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Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon
Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon
Articles
New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is – does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of …
Motion And Brief Of Civil Procedure Law Professors As Amici Curiae In Support Of Petitioner, Alexander A. Reinert
Motion And Brief Of Civil Procedure Law Professors As Amici Curiae In Support Of Petitioner, Alexander A. Reinert
Amicus Briefs
Amici curiae are scholars with expertise in civil procedure who have an interest in the proper interpretation of federal pleading standards following Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Amici file this brief because the decision by the Court of Appeals for the Ninth Circuit in this case cannot be squared with proper pleading doctrine and goes far beyond any reasonable interpretation of this Court’s holdings in Twombly and Iqbal. Certiorari is warranted to correct the Ninth Circuit’s application of these cases and to clarify the rampant confusion …
The Costs Of Heightened Pleading, Alexander A. Reinert
The Costs Of Heightened Pleading, Alexander A. Reinert
Articles
In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, …
Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon
Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon
Articles
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