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Civil Procedure

A Modest Proposal for Human Limitations on Cyberdiscovery

Engage Volume 12, Issue 3, November 2011
Richard Esenberg January 11, 2012

A Modest Proposal for Human Limitations on CyberdiscoveryI show my Civil Procedure students a video on electronically stored information (“ESI”) created by Jason Baron and Ralph Losey. The video, set to the type of pulsating electronic music normally heard prior to kickoff, sets forth a series of factoids about ESI. There will soon be more bytes of ESI than stars in the universe, it would take six million years to read each web page in the known universe, and we are awash in billions and trillions of e-mails, tweets, text messages and Google searches. The video refers to studies showing that most of this information is never produced—and often not even thought of—in the discovery process. It points out that the most common forms of retrieval, such as Boolean key word searches, find a relatively small percentage of “relevant” documents. For Baron and Losey, the “near future” is that litigants cannot “afford the whole truth,” but they suggest (with, I hope and suspect, tongues in cheek) that the “far future” is discovery conducted by artificial intelligence agents. The answer to the challenges of E-discovery, in other words, is the creation of E-lawyers... [Read more!]

ABA Watch August 2008

Table of Contents
August 06, 2008

ABA WatchIn this issue, we offer an overview of the ABA’s policy on gun control, offered in light of the recent decision in the Heller case. We also discuss an ethical issue concerning attorneys fees by the ABA Standing Committee on Ethics and Professional Responsibility considered last Fall. We also profile several of the award winners at the ABA’s Annual Meeting. And, as in the past, we digest and summarize actions before the House of Delegates. [More]

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds - Post-Decision SCOTUScast

SCOTUScast 5-14-13 featuring Charles Korsmo
Charles Korsmo May 14, 2013

Charles R. KorsmoOn February 27, 2013 the Supreme Court announced its decision in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds. The question in this case is twofold: (a) whether, in misrepresentation actions under SEC Rule 10-b(5), plaintiffs asserting a fraud-on-the-market theory must prove materiality before they can proceed with a class action, and (b) whether the defendants are permitted to present evidence rebutting a fraud-on-the-market theory at the class certification stage.

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 6-3 that proof of materiality is not necessary for certification of a class-action  that seeks damages for violations of the SEC rule; nor did the lower court err in declining to consider rebuttal evidence at the class-certification stage.  Chief Justice Roberts and Justices Breyer, Alito, Sotomayor and Kagan joined the opinion.  Justice Alito filed a concurring opinion.  Justice Scalia filed a dissenting opinion.  Justice Thomas filed a separate dissenting opinion, which was joined by Justice Kennedy and Justice Scalia in all except Part 1-B.

To discuss the case, we have Charles Korsmo, who is an Assistant Professor at Case Western Reserve University School of Law.

[Listen now!]

Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas - Post-Argument SCOTUScast

SCOTUScast 11-12-13 featuring Stephen Sachs
Stephen Sachs November 02, 2013

Stephen SachsOn October 9, 2013, the Supreme Court heard oral argument in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. This case involves a forum selection clause, which is contractual language specifying the judicial forum for resolution of any litigation that may arise regarding the contract in question. The question before the Supreme Court is twofold: (1) Does the Court's earlier decision in Stewart Organization, Inc. v. Ricoh Corp. require federal courts to enforce forum selection clauses strictly, or are such clauses subject to a discretionary balancing-of-conveniences analysis; and (2) how should courts allocate the burden of proof between parties seeking to enforce or avoid the clause?

To discuss the case, we have Stephen Sachs, who is an Assistant Professor of Law at Duke University School of Law.

[Listen now!]

Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas - Post-Decision SCOTUScast

SCOTUScast 2-3-14 featuring Stephen Sachs
Stephen Sachs February 02, 2014

Stephen SachsOn December 3, 2013, the Supreme Court issued its decision in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. This case involves a forum selection clause, which is contractual language specifying the judicial forum for resolution of any litigation that may arise regarding the contract in question. The question before the Supreme Court was twofold: (1) Does the Court's earlier decision in Stewart Organization, Inc. v. Ricoh Corp. require federal courts to enforce forum selection clauses strictly, or are such clauses subject to a discretionary balancing-of-conveniences analysis; and (2) how should courts allocate the burden of proof between parties seeking to enforce or avoid the clause?

The Supreme Court unanimously reversed the judgment of the US Court of Appeals for the Fifth Circuit, which had effectively declined to enforce the forum selection clause. In a decision delivered by Justice Alito, the Court held that a forum-selection clause may be enforced by a motion to transfer venue under 28 U.S.C. § 1404(a). When a defendant files such a motion, the Court declared, the lower courts should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. The burden is on the party acting contrary to the selection clause to show that the public interest overwhelmingly disfavors a transfer. The Court remanded the case for the Fifth Circuit to consider that issue in the context of this case.

To discuss the case, we have Stephen Sachs, who is an Assistant Professor of Law at Duke University School of Law. It should be noted that Professor Sachs submitted an amicus brief in support of neither party.

[Listen now!]