Law Commons^™

International Arbitration Of Sep Frand Royalties, Steven Pepe, Samuel Brenner, Michael Morales

Touro Law Review

Standard-essential patent royalty disputes have typically been litigated in U.S. federal district courts, but patent owners have recently started to file suit in courts across the globe, leading to issues of comity, anti-suit injunctions, and increased litigation costs. International arbitration provides a unique forum for parties to litigate these royalty disputes and avoid, or at least lessen the burden, of these issues. This Article explores the advantages and disadvantages of using international arbitration to resolve standard-essential patent royalty disputes.

For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.

UNH Sports Law Review

No abstract provided.

The Litigation Landscape Of Fraternity And Sorority Hazing: Defenses, Evidence, And Damages, Gregory S. Parks, Elizabeth Grindell

Washington and Lee Law Review

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm

Catholic University Law Review

Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …

Regulatory Responses To Data Privacy Crises And Their Ongoing Impact On E-Discovery, Teo Marzano

Global Business Law Review

This note argues that advancements in technology and data analysis have reduced the efficacy of the legal data privacy framework in the United States. Furthermore, foreign law blocking statutes expose litigants and corporations to increased data liability. Indeed, not only do consumers lack adequate legal remedies, but litigants face uncertain legal liability and increased costs. Simply put, updated technology requires updated laws. Better data management protects consumers and data value. A legal framework with clear guidelines for protecting data is needed.

Still, data access is integral to litigation, and courts must balance the need for data against the need for …

Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq.

Touro Law Review

No abstract provided.

Discovery As Regulation, Diego A. Zambrano

Michigan Law Review

This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties toward settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts has offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power, …

Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley

Maine Law Review

The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

A Brief Survey Of The Treatment Of Electronically Stored Information By Federal Agencies, Richard Dauphinais

University of Baltimore Law Review

Discovery involving electronically stored information (ESI) in federal court litigation has been a matter of extensive discussion in the legal community. Somewhat less examined has been the treatment of ESI by federal agencies. This article takes a look at how some agencies have addressed issues related to ESI. By the late 1990s, federal court practitioners and judges had recognized that the increased use of computers was generating enormous amounts of ESI. The increase in ESI, in turn, affected litigation because it "expanded exponentially" the "universe of discoverable material." Prior to 2006, the federal courts dealt with the discovery of electronic …

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 …

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.

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.

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …

In Re Mstg And The Shifting Role Of Litigation-Related Patent Licenses In Reasonable Royalty Rate Determinations, Whitney Levandusky

Journal of Business & Technology Law

No abstract provided.

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …

The Discovery And Use Of Computerized Information: An Examination Of Current Approaches, Richard M. Long

Pepperdine Law Review

In recent years, the legal profession has run head on into the increasing use of computers and computerized information. Discovery and evidentiary rules developed to deal with written documentation may not be flexible enough to adequately cover this relatively new method of storing information. This comment examines various methods by which courts have attempted to deal with discovery and evidentiary problems involving computerized information, and suggests certain areas that should be explored in supporting or attacking the credibility of such information.

The Sanction Provision Of The New California Civil Discovery Act, Section 2023: Will It Make A Difference Or Is It Just Another "Paper Tiger"? , Timothy Michael Donovan

Pepperdine Law Review

No abstract provided.

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.

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.

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 …

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams

Michigan Telecommunications & Technology Law Review

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery …

The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso

Michigan Journal of International Law

This Note provides a European perspective on the issues raised by In re Rubber Chemicals Antitrust Litigation (Rubber Chemicals), and expresses concern regarding the inconsistent approach taken by U.S. courts to the discoverability of the Leniency submissions. This Note also warns that this inconsistency may have a chilling effect on participation in the E.U. Leniency Program and may thus impede enforcement of European anti-cartel law.

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been …

Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo

Michigan Telecommunications & Technology Law Review

At the federal level, the Civil Rules Advisory Committee has responded to the "unique and necessary feature of computer systems--the automatic recycling, overwriting, and alteration of electronically stored information"--with a proposed amendment to Rule 37. The proposed Rule 37(f) would shield litigants from sanctions for the destruction of electronic data if the party "took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action" and "the failure resulted from the loss of the information because of the routine operation of the party's electronic information system." The safe harbor provision would …

Discoverability Of "Deleted" E-Mail: Time For A Closer Examination , Michael Marron

Seattle University Law Review

This Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain “smoking gun” messages—the kind of evidence that can drastically affect the outcome of a case. But what is it about e-mail that can make it such a potent evidentiary weapon? The …