Civil Procedure Commons^™

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.

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

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 …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

How To Fill A Procedural Loophole: Re-Evaluating The Ragan And Walker Analysis In Light Of Federal Rule Of Civil Procedure 4(M), Holly M. Boggs

Georgia Law Review

Legislatures implement statutes of limitations to
protect defendants from being brought into lawsuits for
incidents long past. However, a proceduralloophole in
the Georgiafederal court system could permit plaintiffs
to disregardstatutes of limitations and wait as long as
they please to notify a defendant of a pending claim.
The loophole exists because federal courts in Georgia
must defer to state law governing the tolling of statutes
of limitations, and that state law is procedurally
incompatible with the federal court's system. In order
to fill the procedural loophole, this Note argues that the
Eleventh Circuit should apply the federal rule-rather
than Georgia's …

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”) …

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.

Pleading, For The Future: Conversations After Iqbal, Lee H. Rosenthal

Dickinson Law Review (2017-Present)

No abstract provided.

The Dangers Of E-Discovery And The New Federal Rules Of Civil Procedure, Ryan J. Reeves

Oklahoma Journal of Law and Technology

No abstract provided.

Mandating Rule 11 Sanctions? Here We Go Again!, Edward D. Cavanagh

Washington and Lee Law Review Online

The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of monetary sanctions and eliminate any restrictions on when a Rule 11 motion could be filed. The bill would thus scuttle the 1993 Amendments, which (1) entrusted the sanctions decision to the sound discretion of the trial court; (2) provided a 21‑day safe harbor period that …

The Difficulties Of Encouraging Cooperation In A Zero-Sum Game, Jacob R. Kreutzer

Maine Law Review

The Federal Rules of Civil Procedure generally provide only the “rules of the road” on which litigation is conducted. However, in some areas the Rules step outside of this role and attempt to overtly encourage cooperation. One such rule is Rule 68, which allows a defendant to make an offer of judgment to the plaintiff, and provides that if the plaintiff refuses and subsequently wins less money than the defendant offered, the plaintiff must cover the defendant’s costs. Rule 68 was launched into prominence when the Supreme Court ruled, in Marek v. Chesney that a Rule 68 offer could negate …

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

University of Baltimore Law Review

No abstract provided.

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler

St. John's Law Review

(Excerpt)

This Note argues that the circuit courts should adopt a loose narrow interpretation of § 1920(4), like the Federal Circuit did in CBT Flint Partners, LLC v. Return Path, Inc., and tax only a limited number of the electronic discovery services rendered in document production. Part I of this Note examines § 1920(4)’s statutory history and its application in federal court. Part II discusses the varying approaches taken by each side of the circuit split. Finally, Part III argues for implementation of a loose narrow interpretation because it more appropriately comports with other provisions of the Federal Rules …

Disruptions' Function: A Defense Of (Some) Form Objections Under The Federal Rules Of Civil Procedure, Amir Shachmurove

Seton Hall Circuit Review

No abstract provided.

Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor

Georgia Journal of International & Comparative Law

No abstract provided.

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Plausible Pleading In Patent Suits: Predicting The Effects Of The Abrogation Of Form 18, Kyle R. Williams

Michigan Telecommunications & Technology Law Review

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect. The changes included, among other things, the abrogation of the Appendix of Forms, which contained templates for summons, complaints, answers, and other litigation documents. Prior to its abrogation, Form 18—a template for a “Complaint for Patent Infringement”—was widely utilized by patent plaintiffs in crafting infringement complaints. Form 18 was created during the Conley pleading regime, when conclusory allegations were generally sufficient to survive a motion to dismiss. Accordingly, the sample allegations in Form 18 were conclusory and bare-bones in nature. Under Conley, plaintiffs who followed this …

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

University of Cincinnati Law Review

No abstract provided.

How To Assert State Sovereign Immunity Under The Federal Rules Of Civil Procedure, Calvin Cohen

Vanderbilt Law Review

Twenty years have passed since the Supreme Court announced dramatic changes to the doctrine of state sovereign immunity in Seminole Tribe of Florida v. Florida.' This doctrine prevents "suits by private parties against unconsenting States" in recognition of the state's power to govern itself and its citizens freely, as well as the financial impact lawsuits have on the state's treasury. Since Seminole Tribe, the Supreme Court has-in a series of contentious 5-4 decisions-increasingly allowed this doctrine to immunize states and their officers from suits arising under the federal laws and sometimes even the Constitution. But while the Court has expanded …

Who Is Responsible For The Stealth Assault On Civil Rights?, Samuel R. Bagenstos

Michigan Law Review

Staszak’s book does a great service in demonstrating the extent of the stealth assault on civil-rights litigation. As Staszak shows, procedural and remedial decisions fly under the public’s radar, but they have exceptionally important consequences. Indeed, one can draw a clear line between judicial decisions on such obscure topics as standing and qualified immunity and the persistent acts of police misconduct that have aroused great public concern in recent months. Any effort to ensure that civil-rights protections make a concrete difference in people’s lives must attend to the procedural and remedial issues Staszak discusses.

Codifying The Issue Class Action, Laura J. Hines

Nevada Law Journal

No abstract provided.

The Rise And Fall Of Plausibility Pleading?, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint's allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a …

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

Nevada Law Journal

No abstract provided.

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

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 …

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 …