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Litigation

Discovery

2006

Articles 1 - 2 of 2

Full-Text Articles in Law

Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone Aug 2006

Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone

ExpressO

Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong ...


Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson Jan 2006

Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson

Faculty Publications

The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts ...