Jump to Navigation | Jump to Content
American Bar Association



Overview of Articles


General Articles

Discovery Sanctions under Amended Rule 37(e): A Safe(r) Harbor

By Michael J. Miles and Jeffrey E. Jakob

Early decisions applying the new Rule 37(e) should give comfort to potential litigants who have worked in good faith to preserve potentially relevant ESI.

Supreme Court Watch: A Look Ahead to the October 2016 Term

By Scott N. Wagner and Veronica Gordon

The Supreme Court addresses the right to appeal class action certification denial, and more.

Crafting Cease-and-Desist Letters Without Violating the ABA Model Rules

By Joshua A. Kurtzman

Cautionary tales for attorneys.

Getting It Right: Confidentiality and Sealing Standards

By Ronald J. Hedges

The confidentiality of discovery materials is fundamentally different from the sealing of materials filed with courts or the sealing of judicial proceedings.

Recent Decision Highlights Competing Approaches to Social Media Discovery

By Eric B. Levasseur

A New York appellate court says no to broad discovery of social media accounts.

Proportionality under Amended Rule 26(b)(1): A New Mindset

By Michael J. Miles

How courts have reacted to the amended rule and how defense practitioners can use it to streamline discovery.

The "Other" December 1 Amendments to the Federal Rules of Civil Procedure

By Ronald J. Hedges

Beyond the focus on sanctions in commentary on the 2105 amendments, how to avoid a sanctions fight in the first place.

Deploying Text Analytics and Speech Recognition to Manage Audio Files in E-Discovery

By Peter Gronvall and Nathaniel Huber-Fliflet

Talk is the new doc.

Maintaining Privacy and Confidentiality in Litigation: Can It Be Done?

By Ronald J. Hedges

What considerations guide the use of private or confidential information, and what should an attorney do to protect it?

Away with Words: The Myths and Misnomers of Conventional Search Strategies

By Thomas I. Barnett

There are other ways to attack the problem of keyword searches and predictive coding thanks to some recent advances in technology and data science.

Rule 30(b)(6) at 45: Is It Still Your Friend?

By Eric Kinder and Walt Auvil

Is the rule, now entering middle age, still accomplishing the goals it was designed to achieve?

Deposition Tips for Young Lawyers

By Jim Shelson and R. Gregg Mayer

Get organized, and keep it simple.

How Far Do the Protections of the Rule 26 Amendments Go?

By Michael Lowry

Exploring how the work-product provisions of the 2010 amendments regarding expert discovery have been applied and interpreted.

Technology-Assisted Review: Insight into Lingering Questions

By Jenny Le

A recent Georgetown panel and case law reveal how far TAR has come.

Why I Love Rule 36, and Why You Should Too

By Fitzgerald T. Bramwell

Requests to admit are the Rodney Dangerfield of pretrial procedure: They get no respect.

Lessons from Procedural Lapses That Sent Smokers' Claims Up in Smoke

By Jeffrey G. Close

Five pearls of wisdom from the Florida tobacco litigation.

Domestic Transaction Test Applied to Private Action under CEA

By Steven M. Richard

The Second Circuit leaves open the door for governmental enforcement of the Commodities Exchange Act?s antifraud provisions.

Changes to FRCP 45 Substantially Alter Federal Subpoena Practice

By Steven C. Corhern

The 2013 amendments to Federal Rule of Civil Procedure 45 altered the requirements for issuing, serving, and opposing a domestic federal subpoena.

Avoiding the Pitfalls of Summary Judgment Practice

By Tracy DiFillippo and Michelle Alarie

The Seventh Circuit recently made clear what is and is not acceptable.

Are Insurance Investigative Documents Work-Product-Protected?

By Steven M. Richard

There is a lack of uniformity in federal courts? application of the work-product doctrine in third-party accident cases.

How to Take a Deposition

By Dan Goldman and Mor Wetzler

For lawyers learning how to take depositions, there are a few guiding principles to keep in mind and a number of traps to avoid.

The Changing Landscape of General Jurisdiction Post-Bauman

By Adam W. Braveman

This decision will have an immense impact on a foreign corporation's amenability to bring suit in U.S courts.

"Self-Serving Testimony" and Summary Judgment Standards

By Jeffrey G. Close

Is there a split between the Fifth and Seventh Circuits?

The Problem of the Old Deposition and a New Party at Trial

By Michael Lowry

A deposition needs to be admissible, and that may depend on who is a party at the time of trial.

Supreme Court's CAFA Decision Changes Law in Fifth Circuit

By Paul Thibodeaux and Danny Dysart

The Court's decision on CAFA removal of parens patriae mass-action suits and how it impacts future mass-tort litigation.

Trial Motion Practice Pointers Part II: Post-Trial Motions

By Taylor N. Barr and Betsy P. Collins

A nuts-and-bolts look at common pre-, in-, and post-trial motions in federal court.

Expert Testimony Part II: Presenting Expert Opinions in Narrative Form

By Betsy P. Collins

Tips and lessons learned on how to present direct testimony of experts in narrative form in lieu of direct examination.

FRCP Proposed Amendments: Changing the Rules

By Jay Worthington, Emily Seymore, and Katherine Kenney

A detailed look at ways the amendments would alter how discovery and case management are handled.

J. McIntyre Two Years Later: The Stream-of-Commerce Test Keeps on Rolling

By Katherine G. Cisneros

There doesn't appear to have been any shift in jurisprudence since the case was decided.

Vanishing Trial Skills

By Hon. Charles S. Coody

Effective and persuasive person-to-person skills are still fundamental even in our instant-communication environment.

ERISA Conflict Preemption: Embracing the Treacherous Path

By Gillian W. Egan

Do not shrink from using ERISA conflict preemption as a defense.

Trial Motion Practice Pointers Part I: Pretrial and In-Trial Motions

By Betsy Collins and Taylor N. Barr

The first in a two-part series offering a nuts-and-bolts look at common trial motions in federal court.

The Power Prep: Effective Preparation of Your Client for a Deposition

By Erin E. Rhinehart

Strategic planning is necessary to ensure a successful deposition.

Avoiding the Pitfalls of Alternative Billing Arrangements

By Betsy P. Collins

While the hourly rate is a known quantity for law firms, alternative fee arrangements can be fraught with peril.

Class Certification after Wal-Mart v. Dukes

By Ashish Prasad

Following Dukes, courts are likely to consider whether common questions have common answers.

So You Want to Depose Opposing Counsel?

By Edna Selan Epstein

A license to practice law does not automatically exempt an attorney from being subject to a subpoena to produce documents or to testify.

Raising Delicate Matters with the Judge in Pending Litigation

By Hon. Marvin Aspen

A sitting federal judge offers 10 pieces of advice on how to handle unusual circumstances.

Defensive Strategies in Discovery: A Refresher

By Kathleen B. Havener

By following these tips, your discovery should put you in good stead for dispositive motions and trial.

Do Twombly and Iqbal Apply to Affirmative Defenses?

By Carla R. Walworth, Mor Wetzler, and Jessica Oliva

With little guidance from the courts, the old adage applies: Know your judge.

Discoverability of Deposition Breaks

By Raymond P. Ausrotas

Two leading cases are instructive on the subject of deposition recess.

A Model Order Regarding E-Discovery in Patent (and Other?) Cases

By Steven R. Trybus and Sara Tonnies Horton

The model order from the Federal Circuit Advisory Council regarding e-discovery in patent cases includes proposals that are dramatically different from the majority of present e-discovery practices.

How to Write an Effective Reply Brief

By Damon Thayer

By following ten simple commandments you can master the art of writing an effective reply brief and in the process increase your chances of prevailing in any given case.

Can I Get a Witness: Obtaining Out-of-State Deposition Subpoenas

By Robin H. Jones

Most lawyers will at some point have to track down a witness residing in another state for purposes of obtaining discovery for use in a case pending before another state court.

Ten Tips from the Bench: Motion Practice Oral Argument

By Hon. Marvin E. Aspen

Here are ten tips for effective oral advocacy of contested motions, including a suggestion on how to request that opportunity where judges normally do not conduct oral argument on a regular basis.

New Amendments to Federal Venue, Removal, and Other Rules

By Charles S. Smith

The Federal Courts Jurisdiction and Venue Clarification Act of 2011 contains the most expansive changes to the Judicial Code since the Judicial Improvements Act of 1990.

Protecting Work Product in Rule 30(b)(6) Depositions

By Gillian G. W. Egan

There is a particular attorney work-product objection to keep in mind if you have received, or are working to prepare, a 30(b)(6) deposition notice.

Twombly-Iqbal and Affirmative Defenses in the Third Circuit

By Jeffrey Soos

In two recent decisions, district courts in New Jersey and Pennsylvania have declined to extend the reach of Twombly and Iqbal to affirmative defenses pled pursuant to FRCP 8(c).

Different Perspectives on Oral Advocacy

By Nicole D. Thumma and Samuel A. Thumma

This is a summary of recent cases decided in the Second Circuit relating to the Iqbal v. Ashcroft ruling.

Application of Iqbal in the Second Circuit

By Carla R. Walworth and Mor Wetzler

This is a summary of recent cases decided in the Second Circuit relating to the Iqbal v. Ashcroft ruling.

Seventh Circuit Iqbal Case Summaries

By Angela S. Fetcher

This is a selection of recent cases decided in the Seventh Circuit relating to the Iqbal v. Ashcroft ruling.

Complying with Third-Party Subpoenas in Federal Court

By Erin E. Rhinehart

Guidance relating to compliance with third-party subpoenas for civil cases pending in federal court.

Successful Preparation and Service of Subpoenas in Federal Court

By Erin E. Rhinehart

Guidance for the preparation and execution of subpoenas for civil cases pending in federal court.

Ledbetter Act Opens Door for More Pay Discrimination Claims

By Elizabeth A. Schallop Call and Sandra K. Sanders

The time for bringing a claim restarts each time an employee receives a paycheck reflecting discriminatory practices, creating a virtually perpetual limitations period.

DoD Issues Interim DFARS Provision Regarding Export Controlled Items

By Andrew D. Irwin, Edward J. Krauland, and Thomas P. Barletta

The DoD issued an interim rule amending the DFARS to specify requirements for complying with export control laws and regulations when performing DoD contracts.

Seven “International” Observations from a Former “Local” Lawyer

By Hon. Samuel A. Thumma

What follows is an unscientific, admittedly idiosyncratic list of seven tips that I learned over time as a local lawyer dipping my toe in the international end of the litigation pool.

Answering a Complaint for Equitable Relief? Don’t Forget Your Jury Demand

By Jennifer A. Hasch

Answering in Connection with a Partial Motion to Dismiss

By Amanda S. Amert

Separating the Wheat from the Chaff: Lone Pine Orders in Pretrial Discovery

By Daniel Kennedy

Economic Loss Rule Bars Tort Claims, Including Common Law Fraud

By Hon. Samuel A. Thumma

Can We Talk? Nationwide Survey Reveals Wide Range of Practices Governing Communication with Witnesses while Defending Their Deposition

By David S. Wachen and George Hovanec

U.S. Sentencing Commission Should Reverse Its Policy on Attorney-Client Privilege Waiver

By Michael Greco

EEOC Mediation: An Early and Often-Overlooked Opportunity to Settle An Employment Dispute

By Jennifer B. Salvatore

ABA Works With Diverse Coalition Of Groups To Stop The Erosion of The Attorney-Client Privilege

By Jim Bowhay

DOJ Requires its Prosecutors to Set Formal Procedures for Requesting Privilege Waive

By Jeffrey P. Schomig

Renewed Efforts to Split the Ninth Circuit: Senate Bill 1845

By Steven Kalar

Electronic Discovery

The Real Application of FRCP 1 to E-Discovery

By Regan Kirk, Kevin Broughel, and Carla Walworth

Aspire to keep it manageable.

Strategic Use of E-Discovery Counsel to Manage Risk and Cost

By Jeffrey C. Sharer and Colleen M. Kenney

Complex and rapidly changing law and technology make e-discovery counsel a wise investment, if not an ethical requirement.

Judge Scheindlin Addresses Keyword Searches

By Andrew J. Herink

The best-known SDNY judge on e-discovery outlines more best practices.

Technology-Related Ethics Rules Changes Litigators Must Understand

By Seth H. Row

New changes to the Model Rules of Professional Conduct take into account e-discovery challenges.

The Fifth Amendment vs. Compelled Production of Encrypted Data

By Jayashree Mitra and Stefan Mentzer

The case law on the constitutional protections for compelled production of encrypted data is contradictory and uncertain.

Undue Burden, Proportionality, and Cost-Shifting in E-Discovery

By Margaret Rowell Good

Attorneys must understand and be prepared to use the rules of civil procedure as they relate to electronic information.

Civil Discovery Standards Influence New Criminal Guidelines

By Anne M. Chapman and Joseph N. Roth

The new recommendations are a step toward formalizing practice and expectations involving ESI in federal criminal cases.

Pornography and E-Discovery

By Rebecca James Esq.

The line between work and private life is no longer as clear as it used to be.

The Risks of Electronic Data Over-Preservation

By Anne Kershaw and Shannon Spangler

It may be costing you millions to save data that is of little to no value.

Ethics of Using Social Media During Case Investigation and Discovery

By Seth I. Muse

A simple tweet or "poke" could turn the tide against you.

Judge Scheindlin Shines a Light on Metadata Production

By Som P. Dalal

The foremost judicial authority on ESI serves up the minimum requirements for production protocols.

NY Appellate Court Adopts Federal E-Evidence Preservation Standard

By Yitzchak Fogel

The Appellate Division, First Department, has become the first New York appellate court to adopt the standard for spoliation originally established in Zubulake.

Litigation Holds, Social Media, and Employees' Online Data

By Patricia Eastwood, John D. Rue, and Peter Wilhelm

Lawyers and courts will be increasingly faced with the challenge of addressing whether, and to what extent, social media "documents" must be incorporated into the discovery process in individual cases.

Avoiding Minefields Associated with Discoverability of Social Media

By Damon Thayer and Nayiri Keosseian

According to conventional wisdom, the law typically lags about five years behind new technology. In today's rapidly changing world, that rule of thumb might be too generous.

Avoiding an Electronic Discovery Disaster with Litigation Holds

By Elizabeth S. Fenton, Diana Rabeh, and Jonathan M. Shapiro

We must advise clients of the triggers for the common-law duty to preserve evidence and assist them in developing practices to ensure that the duty is met when it arises.

An Attempt at an Analytical Framework for Spoliation and ESI Issues

By Beatriz Q. Richmond

Magistrate Judge Paul W. Grimm issued a detailed and thorough opinion concerning spoliation of electronically stored information.

E-Filing in Federal Courts: How to Avoid Common Mistakes

By Daniel T. Fenske

Electronic filing is more complicated that one might think, and a careless attorney risks having filings stricken or deemed untimely if that attorney does not follow the widely varying rules in each different federal court.

Reasonable Accessibility and the Discoverability of ESI

By Gregory M. Boyle, William P. Wallenstein, and J.H. Jennifer Lee

This is intended to provide a starting point for litigators and their clients when considering preservation, disclosure, and discovery obligations amid expanding mobile technologies.

The Evolution of E-Discovery Sanctions

By Michael Swarz

Companies are sensitive to their ESI due to the possible liability involved, and are constantly seeking ways to negate the possibility that a court may impose harsh sanctions.

The Business Traveler’s New Nightmare: Laptops and PDA Searches at the Border

By Michael Vatis

Qualcomm v. Broadcom: Lessons for Counsel and a Road Map to E-Discovery Preparedness

By Gregory D. Shelton

Tips from the Ground Floor: Successfully Managing Large Electronic Document Reviews

By Elizabeth L. Fine

Electronic Discovery Rules Are Changing: Are You Ready?

By Henry R. Chalmers

The Top Five Things Every Young Lawyer Should Keep In Mind About e-Discovery

By Jennifer Olmedo-Rodriguez

How to Sway Litigators to Embrace the Electronic Realm

By Robert D. Brownstone

Collaborative Navigation of the Stormy e-Discovery Seas

By Robert D. Brownstone

EDiscovery: Preserving, Requesting & Producing Electronic Information

By Lisa M. Arent, Robert D. Brownstone, and William A. Fenwick

Corporate Compliance and How It Relates to Litigation Data-Management

By Deborah Johnson

A Guide to Navigating Daubert's Reliability Factors

By James F. Williams and Matthew D. Diggs

Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments

By William R. Denny and Elizabeth J. Winslow

Do-It-Yourself Electronic Discovery Tools

By George Socha

The Size, Scope, and Growth of the Electronic Data Discovery Market: Survey and Results

By George Socha and Thomas Gelbmann

New Developments in Electronic Discovery

By George Socha

Mastering the Use of E-Discovery Special Masters

By George Socha


Using Expert Testimony by Plaintiffs to Oppose Summary Judgment: Part I

By Betsy Collins

Pay close attention to the rules pertaining to admitting expert testimony in summary judgment briefing.

Expert Testimony Admissibility after Wal-Mart v. Dukes

By Dennis S. Ellis, Katherine F. Murray, and Nicholas J. Begakis

Counsel should be mindful of the Supreme Court's comments in Dukes, and be prepared to respond to a full Daubert challenge at the class-certification stage.

Draft Expert Reports Are Work Product? Since When?!

By Christian T. Balducci

Effective December 1, 2010, Federal Rule of Civil Procedure 26 underwent several significant changes affecting expert witness disclosure and discovery.

The Practical Witness: Preparing for Depositions

By David L. Wedding

The Practical Witness: Selecting a Financial Expert

By Tim Tribe

The Practical Witness: Assess Damages Early and Often

By Michael A. Fahlman

FCPA and International Law Advisory

Sight-Seeing Tiger, Hidden Dragon—Lucent Fined Under FCPA for Financing Sight-Seeing Trips for Chinese Officials

By Lucinda Low, Ed Krauland, and Pat Norton

Federal Rules

FRE 502, "Inadvertence" in Privilege Waiver, and Avoiding Malpractice

By Jeffrey G. Close

It is absolutely necessary to at least consider the implications of a 502(d) order and probably desirable to have one in almost all cases.

A Summary of Proposed Changes to the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure and the Bankruptcy Rules

By Dennis Rose

Law & Literature

Book Review: Lowering the Bar: Lawyer Jokes and Legal Culture by Marc Galanter

By Steven M. Richman

Young Lawyers

Your Questions Answered: Preparing Your Witness for a Deposition

By Kevin Broughel and Chris Jalian

Answers to some of the more common questions submitted during a recent seminar.

When to Swear and When to Declare: Affidavit or Declaration?

By Matthew J. Bakota

In the "real world" practice of law, affidavits are used more than one might expect.

Avoiding Common Pitfalls: Tips For Young Lawyers

By Betsy P. Collins, Ian Fisher, and Kent Lambert

Here is a list of bits of wisdom that have been accumulated from a number of wise lawyers over time and, unfortunately, from some of the things we learned the hard way.

Tips for Young Lawyers: Summary Judgment Basics

By Kimberly A. Hoehing

Tips for Young Lawyers—Dealing with Difficult Opposing Counsel

By Jasmine K. Mehta

Obtaining and Collecting on a Judgment

By Ryan J. Works

Managing Privilege and Avoiding Pitfalls During Pretrial Discovery

By Sven Collins and Corinne Simon