Closing the Enforcement Gap: Third Party Discovery under the FAA and the Federal Rules of Civil Procedure

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, and all the current, FRCP provisions on esi, particularly the Rule 37(e) changes. It also reviews the proposed esi changes 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 presuit and postsuit 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 presuit or postsuit esi losses impacting pending civil actions. All this will 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 nonesi, 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 presuit esi discovery and creating new avenues for presuit protective orders on behalf of those possessing or controlling relevant esi, perhaps modeled a bit on the recent Arizona Civil Procedure Rule 45.2.

Class Actions in the Federal Circuit

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 controls discovery, and 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 States Two 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 consider on the way to making factual determinations. The gatekeeping function is of particular importance with respect to expert evidence, where the judge first assesses the reliability of the expert's methodology in reaching his or her opinions before releasing such potentially influential material to the jury. A. Expert Selection and Retention The federal expert disclosure rules distinguish between experts plan to testify and experts serve as behindthe-scenes consultants. Federal Rule of Evidence 702 defines an expert witness as someone who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if his knowledge will aid the trier of fact (typically a jury), and if it meets a certain threshold standard of reliability. (1) The Advisory Committee Notes make clear that although Rule 702 expressly refers to scientific or technical knowledge, it is not restricted to its literal terms and extends to anyone may have specialized knowledge. …

In this article, a class action under the federal rules of civil procedure and a class action under the state rules of civil procedure were compared. It is not virtually easy to compare all states, and I focused on the state of Missouri that adopted the federal rule on average, and the state of Mississippi that did not adopt a class action.
 Most states in the United States used the Federal Rules of Civil Procedure, with minor modifications, without major changes. In the case of Missouri, it was found that the federal rules were in fact used as they were and some of the requirements of the representative party were interpreted with some flexibility. On the other hand, Mississippi, when it enacted the state civil procedure rules in 1982, refused to accept class action system and operated its case law and statutory laws independently. As a result, many precedents regarding class action in Mississippi have been upheld : a class action without explicit statutes and provisions is impossible, a class action that existed before the 1980s in lower courts is not possible, and unlimited permissive joinder and consolidation that were substitutes for class action are rejected.
 Still, there were lessons to be learned from the case of Mississippi. First, in spite of no class action in Mississippi, most relief can be obtained through federal procedure. However, in the case of Mississippi's own human rights violations or small businesses in Mississippi, it is necessary to introduce a class action in the state.
 Second, the class action in Mississippi is very closely related to tort law reform. In particular, it is worth noting that proportional liability and limitation of liability introduced in the state of Mississippi should be considered as an alternative in order to expand the class action system in Korea. This means that it is necessary to balance what kind of discussions were made for the defense of the defendant while discussing class action and punitive damages for the relief of the plaintiff. At least in the case of companies with minor negligence, as a feasible method, it seems that the defendant should be sufficiently defended by assuming the case of faithfully fulfilling the duty of care.
 Third, the attempt to operate Rule 20(permissive joinder of parties) and Rule 42 (consolidation) of the Mississippi State Rules as a substitute of class action can be highly evaluated. This is because the attempt to quickly relieve small damages of large number of people in one procedure can be evaluated as an attempt to guarantee the citizens' right to access justice. However, this has fundamental limitations in relation to class action. In Rule 20 of the State Rule, it seems that it is difficult to define a class action only by the commonality of factual issues or legal issues, and the problem of conflict of interest is also difficult to resolve.
 In Korea, there is also a discussion on the addition of an ordinary co-litigation, but this is a problem that should be applied to an ordinary co-litigation, and it is not intended to be converted into a class action. However, although permissive joinder as the addition of an ordinary co-litigation is a legal doctrine that has been abandoned by the Mississippi state precedent, I think that the attempt to resolve collective disputes through permissive joinder is positive enough.

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure. In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how defense lawyers were to answer according to Rule 8 of the Federal Rules of Civil Procedure. As the Appendix makes clear, Judge Shadur disallowed pleaders to dodge Rule 8 by 1) claiming that an allegation called for a legal conclusion, 2) claiming that documents speak for themselves; and 3) demanding strict proof. Judge Shadur also expected that affirmative defenses (Or ADs, as he called them) would be true affirmative defenses and that defense attorneys would support affirmative defenses with foundational or predicate facts. The Appendix, now 20 years old, is living a rich life. Judges have cited Judge Shadur’s order and appendix 233 times. Litigants have cited the case 452 times in trial-court motions and filings as well as 14 times in appellate matters. Westlaw reports 52 citations in secondary sources and another 13 in a directory West calls “Practical Law.” After presenting a minibiography of Judge Shadur, the backstory of State Farm v. Riley, and a gloss on the Appendix, this article tracks Appendix use by federal judges throughout the United States. Specifically, the article focuses on legal conclusions, speaking documents, and affirmative defenses. The article organizes the cases by federal circuit. The organization should be interesting to academics and useful to attorneys preparing F.R.C.P. 12 motions to strike affirmative defenses, motions to deem allegations admitted, or motions for more definite statement. The article first covers the citation of the Appendix first by Judge Shadur himself, next by Northern District of Illinois colleagues, then within the broader Seventh Circuit, and finally outside his Circuit. Last are the few citations in state courts finishing, though, with the epitome of Shadur’s Appendix, which was a rule change by the Arizona Supreme Court in 2018, the year of Shadur’s death. Arizona’s Rule 8 now aligns with Shadur’s Appendix. This article meshes with the empirical analysis of my related article Frivolous Defenses. In that piece, I examine car-crash answers and complaints in the state courts of Colorado, where I live, teach, and have practiced law. For 298 lawsuits, I retrieved and read the complaints and corresponding 356 answers, which number more than 298 because a number of suits had multiple defendants. Frivolous Defenses examines the departures from Colorado’s Rule 8 using, among other things, Judge Shadur’s Appendix and analysis. I welcome comment and suggestions by professors, attorneys, and judges concerning either of these articles.

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to arbitrations, mediations, and other methods of alternative dispute resolution as anything but the bar's vote against the process provided by the Federal Rules of Civil Procedure? We rightly fear the answers to these questions, which we see in our own observations and in the available empirical evidence. And because we do, I submit, the time has come for a systematic review of civil process with a genuine openness to undertaking a serious and determined effort to simplify the Federal Rules of Civil Procedure. When I was Chairman of the Civil Rules Advisory Committee, Professor Edward H. Cooper, the Committee's Reporter, and I initiated just such an undertaking. My tenure as Chairman, however, which had already been extended, ended in 2000, before we made much progress in this endeavor. Professor Cooper nonetheless preserved the beginnings of our effort in his essay, Simplified Rules of Federal Procedure?.4 It is now time, I suggest, to revisit these beginnings and draw upon Professor Cooper's experience and leadership to resurrect this important and necessary effort.

Despite the conclusion of a recent study that discovery is working “effectively and efficiently” in the majority of cases, federal district courts and courts of appeals address discovery disputes in many more reported opinions today than they used to. This fact confirms the impression of many judges and lawyers that over-discovery, evasion, delay, and confrontation rather than cooperation remain problematic aspects of civil discovery practice. After examining the way in which civil discovery was intended to work, John S. Beckerman considers flaws inherent in the discovery process and shows why the ideal of cooperation with a minimum of judicial intervention is unachievable in a significant minority of cases. First, the cooperative ethos of discovery clashes irreconcilably with the oppositional character and partisan norms of all other phases and attributes of adversarial litigation, including well articulated and widely accepted professional responsibility directives that many lawyers take to define what it means to be a litigator, to represent a client loyally, and to protect the client’s confidences. Second, the informationgathering and issue-defining functions performed by discovery in a notice-pleading regime require broad and copious discovery that often generates disputes. Third, the procedures provided by the Federal Rules of Civil Procedure for adjudicating discovery disputes are cumbersome and incorporate an inefficient incentive structure. Fourth, judges often neglect lawsuits in which counsel are engaged in discovery battles, with the result that the adversaries founder ever deeper into non-cooperation, confrontation and impasse. Fifth, many courts treat discovery problems with inappropriate leniency even when they involve egregious instances of obstruction, evasion or suppression, failing either to remove bad actors from the litigation arena or to impose sanctions that provide adequate disincentives to future misconduct. Sixth, irreversible changes in the conduct of business and practice of law have contributed indirectly to the persistence of discovery disputes, in particular, the exponential proliferation of documents resulting from the invention and ubiquity of high-speed copiers, the storage of data and documents on electronic media, increases in the size and complexity of transactions and lawsuits, and the growth of the legal profession and law firms. Beckerman then probes the most often proposed solutions to discovery problems, including narrowing the scope of discovery ordinarily available under the Federal Rules of Civil Procedure, demanding more firm and constant judicial intervention from an early point in a lawsuit, and promoting greater education in and adherence to norms of professionali sm and civility, and shows why none of these solutions is likely to succeed. He first analyzes the pending amendment of Rule 26 of the Federal Rules of Civil Procedure, which would narrow the scope of “attorney-man aged” discovery, and which was approved by the Judicial Conference of the United States in September 1999 and is awaiting action by the Supreme Court. He concludes that, far from its intended effect of reducing discovery problems, the proposed amendment will actually increase discovery disputes and satellite litigation. Second, Beckerman demonstrates that certain economists’ analyses of discovery problems and their proposed solutions based on principles of cost internalization are flawed by misunderstanding of the conduct and nature of discovery in practice and by the substitution of economic efficiency alone for a host of values and policy concerns that should inform design of the litigation process. Third, he shows that although judges and lawyers have been calling for greater judicial supervision of discovery continuously for at least forty years, docket pressure, opportunity costs and the obnoxiously vituperative nature of discovery squabbles make it unrealistic to expect significant changes in judicial behavior. Fourth, he concludes that hardball and Rambo litigation tactics represent not merely a problem of civility, but a fundamental problem of professional responsibility that neither the bench nor bar has been willing to recognize for what it is or take responsibility for addressing effectively.

The starting place for any discussion of civil procedure in the United States is the Federal Rules of Civil Procedure (‘FRCP’), rules first enacted in 1938 and made applicable solely to federal courts. Even though the adoption of these rules by state courts and state legislatures has never been mandatory, nonetheless the FRCP have to a great extent served as a highly influential model impacting the development of procedural law in all 50 states. Why is this so? Why did voluntary processes succeed in bringing about the harmonisation of procedural law in the U.S.? In part the answer is that the movement that produced the FRCP was not primarily an effort to bring about harmonisation; it was as much an effort at reform. In part the answer is that from the perspective of greater access to justice and greater likelihood of justice on the merits, the FRCP were an improvement over existing state law and practice. But neither of these two explanations is a complete answer. This chapter focuses on the powerful role of emerging elites that stood much to gain from the creation of a federal law of civil procedure and from its dissemination to state systems throughout the country. Three groups in particular gained much in stature: elite law schools, the emerging class of law firms seeking to practice law on a multistate basis, and federal judges. Based on the American experience, the insight potentially useful in evaluating other harmonisation movements, especially in the EU, is that harmonisation is most likely to go forward when determined and resourceful interest groups can identify clear gains to themselves from such a process.

This paper examines the current practice of the admissibility of computer evidence, in Malaysia, the United States, England and Wales, and Singapore.Amendments to the Malaysian Evidence Act 1950 (EA) in 1993 provided for the admissibility of ‘computer generated documents’ in both civil and criminal proceedings, by way of sections 90A, 90B and 90C. s. 90A(2) provides that the proof that a document was produced by a computer in the course of its ordinary use can be in the form of a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. This provision has generated a lot of argument on whether a certificate is required in every case where ‘computer generated evidence’ is sought to be adduced. The certificate attests to the authenticity, accuracy and completeness of the evidence rendering attempts to challenge the authenticity and integrity of the evidence largely unsuccessful. Recent amendments in the Evidence (Amendment)( No. 1 and No. 2) Act 2012 have raised further concerns on authenticity and integrity. Other jurisdictions have introduced safeguards in their Rules of Civil Procedure and Practice directions.In the United States of America (US) The Federal Rules of Civil Procedure (FRCP) 34(a) was amended in 1970, to include electronic data. In 2000, amendments to Rule 26(a)(1)(B) made it mandatory to disclose 'data compilations' which include 'computerized data and other electronically recorded information' as materials subject to initial disclosure requirements. Further amendments in 2006 dealt with the issue of electronically stored information. The amendments covered five related areas: definition of discoverable material; early attention to issues relating to electronic discovery, including the format of production; discovery of electronically stored information from sources that are not reasonably accessible; the procedure for asserting claim of privilege or work product protection after production; and a 'safe harbor' limit on sanctions under Rule 37 for the loss of electronically stored information as a result of the routine operation of computer systems.In England and Wales, the Civil Evidence Act 1968, Civil Procedure Rules, the Police and Criminal Evidence Act 1984, the Criminal Justice Act 2003 paved the way for the introduction of computer evidence subject to the proponent demonstrating its authenticity. The Civil Procedure Rules and Practice Directions contain detailed provisions on electronic disclosure. The Rules rather than being mandatory encourage co-operation between parties in relation to searches and preservation of electronic documents.Meanwhile Singapore has kept pace with development relating to electronic evidence in the US, England and Wales. The Singapore Evidence Act 1893 has seen several amendments to include computer output in evidence. Sections 35, 36, and 36A, deal with adducing computer evidence in Court. Computer output maybe admitted in three different ways as evidence in court: by way of express agreement between the parties to the proceedings in both civil and criminal proceedings; by showing that the computer output was from an 'approved process' (where the network is independently audited); and by showing that, in a particular case, the computer output was from a source that was working properly at all material times. Section 35 also provides guidelines on the weight to be attached to the evidence. The recent Evidence Amendment Bill 2012 has substituted references to ‘computer’ and ‘computer output’ with the term ‘electronic records’ which means 'a record generated, received or stored by electro magnetic or other means in an information system or transmitted from one information system to another.' The Singapore courts have also issued Practice Directions on the handling of e-discovery. There is a specific protocol to handle discovery of electronic documents. These are to be produced in their native format for inspection or if copies are requested, in the specified reasonably usable file formats. Thus issues of discoverability and disclosure of electronic documents and their authenticity can be dealt with at the case management stage saving time and costs at the trial stage.Since Malaysia requires pre-trial case management in both civil and criminal proceedings, issues relating to the discovery, disclosure and admissibility of computer evidence can be dealt with at this stage. However, clear guidelines are required to regulate the process.

The adoption of the Federal Rules of Civil Procedure was a major victory for progressives in the United States. The Rule made access to justice less about one’s ability to hire a high-priced lawyer and more about the swift determination of the merits of the dispute between the parties. Despite efforts of some business interests to alter the rules, by most accounts, by most accounts, the Rules have been successful. But occasional conflicts between the application of federal vs. state law in diversity actions create hard policy choices. As a rule, in diversity actions, federal courts must apply state substantive law and federal procedural law. Of course, drawing the line between substance and procedure often presents courts with difficult vertical choice of law problems. At time, the application of a federal rule may impair significant state substantive interests. However, allowing litigants too easily to challenge the application of a federal rule conflicts with the overall goal of the Rules, which should advance the “just, speedy, and inexpensive determination of every action and proceeding.” Satellite litigation to determine whether a federal or state rule applies cuts against the policy of inexpensive and uniform application of the federal rules. Two recent conflicts between federal and state law present challenges in the application of Court precedent. In Twombly v. Bell Atlantic Corp. and then in Ashcroft v. Iqbal, the Supreme Court rewrote F.R.C.P. 8(a)(2)’s liberal pleading standard, making access to court more difficult for many plaintiffs. Some states have rejected those holdings and adhere to the more liberal standard reflected in the adoption of the Rules. And yet, plaintiffs face more stringent pleading requirements when defendants can remove actions from state to federal court. Application of federal law impairs an important state substantive policy: liberal access to justice. The second conflict that has divided federal court is whether a federal court must apply federal pleading and summary judgment rules in defamation cases when the state would apply special anti-SLAPP provisions. Those provisions make dismissal of certain defamation actions easier than in cases that do not involve First Amendment speech challenges. Again, at issue is the conflict between the uniform application of the relevant federal procedural rules and an important state substantive policy, the advancement of free speech. These two areas present special problems. Generally, federal procedural rules should apply. The two problems discussed in this article present special problems where application of federal law impairs important state interest. Normally, one could expect the Court in conjunction with the Judicial Conference’s Advisory Committee on Civil Rules to revise the rules. Under Chief Justice John Roberts’ leadership, the conference’s members are now “ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, or experientially predisposed to think like corporate defense lawyers.” As a result, progressive reforms of the Rules are not likely to originate with the Court and the Advisory Committee. As a general matter, Congress should take a limited role in reforming the Rules. At the same time, Congress has created special rules in the past. For example, it did so for overtly pro-business reasons in its adoption of special pleading standards that were part of the 2005 Class Action Fairness Act. This article argues for Congress to act to modify the F.R.C.P. in two specific areas: one would clarify that more generous state pleading rules must apply to actions removed from state courts in diversity actions, the other would make clear that state pleading and summary judgment rules should apply when the controlling state law includes anti-SLAPP provisions.

The federal courts have their own housekeeping rules in civil litigation: the Federal Rules of Civil Procedure. Under those rules, a plaintiff need not marshal evidence at the pleading stage, just a statement of facts showing her entitlement to relief. Discovery is generally available. Summary judgment only tests whether there are factual disputes necessitating a trial, and the trial court does not weigh any evidence. And there is generally no immediate right to appeal a denial of a dismissal motion. Those rules have governed federal court civil litigation for decades—without much fuss. Until now. Several states have enacted anti-SLAPP statutes to expeditiously dismiss free speech litigation. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” The most stringent anti-SLAPPs serve strong measures to achieve their ends: an accelerated dismissal motion soon after suit is filed; a complete stay of discovery; all the while, the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if a court denies the dismissal motion. By their design and effect, however, anti-SLAPP statutes operate differently than the Federal Rules of Civil Procedure. So far, the federal appellate courts have split on whether anti-SLAPPs (and their unique early dismissal regimes) can co-exist with the federal rules in diversity jurisdiction cases. The First and Ninth Circuits have embraced anti-SLAPP statutes, while the Second, Fifth, Tenth, Eleventh, and the D.C. Circuits—all have not. The U.S. Supreme Court has not yet weighed-in on this debate. This article adds four ideas to this complex area of law. First, we contend that Shady Grove Ortho. Ass’n v. Allstate Ins. Co., 559 U.S. 393 (2010) controls the anti-SLAPP applicability question. We contend that, properly understood, Shady Grove leaves no room for most anti-SLAPP statutes in federal court. Second, we delve into the preemption debate: do the Federal Rules of Civil Procedure preempt state civil procedural laws under preemption principles? Analyzing a recent six-justice ruling, we contend the U.S. Supreme Court thinks they do. Third, the article analyzes whether proponents of anti-SLAPPs are correct that the provision of attorney’s fees and the burden-shifting frameworks of anti-SLAPP laws makes them substantive for Erie purposes. We show that those claims are misplaced for most quintessential anti-SLAPPs, critiquing Ninth and Tenth Circuit anti-SLAPP jurisprudence. Finally, using Clifford v. Trump (tweet lawsuit) as a case study, we suggest a framework for principles of comity in inter-circuit splits about anti-SLAPPs.

There is an extensive amount of academic commentary on the enforceability of pre-dispute contractual jury waivers. My article, entitled A Tale of Two Waivers: Waiver of the Jury Waiver Defense under the Federal Rules of Civil Procedure, considers a related topic that has not received much scholarly attention: the procedure for raising a jury waiver defense in federal civil litigation. Specifically, I advocate a novel approach that treats a contractual jury waiver defense as an affirmative defense under Rule 8 of the Federal Rules of Civil Procedure. The affirmative defense approach requires a party that desires to strike a jury demand on the basis of a pre-dispute contractual jury waiver to plead the waiver as an affirmative defense and then move to strike the jury demand after discovery has been conducted on the merits of the defense. Under this approach, the waiver issue must be raised early on in the pre-trial litigation process and determined expeditiously by the courts. Under the current approach, a party may raise the jury waiver challenge for the first time on the eve of trial or even during the jury trial itself, which is very problematic. As far as I know, this is the first scholarly piece to advocate a departure from the current approach and my arguments are novel.

Chapter 13 - Understanding the FRCP’s eDiscovery Rules

This case addresses effective service of process of an international organization by a non-member state. The United States Court of Appeals for the Eleventh Circuit relied upon the Federal Rules of Civil Procedure (FRCP) because the Organization of Petroleum Exporting Countries (OPEC) did not fall within the purview of the International Organizations Immunities Act (IOIA) and no other applicable treaty existed regarding the treatment of the OPEC in a United States domestic court. The decision’s reliance upon FRCP and application of foreign law resulted in the inability of the plaintiffs to bring a claim against the OPEC without its express consent.

Constitutional law – Establishment of religion – Free exercise of religion – Due process of law – Violation of – First Amendment prohibiting government establishment of religion and discrimination in free exercise thereof – Fifth Amendment guaranteeing due process of law – Prison officials denying inmate permission to make Humanism religious assignment on grounds Humanism not a religion – Inmate and American Humanist Association seeking declaratory, injunctive, and monetary relief – Defendant federal prison authorities filing motion to dismiss under Federal Rules of Civil Procedure for failure to state claim – Prison Religious Services Department adding Humanist Study Group to religious program schedule and providing Humanist study materials – Whether plaintiffs’ claims moot – Whether plaintiffs failing to state Establishment Clause claim and Equal Protection claim – Whether cause of action against individual defendants under Bivens improper because claim under Religious Freedom Restoration Act could have been brought – Whether defendant federal prison authorities entitled to qualified immunity from suit – Whether court having jurisdiction over regional prison director – Whether plaintiffs failing to allege personal involvement of regional prison director – Federal Rules of Civil Procedure (FRCP) Rule 12(b)(6), 12(b)(1); US Const Amends 1, 5; Bivens v Six Unknown Federal Narcotics Agents, 403 US 388 (1971); Religious Freedom Restoration Act of 1993 (RFRA)