Law Commons^™

The Information Black Hole: Managing The Issues Arising From The Increase In Electronic Data Discovery In Litigation, Tracey L. Boyd

Vanderbilt Journal of Entertainment & Technology Law

This Note explores the problems that the increase in electronic data discovery has created in litigation. In particular, this Note centers on the issue of cost-allocation involved when discovery includes electronically stored information. Part II of this Note contains a background discussion of the technical and legal aspects of the discovery of electronic information. It examines the different types of electronically stored data, the innate differences between traditional discovery and electronic discovery, and analyzes the Federal Rules of Civil Procedure as they apply to the discovery of electronically stored information. Next, this Note discusses several early cases in which courts …

Induced Litigation, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …

No More Excuses: Refusing To Condone Mere Carelessness Or Negligence Under The "Excusable Neglect" Standard In Federal Rule Of Civil Procedure 60(B)(1), Bree W. Weathersbee

Vanderbilt Law Review

Rule 60(b)' is an attempt to codify the equitable, common law practice of reforming judgments under special circumstances. The rule, inter alia, authorizes a court to relieve a party from a default judgment for "excusable neglect." This standard, however, is not defined in the rules, and courts have struggled with its meaning. Some circuits define the term liberally and often grant requests to vacate default judgments. Others adopt a strict interpretation and consistently refuse to vacate default judgments resulting from mere carelessness or negligence. Recently, in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, the Supreme Court clarified the …

The Hague Evidence Convention: The Need For Guidance On Procedures And Resolution Of Conflicts In Transnational Discovery, John C. Plaster

Vanderbilt Journal of Transnational Law

As international commercial disputes become more common, United States courts increasingly face difficult issues involved in transnational discovery. Two frequently encountered issues are choosing whether to use the discovery procedures of the Federal Rules of Civil Procedure or the Hague Evidence Convention and whether to enforce a discovery order when the order conflicts with a law of the state in which discovery is to occur. Although the Supreme Court has addressed both of these issues, it has left lower courts considerable discretion to deal with these issues case by case. Lower courts, therefore, have not been uniform in their approaches …

Rule 11 And Factually Frivolous Claims-- The Goal Of Cost Minimization And The Client's Duty To Investigate, James E. Ward, Iv

Vanderbilt Law Review

This Note examines the duty Rule 11 creates and its allocation between attorneys and their clients from an economic perspective. Part II examines Rule 11's historical purpose of deterring frivolous claims and traces the roots of the duty the Rule imposes on attorneys to achieve this purpose. Part III discusses how Rule 11 ideally should function in a society with perfect information about the cost of frivolous claims to the judicial system compared to the cost of deterring such claims, and determines that an optimal Rule would minimize the sum of these costs. Given the information constraints of the real …

Case Comment, Jeffry B. Gordon

Vanderbilt Journal of Transnational Law

This Case Comment discusses the ability of a United States plaintiff to serve process pursuant to the Hague Service Convention on a defendant residing in Japan. The United States Court of Appeals for the Eighth Circuit held that the Convention generally prohibits service on foreign defendants by registered mail. This Case Comment discusses the history of the case, the objectives of the Convention, the law of service of process in Japan, and United States law of service of process on foreign parties under the Federal Rules of Civil Procedure. The author then discusses United States common law interpreting article 10(a) …

The Intended Application Of Federal Rule Of Civil Procedure 11: An End To The "Empty Head, Pure Heart"Defense And A Reinforcement Of Ethical Standards, Debbie A. Wilson

Vanderbilt Law Review

The American public has long viewed the legal profession with a puzzling mixture of respect and envy tempered by distaste and mistrust.' Nevertheless, Americans especially are amenable to invoking judicial processes when a wrong is perceived.' This tendency has led to the well-publicized problems of overcrowded dockets and lengthy trial proceedings, both of which contribute to making the American legal system the most expensive in the world. Commentators, the legal community, and other citizens increasingly criticize the litigiousness of the American legal system. The legal profession generally is exempt from governmental regulation because the bar adopts and enforces its own …

International Service Of Process, Armando L. Basarrate,Ii

Vanderbilt Journal of Transnational Law

This Note examines the conflicts that may arise between the Federal Rules of Civil Procedure utilized by American federal courts and procedures under the Service Convention. In addition, this Note compares the logic and policy of the differing approaches utilized by federal courts to resolve such conflicts. Finally, it concludes that the approach which best resolves the legal and practical problems of such conflicts is one which holds that the Service Convention supercedes certain rules of civil procedure when the two conflict.

Burying (With Kindness) The Felicific Calculus Of Civil Procedure, Linda S. Mullenix

Vanderbilt Law Review

On January 2, 1986, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit announced to an astonished legal profession, not to mention the unsuspecting attorneys-of-record, that, in the future, the Seventh Circuit would decide whether to grant or deny a preliminary injunction by applying the following simple formula:

P x Hp > (1-P) x Hd

With one fell swoop of his algebraic-judicial pen, Judge Posner not only stirred the deepest math anxieties of the practicing bar, but revolutionized preliminary injunction law. Despite Judge Posner's protestations that his simple formula was not "offered as a new legal …

Twisting The Purposes Of Discovery: Expert Witnesses And The Deposition Dilemma, Steven D. Parman

Vanderbilt Law Review

The system of discovery that the Federal Rules establish theoretically entitles all parties in civil actions, prior to commencement of trial, to disclosure of all relevant nonprivileged information in he possession of any person. Thus, federal discovery rules should not force litigants to choose between failing to depose a party-opponent's expert witness and thereby preparing inadequately for trial, and deposing the expert witness and consequently risking that opposing counsel will use the deposition against him at trial without the benefit of cross-examination. Part H of this Note reviews common law disagreement over the appropriateness of expert witness discovery and the …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Article III of the United States Constitution does not Grant Congress the Power to Extend United States Courts' Jurisdiction over Suits by Foreign Plaintiffs against Foreign Defendants

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Under Federal Rule of Civil Procedure 37(B), the Courts have the Power to Impose Sanction of Personal Jurisdiction when a Party Fails to Comply with Discovery Order

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Foreign Sovereign Immunity--A Strict Construction of the Concept of Instrumentalities under the Foreign Sovereign Immunities Act

Recent Cases, Cornelia H. Boozman, R. Preston Bolt, Jr., Kenneth L. Stewart

Vanderbilt Law Review

Administrative Law--Ripeness--Agency Head's Informal Opinion Letters Held Unripe for Review When No Substantial Hardship Placed on Parties

Cornelia H. Boozman

The basic premise of the ripeness doctrine is that judicial machinery should operate only on concrete problems that are present or imminent, not on problems that are abstract, hypothetical,or remote... The Supreme Court articulated a more definitive standard for determining ripeness in "Abbott Laboratories v. Gardner." Espousing what it considered to be the basic rationale of the ripeness doctrine, avoidance of premature adjudication of discretionary administrative policies, the Court established a procedure for evaluating the ripeness issue in challenges to …

Recent Cases, Sara P. Walsh, Don B. Cannada, Frances L. Adams, William T. Luedke, Iv

Vanderbilt Law Review

Civil Procedure - Appellate Jurisdiction - Orders Denying Disqualification of Counsel on Ethical Grounds Are Not Final Decisions Subject to Immediate Review Under 28 U.S.C. § 1291

Sara Porter Walsh

Petitioner,' an applicant for a Federal Communications Commission (FCC) broadcasting license, sought interlocutory review of a Commission order' denying a motion to disqualify the law firm that had represented competitor RKO for thirty years. Petitioner alleged that participation by the firm, which included an attorney who was chairman of the FCC while RKO's application was under consideration, constituted a violation of Canons Five and Nine' of the ABA Code of …

Recent Cases, Author Unidentified

Vanderbilt Law Review

Civil Procedure--Service of Process--California Long-Arm Statutes Abrogate State's Immunity Doctrine

Seeking recovery of money owed him by defendant European corporations;' plaintiff brought suit in a California state court.While attending federal district court in Florida for the sole purpose of giving a deposition in a trademark infringement suit instituted by one of the corporations, defendants' representative was personally served with process in the California action on behalf of himself and the defendant corporations. Defendants moved to quash service of process on the ground that the immunity rule prohibited service of civil process upon a witness in attendance in a court outside …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Procedure--Class Actions--Order Dismissing Class Action that Leaves Plaintiff To Litigate a Small Monetary Claim Is Not a Final Appealable Order Under 28 U.S.C. § 1291

Plaintiff consumer, claiming to represent one and one-half million purchasers of defendants" products, filed a class action under section 4 of the Clayton Act, seeking treble damages, costs, and attorney's fees from defendants for alleged antitrust violations. Defendants successfully moved for a stay of proceedings pending the district court's determination of whether the case could be maintained as a class action.The court found the class unmanageable and, in accordance with Rule 23(c)(1) of the …

Declaratory Remedies And Constitutional Change, David L. Dickson

Vanderbilt Law Review

The Federal Declaratory Judgment Act' has now been law for more than 36 years. The debates over whether a purely declaratory judgment can be the product of a justiciable "controversy" in the constitutional sense have long since passed away, set to rest by the language of the Act itself and by the Supreme Court's decision that the Act was authorized by the judiciary article of the Constitution. The last edition of Professor Borchard's great work, Declaratory Judgments, was published in 1941,and the most recent article analyzing the constitutional significance of the Act was published shortly before Chief Justice Warren took …

The Alien's Access To Local Remedies: The African Commonwealth Countries' Experience, Ivan L. Head

Vanderbilt Law Review

Of the 27 members of the Commonwealth of Nations, 11 are located on the continent of Africa. They range in size from Nigeria, with an area of 356,000 square miles and a population of 60 million, to The Gambia, with an area of 4,000 square miles and a population of 350,000 persons. Prior to 1957 all of the 11 States were colonies of the British crown. In little more than a decade they have all gained political independence-one hundred and six million people residing in autonomous communities which are, in the words of the 1926 Balfour Declaration, "equal in status, …

"Civilizing" Nonjury Trials, F. R. Lacy

Vanderbilt Law Review

This article is intended to make people think about American procedure, yet it is devoted largely to a description of Austrian and Israeli civil procedure and perhaps that calls for some disclaiming and confessing and avoiding. I have spent only a few months in the two countries and have no doubt that I am open to the charge, made against far more seasoned American comparatists, that I tend to look at foreign systems through American conceptual spectacles. By way of avoidance let me offer, first, the usual defense of the popularizer. There never will be many serious students of comparative …

The Next Step: Uniform Rules For The Courts Of Appeals, Milton D. Green

Vanderbilt Law Review

The adoption of the Federal Rules of Civil Procedure in 1938 maybe regarded as one of the great landmarks of procedural reform in the United States. The many innovations and improvements over prior practice which were effected are well known. Not the least of these was the achievement of uniformity of procedure in all of the federal district courts of the United States, replacing the chaotic confusion which had existed under the Conformity Act.' Although the Federal Rules were addressed primarily to practice and procedure in the district courts, they also dealt with certain aspects of appellate practice. This was …

Joint Tortfeasors In Tennessee And The New Third-Party Statute, Robert W. Sturdivant

Vanderbilt Law Review

Chapter 145 of the 1955 Public Acts' enacted by the Tennessee Legislature, purporting in some degree to permit a third-party action, has evoked considerable interest among members of the Tennessee Bar and liability insurance carriers.

The act provides that when a defendant deems some other party primarily liable to the plaintiff, then the defendant may file a cross action against the third party. It will be recalled that when the Federal Rules of Civil Procedure were first promulgated, Rule 14 provided that a defendant, deeming a third party liable to himsel for to the plaintiff, could make such third party …

Amendments To The Federal Rules: The Function Of A Continuing Rules Committee, Charles A. Wright

Vanderbilt Law Review

No development in American procedural history in the last century has exceeded in importance the adoption by the United States Supreme Court in 1938 of the Federal Rules of Civil Procedure. These rules, the product of a distinguished Advisory Committee, introduced a system and a philosophy differing as markedly from the code pleading then in vogue as code pleading, in its day, had differed from common-law pleading. This new system has worked well in the federal courts, so well indeed as to stimulate a reexamination of procedure in many of the states, with nearly a dozen jurisdiction shaving already adopted …

Scope Of Discovery Against The United States, Mac Asbill, Willis B. Snell

Vanderbilt Law Review

In the interpretation and application of the discovery provisions of the Federal Rules of Civil Procedure, one of the most controversial problems is the extent to which discovery is available against the United States when it is a party to an action. Undeniably, the Government is entitled to use the discovery procedures, and it has not hesitated to do so; however, it has often fought vigorously the use of the same procedures against it. At one time the Government argued unsuccessfully that it was entirely exempt from the discovery provisions of the Rules. It has apparently abandoned this argument, but …

The Place Of The Federal Rules In The Teaching Of Procedure, Delmar Karlen

Vanderbilt Law Review

If there is any proposition upon which teachers of procedure seem to agree it is that the Federal Rules ought to be a focal point of interest in the study of their subject. Most casebooks on general procedure published in recent years emphasize their concentration upon the Federal Rules: Vanderbilt's Cases on Modern Procedure and Judicial Administration, Field and Kaplan's Materials on Civil Procedure, Brown, Vestal and Ladd's Cases and Materials on Pleading and Procedure, to mention only a few. And when older casebooks, like Scott and Simpson's Cases and Other Materials on Civil Procedure or Clark's Cases on Modern …

Rule 43(A) And The Communication Privileged Understate Law: An Analysis Of Confusion, George W. Pugh

Vanderbilt Law Review

What rules govern the admissibility of evidence in federal court? Rule 43 (a) purports to provide the answer with respect to cases falling within the ambit of the Federal Rules of Civil Procedure.' Is the Rule working satisfactorily, or should it now be abandoned in favor of a new and different solution? The problem thus presented is broad and pervasive. A definitive answer will not be attempted in this paper. Instead, the writer proposes to give only a general discussion of the broader aspects of the Rule, and to limit analysis of the cases to a very restricted area--the meaning …

Some Bugaboos In Pre-Trial, Alfred P. Murrah

Vanderbilt Law Review

In view of all that has been written and said for pre-trial conference,' it seems rather superfluous, if not presumptuous, to undertake to add to or enlarge upon the subject. Indeed, it might be efficacious to heed Judge Clark's suggestion that the procedural cause would be better served "if something could be done to stop us judges ... from publishing what we say" about the Rules. But even at the risk of overstating the case, those who have enlisted for the duration' never forego an opportunity to strike a blow on the side of simplified procedure. Pre-trial practice has been …

Falsification As Contempt, Stephen D. Potts

Vanderbilt Law Review

The last twenty years have been witness first to an expansion and then to a retrenchment of constitutionally protected civil liberties. The exercise of the contempt power is an area in which constitutional limitations on modes of procedure are inapplicable so long as the power is used to preserve the judiciary.'

Contempts are either direct or constructive. Direct contempts are committed in the presence of the court whereas constructive contempts are committed outside the presence of the court. This distinction is significant in that direct contempts are punishable without a formulated charge, hearing or formal judgment of guilt. Constructive contempts …

Procedure And Evidence, Edmund M. Morgan

Vanderbilt Law Review

Demurrer: The Tennessee cases reiterate the orthodox proposition that a demurrer admits the facts alleged or averred in the pleading to which it is interposed.' It is perhaps unnecessary to note that this proposition is true only when the problem concerns the sufficiency of the allegations or averments in the pleading. In truth, the demurrer is merely a default as to the facts and a tender of issue on the law. If the demurrer is overruled and the action is for unliquidated damages, the plaintiff's averment as to the amount of the damages is not taken as true; he must …

The Scope Of Summary Judgment Under The Federal Rules, Henry N. Williams

Vanderbilt Law Review

The Federal Rules of Civil Procedure provide that, under appropriate circumstances, either the plaintiff or the defendant may seek and obtain a summary judgment.' The detailed requirements of Rule 56 have been discussed elsewhere, and they will not be discussed herein other than as they aid in delineating the area covered by summary judgments. In determining the scope of Rule 56, the purpose of the rules as a whole must be considered as well as the effect of the discovery procedures of the rules. In addition the summary judgment rule must be explicitly distinguished from a motion for judgment on …

Federal Civil Procedure Rule 43(A): A Freak Among The Rules, Thomas F. Green Jr.

Vanderbilt Law Review

Rule 43(a) is an anomaly in the Federal Rules of Civil Procedure.'Attorney General Cummings, the chief sponsor of the enabling act, apparently did not contemplate the inclusion of any rule dealing with the admissibility of evidence. The American Bar Association, which sponsored similar bills before Congress for years, laid much of the groundwork but abandoned the project prior to successful completion. A report of the Association's committee charged with the duty of "pushing" the then current version of the bill stated that the court rules were not to deal with evidence. The broadest expression in the bill which was enacted …

Erie To York To Ragan -- A Triple Play On The Federal Rules, Edward L. Merrigan

Vanderbilt Law Review

Approximately twelve years have passed since the Supreme Court of the United States promulgated the Federal Rules of Civil Procedure almost simultaneously with its decision in Erie R. R. v. Tompkins.' These two events revolutionized almost every phase of practice in the federal courts. The Rules substituted uniformity for state conformity in federal procedure, while the Erie decision required an adherence to state conformity in matters of substantive law.

As a result of this concurrent, diverse treatment of substantive and adjective law, it was assumed that the Court intended, in future diversity of citizenship cases, to recognize the dichotomy of …