Law Commons^™

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.

UNH Sports Law Review

No abstract provided.

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Articles in Law Reviews & Other Academic Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

All Faculty Scholarship

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm

Catholic University Law Review

Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …

The Shifting Sands Of Cost Shifting, Andrew M. Pardieck

Cleveland State Law Review

The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery …

Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley

Maine Law Review

The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …

Navigating The Discovery Chess Match Through Effective Case Management, Philip Favro

Akron Law Review

The challenges with civil discovery are often overwhelming. At times, counsel may feel powerless to avoid discovery quagmires and the resulting costs and delays. Nevertheless, counsel can guide a matter through these complexities if they learn how to better manage the discovery process. In Navigating the Discovery Chess Match through Effective Case Management, I expound on three methods that can facilitate case management in discovery.

The first emphasizes the benefits of proportionality in resolving preservation disputes over electronic data. The next involves providing early and more fulsome initial disclosures to enhance the FRCP 26(f) discovery conference. The final method focuses …

Civil Procedure And Economic Inequality, Maureen Carroll

Articles

How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese

Alan J. Meese

No abstract provided.

The Practitioner’S Guide To Properly Responding To Requests For Disclosure Under The Texas Discovery Rules, Robert K. Wise, Kennon L. Wooten

St. Mary's Law Journal

Discovery, a pretrial procedure used to obtain information relating to the litigation, generally is the largest cost of civil litigation. By its very nature, discovery also is intrusive and invasive. Many practitioners are quick to dispute discovery requests, slow to produce information requested, and all too-eager to object at every stage of the discovery process.

This article relates to one of the most common types of written discovery—Texas Rule of Civil Procedure 194 disclosure requests, the responses to which are often incomplete and inadequate. Disclosure requests provide inexpensive, basic discovery without the delay relating to objections or work-product assertions. This …

Discovery Hydraulics, Seth Katsuya Endo

UF Law Faculty Publications

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.

In creating the first purposive taxonomy of recent document discovery …

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm

Vanderbilt Law Review

First, we have a long way to go to educate judges about the benefit of active judicial management of the discovery process and the proportionality requirement. Second, just telling judges to "go forth and actively manage" without showing them concrete ways to do it in realistic case settings is not going to be effective. I am happy to report that thanks to the hard work of Judge Jeremy Fogel, director of the Federal Judicial Center, the educational programs for new and experienced judges alike now include special emphasis on management of the discovery process and the proportionality requirement. And the …

A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor

Vanderbilt Law Review

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd

Vanderbilt Law Review

In this Article, we explain that either a rule requiring both parties to share the costs of discovery ("cost-sharing rule") or a rule creating a risk for both parties that they will bear the entire costs of discovery ("cost-shifting rule") would minimize many of the negative incentives that exist under either a strict producer-pays or requester pays rule. Whereas the producer-pays rule creates incentives for excessive discovery because requesters can externalize the costs of requests and use discovery to impose costs on producing parties to force settlement, requesters under a cost-sharing or cost-shifting rule cannot externalize the costs of discovery …

Opting Out Of Discovery, Jay Tidmarsh

Vanderbilt Law Review

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

A Proposal To End Discovery Abuse, Alexandra D. Lahav

Vanderbilt Law Review

When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …

Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

In November 2014, the Duke Law Judicial Studies Center, which became the Bolch Judicial Institute in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of GUIDELINES AND PRACTICES prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team’s work product, the GUIDELINES AND PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles.

Most of …

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Nancy Welsh

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …

The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman

Akron Law Review

The Sedona Principles and Commentaries in the Third Edition (2018) are worthy successors to those of the Second Edition (2007) and, in many respects, a substantial improvement. Principles 2, 5 and 8 build on the 2015 amendments to Federal Civil Rules, including amended Rule 26(b)(1), in advocating an increased emphasis on proportionality across the full spectrum of e-discovery activity. They also reflect a more nuanced view of Rule 26(b)(2)(B), added by the 2006 Amendments to deal with undue burden or costs, as does Principle 13 in regard to cost allocation, which recommends use of amended Rule 26(c) to the exclusion …

U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran

Akron Law Review

U.S. discovery has long been a troublesome issue between the U.S. and civil-law nations. The passage of the Hague Convention on Evidence might have brought much-needed relief, but U.S. courts minimized its effects, favoring continued use of the Federal Rules of Civil Procedure. Civil-law states passed blocking statutes or their equivalents as they sought to protect what they considered to be fundamental values of privacy and national sovereignty. With the rise of transnational litigation, Section 1782 discovery was intended to provide assistance to foreign courts and parties in litigation abroad by opening certain discovery channels in the U. S. to …

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.

Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman

Akron Law Review

This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest a …

Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman

Akron Law Review

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better …

Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak

Akron Law Review

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by design and …

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm

Akron Law Review

The 2015 amendments to the Federal Rules of Civil Procedure ambitiously sought to reduce pretrial delay, expense, and burden in civil cases. But the rules are not self-executing, and without active hands on judicial supervision and intervention where necessary to insure that the Rules are being applied as intended, there is a risk that the objectives of the amended rules will not be realized. This article discusses a number of common sense, practical, yet effective ways in which judges can fulfill their obligation to effectively manage their cases to achieve the goal of Rule 1 of the Rules of Civil …