John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost ESI in federal civil actions.
This Article reviews the history behind, as well as the current, FRCP provisions on ESI, particularly the Rule 37(e) changes. It also reviews the ESI changes proposed to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable ESI.
These reviews are accompanied by an examination of state civil procedure laws on pre-suit and post-suit ESI losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either pre-suit or post-suit ESI losses impacting pending civil actions.
All this then serves as the basis for exploring significant issues on lost ESI in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between ESI and non-ESI, as well as between varying forms of ESI; the challenges in pursuing state spoliation claims in related federal civil actions; and the problems arising when discoverable ESI is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost ESI that would prompt greater justice, efficiency, and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for pre-suit ESI discovery and creating new avenues for pre-suit protective orders on behalf of those possessing or controlling relevant ESI, perhaps modeled on the recent Arizona Civil Procedure Rule 45.2.
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Climate change has become one of the most pressing issues of the twenty-first century, endangering not only countless animals and ecosystems, but the lives of thousands of individuals—and Florida is on the front lines of this crisis. The scientific community has come to a consensus that humans are to blame for the calamity; even though hundreds of millions of dollars have already been lost to the effects of climate change, those who have been affected have not been able to find redress or relief. When refusing to offer such redress, most courts claimed these individuals were barred by the doctrine of standing. This Article explores the history of Article III standing and how it has been shaped specifically around environmental cases. It outlines how courts do have the power to hear cases regarding climate change and, finally, this Article explains the importance of having the judicial system hear such cases, as opposed to relying on the other two branches of government to solve this crisis.
Over the past decade, there has been an increased social awareness regarding transgender issues. This has led to the transgender community achieving progress in many aspects of everyday life. However, one area in which transgender persons continue to struggle is behind bars. Medical treatment for incarcerated transgender persons has become a controversial topic both in public opinion and the law.
This Article will trace the journey of Reiyn Keohane, a transgender inmate in the Florida prison system, from her arrest to her challenge against the Florida Department of Correction’s hormone treatment and social transitioning policies. For a brief moment in time, Keohane won a major victory for transgender inmates when the trial court held that both policies were unconstitutional. This victory was short lived however, as the Eleventh Circuit Court of Appeals reversed that decision in Keohane v. Florida Department of Corrections Secretary. The author takes a critical look at the Eleventh Circuit’s opinion, specifically its analysis regarding mootness and cruel and unusual punishment.
In the end, the author suggests that the Eleventh Circuit may have gotten it wrong and highlights how there is now a split among circuits regarding what the Constitution demands when it comes to medical treatment for transgender inmates.
This Symposium is partnered with a program presented by the Stetson Law Review and Stetson’s Office of Continuing Legal Education, Bridging the Gap between Evidence and Advocacy.’ When the Stetson Law Review contacted me, outlining the program and asking my advice on the feasibility of such an undertaking, I was out of state and knew I would be so for the duration of the planning stage. Consequently, my response was easy: ‘Yes, do it!” But never in my wildest dreams did I anticipate the availability of the distinguished group of presenters that the Stetson Law Review would secure. The authors of the articles in this Symposium issue are surely the “Who’s Who” of evidence and advocacy teachers in the United States.
I know it is not fashionable to speak this way, but I must confess, I love the law of evidence. Applying the law of evidence is what separates lawyers from the citizenry; it is our currency in the courtroom. The law of evidence is a friend of the trial lawyer and it gives judges the opportunity to be fair. It also provides trial lawyers with a game plan on how to be persuasive in ways that often have little to do with winning or losing the objection and everything to do with reminding the jurors why they are in court and entitled to the verdict. Two commentators, both former judges and trial lawyers and current evidence teachers—one of whom is an author in this Symposium—put it well: The Rules bring real life, with its strengths and weaknesses, into a courtroom, to be presented, in most cases, to an untrained audience. The audience will create its own version of the story of the case, reflecting each member’s life experiences and intelligence.
When a trial lawyer becomes a trial judge, the earth moves. Nothing in the trial lawyer’s training or experience prepares him or her for the role of neutral arbiter. Everything looks and sounds different. It is not just that he or she has acquired the power to decide. It is more than the fact that all participants are looking up at him or her, waiting for a ruling. The real change is the realization that he or she now has to be right as often as possible. People are looking.
It has been twenty-five years since the first time I walked up those steps to the highest chair in the courtroom. On that day, I learned two important lessons. First, I realized that everyone was standing because some guy with a gun was telling them to, a point that seems obvious but is really hard to grasp, if not retain. Second, I realized I had to rule in favor of somebody and, obviously, against somebody.
This Article will address the following question: What makes a judge rule one way and not the other?
In 1871, Salomone Mortara was undoubtedly the most famous Italian Jew in the world, though for reasons that had brought him nothing but heartbreak. Thirteen years earlier, Salomone and his wife Marianna had been living with their eight children in the City of Bologna, which at the time was under the authority of the Papal States. On June 23, 1858, the Jewish couple’s six-year-old son Edgardo was seized by the papal police and taken directly to the Vatican, where he was subsequently adopted by Pope Pius IX.
It seems that about five years earlier a fourteen-year-old Christian domestic servant in the Mortara home, fearing that Edgardo might die from a childhood illness, had sprinkled a bit of water on the boy’s brow while he slept, whispering “I baptize you in the name of the father, of the Son, and of the Holy Ghost.” This act, it turns out, was sufficient under Canon law to constitute a baptism Unbeknownst to him or his parents, the sleeping Edgardo was instantly transformed into a Catholic.
When I told my cousin-in-law Gary Ruben, a lawyer in Chicago, that I had agreed to write an article for a Symposium on trial advocacy in the twenty-first century, he responded incredulously, “We are supposed to be doing something different than trying to make a jury understand what happened and be persuaded by our version of the events?” Well, Gary, in one sense you are absolutely correct to be skeptical because the objectives of trial advocacy that you described have remained immutable, regardless of the century. However, two interrelated changes are occurring as we enter the new millennium that must affect the way trial lawyers present their cases to the jury — the evolution in the demographics of the jury pool and the revolution in technology that has transformed how our new breed of juror receives and is presented out-of-court information.
The doors of the movie theater fly open. Crowds of moviegoers pour out. They are somber. A few talk quietly, but none are smiling. Some are crying, while others just sniffle. What has affected them so? Leonardo DiCaprio has just gone down with the Titanic. Next door, a crowd sits in the dark on the edge of their seats. Some have their hands over their eyes. Others suppress a scream. The T-Rex has just eaten a lawyer in Jurassic Park. Across town at the airport, a man sits in the lounge reading a well-worn paperback novel. He turns the pages methodically, his eyes never leaving the pages. Nothing breaks his concentration — the crowds, the blaring loudspeakers, the general hubbub of thousands on the move. On the next aisle another person reads a paperback, dabbing moist eyes with a tissue. A few miles out of town, gathered around a roaring campfire, listeners shiver slightly as they hear a tale of haunted woods and visitors in the night.
Some commentators have suggested that, in the United States, trial by jury is becoming trial by expert. It is undeniable that the use of expert testimony is widespread. In the early 1990s, the Rand Corporation released a study on the incidence of expert testimony. The database included 529 civil cases tried in California Superior Court. The researchers found that [e]xperts testified in 86% of these civil jury trials. Overall, there were an average of 3.3 experts per trial; in the trials in which any experts appeared, there were an average of 3.8. Most trials with experts had two, three, four or five of them.