Defense counsel journal最新文献

{"title":"Don't Get Thrown Out On Your Derrière: Common Mistakes In Establishing Federal Subject-Matter Jurisdiction","authors":"Robert A. Brundage, Kendall W. Harrison, M. Sungaila","doi":"10.12690/IADC-16-0009","DOIUrl":"https://doi.org/10.12690/IADC-16-0009","url":null,"abstract":"IN federal court, subject-matter jurisdiction is a magic bullet. Jurisdictional problems are particularly pernicious (to the verdict winner) or useful (to the verdict loser) because they can never be waived, the court must address any potential jurisdictional defect it notices, and an incurable jurisdictional defect requires the judgment to be thrown out. We review some common defects in federal subject-matter jurisdiction and potential ways to fix them. (1) I. Why Defects In Subject-Matter Jurisdiction Can Destroy Your Victory (Or Save You From Defeat) \"Federal courts are courts of limited jurisdiction [,]\" possessing \"only that power authorized by Constitution and statute....\" (2) At every stage of litigation, a federal court is required to confirm that it has jurisdiction, and to dismiss the claim if it lacks jurisdiction. (3) A court generally may not rule on the merits of a case without first determining that it has subject-matter jurisdiction. (4) If it appears that the court lacks subject-matter jurisdiction, it must dismiss the action. (5) This rule holds even after final judgment has been entered and an appeal filed. A federal appellate court is required to evaluate both its own jurisdiction and that of the district court. If the district court lacked jurisdiction, the appellate court must vacate the judgment: [E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it. And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit. (6) \"A litigant generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.\" (7) Even if a jurisdictional defect is first discovered after trial or after judgment has been entered, it requires the case to be dismissed. (8) Jurisdiction cannot be created by consent or estoppel, or by '\"the parties' litigation conduct.'\" (9) Even a party that initially brought the case to federal court can attack jurisdiction. (10) Federal district courts and courts of appeals take these requirements seriously. Federal Rule of Appellate Procedure 28(a)(4) requires appellants to explain why the district court and court of appeals have subject-matter jurisdiction. Many district courts and courts of appeals instruct their staff to confirm the court's subject-matter jurisdiction at the inception of a case. Indeed, it is not uncommon for a district court or court of appeals to issue a sua sponte order requiring the parties to explain why there is subject-matter jurisdiction, even when no one dis","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"143-155"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66591035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Defense Perspective on Mediation","authors":"B. C. Nahrstadt","doi":"10.12690/0895-0016-83.1.68","DOIUrl":"https://doi.org/10.12690/0895-0016-83.1.68","url":null,"abstract":"WHEN I first started practicing law 23 years ago, there were very few cases that settled through alternative dispute resolution (ADR). Today, it is becoming more and more unusual for a case to not be subjected to some form of ADR. The reasons for this are many, but some of the more important ones include the fact that ADR is less expensive and less time-consuming than litigation; it has simpler procedural and substantive rules than litigation; it tends to be less hostile and emotionally charged than litigation; and it is more flexible in scheduling than litigation. In addition, during a mediation, the parties retain the decision-making power to reach their own resolution, oftentimes utilizing remedies and relief that are not available to the parties in litigation. Based on the foregoing, I think it is safe to say that mediation is here to stay. What exactly is mediation? Mediation is the process by which a neutral third party (the mediator) attempts, through participation in face-to-face negotiations with the disputing parties, to assist those parties in reaching an agreement that resolves the dispute. An oft-cited survey of general counsel, deputy counsel and chief litigators from 528 of the 1,000 largest corporations in America, the respondents noted that 85% had used mediation in the last 3 years and 84% said they were likely or very likely to use it in the future. This same survey also indicated that 81% of the respondents felt mediation provides a \"more satisfactory process\" than litigation, 66% said mediation provides \"more satisfactory settlements\" and 59% said mediation \"preserves good relationships.\" (1) I. Why Are You Mediating? In most mediations, the preferred end result is a full and final settlement of the dispute in question. There are also other equally important objectives that can be obtained through the mediation process that do not include a full settlement of the dispute. One commentator has the following to say about these objectives: A. A Partial Settlement of Peripheral Issues One reality of litigation is that all claims and all defenses arising out of the same facts and circumstances must be asserted in the same lawsuit. The judicial goal here--to avoid multiplicity of suits--is important to the judicial system and must be met. An unfortunate consequence of the rule, however, is that many lawsuits end up filled with peripheral arguments that really aren't determinative of the central issues between the parties. This tends to expand, rather than narrow, the focus of the trial and drives up the time and cost of an adjudicated resolution. Mediation can serve to eliminate those peripheral disputes by final or interim partial settlement agreements, stipulations to abate certain portions of the trial, or agreements to informally set certain issues aside pending the resolution of the main claims. B. A Process to Move Toward Final Settlement Many times, despite the best efforts to prepare for every contingency in advance, mediati","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"68"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Class Action Reform: The Law Commission of Ontario Review of the Class Proceedings Act","authors":"S. Mckee, Nicole J. Henderson","doi":"10.12690/IADC-16-0004","DOIUrl":"https://doi.org/10.12690/IADC-16-0004","url":null,"abstract":"IN 2013, the Ontario government announced that it had asked the Law Commission of Ontario (the \"LCO\") to engage in a comprehensive review of the Ontario Class Proceedings Act, 1992 (1) and experiences with that legislation since it came into force in 1993. The LCO was created in 2007 by an agreement among the Law Foundation of Ontario, the Attorney General of Ontario, Osgoode Hall Law School of York University, the Law Society of Upper Canada and the Ontario Law Deans. Its mandate is to make the law more effective, relevant and accessible, to clarify and simplify the law, and to see how technology might be used to increase access to justice. This ongoing review is likely to culminate in recommendations for reform of the Ontario class proceedings regime. Given Ontario's status as a leader in this area, the LCO's recommendations and any subsequent action taken by the Ontario government may //influence reforms in other Canadian provinces and territories as well. This is an important moment for class actions in Ontario (and potentially in Canada more broadly). While many accept that class actions will be part of the litigation landscape in Canada for the long term and are an appropriate procedural vehicle in some cases, they also come with some costs. The LCO has the opportunity to consider whether the current regime strikes the right balance between the benefits and costs of a class action regime. (2) The overarching objectives of the CPA are to promote access to justice, judicial economy and behavior modification. With respect to the first and perhaps most important of these objectives, the Supreme Court of Canada has expressly stated that \"access to justice\" requires access to just results, not simply access to the legal process for its own sake. (3) While many writers in this area focus their remarks on the importance of substantive justice for claimants (class members), some Ontario courts have emphasized the obvious--that defendants, as well as plaintiffs, are entitled to access to justice, (4) in other words, access to just outcomes. However, certain aspects of the Ontario regime, including low certification standards, asymmetrical certification appeal rights (including the ability of plaintiffs to reframe their case for certification on appeal), a sometimes unbalanced application of the loser pays costs regime, and the increasing availability of third-party litigation funding, have led to the perception that Ontario is a very class action-friendly jurisdiction, and raise questions about whether it is fairly achieving its substantive access to justice objectives, properly understood. As in the United States, the certification of a class proceeding in Ontario can result in significant pressure to settle the class's claims, even where they are seriously flawed or meritless. (5) Since the objective of the legislation is access to just results, one should look not only at the merits decisions but also at the settlements in assessing whether a clas","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"32"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employee or Independent Contractor? How the Effects of Classifications Impact Employer Liability","authors":"Mary Anne Mellow, Timothy Niedbalski, Jeff S. Wehmer","doi":"10.12690/0895-0016-83.1.45","DOIUrl":"https://doi.org/10.12690/0895-0016-83.1.45","url":null,"abstract":"RECENTLY, awareness has begun to grow about the reclassification of workers as employees or independent contracts across all industries. (1) This heightened awareness is the result of increased enforcement actions and challenges by various governmental entities to the classification of workers as contractors. (2) For example, federal \"worker misclassification\" legislation has been proposed, (3) and the Internal Revenue Service has launched an initiative focusing on more aggressive audits of companies. (4) Classifying workers as employees or independent contractors can be extremely complex and vital to your case. The stakes are extremely high because consequences can be staggering. (5) A number of states have also increased enforcement. In California, the Port of Los Angeles and Port of Long Beach implemented mandatory \"concession agreements\" for drayage trucking services at both ports. (6) The Port of Los Angeles provision required motor carriers providing drayage services to transition from using independent contractors to using 100-percent employees within a five-year period, beginning with \"at least a 20% transition\" to employees by the end of the fourth quarter of 2009. (7) In Maryland, the legislature enacted a Workplace Fraud Act in 2009 effectively creating a presumption that all workers are employees. (8) That Act authorized significant potential penalties to be imposed against businesses for \"knowing failure\" to properly classify individuals as employees. (9) The importance of these issues also extends to civil litigation. (10) The long established doctrine of respondent superior or imputed negligence provides employers can be held vicariously liable in tort law for the negligence of their employees under various circumstances. (11) The doctrine is premised on the notion one who is in a position to exercise control over the performance of a service must exercise it or bear the loss. (12) An employee is usually regarded as a member of the employer's staff and subject to the control of the employer. (13) The employee's tortious acts committed within the course and the scope of his employment resulting in liability are, therefore, imputed to the employer due to the working relationship existing between the parties. (14) Generally, a business that contracts with an independent contractor is immune from vicarious liability for damages to a third party for the negligent acts of the contractor committed during the performance of the agreement. (15) An independent contractor is commonly defined as one who contracts to perform a certain task or duty independently according to their own means and methods without being subject to the control of the hiring party except as to the ultimate goal or result. (16) Historically in circumstances where this level of independence existed, the imposition of liability on the hiring entity who only exercised limited control over the method in which the contracted work was performed resulted in inequity. (17) As ","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"45"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Retaining and Disclosing Expert Witnesses: A Global Perspective","authors":"Peter M. Durney, Julianne C. Fitzpatrick","doi":"10.12690/IADC-16-0003","DOIUrl":"https://doi.org/10.12690/IADC-16-0003","url":null,"abstract":"IN 2010, Federal Rule of Civil Procedure 26 was amended to afford greater protections to draft expert materials and attorney-expert communications in order to better balance existing disclosure and reporting requirements. Much has since been written concerning the 2010 amendments and the case law that has interpreted them thus far. This article examines the provisions of Rule 26 through a broader lens than simply focusing on the amendments. The authors here evaluate the expert disclosure rules from a more global perspective, starting with the premise that our rules seemed to have developed in the context of and as a direct response to the adversarial nature of the American discovery process. That conclusion seems to be supported by the research underlying this paper.In a general sense, we have observed that the differences between rules and practices for expert witnesses in the United States, England, and China have evolved based in large part upon who controls discovery, and who plays the role of factfinder. The U.S. and England are common law systems in which the parties drive discovery, whereas China is predominantly a civil law system with a judge at the helm throughout the litigation process. Each nation has adopted procedures for the use and disclosure of expert witnesses tailored to the needs of each system of justice, however, each country's procedures have attributes that could be imported into another's system to remedy current procedural weaknesses. We are already seeing this type of exchange of common law and civil law procedures in England and China, and it is not inconceivable that extending these principles to the U.S. could increase efficiency, decrease costs, and arguably smooth out some inconsistencies in our civil litigation system.This article seeks to compare the rules governing the use and disclosure of experts under the Federal Rules of Civil Procedure with their recently amended counterparts in England and China. To provide context, we first review the nature of the systems in which these rules exist, namely, their adversarial versus judge-driven discovery processes. We then examine the circumstances under which an expert is permitted to become involved in litigation, and the necessary expert qualifications. We compare the roles of the parties and the judges with respect to selecting experts, the duties of experts to the parties and to the court, and the responsibilities of experts to provide reports or testimony to litigants and judges. Finally, we remark briefly on the possible importation of the most successful principles and practices from other judicial models into the Federal Rules of Civil Procedure to improve our current system.I. Expert Retention and Disclosure in the United StatesTwo key tenets of the American civil justice system are its adversarial nature and its use of lay juries as factfinders. At the trial stage, the judge functions as an evidentiary gatekeeper, determining what evidence the jury may conside","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"17"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Discretion Is the Better Part of Valor: Rebutting Negative Online Client Reviews","authors":"Mark J. Fucile","doi":"10.12690/IADC-16-0001","DOIUrl":"https://doi.org/10.12690/IADC-16-0001","url":null,"abstract":"\"The better part of valor is discretion!.]\" William Shakespeare Henry IV, Part 1, Act 5, Scene 4, Lines 119-120 PUBLIC criticism of lawyers is nothing new. President Theodore Roosevelt, for example, described lawyers as \"hired cunning\" during a commencement address at Harvard University in 1905. (1) What is new, however, are the many digital platforms now available for disgrunded former clients to publicly broadcast their criticism of individual lawyers. (2) The criticism involved often does not rise to the level of a threatened claim--with \"he is a lousy lawyer\" more common than \"she committed malpractice.\" Given the importance of web-based marketing for many lawyers today, this kind of criticism can nonetheless pose a very real problem for a lawyer's reputation in the electronic marketplace. When confronted with such public affronts, lawyers may contemplate responses that include revealing otherwise confidential information to \"set the record straight.\" This course, however, risks compounding the problem because the lawyer may inadvertently expose him or herself to regulatory discipline. Historically, the so-called \"self-defense\" exception to the confidentiality rule (3) has been applied to threatened or actual malpractice claims or bar complaints rather than simple public criticism. This leaves a lawyer with a dilemma over effectively--but \"safely\" (4)--rebutting negative online client reviews. This article will first survey the constraints imposed by the self-defense exception and will then turn to avenues for effectively rebutting such criticism from former clients (5) without violating the confidentiality rule. (6) II. \"Self-Defense\" Is Generally No Defense The self-defense exception is found in ABA Model Rule of Professional Conduct 1.6(b)(5): \"(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: \"(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.\" (7) Today's exception traces its lineage to Canon 37, which was adopted in 1928 as an addition to the ABA Canons of Professional Ethics that were originally promulgated in 1908. (8) When the Canons were replaced by the ABA Model Code of Professional Responsibility in 1969, (9) the self-defense exception was carried over into Model DR 4-101 (C)(4). (10) When, in turn, the Model Code was replaced by the ABA Model Rules in 1983, (11) the exception continued as Model Rule 1.6(b)(2) and was then renumbered to its current position in 2003 as a part of the \"Ethics 2000\" amendments. (12) Comment 10 to ABA Model Rule 1.6 rounds out the text of the exception and focuses on civil claims, disciplinary charges and similar proceedings (13) i","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"84"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"IADC Amicus Brief Program","authors":"M. Sungaila","doi":"10.12690/0161-8202.82.1.91","DOIUrl":"https://doi.org/10.12690/0161-8202.82.1.91","url":null,"abstract":"The International Association of Defense Counsel has an active amicus curiae program, submitting briefs on issues of importance to IADC members and their clients. Through its amicus participation, the IADC has helped shape the law surrounding product liability, arbitration, class actions, attorney client privilege, punitive damages, civil discovery, standing, jurisdiction, and tort reform. This section of the Defense Counsel Journal is dedicated to highlighting recent amicus briefs so that the Journal's readers can benefit from the insights presented therein.In its brief in Haver v. BNSF Railway Company, 175 Cal.Rptr.3d 810 (Cal. 2014) and its companion case Kesner v. S.C. (Pneumo Abex LLC), 175 Cal.Rptr.3d 810 (Cal. 2014), the International Association of Defense Counsel, together with the Federation of Defense & Corporate Counsel, filed briefs to determine the existence and scope of a duty of premises owners and employers to those exposed to asbestos through particles carried on the clothing of its employees. The briefs were authored by IADC member and Amicus Committee Chair M. C. Sungaila of Haynes and Boone, LLP.The majority of states that have considered the question of liability for take-home asbestos have determined that the law does not impose a duty to protect against such exposure, citing the burden it would place on employers and the community as a result of claims filed by a potentially limitless pool of plaintijfi. In its brief in Haver, the IADC urged the California Supreme Court to reject recognition of a duty extending from employers to nonemployee plaintijfi in take-home exposure asbestos cases such as these based on two additional policy concerns beyond those briefed by the parties: the intersection between the state's already burgeoning asbestos docket and the state court budget crisis, which together could significantly limit access to justice.S219919IN THE SUPREME COURT OF THE STATE OF CALIFORNIAJoshua Haver, individually and as successor-in-interest to Lynne Haver, deceased, et al.,Plaintiffs, Appellants and Petitioners,v.BNSF Railway Company,Defendant and Respondent.After a Decision by the Court of Appeal, Second Appellate District, Case No. B246527Los Angeles County Superior Court, Case No. BC435551The Honorable Richard RicoAPPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF INTERNATIONAL ASSOCIATION OF DEFENSE COUNSEL AND FEDERATION OF DEFENSE & CORPORATE COUNSEL IN SUPPORT OF DEFENDANT AND RESPONDENT BNSF RAILWAY COMPANYSnell & Wilmer l.l.p.Mary-Christine Sungaila (#156795)Jenny Hua (#294984)600 Anton Boulevard, Suite 1400Costa Mesa, California 92626Tel: 714-427-7000 * Fax: 714-427-7799mcsungaila@swla w. comAttorneys for Amici CuriaeInternational Association of Defense Counsel and Federation of Defense & Corporate CounselTABLE OF CONTENTSPageTABLE OF AUTHORITIES iiAPPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF A-lINTEREST OF AMICI CURIAE; HOW THE AMICI CURIAE BRIEF WILL ASSIST THE COURT A-2NO PAR","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"106"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66586483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 2015 Amendments to the Federal Rules of Civil Procedure: Guide to Proportionality in Discovery and Implementing a Safe Harbor for Preservation","authors":"J. Jablonski, Alexander Dahl","doi":"10.12690/0895-0016-82.4.411","DOIUrl":"https://doi.org/10.12690/0895-0016-82.4.411","url":null,"abstract":"Amendments to the Federal Rules of Civil Procedure (FRCP) will take effect on December 1, 2015 (the \"2015 Amendments\") unless Congress acts to modify or reject them, which is highly unlikely.1 Collectively, the changes are designed to lower the costs of litigation by 1) providing judicial tools to encourage and enforce proportional discovery limited to information relevant to \"claims and defenses,\" and 2) reducing costs associated with over-preservation and ancillary litigation by establishing a uniform national standard for preservation obligations and a safe harbor for parties that take reasonable steps in good faith to preserve electronically stored information (\"ESI\").This article provides an overview of these and other key 2015 Amendments along with examples of analytical methodologies to help courts and lawyers apply the Amendments as envisioned and, where appropriate, providing context and support from existing cases and commentary.I. IntroductionThe Amendments embrace a number of measures stemming from the Duke Conference of May 2010, which was convened by the Advisory Committee on Civil Rules (\"Rules Committee\") to address persistent complaints about the costs of discovery (especially e-discovery), preservation of ESI and standards for sanctions for the destruction of such material.2 After the Conference, the two subcommittees assigned to respond (the \"Duke\" Subcommittee, for all rules other than Rule 37(e), and the \"Discovery\" Subcommittee for issues relating to spoliation) considered a number of potential rules and amendments through a transparent process in which public participation was deep and effective.This process included two \"miniconferences\" held before the Rules Committee released initial proposals in August, 2013, followed by three public hearings involving 120 testifying witnesses and over 2,300 written comments. After careful consideration of competing arguments and, in some cases, substantial revisions, the Rules Committee, the Judicial Conference and the Supreme Court unanimously approved the final package of amendments. Many of the surviving proposals can be traced to discussions at the Duke Conference and the proposals and submissions relating to it, such as the LCJ White Paper.* * 3The 2015 Amendments can have a dramatic impact if judges and lawyers implement them in the manner intended by the Rules Committee. They reflect the realities of current discovery and address many of the core issues not adequately treated in the 2006 Amendments.4 * More data exists now than any time in our history, a problem that a revised Rule 26(b) addresses by embedding proportionality principles in both the scope of discovery and in cost allocation. Moreover, the replacement for Rule 37(e) provides a uniform culpability standard, which rejects the focus on the loss of a few emails to justify sanctions (e.g. Pension Committed).The amendments reflect agreement among a diverse spectrum of stakeholders that the high costs and burdens of disc","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"411"},"PeriodicalIF":0.0,"publicationDate":"2015-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Next Generation: Upgrading Proportionality for a New Paradigm","authors":"M. Dawson, Bree Kelly","doi":"10.12690/IADC-15-0016","DOIUrl":"https://doi.org/10.12690/IADC-15-0016","url":null,"abstract":"SOMETIMES, it takes a while for an idea to catch on, even a really good one. The first versions of the automobile ran on steam and then electricity, and it took a long time for inventors to determine that gasoline was a superior fuel. (1) Then things really took off. Similarly, the lightbulb wasn't always the safe, bright, long-lasting light source we know today; it took a lot of tweaking to get things just right. (2) Like the automobile and the lightbulb, the principle of proportionality is a really good idea. But, also like the automobile and the lightbulb, it's been slow to catch on and has required some changes along its way. The proposed amendments to the Federal Rules of Civil Procedure seek to make those last few adjustments that will finally encourage the widespread application of proportionality in discovery. If everything goes as planned, the future of discovery is bright. The proposals come none too soon. In recent years, the problems of discovery have reached a critical tipping point and contribute greatly to the oft-repeated sentiment that \"[o]ur discovery system is broken\" (3) and that our civil justice system is in \"serious need of repair.\" (4) These problems find their source in a diversity of circumstances, but are perhaps most affected by the modern rise of technology and the resulting explosion in the volume and variety of electronic information in the world today. A recent study of the \"digital universe\" reports that \"[l]ike the physical universe, the digital universe is large--by 2020 containing nearly as many digital bits as there are stars in the universe. It is doubling in size every two years, and by 2020 the digital universe--the data we create and copy annually--will reach 44 zettabytes, or 44 trillion gigabytes.\" (5) The effects of this dramatic information growth are increasingly felt by parties, counsel, and courts alike and underlie the inevitable conclusion that modern discovery is different and that traditional notions no longer apply. Despite its inevitability, there is no denying that \"the process of change ... is tortuous and contentious\" (6) and that the effort to shift the discovery paradigm will therefore be substantial. There is good news, however; much of the work has been completed already. Indeed, the principle of proportionality--arguably present in the rules since their development--has been re-designed and improved over many years. Unfortunately, the practical application of the principle of proportionality has continuously met with strong resistance where traditional notions of broad and liberal discovery remain entrenched in the jurisprudence surrounding questions related to scope. Accordingly, the United States Judicial Conference has once again undertaken to reincorporate proportionality into the design of the Federal Rules. This article will explain the principle of proportionality and its purpose, discuss the changes in the proposed new design and their intended effects, and provide some advice ","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"434"},"PeriodicalIF":0.0,"publicationDate":"2015-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 2015 Civil Rules Package as Transmitted to Congress","authors":"Thomas Y. Allman","doi":"10.12690/IADC-15-0015","DOIUrl":"https://doi.org/10.12690/IADC-15-0015","url":null,"abstract":"THIS article provides an overview of the \"package\" of amendments to the Federal Rules of Civil Procedure, which were collectively forwarded to Congress for evaluation this spring. A copy of the text of each of the proposals is included in the Appendix to this article. The amendments will become effective on December 1, 2015 if Congress does not adopt legislation to reject, modify, or defer them.I. History of the AmendmentsA. BackgroundThe amendments to the Federal Rules of Civil Procedure, which were collectively forwarded to Congress by the Supreme Court on April 29, 2015,1 2 culminated a four-year effort by the Civil Rules Advisory Committee (the \"Rules Committee\") operating under the supervision of the Committee on Rules of Practice and Procedure of the Judicial Conference (the \"Standing Committee\").The process began with the 2010 Conference on Civil Litigation held by the Rules Committee at the Duke Law School (the \"Duke Conference\"). The Duke Conference was held in response to concerns about the \"costs of litigation, especially discovery and e-discovery.\"3 A number of studies, surveys and empirical studies were submitted in advance, and panels discussed the relevant issues.4Key \"takeaways\" from the Duke Conference included the need for improved case management, application of the long-ignored principle of \"proportionality\" and cooperation among parties in discovery.5 In addition, an e-discovery panel \"reached a consensus that a rule addressing preservation (spoliation) would be a valuable addition to the Federal Rules of Civil Procedure.\"6The Rules Committee divided the task of developing individual rule proposals between the \"Duke\" Subcommittee, chaired by the Hon. John Koeltl, and the Discovery Subcommittee, subsequently chaired by the Hon. Paul Grimm. The Discovery Subcommittee focused on a replacement for Rule 37(e).7 Both subcommittees vetted alternative draft rule proposals at \"mini-conferences.\"An initial \"package\" of the proposals resulting from these efforts was released for public comment in August 2013.8 After a robust public comment period, the subcommittees recommended revisions, which were adopted by the Rules Committee at its April 2014 meeting in Portland, Oregon. The Standing Committee unanimously approved the revised proposals at its May 29, 2014 meeting.The revised proposals were then submitted with recommendations for approval to the Judicial Conference,9 which approved the rules on their \"consent calendar\" and forwarded them to the Supreme Court for its review.10 The Supreme Court adopted the proposed amendments without change and forwarded the full package to Congress after having suggested certain minor changes in several Committee Notes.11B. Hearings and Public CommentsThe Rules Committee conducted Public Hearings on the initial proposals in late 2013 and early 2014 that involved 120 testifying witnesses.12 The first hearing was held by the Committee in Washington, D.C. on November 7, 2013 and was followed by a second","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"375"},"PeriodicalIF":0.0,"publicationDate":"2015-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}