Law Commons^™

United States V. Keystone Sanitation Company: E-Mail And The Attorney-Client Privilege, Karen M. Coon

Richmond Journal of Law & Technology

The rapid growth and sophistication of technology have changed the way people communicate. E-mail and the Internet have begun to affect the way attorneys communicate with their clients. E-mail is fast and convenient, but it is not without risks. The risk of illegal interception and the risk of inadvertent disclosure are serious issues that attorneys need to be aware of and try to prevent so that the attorney-client privilege is protected as much as possible. Although communicating with a client by e-mail may be risky, the risks posed by e-mail are no different from those posed by communicating by postal …

The 2000 Federal Civil Rules Revisions, Carl W. Tobias

Law Faculty Publications

During April 2000, the United States Supreme Court prescribed a comparatively thorough set of amendments to the Federal Rules of Civil Procedure. These amendments took effect in December 2000. That development represented the culmination of a rule revision proceeding commenced in 1996 by the Judicial Conference of the United States Advisory Committee on Civil Rules (Advisory Committee). Because certain provisos that the Supreme Court included in the 2000 amendments are rather controversial and could alter significant features of modern federal civil litigation primarily involving discovery, these revisions deserve assessment. This Essay undertakes that effort by emphasizing changes in mandatory prediscovery, …

A Modest Reform For Federal Procedural Rulemaking, Carl W. Tobias

Law Faculty Publications

Following the adoption of the amendments to the Federal Rules of Civil Procedure relating to discovery in 2000, Prof. Tobias notes the lack of empirical research or other indication of how the new rules might work in practice preceding their enactment. He suggests that Congress should reconsider a reject 1983 amendment to F.R.C.P. 83 which would authorize courts to obtain Judicial Conference approval to test promising mechanisms for five years before adoption.

Congress And The 2000 Federal Civil Rules Amendments, Carl W. Tobias

Law Faculty Publications

In April 2000, the United States Supreme Court promulgated, and Chief Justice William H. Rehnquist transmitted to the United States Congress, a comprehensive package of amendments to the Federal Rules of Civil Procedure. The Judicial Conference of the United States, the policymaking arm of the federal courts, had forwarded these proposals to the Supreme Court in September 1999, and the Justices transmitted the amendments to Congress without making any modifications. The new group of federal rules amendments warrants assessment for two reasons. First, a few provisions in the package of revisions are comparatively controversial and could significantly change important aspects …

Discovery Reform Redux, Carl W. Tobias

Law Faculty Publications

The recent resolve of the Advisory Committee on the Civil Rules to revisit reform of the discovery rules, which the Supreme Court revised as recently as 1993, is replete with ironies. In August, 1998, that Committee, which has primary responsibility for studying the Federal Rules of Civil Procedure and developing suggestions for their improvement, published proposals that would significantly revise the substantial 1993 revisions of the discovery rules. Ironies suffuse many specific aspects of the rule revision process and of the proposals to revise the 1993 revisions less than five years after their implementation. I emphasize the proposal to revise …

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJR.lrs gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton

University of Richmond Law Review

It does not take long for even a casual observer of criminal and civil trials to make two observations about expert witnesses. The first of these observations comes almost immediately: experts are vitally important to the judicial process. In many trials, the outcome largely depends upon which set of impressively credentialed experts the jurors (and the judge) believe. The second observation generally comes later than the first: a significant amount of shoddy "science," phony logic, faulty analysis, sleight of hand, and other assorted junk enters the courtroom dressed up in the emperor's clothes of expert testimony.

Interview: The Federal Courts: Observations From Thirty Years On The Bench, Robert R. Merhige Jr., J. Christopher Lemons

University of Richmond Law Review

This is an interview of Judge Robert R. Merhige, Jr of the Eastern District of Virginia.

Some Realism About Federal Procedural Reform, Carl W. Tobias

Law Faculty Publications

A New Confederacy? Disunionism in the Federal Courts is a thought-provoking tour de force about many ills that federal court observers believe plague the modem federal district courts. In Disunionism, Professor Paul Carrington paints a perceptive portrait of the troubling conditions that he asserts impede civil litigation in a number of districts, and he trenchantly criticizes district judges for their contributions to these circumstances while admonishing the Judicial Conference to sweep "our national courts clear of all local clutter."

Does Pretext Plus Age Equal The Sum Of The Judgement?, Susan Childers North

University of Richmond Law Review

In deciding cases under the Age Discrimination in Employment Act (ADEA), several circuit courts of appeals have interpreted the tripartite test set forth in McDonnell Douglas v. Green to mean that a plaintiff could prevail in proving individual disparate treatment by proving a prima facie case and that the employer's proffered reasons were a pretext. The Third, Seventh and Eighth Circuits concluded that a showing that a proffered justification is pretextual is equivalent to a finding that the employer intentionally discriminated. In other words, "the plaintiff is entitled to judgment as a matter of law when, in the third stage …

Annual Survey Of Virginia Law: Business And Corporate Law, William A. Musgrove

University of Richmond Law Review

This article reviews recent developments in the law affecting Virginia businesses and corporations. Part II discusses recent judicial decisions, including: two Fourth Circuit Court of Appeals opinions, one interpreting and upholding the constitutionality of the Virginia statutes regulating hostile takeovers, and the other determining the owner of partnership property upon dissolution of the partnership; two Supreme Court of Virginia decisions regarding non-stock corporations, one determining the validity of the board of directors, and one deciding whether the Property Owners' Association Act supersedes the bylaws of an incorporated non-stock property owners' association; four Supreme Court of Virginia decisions including one denying …

Suggestions For Circuit Court Review Of Local Procedures, Carl W. Tobias

Law Faculty Publications

During the 1980s, both the Judicial Conference of the United States, which is the policy-making arm of the federal courts, and Congress evinced increasing concern about the proliferation of local civil procedures, such as local rules and the procedures that individual judges apply The Judicial Conference and Congress were particularly troubled by those local procedural requirements that conflicted with the Federal Rules of Civil Procedure (Federal Rules) or provisions of the United States Code.

In 1986, the Judicial Conference commissioned the Local Rules Project to collect and organize all local rules, standing orders of individual judges, and other local procedural …

Expert Witness Testimony: Back To The Future, L. Timothy Perrin

University of Richmond Law Review

Expert witnesses are at once detested and treasured. The scorn is significant because of the increasingly prominent role experts play in both civil and criminal litigation. Experts are seen as mercenaries, prostitutes or hired guns, witnesses devoid of principle who sell their opinions to the highest bidder. Experts are not impartial professionals who explain difficult concepts to the trier of fact. Rather, experts become advocates for the side who hired them. The consequences of this role change are not desirable: experts testify to matters beyond their expertise, render opinions that are unreliable, speculative or outside what the experts would be …

The Transmittal Letter Translated, Carl W. Tobias

Law Faculty Publications

The letter in which Chief Justice Rehnquist transmitted to Congress amendments to various Federal Rules of Civil Procedure, which became effective on December 1, 1993 is reproduced. Professor Tobias then offers his "translation" of the letter with his interpretation of what likely took place during the rule revision process involving the Advisory Committee on the Civil Rules, emphasizing the controversial revision of F.R.C.P. Rule 11.

1993 Federal Rules Amendments And The Montana Civil Rules, Carl W. Tobias

Law Faculty Publications

On December 1, 1993, the most comprehensive package of amendments to the Federal Rules of Civil Procedure (Federal Rules) in their half-century history became effective. Although the revisions include a number of changes that are relatively innocuous, modifications in Rule 11 governing sanctions and Rule 26 requiring mandatory pre-discovery or automatic disclosure were and remain controversial. The amendment to Rule 11 altered the 1983 revision of that Rule which had proved to be the most controversial amendment ever developed. The amendment to Rule 26 prescribing automatic disclosure was the most controversial formal proposal changing the Rules in their history. These …

Opt-Outs At The Outlaw Inn: A Report From Montana, Carl W. Tobias

Law Faculty Publications

Report of Prof. Tobias' CLE presentation at the Montana State Bar Association's annual meeting, highlighting the 1993 revisions to the Federal Rules of Civil Procedure and the Civil Justice Reform Act.

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

The Transformation Of Trans-Substantivitiy, Carl W. Tobias

Law Faculty Publications

Professor Linda Mullenix and Professor Gene Shreve have recently ventilated two intertwined issues at the core of modern federal civil procedure. They questioned scholars' growing criticism of the idea that the Federal Rules of Civil Procedure are trans-substantive. Both writers also asked about the increased emphasis that commentators have accorded procedure's detrimental effects on specific rights, such as civil rights, and on particular groups or litigants, such as minorities. The preferable response to these plaints is a single word: Congress. Because the issues that Professors Mullenix and Shreve raise are thought-provoking, however, they deserve elaboration.

The Specificity Of Pleading In Modern Civil Practice: Addressing Common Misconceptions, Ian James Wilson, William Louis Payne

University of Richmond Law Review

The pleading procedure serves as the foundation for the entire legal process. Pleadings focus the issues, narrow the evidence admissible at trial, apprise the adverse party and the court of the matter in dispute, and provide the extent of the res judicata effect of the judgment. To secure the foundation and to effectuate the purposes of the pleading procedure, it is imperative that the pleading set forth sufficient allegations. The standard for determining the sufficiency of the allegations is referred to as the specificity requirement and serves as the focus of this Note.

An Independent Public Law, Carl W. Tobias

Law Faculty Publications

This Article analyzes the application of numerous Federal Rules in public law litigation to show how the resurrection of private law approaches and hostility toward public interest litigants serves to disadvantage public interest litigants. The assessment is intended to discourage such future enforcement of the Federal Rules and analogous judicial treatment in other areas of public law. The Article is also meant to foster greater appreciation of public law and the articulation of a larger complement of public law principles so as to facilitate the growth of an independent public law.

Sanctioning Defendants' Non-Willful Delay:The Failure Of Rule 55 And A Proposal For Its Reform, Carl B. Schultz

University of Richmond Law Review

For as long as parties have pursued claims through litigation, those against whom claims are asserted have delayed the litigation process. Defendants, and other parties against whom claims are asserted, (hereinafter collectively referred to as defendants), fail to answer complaints against them in time; they delay in responding to discovery requests, motions and court orders, and they fail to appear for trials and other proceedings.

Protective Orders, Plaintiffs, Defendants And The Public Interest In Disclosure; Where Does The Balance Lie?, Alan B. Morrison

University of Richmond Law Review

It is a basic principle of the American system of jurisprudence that the courts of the United States are open. That includes not only the opportunity for the public to attend courtroom proceedings, but also the right to examine the documents that are filed in court. However, this principle of openness can sometimes come into conflict with other principles in our justice system. Everyone recognizes that there are some situations in which information should not be made public, at least not immediately. The problem is how to identify and limit those situations in which information is not made public so …

Public Law Litigation And The Federal Rules Of Civil Procedure, Carl W. Tobias

Law Faculty Publications

The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in …

Annual Survey Of Virginia Law: Civil Procedure And Practice, W. Hamilton Bryson

University of Richmond Law Review

This article considers recent developments in the field of Virginia civil procedure and practice, including statutes, rules of court, and opinions of the Supreme Court of Virginia and the Court of Appeals of Virginia that have appeared between May 1986 and May 1987. This article also comments on cases in volumes five through eight of Virginia Circuit Court Opinions, many of which were decided before 1986. It is appropriate to mention them here since they were only recently made generally available through publication. In order to facilitate the discussion of numerous Virginia Code sections, they will be referred to in …

The Federal Court Across The Street: Constitutional Limits On Federal Court Assertions Of Personal Jurisdiction, Pamela J. Stephens

University of Richmond Law Review

Twenty years ago, in a clear break with accepted theory, it was suggested that there were certain constitutional limitations on a federal court's authority to exercise personal jurisdiction. Such a departure from the traditional view might be expected to prompt an extensive examination of that issue by commentators. However, while assertions of personal jurisdiction by state courts have been the subject of intense scrutiny and ongoing constitutional refinements, this has not been the case regarding assertions of personal jurisdiction by federal courts. Generally, federal district courts sitting in diversity cases must look to personal jurisdiction limitations inherent in the state …

Corporate And Institutional Accident Investigations As Work Product Pursuant To The Rules Of The Supreme Court Of Virginia, William Todd Benson

University of Richmond Law Review

If the magnitude of the mishap so warrants, many businesses immediately call their insurance adjuster or other accident investigator. In some of the larger businesses, accident investigation and insurance have become in-house operations. This quick reflex toward early fact investigation is prompted, in part, by a healthy respect for the potentiality of claims arising out of the day to day conduct of business affairs. When a suit against such company ultimately is ified and discovery sought, an issue often arises concerning whether early institutional investigations are "work product" for purposes of the federal or Virginia rules of civil procedure. This …

Non-Jury Trial Of Civil Litigation: Justifying A Complexity Exception To The Seventh Amendment, Barrett E. Pope

University of Richmond Law Review

The seventh amendment to the United States Constitution states that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."' When Congress enacted the Federal Rules of Civil Procedure, the right to jury trial at common law remained undisturbed.

A Review Of Prisoners' Rights Litigation Under 42 U .S.C . §1983, Scott D. Anderson, Theodore I. Brenner, Vera Duke, James E. Gray, Ronald M. Maupin

University of Richmond Law Review

Before the mid-1960's, the federal courts frequently invoked the "hands-off" doctrine, a rule of deference to state correctional administrators, when petitioned by inmates to review conditions in state jails and prisons. When applied, the doctrine essentially held that a state prisoner's grievance was beyond the scope of authority or competence ofthe federal judiciary. With an increasing realization during the late 1960's and early 1970's that federal court intervention into state prison matters would be necessary, the 42 U.S.C. § 19831 civil rights complaint became the leading tool for effecting change in the area of prisoners rights. In order to gain …

Discovery Of Expert Information Under The Federal Rules

University of Richmond Law Review

With the adoption of extensive pretrial discovery mechanisms, preparation for trial in the federal system underwent a dramatic alteration. Instead of relying upon pleadings to perform the tasks of notice-giving, issue formulation, and fact-revelation, the various discovery devices available under the Federal Rules of Civil Procedure allow the parties "to obtain the fullest possible knowledge of the issues and facts before trial."' Discovery was created to promote the just, speedy, and inexpensive disposal of litigation. To this end, discovery serves to (1) facilitate the formulation and narrowing of issues; (2) protect against unfair surprise during trial; (3) detect any superflous …

A Guide To The Law Of Fair Employment, Benjamin Werne

University of Richmond Law Review

In the field of civil rights, there are broad, cumulative remedies available to the aggrieved party. The fabric of these remedies is an amalgam of various and varying statutes, judicial holdings, administrative determinations and arbitral awards. The following article attempts a distillation of current law-much of which is further complicated by conflicting decisions.