Debating Discovery

As I noted last week, I recently had the privilege of participating in a panel on the need for further amendments to the Federal Rules of Civil Procedure related to E-discovery. A video of the event can be found here. (It actually took place at the National Press Club and not the Mayflower Hotel.) For those who like this kind of thing, there’s some interesting stuff.  My argument is that we essentially provide an e-discovery safe harbor for “neutrally” adopted and consistently applied systems for the retention and retrieval of electronic information. Marty Redish wants to reconsider 1938 and, in particular, to place the cost of discovery on the requesting party. I agree but Ron Allen does not. Don Elliott wants to do it only in certain types of cases but, more provocatively, thinks that Rule 4 is unconstitutional.

My remarks begin at 26:00 with a shout out to this blog.

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Best of the Blogs: Time Waster Edition

At Concurring Opinions, Kaimipono Wegner directs our attention to an article by Adam Zimmerman in the Duke Law Journal explaining why we waste time. It turns out that we make decisions over time horizons that are too short. Five minutes of watching a parody video on You Tube may bring more pleasure than the productivity gain from five minutes of grading papers. If we were to choose four hours of You Tube, we’d see it differently. But we keep slacking in five minute intervals. 

At the Faculty Lounge, Jacqueline Lipton brings us academic humor. Reminds of the answer to whether one has read some one’s new article. “Read it? I haven’t even cited it yet!”

At the Conglomerate, Gordon Smith, following Ann Althouse, links to the site Subzin. It allows you to search for phrases and words (like your own name) in movie scripts. Don’t start if you have something to do. Those five minute blocs will turn into hours.

Finally, Above The Law announces its’ second annual contest for the best law firm holiday card with links to some of last year’s winners. Not as much fun as Subzin. Seriously, dude, do not start.

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.  

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