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If You (Re)Build It They Will Come: Contracts To Remake The Rules Of Litigation In Arbitration's Image, Henry S. Noyes
If You (Re)Build It They Will Come: Contracts To Remake The Rules Of Litigation In Arbitration's Image, Henry S. Noyes
Henry S. Noyes
The Supreme Court describes the right to trial by jury in a civil action as a "basic and fundamental" right that is "sacred to the citizen" and therefore "should be jealously guarded by the court." But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right - which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure - may be used as a bargaining chip, are there any limits on parties' ability to modify the rules of litigation in their ex …
Good Cause Is Bad Medicine For The New E-Discovery Rules, Henry S. Noyes
Good Cause Is Bad Medicine For The New E-Discovery Rules, Henry S. Noyes
Henry S. Noyes
This Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is “not reasonably accessible” shall be discoverable only if the requesting party can establish good cause. The intent of these amendments was to limit the cost and burden of discovery and to ensure that similarly situated litigants are treated similarly with respect to discovery of electronically stored information. I conclude that the e-discovery amendments to Rule 26(b)(2) will be ineffective because they increase judicial discretion—likely leading to disparate treatment of similarly situated litigants—while providing no new protection against the cost …