Law Commons^™

The Discovery Sombrero And Other Metaphors For Litigation, William H. J. Hubbard

Catholic University Law Review

Little is known about discovery costs in civil litigation, particularly in regard to preservation—the duty to preserve relevant information when litigation is reasonably anticipated. This article is one of the first to present and analyze empirical evidence on the nature and costs of preservation and discovery. Using this data, the author proposes three new metaphors for civil litigation: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. These metaphors help demonstrate the sometimes surprising ways that the Erie doctrine, the role of technology in litigation, and the Federal Rules’ commitment to transsubstantivity interact with current challenges …

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

All Faculty Scholarship

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

The Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …

How Atypical Cases Make Bad Rules: A Commentary On The Rulemaking Process, Suja A. Thomas, Dawson Price

Nevada Law Journal

No abstract provided.

Judicial Rejection Of Transsubstantivity: The Foia Example, Margaret B. Kwoka

Nevada Law Journal

No abstract provided.

The Grand Poobah And Gorillas In Our Midst: Enhancing Civil Justice In The Federal Courts—Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And Other Reforms Like Trial By Agreement, Mark W. Bennett

Nevada Law Journal

No abstract provided.

Revisiting The Integration Of Law And Fact In Contemporary Federal Civil Litigation, Elizabeth M. Schneider

Nevada Law Journal

No abstract provided.

"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state 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 …

Preparing For Your Rule 26(F) Conference When Esi Is Involved - And Isn't Esi Always Involved?, Amii N. Castle

Amii n Castle

In most civil cases filed today, discovery is likely to include electronically stored information (“ESI”). This article details the steps counsel must take when a lawsuit filed, and the article gives particularized instruction on ESI at each juncture. The article discusses the following steps: At Step One, the judge issues an initial scheduling order, which puts into motion several deadlines: the Rule 26(f) conference, the date to submit the parties’ planning report, and the Rule 16 Conference. Step Two directs attorneys to talk to their own clients about ESI that is relevant to the case. Questions are suggested, such as: …

"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin

Bernadette Bollas Genetin

This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state 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 …

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

Scholarly Works

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany

Faculty Scholarship

No abstract provided.