Law Commons^™

The Discovery Sombrero And Other Metaphors For Litigation, William H. J. Hubbard

Catholic University Law Review

Little is known about discovery costs in civil litigation, particularly in regard to preservation—the duty to preserve relevant information when litigation is reasonably anticipated. This article is one of the first to present and analyze empirical evidence on the nature and costs of preservation and discovery. Using this data, the author proposes three new metaphors for civil litigation: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. These metaphors help demonstrate the sometimes surprising ways that the Erie doctrine, the role of technology in litigation, and the Federal Rules’ commitment to transsubstantivity interact with current challenges …

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.

Illinois Lawyer Investigations Of Current Client Concerns, Jeffrey A. Parness

Northern Illinois University Law Review

When questions are raised by a current client regarding an attorney’s representation of the client, the questioned attorney should be able to seek counsel confidentially. Such a conferral will often benefit the attorney, the firm and the client. Advice regarding questioned conduct should be encouraged, not discouraged. To prompt such conferrals, an attorney-client communication and a work product privilege should be available in Illinois, with availability not dependent upon whether in-house, outside or other attorneys are sought for counsel. While early federal precedents were split, increasingly under other state high court precedents the attorney-client communication privilege is available. Its recognition …

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

The Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …

How Atypical Cases Make Bad Rules: A Commentary On The Rulemaking Process, Suja A. Thomas, Dawson Price

Nevada Law Journal

No abstract provided.

Revisiting The Integration Of Law And Fact In Contemporary Federal Civil Litigation, Elizabeth M. Schneider

Nevada Law Journal

No abstract provided.

Judicial Rejection Of Transsubstantivity: The Foia Example, Margaret B. Kwoka

Nevada Law Journal

No abstract provided.

The Grand Poobah And Gorillas In Our Midst: Enhancing Civil Justice In The Federal Courts—Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And Other Reforms Like Trial By Agreement, Mark W. Bennett

Nevada Law Journal

No abstract provided.

Ethical Responsibility And Legal Liability Of Lawyers For Failure To Institute Or Monitor Litigation Holds, Nathan M. Crystal

Akron Law Review

The ethical and legal basis for subjecting counsel to discipline or liability for failing to initiate or implement litigation holds in connection with ESI exists. Recent important cases, while not imposing discipline or liability on counsel, have continued to lay the ground work for such liability. ...Cases in which counsel are held liable for damages to their clients or subject to discipline for failing to comply with well established ESI discovery obligations will not be long in coming as the new approach to winning litigation through discovery continues to develop.

Global Aerospace Inc., Order On Defendants' Fourth Motion For Order Compelling Discovery Against Plaintiff Global Aerospace Inc., Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

"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 …

Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception To The Ban On Successive Motions For Relief From Judgment Does Not Contain A Discoverability Requirement, Claire V. Madill

Michigan Law Review

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language …

Transactional Enforcement Discovery, Aaron D. Simowitz

Fordham Law Review

Joseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery.

But the majority did not grapple with the …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

Global Aerospace Inc., Omnibus Order On Discovery Motions, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Global Aerospace Inc., Order On Motions For Sanctions, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham

Georgia Journal of International & Comparative Law

No abstract provided.

The Hague Evidence Convention In U.S. Courts: Aerospatiale And The Path Not Taken, Société Nationale Industrielle Aerospatiale V. U.S. District Court For The Southern District Of Iowa, 107 S. Ct. 2542 (1987), Roger C. Wilson

Georgia Journal of International & Comparative Law

No abstract provided.

Preparing For Your Rule 26(F) Conference When Esi Is Involved - And Isn't Esi Always Involved?, Amii N. Castle

Amii n Castle

In most civil cases filed today, discovery is likely to include electronically stored information (“ESI”). This article details the steps counsel must take when a lawsuit filed, and the article gives particularized instruction on ESI at each juncture. The article discusses the following steps: At Step One, the judge issues an initial scheduling order, which puts into motion several deadlines: the Rule 26(f) conference, the date to submit the parties’ planning report, and the Rule 16 Conference. Step Two directs attorneys to talk to their own clients about ESI that is relevant to the case. Questions are suggested, such as: …

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

Bernadette Bollas Genetin

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 …

Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters Got It Wrong, Melanie M. Reid

Melanie M. Reid

No abstract provided.