Civil Procedure Commons^™

Third Circuit Takes The Wind Out Of Frivolous Litigators' Sails In Fair Wind Sailing, Inc. V. Dempster, Travis Dunkelberger

Villanova Law Review (1956 - )

No abstract provided.

A Student Electronic Discovery Primer: An Essential Companion For Civil Procedure Courses, Jennifer M. Smith, William F. Hamilton

Faculty Books and Book Contributions

A Student Electronic-Discovery Primer supplements the traditional civil procedure textbook. The Primer is specifically designed as a practical and accessible guide for the first-year law student. Traditional civil procedure textbooks have given short shrift to what has emerged as a foundation of modern civil litigation—electronic discovery. This concise text introduces students to the new and often troubling themes of electronic discovery: preservation, search, metadata, and forms of production, touching upon the major issues that confront the use of digital data in litigation. It also includes sample electronic discovery practice forms and outlines the key 2015 amendments to the Federal Rules …

Experience, Not Logic: Adapting Spoliation Doctrine To The Brave New World Of Digital Documents, Roni A. Elias

Student Works

The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.

The doctrines governing how courts respond to spoliation are well established. But these venerable rules were mostly devised for a discovery process that involved the production of paper documents. The information revolution that accompanied the dramatic expansion of computers to produce and store every kind of document forever transformed the discovery process. As computer …

Trademark's Ebay Problem, Peter J. Karol

Law Faculty Scholarship

This article explores the upheaval created within trademark law by eBay, Inc. v. MercExchange, L.L.C., asking why a simple doctrinal question (Should a patent remedies rule be extended to trademark cases?) has posed such problems for the courts. After a thorough review of past and present trademark injunction practice, and the Lanham Act’s legislative history, it finds that trademark law’s inability to assimilate eBay stems from unresolved substantive conflicts in the underlying legislation itself. In short, because the drafters could not settle on the proper scope of a federal trademark right, they hedged by granting a national exclusive right limited …

What Personal Jurisdiction Doctrine Does -- And What It Should Do, Katherine Florey

Florida State University Law Review

Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court's assertion of power over a particular defendant and case may have two undesirable consequences. First the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second a court's jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign's …

Stays Of Injunctive Relief Pending Appeal: Why The Merits Should Not Matter, Jill Wieber Lens

Florida State University Law Review

In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

The Class Action As Trust, Sergio J. Campos

Articles

No abstract provided.

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 …

Transferred Justice: An Empirical Account Of Federal Transfers In The Wake Of Atlantic Marine, Roger Michalski

Faculty Articles

This Article presents empirical findings on motions to transfer in the wake of the Supreme Court's decision in Atlantic Marine Construction Co. Inc. v. United States District Court for the Western District of Texas. Based on an original dataset of roughly 15,500 federal transfers over three years, it traces the evolving patterns of interdistrict transfers and how doctrinal changes affect the flow of cases between districts. These patterns suggest both beneficial and troubling aspects of the federal transfer system. On the beneficial side, transfers do important work in regulating and directing the massive flow of prisoners' rights and habeas corpus …

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

Saving The Public Interest Class Action By Unpacking Theory And Doctrinal Functionality, Suzette M. Malveaux

Publications

No abstract provided.

Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky

Publications

No abstract provided.

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

The Class Abides: Class Actions And The "Roberts Court", Elizabeth J. Cabraser

Akron Law Review

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari …

Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Emily Spottswood

Scholarly Publications

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to …

Preservation Rules In The Federal Courts Of Appeals, Ian S. Speir, Nima H. Mohebbi

The Journal of Appellate Practice and Process

No abstract provided.

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 …

The Citizen's Relief Against Inactive Federal Officials: Case Studies In Mandamus, Actions "In The Nature Of Mandamus," And Mandatory Injuctions, Howard W. Brill

Akron Law Review

Historically, the citizen-plaintiff would have sought the common law writ of mandamus if he were able to scale, or avoid, the threshold barriers of standing and sovereign immunity. This article will examine briefly the history of the writ of mandamus, the requirements for issuance of the writ, and the defenses accepted by courts to deny its issuance. The article will focus specifically on the unique position of the writ in federal courts, including its abolition by the Federal Rules of Civil Procedure.

Procedural Defenses Available To The New-Party Defendant: The Necessity Of Obtaining Leave To Amend And Relation Back, F. Thomas Vickers

Akron Law Review

The application of the Rules of Civil Procedure to these various situations has been the subject of much judicial attention. In this regard, two issues have provoked the greatest amount of controversy, to wit: (1) whether leave of court is required prior to amendment of the complaint to add a new-party defendant, and (2) when and under what circumstances may a new-party defendant be brought into a civil action after the statute of limitations applicable to the claim asserted against him has expired. It is upon these questions that this paper is primarily focused.

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

Procuring Trial Testimony From Corporate Officers And Employees: Alternative Methods And Suggestions For Reform, Richard J. Oparil

Akron Law Review

This article discusses the situation under the current Federal Rules of Civil Procedure, including some alternative methods of obtaining testimony at trial. The article then discusses various ways the problem could be solved through rule changes to help ensure live trial testimony by corporate officials.

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

Obtaining International Judicial Assistance Under The Federal Rules And The Hague Convention On The Taking Of Evidence Abroad In Civil And Commercial Matters: An Exposition Of The Procedures And A Practical Example: In Re Westinghouse Uranium Contract Litigation, Robert J. Augustine

Georgia Journal of International & Comparative Law

No abstract provided.

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …