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Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce
Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce
Faculty Scholarship
What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …
Forum Clauses At The Margin, James P. George
Forum Clauses At The Margin, James P. George
Faculty Scholarship
This article will first dispel the historical account and demonstrate an enforcement history that was reasoned and fairly consistent in England, but erratic in the United States, yielding to an ever-increasing contract-autonomy view after Bremen. The history concludes with concerns about what is now the Bremen/Atlantic Marine presumption (referred to under either case name depending on the context and time frame), including its encouragement of summary analysis and enforcement. To illustrate this extreme, the last section focuses on a Fifth Circuit decision that, with its cursory analysis and extreme favoring of enforcement, leaves significant questions unanswered—a result the law should …