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Articles 1 - 12 of 12
Full-Text Articles in Law
Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm
Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm
Vanderbilt Law Review
First, we have a long way to go to educate judges about the benefit of active judicial management of the discovery process and the proportionality requirement. Second, just telling judges to "go forth and actively manage" without showing them concrete ways to do it in realistic case settings is not going to be effective. I am happy to report that thanks to the hard work of Judge Jeremy Fogel, director of the Federal Judicial Center, the educational programs for new and experienced judges alike now include special emphasis on management of the discovery process and the proportionality requirement. And the …
Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard
Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard
Vanderbilt Law Review
After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938, and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court. This uncertainty caused unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of …
A Proposal To End Discovery Abuse, Alexandra D. Lahav
A Proposal To End Discovery Abuse, Alexandra D. Lahav
Vanderbilt Law Review
When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …
One-Way Fee Shifting After Summary Judgment, Cameron T. Norris
One-Way Fee Shifting After Summary Judgment, Cameron T. Norris
Vanderbilt Law Review
New, defendant-friendly amendments to the Federal Rules of Civil Procedure took effect in December 2015. Included in the amendments were several provisions designed to curb the cost of discovery. Although modest, the discovery-related provisions created more controversy than perhaps anything the rule makers have done in recent memory. Yet the new amendments were only part of what corporate defendants asked the rule makers to do. Left undone was a much more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. To the surprise of many commentators, the …
Opting Out Of Discovery, Jay Tidmarsh
Opting Out Of Discovery, Jay Tidmarsh
Vanderbilt Law Review
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff
Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff
Vanderbilt Law Review
The "proportionality" amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs' bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, I have reviewed every published judicial opinion (approximately 135) between December 1, 2015 and April 30, 2018 that applied the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. …
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd
Vanderbilt Law Review
In this Article, we explain that either a rule requiring both parties to share the costs of discovery ("cost-sharing rule") or a rule creating a risk for both parties that they will bear the entire costs of discovery ("cost-shifting rule") would minimize many of the negative incentives that exist under either a strict producer-pays or requester pays rule. Whereas the producer-pays rule creates incentives for excessive discovery because requesters can externalize the costs of requests and use discovery to impose costs on producing parties to force settlement, requesters under a cost-sharing or cost-shifting rule cannot externalize the costs of discovery …
A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor
A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor
Vanderbilt Law Review
We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …
Bespoke Discovery, Jessica Erickson
Bespoke Discovery, Jessica Erickson
Vanderbilt Law Review
The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes.' With forum selection clauses, parties can decide where they will litigate future disputes.2 With fee-shifting provisions, they can choose who will pay for these suits. 3 And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether.4 Parties can also waive their right to appeal,5 their right to a jury trial,6 and their right to file a class action.7 Bespoke procedure, in other words, is commonplace in the United States. Far less common, however, …
A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau
A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau
Vanderbilt Law Review
symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor …
Procedural Design, Alexandra D. Lahav
Procedural Design, Alexandra D. Lahav
Vanderbilt Law Review
The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the vision of the drafters of the Federal Rules of Civil Procedure in 1938, it no longer describes the reality of federal litigation. Jurisdiction can be determined at the end of the lawsuit rather than the beginning. Judges demand determination of factual disputes before discovery commences through a …
Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng
Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …