423
A.  Discovery on Rule 11(b)(3) Allegations .......................  1423
B.  The Timing of the Rule II Decision  .........................  1425
CONCLUSION  . ................................................  1428
* J.D., UCLA School of Law, 1996; B.A., magna cum laude, UCLA, 1993. I am indebted
to Stephen C. Yeazell for his valuable guidance and suggestions. I would also like to thank Gabriel
G. Gregg, Carrie Hollister, John D. Lombardo, Marcus McClosky, Matthew Olmsted, and Nadia
A. Shabaik for their diligent editing and insightful comments. Finally, I am forever grateful to my
mother, who assisted and encouraged me as a young writer, and to my father, who taught me the
art of debate.

1393

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