Evidence Commons^™

Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe

Faculty Publications

No abstract provided.

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

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 …

Discovery By The Prosecution In Criminal Cases: Prudhomme Reconsidered , Jon R. Rolefson

Pepperdine Law Review

No abstract provided.

Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan

Pepperdine Dispute Resolution Law Journal

The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.

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.

Social Media In The Sunshine: Discovery And Ethics Of Social Media - Florida's Right To Privacy Should Change The Analysis, Spencer Kuvin, Chelsea Silvia

St. Thomas Law Review

The question is whether the liberal discovery rules have gone too far and where the line should be drawn in Florida to protect the privacy interests of individuals from being implicated by overly permissive rules of discovery. Current case law on this issue is informative, but demonstrates that courts need direction on how to decide these complex issues in a uniform manner. The courts that have rendered decisions regarding discovery of social networking sites ("SNS") have made attempts to balance individual privacy interests in the information contained on the SNS with the broad rules of discovery. Focusing on Florida law, …

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 …

The Problem Of Convicting Innocent Persons: How Often Does It Occur And How Can It Be Prevented?, Leon Friedman

NYLS Law Review

No abstract provided.

Electronic Evidence In Canada, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

Vanderbilt Law Review

Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …

E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield

Sturm College of Law: Faculty Scholarship

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

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 Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction, Robert A. Brown

Oklahoma Law Review

No abstract provided.

The Sky Is Not Falling: How The Anticlimactic Application Of Melendez-Diaz V. Massachusetts To Oklahoma's Laboratory Report Procedures Allows Room For Improvement, Danae Vansickle Grace

Oklahoma Law Review

No abstract provided.

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 …

Vol. Xxii, Tab 59 - Ex. 3 - Declaration Of Kris Brewer (Counsel For Google), Kris Brewer

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xxii, Tab 59 - Ex. 2 - Declaration Of Margret M. Caruso (Counsel For Google), Margret Caruso

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xxii, Tab 59 - Ex. 1 - Declaration Of Jonathan B. Oblak (Counsel For Google), Jonathan Oblak

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xxii, Tab 59 - Google's Opposition To Rosetta Stone's Motion For Sanctions, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xx, Tab 57 - Declaration Of Jennifer L. Spaziano In Support Of Rosetta Stone's Motion For Sanctions, Jennifer Spaziano

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Faculty Publications

The article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes …

Vol. Xxi, Tab 58 - Ex. 4 - Plaintiff Rosetta Stone's Supplemental Rule 26(A)(1) Disclosures, Rosetta Stone

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xxiv, Tab 61 - Ex. 3 - Rosetta Stone's Supplemental Response To Google's First Set Of Interrogatories, Rosetta Stone

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xx, Tab 57 - Ex. 1 - Transcript Of Motions Hearing, United States District Court For The Eastern District Of Virginia

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Xx, Tab 57 - Ex. 2 - Rosetta Stone's First Request For The Production Of Documents From Google, Rosetta Stone

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?