Law Commons^™

"Show And Tell": An Analysis Of The Scope Of The Attorney-Client Waiver Standards, Roberta M. Harding

Law Faculty Scholarly Articles

As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.

In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that …

Waiver: A Comprehensive Analysis Of A Consequence Of Inadvertently Producing Documents Protected By The Attorney-Client Privilege, Roberta M. Harding

Law Faculty Scholarly Articles

The inadvertent production of documents protected by the attorney-client privilege frequently occurs in contemporary litigation. This phenomena becomes more prevalent as the number of cases involving inadvertent document production grows. Unfortunately, given the present modes for resolving the waiver issue that stems from this occurrence, this occurrence could threaten to become the rule rather than the exception. The increased frequency of inadvertent document production is due primarily to more disputes arising out of production of documents demands by the opposing party that emerge as parties request the production of an increasing number of responsive documents. As a result, the sheer …

Discovery In Kentucky: An Overview, Richard H. Underwood

Law Faculty Scholarly Articles

Discovery receives short shrift in the law school curriculum. Although students are introduced to the subject in a first year course on Civil Procedure, the "bathtub effect" usually takes its toll by graduation day. That is, after the first year, the plug is pulled and the student's knowledge drains away. Moreover, it is difficult to teach discovery in third year programs on trial advocacy. Too much emphasis on discovery and pretrial would leave too little time for instruction on the mechanics of the actual trial. Even the experienced practitioner may not remember all the intricacies of discovery and may find …

Kentucky Law Survey: Criminal Procedure, William H. Fortune, Sarah N. Welling

Law Faculty Scholarly Articles

Significant criminal procedure decisions of the Kentucky appellate courts for the period July 1, 1982 to July 1, 1983, have been selected for discussion in this Survey. Included in this survey is an extensive discussion of selected cases in the areas of warrants, competency of counsel, pretrial discovery of witness statements, venue, belated attacks on criminal convictions, and the right to talk to an attorney before taking a breathalyzer test.

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Discovery Of Nonparties' Tangible Things Under The Federal Rules Of Civil Procedure, Sarah N. Welling

Law Faculty Scholarly Articles

Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties' things, the whole discovery scheme for nonparties is rather …

Curbing Litigation Abuses: Judicial Control Of Adversary Ethics—The Model Rules Of Professional Conduct And Proposed Amendments To The Rules Of Civil Procedure, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial …

Kentucky Law Survey: Civil Procedure, William H. Fortune

Law Faculty Scholarly Articles

This article provides a survey of civil procedure developments in the Commonwealth of Kentucky. The most significant civil procedure case decided by the Kentucky Court of Appeals during the period covered by this Survey is Nazareth Literary and Benevolent Institution v. Stephenson. That case, which deals with discovery of privileged communications, may have created problems that will require legislative action. Other decisions by the Court during this period serve to illustrate and amplify existing procedural points. The more important of these decisions will be briefly discussed prior to the consideration of Stephenson.