Law Commons^™

Government Compensation For The Costs Of Producting Subpoenaed Documents: A Proposal For Legislative Reform, Norman Gross

University of Michigan Journal of Law Reform

Current statutory and case law provide for the compensation of select categories of persons and entities that provide evidence to the federal government. This compensation scheme is inequitable insofar as it treats similarly situated persons and entities dissimilarly. This Note advocates the adoption of a blanket statutory provision to compensate all third party custodians for incurred costs in producing documents in compliance with a subpoena duces tecum issued on behalf of a federal authority. Part I describes the current federal reimbursement scheme. Part II examines the inequities that the current statutory scheme imposes upon similarly situated entities and argues for …

Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review

Michigan Law Review

Most courts that have considered the issue have concluded that the Jencks Act does not require the government to retain and produce rough interview notes. This Note examines the language and purpose of the Act to determine whether interview notes should be considered Jencks Act statements. Part I examines the policy underlying the Jencks Act and argues that the majority position sanctioning pre-trial destruction of interview notes conflicts with these statutory purposes. Part II discusses the statutory language and argues that the status of the witness as a government agent or a private individual determines the applicable section of the …

Light-Hearted Thoughts About Discovery Reform, John W. Reed

Other Publications

I am delighted to be here among friends from various settings and associations over the years. Having been unable to arrive until late last evening, I am in a poor position to offer useful commentary on what has been said here. But no matter-that is not my assignment. You have heard enough words of wisdom for one weekend. My pleasant assignment is to offer some "light-hearted" comments on discovery reform. I hope they do not prove to be "light-headed" as well.

Discovery Of Retained Nontestifying Experts' Identities Under The Federal Rules Of Civil Procedure, Michigan Law Review

Michigan Law Review

This Note proposes an approach to the problem of identification of rule 26(b)(4)(B) experts that differs from both of the approaches taken in the reported opinions. 9 Part I analyzes the language of rule 26(b) and rejects the majority approach. As a matter of statutory construction, rule 26(b )( 4)(B) governs the disclosure of the identity of nontestifying experts retained by a party in preparation for trial. Part II examines the underlying purposes of rules 26(b)(l) and 26(b)(4)(B) - to ensure adequate pretrial disclosure and to prevent unfairness in adversarial competition - and suggests that both interests may be accommodated. …

Disclosure Of Grand Jury Materials Under Clayton Act Section 4f(B), Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that the latter courts are correct: Congress never intended to abrogate or modify rule 6(e)'s "particularized need" standard when it enacted section4F(b). Part I discusses whether Congress intended section 4F(b) to require the Attorney General to disclose grand jury materials to state attorneys general upon request, thereby abrogating rule 6(e)'s explicit prohibition against such disclosure. Part II examines the statutory language and legislative history of section). 4F(b) to determine whether Congress intended section 4F(b) to modify rule 6(e)'s "particularized need" standard. Finally, Part III evaluates the policies affected by liberalized disclosure of grand …

Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review

Michigan Law Review

This Note examines the history and ambiguous language of rule 56 to determine whether courts have a duty to examine the discovery file before granting a summary judgment. Section I discusses courts' differing interpretations of the rule. Section II shows that the Supreme Court Advisory Committee which drafted the rule contemplated that courts would examine routinely filed discovery materials when considering a motion for summary judgment. Section III concludes, however, that the expansion of pre-trial discovery since the enactment of the federal rules renders such a trial court duty inconsistent with the drafters' intent that the rules "be construed to …

A Proposed Amendment To Rule 26(B)(4)(B): The Expert Twice Retained, Andrew J. Miller

University of Michigan Journal of Law Reform

This article will focus on whether the hiring of the free agent as a non-trial expert, in order to conceal information from other parties to the litigation, is in keeping with the underlying goals and values of present discovery practice. Part I of this note discusses the discoverability of experts in general, then examines the various rationales underlying the so-called unfairness doctrine supporting the trial/non-trial expert distinction. Part II presents the case for divergent treatment of the free agent and the regularly retained expert. Subpart A of that section will explain the lack of judicial scrutiny in this area, while …

The Impact Of The Foia On Nlrb Discovery Procedures, Del Dillingham

University of Michigan Journal of Law Reform

A prerequisite to filing a suit under the FOIA is the exhaustion of administrative remedies; in an unfair labor practice hearing, this means petitioning the Board for discovery. The increase in the number of suits against the Board under the FOIA demonstrates a growing dissatisfaction with the Board's discovery procedures. This article will discuss the impact of the FOIA on the Board's policies and practices and will examine various factors which must be considered in applying the Act to the NLRB.

The Compulsory Process Clause, Peter Westen

Michigan Law Review

Part I of this article traces the history of compulsory process, from its origin in the English transition from an inquisitional to an adversary system of procedure to its eventual adoption in the American Bill of Rights. Part II examines the Supreme Court's seminal decision in Washington v. Texas, which recognized after a century and a half of silence that the compulsory process clause was designed to enable the defendant not only to produce witnesses, but to put them on the stand and have them heard. Part III studies the implications of compulsory process for the defendant's case, from the …

Discovery And Presentation Of Evidence In Adversary And Nonadversary Proceedings, E. Allan Lind, John Thibaut, Laurens Walker

Michigan Law Review

In order to evaluate fully the advantage claimed for the adversary model we sought to add a third element that would test the hypothesis under a variety of conditions. The degree to which the evidence discovered in a case favors one party at the expense of another appeared to meet this criterion. This fact-distribution element is a pervasive condition of legal conflict resolution that, intuition suggests, may significantly influence information search and transmission. Further, this variable could be easily and accurately controlled by regulating the flow of favorable information acquired by the subjects during the experiment.

The remainder of this …

Federal Courts--Discovery--Stay Of Discovery In Civil Court To Protect Proceedings In Concurrent Criminal Action--The Pattern Of Remedies, Michigan Law Review

Michigan Law Review

The federal criminal discovery rules were a carefully weighed compromise between the parties' needs for information and the defendant's need for protection from inquisatorial investigation. This balance may be upset when the more liberal discovery rules in a concurrent, related civil action permit information to be obtained which is not discoverable under the criminal rules. Two recent cases, United States v. Simon and United States v. American Radiator &- Standard Sanitary Corp., illustrate the difficulty of protecting the integrity of the criminal discovery rules in such a situation.

Inter Vivos Trusts-Potential Beneficiary's Right To Compel Trustee To Render A Formal Accounting And Disclose Information, Michigan Law Review

Michigan Law Review

In recent years the inter vivos or living trust has become a popular method of disposing of property and in the future its use is likely to be even more widespread. Consequently, it has become increasingly important that the law governing such dispositions be both unequivocal and just. Unfortunately, in at least one situation this is not the case: When a person, believing himself to be a potential beneficiary of an inter vivos trust, seeks to compel the trustee to render a formal accounting or disclose information concerning the extent of his interest, he will find the law ambiguous and …

Grand Jury Secrecy, Richard M. Calkins

Michigan Law Review

When a leading state such as Illinois enacts "reform" legislation, an impact on the legislatures of other jurisdictions may be anticipated. Accordingly, a need exists for an examination of this legislation in the light of the common-law background of grand jury secrecy and for a further analysis of it in the face of the growing trend toward more liberalized discovery of grand jury minutes in other jurisdictions. It is the contention of the author that such an empirical study will demonstrate that this legislation adopted by Illinois is contrary to all modern judicial thinking and is, in fact, a retrogressive …

The Work Product Doctrine In The State Courts, John S. Holbrook Jr.

Michigan Law Review

When the modem Federal Rules of Civil Procedure were adopted in 1938, considerable doubt and controversy arose concerning the broad provisions for deposition and discovery. That controversy can be fairly described as a conflict both of emotion and of basic philosophy. Many lawyers engaged in the daily maneuvering of the adversary process naturally tended to defend a system which put a high premium on their individual abilities. Others were able to stand back and look at the trial practice of the day with some concern for basic incongruities. Too often, they felt, the obtaining of truth in fair trials was …

The New Michigan Pre-Trial Procedural Rules-Models For Other States?, Robert Meisenholder

Michigan Law Review

The new Michigan procedural laws are embodied in a revised set of statutes and court rules which became effective January 1, 1963, after a long period of study by a Joint Committee on Michigan Procedural Revision. They abolish an anachronistic distinction between procedures in law and equity, abrogate a scattered, disorganized set of rules and statutes, and create a unified, coherent procedural system.

Federal Civil Procedure-Federal Rule 12(E): Motion For More Definite Statement- History, Operation And Efficacy, Stefan F. Tucker S.Ed.

Michigan Law Review

The purpose of this comment is to trace the history of the motion for more definite statement as provided for in the Federal Rules, analyze the reasons for granting or denying the motion, and propose an answer to the question of whether Rule 12(e) is necessary, or superfluous, as part of modern federal pleading procedure.

Federal Civil Procedure-Discovery-Availability Of Attorney-Client Privilege To Corporations, Stephen M. Wittenberg

Michigan Law Review

During the pre-trial stage of a civil antitrust suit, plaintiff sought inspection of certain documents in the files of the corporate defendants' outside counsel. The defendant contended that these documents were protected from discovery by the attorney-client privilege. Upon motion for inspection, held, granted. The attorney-client privilege is not available to any of the corporate parties in this action. Radiant Burners, Inc. v. American Gas Ass'n, 207 F. Supp. 771, aff'd on rehearing, 209 F. Supp. 321 (N.D. Ill. 1962).

Procedural Problems Of Class Suits, Joseph J. Simeone

Michigan Law Review

The purpose of this article is to discuss numerous aspects of the class device, to discuss the many procedural problems confronting court and counsel, to determine the effectiveness of one type of class suit-the spurious-and in the conclusion, to propose legislation for a new rule independent of the rules regarding class actions, a remedy which would more effectively permit the dispatch of numerous claims arising from similar fact patterns.

The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon

Michigan Law Review

The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal. Few dispute the desirability of new …

Taxation-Federal Income Tax-Period For Deduction Of Embezzlement Losses, Thomas P. Segerson S.Ed.

Michigan Law Review

This action was brought against the United States for a refund of income taxes paid. Plaintiff taxpayer claimed she was entitled to a deduction in 1941 for losses resulting from the embezzlement of funds by a trustee which were discovered in that year. The Commissioner of Internal Revenue disallowed the claimed deduction because the acts constituting the embezzlement had taken place during prior years. Held, judgment for defendant. Embezzlement losses are deductible in the years in which the defalcations take place, not in the years such defalcations are discovered. Alison v. United States, (D.C. Pa. 1951) 97 F. …

Discovery Before Trial, George Ragland Jr.

Michigan Legal Studies Series

The purpose of this volume is to present in a convenient and usable form a comparative study of the expedients which are being employed in various American and English jurisdictions for the purpose of facilitating pre-trial practice, to describe the practical operation of the different devices, and to show their effect upon the general administration of justice. An analysis of the statutory and case law has been combined with data which shows the practical operation of the procedure in the everyday work of the lawyer and judge. Field studies were made by the author in different cities of the following …

The Patentability Of A Principle Of Nature, John B. Waite

Articles

The extent to which courts will go in conceding patentability to a natural law, or principle of nature, is evidenced in the case of Minerals Separation Co. v. Hyde, 37 Sup. Ct. -, decided by the Supreme Court, December 11, 1916. It has always been more or less an axiom of patent law that the discovery of a principle of nature does not entitle the discoverer to a patent for it. The case usually thought of first as authority therefor, is that of Morton v. New York Eye Infirmary, 5 Blatch. 116, 2 Fisher 320. The patentees in that case …