Law Commons^™

Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel

Joshua M. Koppel

With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.

The federal courts …

Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel

Joshua M. Koppel

With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.

The federal courts …

Tailoring Discovery: Using Nontranssubstantive Rules To Reduce Waste And Abuse, Joshua Koppel

Joshua M. Koppel

This article proposes reforming discovery in the federal courts through a switch to a system of nontranssubstantive discovery rules. Because the current discovery rules, like nearly all of the Federal Rules of Civil Procedure, are transsubstantive—meaning that the same rules apply in every type of case—they cannot be narrowly tailored to the requirements of any particular case. The creation of substance-specific (“nontranssubstantive”) rules holds promise for reducing costs by replacing broad rules with rules better fitted to particular types of litigation. Nontranssubstantive rules can be particularly effective in the area of discovery, where overbroad rules can be exploited by litigants …