Wednesday, February 29, 2012

Prof. Wasserman on the Roberts Court and the Civil Procedure Revival

Prof. Howard Wasserman (FIU) has just posted an Article entitled The Roberts Court and the Civil Procedure Revival on SSRN.  Here is the Abstract:

In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions — the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases already decided or coming up in the October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

This Article is available for download at

Thursday, February 16, 2012

Is Judge Peck the First to Require a Predictive Coding Protocol for Automated Doc Review?

From the ABA Journal:

An unusual decision by a federal magistrate judge to require a so-called predictive coding protocol for automated e-discovery in an employment discrimination class action is both good news and bad news for young attorneys.

The bad news: A number of their jobs could be at risk, if what may be a first-of-its-kind ruling by U.S. Magistrate Judge Andrew J. Peck in the Southern District of New York case becomes commonplace.

The good news: A number of lawyers could be freed from the drudgery of document review if the predictive coding protocol becomes a trend.

Designed to allow documents obtained through electronic discovery to be categorized without having a set of human eyes review each page, predictive coding is expected to be used in Da Silva Moore v. Publicis Groupe et al. to deal with some 3 million documents. A human review team will initially go through about 15,000 to 20,000 documents to determine an appropriate protocol for using Recommind's Axcelerate product, Law Technology News reports.

Sant'Ambrogio and Zimmerman Post Article on Agency Class Actions on SSRN

Michael D. Sant'Ambrogio (Michigan State) and Adam S. Zimmerman (St. John's) have posted The Agency Class Action on SSRN.  Here is the Abstract:

The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.

Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.

We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.

The Article may be downloaded at

Monday, February 06, 2012

SDNY Rejects KPMG's E-Discovery Appeal

Above the Law is reporting on an SDNY decision in Pippin v. KPMG, ruling that KPMG has to preserve a larger set of computer hard drives than it had wanted to preserve: