Law Commons^™

Just Say "No Fishing": The Lure Of Metaphor, Elizabeth G. Thornburg

University of Michigan Journal of Law Reform

The phrase "fishing expedition" is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court's attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the "fishing expedition" metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Post-Verdict Motion Practice After Fuesting V. Zimmer, Christopher Proesel

Seventh Circuit Review

After Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., a court of appeals has no power to order either the entry of judgment for an appellant or a new trial based on the legal sufficiency of the evidence where that appellant failed to move for such an order pursuant to the Federal Rules of Civil Procedure after the civil jury returned a verdict for the appellee. According to the Seventh Circuit in Fuesting v. Zimmer, this rule does not affect its ability to order a new trial where it finds prejudicial error in the trial court’s erroneous admission of …

A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus

Chicago-Kent Law Review

The adoption of the Federal Rules of Civil Procedure worked a revolution in American litigation by introducing broad party-controlled discovery. The framers of those Rules intended broad discovery to facilitate decisions on the merits, and their revolution served as a catalyst for many types of claims in American courts. American discovery also became anathema in the rest of the world, which saw it as too great a cost to pay for better or more accurate litigation results. As American discovery hit full stride in the 1970s, nonparties began to argue that the Federal Rules made all material turned over in …

Uncovering, Disclosing, And Discovering How The Public Dimensions Of Court-Based Processes Are At Risk, Judith Resnik

Chicago-Kent Law Review

In this essay—considering "privacy" and "secrecy" in courts—I first offer a brief history of the public performance, through adjudication, of the power of rulers, who relied on open rituals of judgment and punishment to make and maintain law and order. Second, I turn to consider why, during the twentieth century, the federal courts became an unusually good source of information about legal, political, and social conflict. Third, I map how, despite new information technologies, knowledge about conflicts and their resolution is being limited by the devolution of court authority to agencies, by the outsourcing of decisions to private providers, and …

Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin

Chicago-Kent Law Review

This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be …

The Hunt For Sealed Settlement Agreements, Robert Timothy Reagan

Chicago-Kent Law Review

When a United States senator asked the federal judiciary to look into sealed settlement agreements, the Civil Rules Advisory Committee asked the Federal Judicial Center to undertake a research effort to discover how often settlement agreements are sealed in federal court and under what circumstances. The Center learned that the sealing of settlement agreements in federal court is rare, and typically the only part of the court record kept secret by the sealing of a settlement agreement is the amount of settlement. This article describes how the Center developed its re- search project to address the senator's concerns. The article …

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

Symposium Reflections: A Rulemaking Perspective, Edward H. Cooper

Articles

These reflections seek to situate this most excellent Symposium in the rulemaking process. All contributors are working with an eye to that process. Their goal is to achieve a better understanding of how offer-ofjudgment rules actually work in practice. The major focus is on Rule 68 of the Federal Rules of Civil Procedure as it has affected practice in actions brought under fee-shifting statutes, but Professor Yoon's article adds insights into state practice in the very different world of automobile accident claims. There is no reason to attempt to summarize or synthesize the papers or discussions that stand so well …

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.

Rule 37(F) Meets Its Critics: The Justification For A Limited Preservation Safe Harbor For Esi, Thomas Y. Allman

Northwestern Journal of Technology and Intellectual Property

No abstract provided.