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Bespoke Discovery, Jessica Erickson

Law Faculty Publications

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …

Calling An End To Culling: Predictive Coding And The New Federal Rules Of Civil Procedure, Stephanie Serhan

Law Student Publications

This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents. Since the new Rules explicitly implement the concept of proportionality and a new set of standards in Rule 26, I argue that applying predictive coding at the outset is more compliant with the Federal Rules of Civil Procedure. Part II will explain the difference in timing between applying predictive coding after keyword culling or prior to it, and discuss the …

Getting Serious: Why Companies Must Adopt Information Governance Measures To Prepare For The Upcoming Changes To The Federal Rules Of Civil Procedure, Philip J. Favro

Richmond Journal of Law & Technology

[W]ithout a corresponding change in discovery culture by courts, counsel and clients alike, the proposed rules modifications will likely have little to no effect on the manner in which discovery is conducted today.

Understanding And Contextualizing Precedents In E-Discovery: The Illusion Of Stare Decisis And Best Practices To Avoid Reliance On Outdated Guidance, Jonathan M. Redgrave, Keltie Hays Peay, Mathea K.E. Bulander

Richmond Journal of Law & Technology

But as precedents survive like the clavicle in the cat, long after the use they once served is at an end, and the reason for them has been forgotten, the result of following them must often be failure and confusion from the merely logical point of view.

Finding The Signal In The Noise: Information Governance, Analytics, And The Future Of Legal Practice, Bennett B. Borden, Jason R. Baron

Richmond Journal of Law & Technology

In the watershed year of 2012, the world of law witnessed the first concrete discussion of how predictive analytics may be used to make legal practice more efficient. That the conversation about the use of predictive analytics has emerged out of the e-Discovery sector of the law is not all that surprising: in the last decade and with increasing force since 2006— with the passage of revised Federal Rules of Civil Procedure that expressly took into account the fact that lawyers must confront “electronically stored information” in all its varieties—there has been a growing recognition among courts and commentators that …

Cooperation-What Is It And Why Do It?, David J. Waxse

Richmond Journal of Law & Technology

Litigation is a method of resolving disputes that is too costly and time consuming for most parties involved. As a Federal Magistrate Judge involved in case management on a day-to-day basis, I often see evidence of this. I also participated in the 2010 Conference on Civil Litigation held at Duke Law School and sponsored by the Federal Judicial Conference Standing Committee on Rules of Practice and Procedure. The conference explored “the current costs of civil litigation in Federal Court, particularly discovery, and discuss[ed] possible solutions.” As part of the conference, the Federal Judicial Center presented4its research findings on its study …

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …

Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen

Richmond Journal of Law & Technology

The Federal Rules of Civil Procedure were created to promote the “just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, in the world of e-discovery, case determinations are often anything but speedy and inexpensive. The manual review process is notoriously one of the most expensive parts of litigation. Beyond expense, the time and effort required to carry out large-scale manual review places an immense burden on parties, nearly destroying the possibility of assessing the merits of early settlement before expensive review has already been carried out.

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia Hatamayar Moore

University of Richmond Law Review

The effect of Ashcroft v. Iqbal on pleadingstandardsandbehavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data reveals several empirical trends. …

Four Years Later: How The 2006 Amendments To The Federal Rules Have Reshaped The E-Discovery Landscape And Are Revitalizing The Civil Justice System, Bennett B. Borden, Monica Mccarroll, Brian C. Vick, Lauren M. Wheeling

Richmond Journal of Law & Technology

The 2006 amendments to the Federal Rules of Civil Procedure, which were enacted to address the potentially immense burden involved in the discovery of electronically-stored information (“ESI”), set in motion a process that is revitalizing the primary purpose of the Federal Rules of Civil Procedure adopted nearly seventy years earlier: “to secure the just, speedy, and inexpensive determination of every action and proceeding.” One of the principal means through which the Federal Rules of Civil Procedure achieve this purpose is by allowing for the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” The reasoning …

Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron

Richmond Journal of Law & Technology

In 2007, in the pages of this Journal, George L. Paul and I posed a question to the legal profession at large, to wit: can the legal system adapt to the new reality of an era of rapid inflation in the amount of electronically stored information (ESI) at issue in civil litigation? After surveying the history of technological innovation that led to an explosion of new data, we proceeded to discuss various legal strategies for success in our current inflationary epoch. These strategies included: consideration of new and emerging ways in which to think about search and information retrieval in …

Enforcement Of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect To The Eu Data Protection Directive?, Kristen A. Knapp

Richmond Journal of Global Law & Business

Enforcing discovery against companies located in foreign nations is not a new phenomenon. The U.S. Supreme Court took up the conflict between U.S. discovery rules and foreign non-disclosure law in a 1958 case. Despite more than fifty years to reach a settled jurisprudence regarding how to enforce U.S. law against foreign domiciled companies, there has yet to be a clear articulation of a standard applicable in all cases. Currently, there are two main sets of rules under which U.S. courts may enforce discovery laws against foreign companies, and if necessary impose sanctions for non-compliance: the Hague Convention and the U.S. …

The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan

Richmond Journal of Law & Technology

As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might …

Electronic Discovery In Large Organizations, Jason Fliegel, Robert Entwisle

Richmond Journal of Law & Technology

The continuing expansion and virtually limitless array of technology and media available to store electronic information has had an immeasurable impact on the amount of information large organizations create and maintain. In many instances, this information continues to be available long after it has served the originator’s purposes. Yet, such information is not exempt from discovery in litigation, and attempting to identify, preserve, collect, review, and produce that information results in a significant burden on litigants, while the failure to do so can result in draconian sanctions or adverse publicity.

Asymmetrical Warfare: The Cost Of Electronic Discovery In Employment Litigation, Rodney A. Satterwhite, Matthew J. Quatrara

Richmond Journal of Law & Technology

A fundamental tenet of the 2006 Amendments to the Federal Rules of Civil Procedure (the “2006 Amendments”) is the notion that parties can agree and cooperate on issues relating to electronic discovery. Many of the rule changes now either require parties to meet and confer about electronic discovery or presuppose a certain level of dialogue between the parties regarding such issues.

A Search For Balance In The Discovery Of Esi Since December 1, 2006, Douglas L. Roger

Richmond Journal of Law & Technology

An explosion in the amount and discovery of electronically stored information (ESI) threatens to clog the federal court system and make judicial determination of the substantive merits of disputes an endangered species. It is interesting that this information discovery explosion has skipped over Rule 1 of the Federal Rules of Civil Procedure, which provides in part that the federal rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”

The “Two-Tiered” Approach To E-Discovery: Has Rule 26(B)(2)(B) Fulfilled Its Promise?, Thomas Y. Allman

Richmond Journal of Law & Technology

We have now had more than a year to assess the impact of the 2006 Amendments of the Federal Rules of Civil Procedure (“the Amendments”) on discovery of electronically stored information. At the core of these provisions is the “two-tiered” discovery process. Under Rule 26(b)(2)(B), restyled as “Specific Limitations on Electronically Stored Information,” a party is permitted to utilize information from “reasonably accessible” sources of electronically stored information to respond to all forms of discovery without seeking information from inaccessible sources, provided that they are identified. Reasonably accessible sources are those which are available without “undue burden or cost.”

Information Inflation: Can The Legal System Adapt?, George L. Paul, Jason R. Baron

Richmond Journal of Law & Technology

Information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization- wide morph, or pulse, or one might say that information has evolved. This article discusses the new inflationary dynamic, which has caused written information to multiply by as much as ten thousand-fold recently. The resulting landscape has stressed the legal system and indeed, it is becoming prohibitively expensive for lawyers even to search through information. This is particularly true in litigation.

The Two-Tier Discovery Provision Of Rule 26(B)(2)(B) - A Reasonable Measure For Controlling Electronic Discovery?, Theodore C. Hirt

Richmond Journal of Law & Technology

One of the most innovative provisions in the newly-effective amendments to the Federal Rules of Civil Procedure addressing electronic discovery may be the creation of a two-tier system for the discovery of electronically stored information, under new Rule 26(b)(2)(B). This rule states that “[a] party need not provide discovery” of such information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Managing Preservation Obligations After The 2006 Federal E-Discovery Amendments, Thomas Y. Allman

Richmond Journal of Law & Technology

The 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (2006 Amendments or the Amendments) do not directly address the onset or scope of preservation obligations. As noted in the September 2005 Report of the Standing Committee of the Judicial Conference recommending adoption of the 2006 Amendments, preservation obligations “arise from independent sources of law” and are dependent upon “the substantive law of each jurisdiction.” However, the Amendments have a major impact on how parties must analyze and execute preservation obligations involving electronically stored information (“ESI”).

In Pursuit Of Frcp 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery, Mia Mazza, Emmalena K. Quesada, Ashley L. Sternberg

Richmond Journal of Law & Technology

The most important rule of all is the last sentence of [FRCP] 1, which provides that the Federal Rules of Civil Procedure ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ It is this command that gives all the other rules life and meaning and timbre in the realist world of the trial court.

Backup Tapes, You Can’T Live With Them And You Can’T Toss Them: Strategies For Dealing With The Litigation Burdens Associated With Backup Tapes Under The Amended Federal Rules Of Civil Procedure, Grant J. Esposito, Thomas M. Mueller

Richmond Journal of Law & Technology

The law in the federal courts governing whether litigants must disclose their backup tapes just changed. Faced with the cost, burdens and uncertainties of mining backup tapes, as well as other sources of data that are difficult to reach, most litigants have simply been ignoring their backup tapes. No more. The amendments to the Federal Rules of Civil Procedure adopt a new standard that embraces the Zubulake I distinction between “accessible” and “inaccessible” data, and requires the disclosing party to identify all its sources of data.

The 2006 Amendments To The Rules Of Civil Procedure: Accessible And Inaccessible Electronic Information Storage Devices, Why Parties Should Store Electronic Information In Accessible Formats, Benjamin D. Silbert

Richmond Journal of Law & Technology

Discovery jurisprudence is a cornerstone of civil litigation in the United States. The Federal Rules of Civil Procedure, as adopted in 1938, introduced a broad discovery process, which was not a previously accepted practice. The Federal Rules of Civil Procedure have been revised several times since 1938, reflecting the evolution of society. However, prior to 2006, 1970 was the last time the discovery rules were amended to take into account changes in information technology. In the last thirty-seven years, technological advances in electronic storage and communication have changed the way people live and how business is conducted, beyond what could …

A Duty Everlasting: The Perils Of Applying Traditional Doctrines Of Spoliation To Electronic Discovery, Michael R. Nelson, Mark H. Rosenberg

Richmond Journal of Law & Technology

Amendments to the Federal Rules of Civil Procedure regarding electronic discovery are expected to take effect on December 1, 2006. These amendments are designed to alleviate the burden, expense and uncertainty that has resulted from the application of traditional discovery principles in the electronic age. These principles worked well in an era where discovery was primarily limited to the production of paper documentation, but have proved unworkable when applied to the discovery of electronic data, particularly in the “corporate world,” where even the most routine business discussions are captured in electronic format.5

The Impact Of The Proposed Federal E-Discovery Rules, Thomas Y. Allman

Richmond Journal of Law & Technology

Because of a conviction that e-discovery presents unique issues requiring uniform national rules, the Judicial Conference of the United States (“Judicial Conference”) has recommended and the Supreme Court has approved a number of amendments to the Federal Rules of Civil Procedure (“Proposed Rules”), which are scheduled to go into effect at the end of 2006.

Shifting Burdens And Concealing Electronic Evidence: Discovery In The Digital Era, Rebecca Rockwood

Richmond Journal of Law & Technology

In the twenty-first century, persons involved in the legal profession will be forced to confront technological issues. Computers and technology have pervaded every aspect of society, and the legal system is no exception. The discovery process is a dramatic example of how lawyers and courts strain to keep up with technological advances. Traditional discovery practices have been severely overhauled as electronic information becomes increasingly prevalent. What was once a simple discovery request can now become an overwhelming task, as defendants must wade through a plethora of electronic documents in an attempt to comply with the court’s discovery orders.

“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse

Richmond Journal of Law & Technology

When the Federal Rules of Civil Procedure (FRCP) were formally adopted by United States Supreme Court Order on December 20, 1937, the emergence of computers and electronic information and their widespreadusewerehardlycontemplated. AlthoughtheFederalRulesof Civil Procedure have been amended on occasion to accommodate changing technology, the advent of the computer age creates new challenges for litigants, their attorneys, and the courts as they strive to apply traditional rules in an innovative technological environment. This article discusses just one aspect of that challenge: the fact that the vast majority of information now exists in electronic format and the impact of this reality on …

Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson

Richmond Journal of Law & Technology

A company’s employee has sued for sexual harassment, age discrimination, or wrongful termination. Or, as another example, the company has been sued for infringement of intellectual property, breach of contract, fraud, or any number of other business reasons. During the course of discovery, the plaintiff serves discovery requests, including a request for data that has been deleted from the company’s electronic records but may still be contained within the company’s backup systems. The search for this data is time consuming and expensive. Discoverable materials may be found in the company’s backup system, but does that possibility justify the lost productivity …

The Past And Future Of The Federal Rules In State Courts, Carl W. Tobias

Law Faculty Publications

Response to Prof. John B. Oakley's writings comparing state court procedural rules with the Federal Rules of Civil procedure.

Professor Oakley's substantial contribution to the Nevada Law Journal dispute resolution symposium neither accords much treatment to how or why the earlier uniformity between state and federal procedural regimes changed so dramatically over such a brief period nor proffers very many suggestions for the future. My response aspires primarily to scrutinize how federal-state consistency deteriorated and secondarily to consider what, if any, measures should be instituted to change the present condition of state civil procedure in the fifty jurisdictions comprising the …

A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias

Law Faculty Publications

The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act …