Civil Procedure

2021

Arbitration

Navigating U.S. Discovery in Foreign Commercial Arbitration Proceedings

By Brian A. Zemil

Despite the increase in international arbitration proceedings in American courts, parties should expect jurisdiction-by-jurisdiction disputes on the resolution of their claims

Discovery

Ethics and Social Media Discovery

By Brian A. Zemil

Leading experts address pressing legal issues regarding trial advocacy and litigation strategy in the context of social media discovery.

2020

Trial Practice

FRCP 1 and COVID-19: Litigating Through a Pandemic

By Brian A. Zemil

The ongoing health crisis makes attorney cooperation more necessary than ever.

Discovery

Reaching into the Cloud for Discoverable ESI

By Brian A. Zemil

A look at the control of electronically stored information possessed by email service providers and social media companies.

Discovery

Navigating "Control" in a Matrix of ESI Discovery

By Brian A. Zemil

Does a party have control (and potential liability for sanctions for loss of) ESI possessed by a third party?

Discovery

Tug of War over Authority for ESI Spoliation Sanctions

By Brian A. Zemil

Over the past five years, courts have interpreted FRCP 37 differently, creating a split among the courts and uncertainty for parties facing potentially case-ending sanctions.

2019

Trial Practice

Bad Clients and What to Do about Them

By Brian A. Zemil

Careful and vigilant evaluation of clients can prevent problems before and during representation.

Trial Practice

Proposed Changes to Rule 30(b)(6) Spark Support, Pushback, and New Suggestions

By Brian A. Zemil

If adopted, those changes would impose ongoing meet-and-confer obligations in connection with depositions of organizations.

Litigation & Trials

Spoliation Trial by Jury

By Brian A. Zemil

Sanction litigation of lost ESI has evolved into a cottage industry.

2018

Trial Practice

From Witness Prep to Dep: Temper Your Inner Coach

By Brian A. Zemil

There is a fine coaching threshold that all lawyers must toe when prepping a witness for deposition.

Trial Practice

A Skeptical View of Rule 36

By Charles S. Fax

Boilerplate objections of Requests for Admission are themselves objectionable.

Trial Practice

Why Do Lawyers Still Make Boilerplate Objections to Civil Discovery?

By Charles S. Fax

The law is clear: Boilerplate objections are disallowed.

Trial Practice

Why Don't Federal Judges Follow the (Discovery) Rules?

By Charles S. Fax

Learn how to manage the discovery process to achieve proportionality.

2017

Trial Practice

Cost-Shifting in Discovery after the 2015 Amendments to Rule 26

By Charles S. Fax

What has happened to cost-shifting in discovery since December 1?

Trial Practice

Rule 26 to Change: Limited Privilege for Draft Reports and Communications

By Charles S. Fax

Since it was last amended, Federal Rule of Civil Procedure 26(a)(2) has bedeviled lawyers.

Trial Practice

The Perils in Appearing Pro Hac Vice

By Charles S. Fax

In-state counsel and pro hac counsel must be thoroughly familiar with the precise requirements in their locale.

Trial Practice

When Overbilling Leads to Disciplinary Sanctions

By Charles S. Fax

Pop quiz: Those of you who have never had a fee dispute with a client, raise your hands. I’m waiting. How about those of you who haven’t had a fee dispute in the past year? I suspect I’ll see only a few hands.

Trial Practice

What Can You Disclose in Moving to Withdraw as Counsel?

By Charles S. Fax

Advice on how much to tell your judge when you're making your motion to withdraw

2016

Trial Practice

The Parameters and Pitfalls of Payments to Fact Witnesses

By Charles S. Fax

There are ethical concerns relating to the compensation of fact witnesses, and the rules can vary from state to state.

Trial Practice

The Hole in Rule 30

By Charles S. Fax

Rule 30 lacks language concerning where a deposition should be held. Here's what to do in the absence of guidance in the rule itself.

Trial Practice

A Primer on Rule 12(f) Motions to Strike

By Charles S. Fax

If you are contemplating a Rule 12(f) motion—or must defend against one—it would be well to review the Blevins opinion closely.

Discovery

Outside-the-Box Discovery Sanctions Reversed for Lack of "Clear Notice"

By Charles S. Fax

Discovery abuse is widespread and requires corrective action by the judiciary.

2015

Discovery

Serial Abuse of Discovery Rules Warrants Disbarment

By Charles S. Fax

Attorney disbarred after serial misconduct over a protracted period of time.

Trial Practice

Supreme Court Reminds Bar of Limits on Counsel's Duty to the Client

By Charles S. Fax

What happens when counsel dictates a petition and counsel signs it?

Trial Practice

Qualcomm Lives! Lawyers Beware

By Charles S. Fax

Judges should proceed carefully when considering arguable misconduct by lawyers under Rule 26(g).

Trial Practice

Outside-the-Box Sanctions Imposed for Abusive Defense of Deposition

By Charles S. Fax

Judge imposes sanctions after meticulous application of rules.

2014

Trial Practice

Standing Committee Approves Proposed Rules: The Judicial Conference Is Next

By Charles S. Fax

Proposed Rule 37(e) promises to bring rationality and consistency to the developing law of spoliation.

Trial Practice

Less Is More: Proposed Rule 37(e) Strikes the Right Balance

By Charles S. Fax

The new Rule 37(e) is based on the common law duty to preserve relevant information when litigation is reasonably foreseeable.

Trial Practice

Big Changes on the Horizon for the Federal Rules

By Charles S. Fax

Major changes are in the works for key provisions of the Federal Rules of Civil Procedure, including limitations on discovery and spoliation sanctions.

Trial Practice

Proposed Changes to Federal Rules Prompt Pushback

By Charles S. Fax

The Civil Rules Advisory Committee, in response to criticisms, withdrew some of its recommendations for changes to the Federal Rules.

2013

Trial Practice

A Tale of Discovery under the Hague Convention: Was the Expense Worth It?

By Charles S. Fax

Rule 30(b) of the Federal Rules of Civil Procedure authorizes the taking of a deposition in a foreign country. But is the expense worth it?

Trial Practice

When Is a Motion to Dismiss Not a Motion to Dismiss?

By Charles S. Fax

When may 'extrinsic' exhibits that have not been pled in the complaint be used to support or oppose a Rule 12(b) motion to dismiss?

Trial Practice

A Trend Toward Cost-Shifting in Discovery?

By Charles S. Fax

In a growing number of discovery decisions, judges have invoked Rule 26 to impose cost-sharing.

Trial Practice

Federal Spoliation Rule Moves Forward

By Charles S. Fax

There is a need for a uniform standard for rules to guide counsel in all federal courts.

2012

Trial Practice

Taking the Fun Out of Rule 45

By Charles S. Fax

Proposed amendments to Rule 45 will become effective in 2013 absent congressional action.

Trial Practice

Why You Must Read the Local Rules

By Charles S. Fax

Consulting local rules ultimately saves time and expense.

Trial Practice

A Modest Proposal: Discard Spoliation Sanctions

By Charles S. Fax

District courts have recognized the duty to preserve and the concomitant availability of sanctions for spoliation.

Trial Practice

Does Federalism Work for the Federal Rules?

By Charles S. Fax

Is "federalism," as it is understood, a good thing?

2011

Trial Practice

One E-Discovery Trap and How to Avoid It

By Charles S. Fax

Zuckerberg suit moves forward, framing important e-discovery issues concerning authenticity of documents.

Trial Practice

Does the Proposed Congressional Amendment to Rule 11 Solve a Problem or Create One?

By Charles S. Fax

The Rules Enabling Act is the best means of ensuring that any modification of the rules achieves its intended purpose.

Trial Practice

Privilege Logs and Inadvertent Waiver: Lawyer Beware

By Charles S. Fax

Tread carefully in areas where judicial opinion is divided.

Trial Practice

To Tell the Truth

By Charles S. Fax

What do you do when your client testifies falsely during a deposition?

2010

Trial Practice

Proportionality in E-Discovery: Wishful Thinking?

By Charles S. Fax

Can “proportionality” be applied to a duty to preserve that arises before the lawsuit is filed?

Discovery

Instead of Revising the Rules, Why Not Simply Enforce Them?

By Charles S. Fax

Recent studies recommend making significant changes to the Federal Rules.

Trial Practice

Greater Efficiency in Civil Procedure

By Lorna G. Schofield

Reform is needed, but what tools are available now to ease pretrial and trial burdens on counsel and clients?

Trial Practice

Professionalism Undermined by Misconduct in Deposition

By Charles S. Fax

Professionalism and collegiality among adverse counsel are essential to the litigation process.

Trial Practice

Technical Amendments to Rules in 2009 Presage Further Changes in 2010

By Charles S. Fax

Changes to the Federal Rules of Civil Procedure went into effect on December 1, 2009.

American Bar Association TM American Bar Association

Civil Procedure

2021

Navigating U.S. Discovery in Foreign Commercial Arbitration Proceedings

Ethics and Social Media Discovery

2020

FRCP 1 and COVID-19: Litigating Through a Pandemic

Reaching into the Cloud for Discoverable ESI

Navigating "Control" in a Matrix of ESI Discovery

Tug of War over Authority for ESI Spoliation Sanctions

2019

Bad Clients and What to Do about Them

Proposed Changes to Rule 30(b)(6) Spark Support, Pushback, and New Suggestions

Spoliation Trial by Jury

2018

From Witness Prep to Dep: Temper Your Inner Coach

A Skeptical View of Rule 36

Why Do Lawyers Still Make Boilerplate Objections to Civil Discovery?

Why Don't Federal Judges Follow the (Discovery) Rules?

2017

Cost-Shifting in Discovery after the 2015 Amendments to Rule 26

Rule 26 to Change: Limited Privilege for Draft Reports and Communications

The Perils in Appearing Pro Hac Vice

When Overbilling Leads to Disciplinary Sanctions

What Can You Disclose in Moving to Withdraw as Counsel?

2016

The Parameters and Pitfalls of Payments to Fact Witnesses

The Hole in Rule 30

A Primer on Rule 12(f) Motions to Strike

Outside-the-Box Discovery Sanctions Reversed for Lack of "Clear Notice"

2015

Serial Abuse of Discovery Rules Warrants Disbarment

Supreme Court Reminds Bar of Limits on Counsel's Duty to the Client

Qualcomm Lives! Lawyers Beware

Outside-the-Box Sanctions Imposed for Abusive Defense of Deposition

2014

Standing Committee Approves Proposed Rules: The Judicial Conference Is Next

Less Is More: Proposed Rule 37(e) Strikes the Right Balance

Big Changes on the Horizon for the Federal Rules

Proposed Changes to Federal Rules Prompt Pushback

2013

A Tale of Discovery under the Hague Convention: Was the Expense Worth It?

When Is a Motion to Dismiss Not a Motion to Dismiss?

A Trend Toward Cost-Shifting in Discovery?

Federal Spoliation Rule Moves Forward

2012

Taking the Fun Out of Rule 45

Why You Must Read the Local Rules

A Modest Proposal: Discard Spoliation Sanctions

Does Federalism Work for the Federal Rules?

2011

One E-Discovery Trap and How to Avoid It

Does the Proposed Congressional Amendment to Rule 11 Solve a Problem or Create One?

Privilege Logs and Inadvertent Waiver: Lawyer Beware

To Tell the Truth

2010

Proportionality in E-Discovery: Wishful Thinking?

Instead of Revising the Rules, Why Not Simply Enforce Them?

Greater Efficiency in Civil Procedure

Professionalism Undermined by Misconduct in Deposition

Technical Amendments to Rules in 2009 Presage Further Changes in 2010