Civil Procedure Commons^™

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. …

"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …

The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman

Akron Law Review

The Sedona Principles and Commentaries in the Third Edition (2018) are worthy successors to those of the Second Edition (2007) and, in many respects, a substantial improvement. Principles 2, 5 and 8 build on the 2015 amendments to Federal Civil Rules, including amended Rule 26(b)(1), in advocating an increased emphasis on proportionality across the full spectrum of e-discovery activity. They also reflect a more nuanced view of Rule 26(b)(2)(B), added by the 2006 Amendments to deal with undue burden or costs, as does Principle 13 in regard to cost allocation, which recommends use of amended Rule 26(c) to the exclusion …

U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran

Akron Law Review

U.S. discovery has long been a troublesome issue between the U.S. and civil-law nations. The passage of the Hague Convention on Evidence might have brought much-needed relief, but U.S. courts minimized its effects, favoring continued use of the Federal Rules of Civil Procedure. Civil-law states passed blocking statutes or their equivalents as they sought to protect what they considered to be fundamental values of privacy and national sovereignty. With the rise of transnational litigation, Section 1782 discovery was intended to provide assistance to foreign courts and parties in litigation abroad by opening certain discovery channels in the U. S. to …

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.

Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman

Akron Law Review

This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest a …

Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman

Akron Law Review

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better …

Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak

Akron Law Review

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by design and …

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm

Akron Law Review

The 2015 amendments to the Federal Rules of Civil Procedure ambitiously sought to reduce pretrial delay, expense, and burden in civil cases. But the rules are not self-executing, and without active hands on judicial supervision and intervention where necessary to insure that the Rules are being applied as intended, there is a risk that the objectives of the amended rules will not be realized. This article discusses a number of common sense, practical, yet effective ways in which judges can fulfill their obligation to effectively manage their cases to achieve the goal of Rule 1 of the Rules of Civil …

Breaking The Boilerplate Habit In Civil Discovery, Steven S. Gensler, Lee H. Rosenthal

Akron Law Review

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider …

Asymmetry And Adequacy In Discovery Incentives: The Discouraging Implications Of Haeger V. Goodyear, Jeffrey W. Stempel

Akron Law Review

In 2017, the U.S. Supreme Court unanimously vacated a $2.7 million fee-shifting award imposed on Goodyear Tire & Rubber Co. in response to rather egregious concealment of key testing documents concerning a failing tire blamed for a serious accident. Although the Court’s opinion does not foreclose imposition of substantial sanctions on remand, Haeger v. Goodyear stands as a rather stark illustration of the potential for discovery cheating to have comparatively little consequence—at least for the litigant if not counsel—if the cheating is not discovered until after conclusion of the matter. Although the perceived problem of excessive or overbroad discovery—“expansive discovery …

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd

Faculty Articles

Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.

In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

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 …

Bespoke Discovery, Jessica Erickson

Law Faculty Publications

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. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.

Far less common, however, are …

Search, Seizure, And Snapchat: How The Fourth Amendment Fits Within The Evolving World Of Civil E-Discovery, Anna Mcmullen

William & Mary Bill of Rights Journal

No abstract provided.

What Do I Have To Do To Get Paid Around Here?: Rule 26(B)(4)(E)(I) And The Qualms Regarding Expert Deposition Preparation Time, Brett Lawrence

Washington and Lee Law Review

No abstract provided.

Wynn Resorts, Ltd. V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 52 (July 27, 2017), Elise Conlin

Nevada Supreme Court Summaries

The Court held that the business judgment rule defense alone does not mandate waiver of attorney-client privilege related to discovery documents. The Court also adopted the “because of” test with a “totality of the circumstances” standard to determine when a document falls under the work-product privilege.

Proportional Discovery's Anticipated Impact And Unanticipated Obstacle, Gregory L. Waterworth

University of Baltimore Law Review

No abstract provided.

Fraud On The Court And Abusive Discovery, David R. Hague

Nevada Law Journal

No abstract provided.

A Constitutional Right To Discovery? Creating And Reinforcing Due Process Norms Through The Procedural Laboratory Of Arbitration, Imre Stephen Szalai

Pepperdine Dispute Resolution Law Journal

This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article's thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify …

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 …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.

Calling An End To Culling: Predictive Coding And The New Federal Rules Of Civil Procedure, Stephanie Serhan

Law Student Publications

This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents. Since the new Rules explicitly implement the concept of proportionality and a new set of standards in Rule 26, I argue that applying predictive coding at the outset is more compliant with the Federal Rules of Civil Procedure. Part II will explain the difference in timing between applying predictive coding after keyword culling or prior to it, and discuss the …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Faculty Scholarship

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting …

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

Georgia Law Review

This Article analyzes the proportionality standard in discovery. Many believe the renewed emphasis on this standard contained in the 2015 Amendments to the Federal Rules of Civil Procedure has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in …

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 …

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 Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …