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Full-Text Articles in Law

Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz Dec 2012

Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz

Seymour H. Moskowitz

In the modern era of few trials, the pretrial process is critical to the disposition of most cases. Discovery has been a fiercely debated subject for may years. Many commentators believe that discovery has become too expensive, very time consuming, and often abusive. Others disagree, and articulate an entirely different diagnosis of the problems in our civil justice system. Regardless, the scope of discovery, and the process for undertaking it, create predictable advantages and disadvantages for many types of litigants. Although state courts dispose of the vast majority of cases in the United States, academic writings on procedural matters, particularly ...


Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon Nov 2012

Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon

Pepperdine Law Review

No abstract provided.


Smoking Out Big Tobacco: Some Lessons About Academic Freedom, The World Wide Web, Media Conglomeration, And Public Service Pedagogy From The Battle Over The Brown & Williamson Documents, Clay Calvert Oct 2012

Smoking Out Big Tobacco: Some Lessons About Academic Freedom, The World Wide Web, Media Conglomeration, And Public Service Pedagogy From The Battle Over The Brown & Williamson Documents, Clay Calvert

Pepperdine Law Review

No abstract provided.


Federal Discovery Stays, Gideon Mark Feb 2012

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue ...


Information Lost And Found, Frederic M. Bloom Jan 2012

Information Lost And Found, Frederic M. Bloom

Articles

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap ...


Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams Jan 2011

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams

Michigan Telecommunications & Technology Law Review

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation ...


The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson Jul 2010

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation ...


Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara Jan 2010

Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara

Martin H Redish

It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our ...


Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux Jan 2010

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Articles

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is ...


New Pleading, New Discovery, Scott Dodson Jan 2010

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is ...


Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe Jan 2009

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery ...


Balancing The Pleading Equation, Paul Stancil Jan 2009

Balancing The Pleading Equation, Paul Stancil

Faculty Scholarship

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants ...


The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso Jan 2008

The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso

Michigan Journal of International Law

This Note provides a European perspective on the issues raised by In re Rubber Chemicals Antitrust Litigation (Rubber Chemicals), and expresses concern regarding the inconsistent approach taken by U.S. courts to the discoverability of the Leniency submissions. This Note also warns that this inconsistency may have a chilling effect on participation in the E.U. Leniency Program and may thus impede enforcement of European anti-cartel law.


Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman Dec 2007

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been ...


Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts 1938-2006, Seymour Moskowitz Jan 2007

Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts 1938-2006, Seymour Moskowitz

Law Faculty Publications

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where "private attorneys general" may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This ...


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 ...


Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo Oct 2004

Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo

Michigan Telecommunications & Technology Law Review

At the federal level, the Civil Rules Advisory Committee has responded to the "unique and necessary feature of computer systems--the automatic recycling, overwriting, and alteration of electronically stored information"--with a proposed amendment to Rule 37. The proposed Rule 37(f) would shield litigants from sanctions for the destruction of electronic data if the party "took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action" and "the failure resulted from the loss of the information because of the routine operation of the party's electronic information system." The safe ...


New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett Jan 2003

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Journal Articles

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued ...


Assessing Sovereign Interests In Cross-Border Discovery Disputes: Lessons From Aerospatiale, Hannah Buxbaum Jan 2003

Assessing Sovereign Interests In Cross-Border Discovery Disputes: Lessons From Aerospatiale, Hannah Buxbaum

Articles by Maurer Faculty

The Hague Evidence Convention addresses a particular kind of jurisdictional conflict: the conflict between one nation's issuance of extraterritorial discovery orders and another nation's right to govern discovery activity taking place within its territory. The particular mechanisms that the Convention establishes for use in cross-border discovery proceedings, and the compromises between civil-law and common-law procedures for evidence gathering that it embodies, were effected with that system goal in mind. In Aerospatiale, the Supreme Court considered the scope of the Convention's application, addressing the interaction of Convention procedures and pre-existing federal rules on evidence gathering. As portions of ...


Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz Jan 2002

Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz

Law Faculty Publications

In the modern era of few trials, the pretrial process is critical to the disposition of most cases. Discovery has been a fiercely debated subject for may years. Many commentators believe that discovery has become too expensive, very time consuming, and often abusive. Others disagree, and articulate an entirely different diagnosis of the problems in our civil justice system. Regardless, the scope of discovery, and the process for undertaking it, create predictable advantages and disadvantages for many types of litigants. Although state courts dispose of the vast majority of cases in the United States, academic writings on procedural matters, particularly ...


Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett Jan 2002

Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Journal Articles

In late 1975, the accounting and legal professions reached an accord that led to three new professional standards: (1) a new financial accounting rule for contingencies, (2) an auditing standard addressing the requirement that an auditor obtain evidence about an audit client's contingent liabilities to determine whether the client has properly treated those items in its financial statements, and (3) the American Bar Association's Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information under that auditing standard. The Commentary that accompanied the Statement of Policy explicitly stated that the organized bar's expectation that communications between ...


Discoverability Of "Deleted" E-Mail: Time For A Closer Examination , Michael Marron Jan 2002

Discoverability Of "Deleted" E-Mail: Time For A Closer Examination , Michael Marron

Seattle University Law Review

This Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain “smoking gun” messages—the kind of evidence that can drastically affect the outcome of a case. But what is it about e-mail that can make it such a potent ...


Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel Jan 2001

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One ...


Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel Jan 2001

Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel

Scholarly Works

In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the ...


Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel Jan 2000

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot ...


The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein Jan 2000

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the ...


Less Reliable Preliminary Hearings And Plea Bargains In Criminal Cases In California: Discovery Before And After Proposition 115 , Laura Berend Dec 1998

Less Reliable Preliminary Hearings And Plea Bargains In Criminal Cases In California: Discovery Before And After Proposition 115 , Laura Berend

American University Law Review

No abstract provided.


How U.S. Procedure Skews Tort Law Incentives, Jonathan T. Molot Jan 1997

How U.S. Procedure Skews Tort Law Incentives, Jonathan T. Molot

Indiana Law Journal

No abstract provided.


Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim Dec 1995

Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim

Michigan Law Review

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the ...