Law Commons^™

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Articles in Law Reviews & Other Academic Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

All Faculty Scholarship

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

Civil Procedure And Economic Inequality, Maureen Carroll

Articles

How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

Discovery Hydraulics, Seth Katsuya Endo

UF Law Faculty Publications

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.

In creating the first purposive taxonomy of recent document discovery …

Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

In November 2014, the Duke Law Judicial Studies Center, which became the Bolch Judicial Institute in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of GUIDELINES AND PRACTICES prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team’s work product, the GUIDELINES AND PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles.

Most of …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances …

Bespoke Discovery, Jessica Erickson

Law Faculty Publications

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …

Wynn Resorts, Ltd. V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 52 (July 27, 2017), Elise Conlin

Nevada Supreme Court Summaries

The Court held that the business judgment rule defense alone does not mandate waiver of attorney-client privilege related to discovery documents. The Court also adopted the “because of” test with a “totality of the circumstances” standard to determine when a document falls under the work-product privilege.

Calling An End To Culling: Predictive Coding And The New Federal Rules Of Civil Procedure, Stephanie Serhan

Law Student Publications

This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents. Since the new Rules explicitly implement the concept of proportionality and a new set of standards in Rule 26, I argue that applying predictive coding at the outset is more compliant with the Federal Rules of Civil Procedure. Part II will explain the difference in timing between applying predictive coding after keyword culling or prior to it, and discuss the …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

All Faculty Scholarship

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

All Faculty Scholarship

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin

Akron Law Faculty Publications

This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the …

Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany

Faculty Scholarship

No abstract provided.

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

Scholarly Works

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

Expert Mining And Required Disclosure, Jonah B. Gelbach

All Faculty Scholarship

No abstract provided.

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

Whither Bespoke Procedure?, David A. Hoffman

All Faculty Scholarship

Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering. * How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, …

Some Important Causes For Settlement In American Civil Litigation, Felipe Forte Cobo

LLM Theses and Essays

This paper focuses on pure economic disputes such as contract, real property and tort conflicts, in which the economic efficiency model is very accepted. In this limited scenario, the consensual resolution of disputes is always more efficient than decisions made by a third-party decision-maker, whether from a post-trial or pre-trial perspective.

Considering that lower transaction costs drive parties towards settlement, part II of this essay provides an overview of the American costs of legal disputes, framing several issues that might be determinative to settlements. Part III explores how two specific American procedural institutes – discovery and civil jury trial – …

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman

All Faculty Scholarship

Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially non-discovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process, including that the filing of a motion significantly speeds case settlement, that granted motions are more immediately critical to settlement timing than motions denied, and that plaintiff victories have a stronger effect than defendant victories. These results provide …

When Staying Discovery Stays Justice: Analyzing Motions To Stay Discovery When A Motion To Dismiss Is Pending, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Due to the important costs and benefits of discovery, decisions that affect the scope, timing, or availability of discovery are enormously consequential. For civil litigation in federal court, district and magistrate judges make many decisions about discovery that affect the cases before them. They decide the length and number of depositions that may be taken, compel or protect against the production of large numbers of documents and electronic data searches, serve as gatekeepers for expert witness testimony, and even decide whether the parties may take discovery at all until any motions to dismiss have been resolved. This Article focuses squarely …

Information Lost And Found, Frederic M. Bloom

Publications

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. It then fits these …

E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield

Sturm College of Law: Faculty Scholarship

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.

Making Sense Of Twombly, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In May 2007, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Reversing the Second Circuit, the Court held that an antitrust complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray averments of agreement that amounted merely to legal conclusions, failed as a matter of law to state a claim for conspiracy in violation of § 1 of the Sherman Act and had been properly dismissed by the trial court. The Court then proceeded to (1) redefine the concept of notice pleading by "retiring" …

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.