Academic journal article Defense Counsel Journal

Reviewing the Law Reviews

Academic journal article Defense Counsel Journal

Reviewing the Law Reviews

Article excerpt

Law Review Highlights:


In today's legal environment, electronically stored information is an inevitable and often enormous part of the discovery process. Email, word processing documents, spreadsheets, potentially text messages and even voice mail are all subject to the Federal Rules of Civil Procedure for discovery in litigation. While dealing with electronic information is part of daily routine, how it should be dealt with in a litigation setting is still evolving. Three recent articles look at different aspects of this still developing area of law.

As the rules governing e-discovery continue to develop, the lawyer's role in the process of discovery may be changing. This is the idea proposed by Steven Gensler in his article, Some Thoughts on the Lawyer's Evolving Duties in Discovery. (1) The author examines three potential areas in which this may be occurring. First, he looks at how E-discovery is continuing to advance the trend of front-loading discovery and what that means for attorneys. Second, he proposes that the rise in e-discovery has increased an interest in the profession for a more cooperative approach to discovery, due to the sheer volume of information that can and is stored in electronic formats. Finally, he looks at the duty of lawyers to oversee their clients' discovery processes, suggesting that recent case law may indicate a potential for increased responsibility to understand and supervise client production of electronic evidence.

As e-discovery continues to evolve, a lawyer's ethical responsibility in dealing with an ever-changing electronic environment might be considered particularly challenging. Debra Lyn Bassett looks at some of the ramifications for professional responsibility in her article E-Pitfalls: Ethics and E-Discovery. (2) She argues that despite the perceived uniqueness of electronically stored information, well-established ethical rules do apply. The article looks first at ethical legal practice generally before addressing ethical issues that can arise specifically in connection with communication technologies like email. She then evaluates Qualcomm, Inc. v. Broadcom Corp. to discuss how email, ethics, and e-discovery intersect.

Along with the use of electronically stored information in litigation comes the danger of such electronic evidence being lost or destroyed. In his note, My Dog Ate My Email: Creating a Comprehensive Adverse Inference Instruction Standard for Spoliation of Electronic Evidence, (3) Matthew Makara weighs the culpability standards courts use in determining whether to issue an adverse inference instruction to a jury considering evidence that has gone missing. The author argues that in a world of increasingly complex and widely varying formats for electronic storage, the old culpability tests are too narrowly focused to be effective in trying to prevent spoliation of evidence. In the final part of the note, the author proposes a new approach to determinations of adverse inference instructions taking into account the complexity and vulnerability of information that is stored electronically.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International


John Blackie, The Provisions for Non-contractual Liability Arising out of Damage Caused to Another in the Draft Common Frame of Reference, 20 KING'S L.J. 215 (2009).

Tanya Paula de Sousa, Case Note, Oil over Troubled Waters: Exxon Shipping Co. v. Baker and the Supreme Court's Determination of Punitive Damages in Maritime Law, 20 VILL. ENVTL. L.J. 247 (2009).

Aaron T. Duff, Comment, Punitive Damages in Maritime Torts: Examining Shipowners' Punitive Damage Liability in the Wake of the Exxon Valdez Decision, 39 SETON HALL L. REV. 955 (2009). …

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