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Articles 1 - 21 of 21
Full-Text Articles in Law
Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon
Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon
Pepperdine Law Review
No abstract provided.
The Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, Sean B. Karunaratne
The Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, Sean B. Karunaratne
Michigan Law Review
Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the …
Smoking Out Big Tobacco: Some Lessons About Academic Freedom, The World Wide Web, Media Conglomeration, And Public Service Pedagogy From The Battle Over The Brown & Williamson Documents, Clay Calvert
Pepperdine Law Review
No abstract provided.
Effective Keyword Selection Requires A Mastery Of Storage Technology And The Law, Daniel B. Garrie
Effective Keyword Selection Requires A Mastery Of Storage Technology And The Law, Daniel B. Garrie
Pace Law Review
Selecting keywords for searching large volumes of electronically stored information (“ESI”) is an unavoidable, but necessary step in the process of electronic discovery. The parties to a case, or the court, may choose the terms for the search. However, an efficient alternative to both options involves a mediator, neutral, or special master with a thorough understanding of the legal elements of the case and the technology systems that will be subject to keyword search. This alternative can benefit both parties, as well as the court, because a “technology-aware” mediator can expedite an agreement that allows both parties to maintain oversight …
Social Media And Ediscovery: Emerging Issues, Adam Cohen
Social Media And Ediscovery: Emerging Issues, Adam Cohen
Pace Law Review
Courts, as well as private sector and government policymakers, have only just begun to address the practical litigation issues raised by the proliferation of social media channels and content. This Article comments on some of those issues as they relate to electronic discovery (“eDiscovery”) and examines how they have been approached in emerging case law. It does not address proposed legislation on a domestic and international level that may impact social media’s use in litigation, nor does it purport to be in any way comprehensive in its coverage of developments and potential developments in the legal implications of social media.
Litigation Nursing Home Wandering Cases, Steven M. Levin, Janice F. Mulligan
Litigation Nursing Home Wandering Cases, Steven M. Levin, Janice F. Mulligan
Marquette Elder's Advisor
This article defines the term wandering and provides prevalence estimates of wanderers within nursing homes nationwide. It addresses the standard of care applicable to wandering cases and reviews court opinions that consider whether the nursing home was on notice of a resident's known tendency to wander. It also discusses discovery in wander cases and concludes with practice tips.
Fishing Expeditions Allowed: The Historical Background Of The 1938 Federal Discovery Rules, Stephen Subrin
Fishing Expeditions Allowed: The Historical Background Of The 1938 Federal Discovery Rules, Stephen Subrin
Stephen N. Subrin
Prior to the Federal Rules of Civil Procedure ("Federal Rules"), discovery in civil cases in federal court was severly limited. The Federal Rules discovery provisions dramatically increased the potential for discovery. Authorized by the Rules Enabling Act of 1934 ("Enabling Act"), the Federal Rules became law in 1938. The Enabling Act was preceded by a twenty-three year battle, spearheaded primarily by a committee of the American Bar Association. During the Enabling Act debate, discovery was largely ignored. Attitudes about discovery changed significantly between 1932 and 1946. This paper addresses the questions of how and why the change occurred, what reservations …
When Staying Discovery Stays Justice: Analyzing Motions To Stay Discovery When A Motion To Dismiss Is Pending, Kevin J. Lynch
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 …
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Hadar Aviram
Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …
Tailoring Discovery: Using Nontranssubstantive Rules To Reduce Waste And Abuse, Joshua Koppel
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 …
Federal Discovery Stays, Gideon Mark
Federal Discovery Stays, Gideon Mark
University of Michigan Journal of Law Reform
In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Publications
This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …
The Problem Of Convicting Innocent Persons: How Often Does It Occur And How Can It Be Prevented?, Leon Friedman
The Problem Of Convicting Innocent Persons: How Often Does It Occur And How Can It Be Prevented?, Leon Friedman
NYLS Law Review
No abstract provided.
Information Lost And Found, Frederic M. Bloom
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 …
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Articles, Book Chapters, & Popular Press
This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.
Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos
Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos
Articles
This Article provides the first extended academic consideration of a new practice adopted by an increasing number of courts to resolve e-discovery disputes — the sampling of a small portion of the information sought in backup or other relatively inaccessible files. We provides a comprehensive overview and statistical analysis of contemporary sampling techniques, identifying issues where sampling practice is inconsistent or where additional guidance appears to be required. Our aim is to provide a coherent theoretical approach to the use of sampling, suggesting “best practices” for many unresolved issues, and locating sampling practice within broader contemporary debates about discovery.
Inquiry Notice: Merck & Co. V. Reynolds And The Need For Requiring Private Investors To Investigate Potential Securities Fraud, Joel Alan Borkenhagen
Inquiry Notice: Merck & Co. V. Reynolds And The Need For Requiring Private Investors To Investigate Potential Securities Fraud, Joel Alan Borkenhagen
Oklahoma Law Review
No abstract provided.
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Faculty Publications
This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …
Death Penalty Without A Hearing? How The Nevada Supreme Court's Decision In Bahena V. Goodyear Incorrectly Defines Discovery Sanctions And Denies Due Process To Civil Litigants, Jonathan J. Winn
Nevada Law Journal
No abstract provided.
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Hadar Aviram
Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …
Presuit Discovery In A Comparative Context, Scott Dodson
Presuit Discovery In A Comparative Context, Scott Dodson
Scott Dodson
In civil litigation around the globe, the usual process is that investigative discovery is allowed (if at all) only after the plaintiff files an initial pleading. Recently, however, a growing number of jurisdictions have adopted general mechanisms for presuit investigative discovery. This paper explores these mechanisms and probes their nature and importance. It first finds that presuit investigative discovery is surprisingly prevalent among common-law systems, despite the usual order of pleading and discovery. The paper then argues that presuit investigative discovery can provide a useful tool for enabling plaintiffs to file a sufficient complaint in fact-pleading jurisdictions. Finally, the paper …