TTHEHE RRULEULE((SS)) OFOF LLAAWW:: EELECTRONICLECTRONIC DDISCOVERISCOVERYY ANDAND THETHE CCHALLENGEHALLENGE OFOF RRULEMAKINGULEMAKING ININ THETHE SSTTAATETE CCOUROURTSTS ReportReport ofof thethe 20052005 ForumForum forfor StateState AppellateAppellate CourtCourt JudgesJudges Pound Civil Justice Institute ~FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C.~ When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 1054 31st Street, NW, Suite 260 Washington, DC 20007
[email protected] The endower, Habush Habush & Rottier S.C., has no control over the placement of information in or the editorial content of the Report of the 2005 Forum for State Appellate Court Judges. Library of Congress Control Number Pending ISBN: 0-933067-27-5 ©2006 Pound Civil Justice Institute Table Of Contents FOREWORD . 1 INTRODUCTION . 3 PAPERS, ORAL REMARKS, AND COMMENTS . 5 “The Varieties of State Rulemaking Experience and the Consequences for Substantive and Procedural Fairness” Professor Linda S. Mullenix, University of Texas School of Law . 5 Additional Oral Remarks of Professor Mullenix . 24 Comments by Panelists, Response by Professor Mullenix, Questions and Comments. 28 “E-Discovery: A Case Study in Rulemaking by State and Federal Courts” Judge John L. Carroll, Dean, Cumberland School of Law at Samford University . 45 Additional Oral Remarks of Judge Carroll . 62 Comments by Panelists, Response by Judge Carroll, Questions and Comments. 66 THE JUDGES’ COMMENTS . 80 POINTS OF AGREEMENT AND CLOSING COMMENTS . 127 APPENDICES . 130 i THE RULE(S) OF LAW: ELECTRONIC DISCOVERY AND THE CHALLENGE OF RULEMAKING IN THE STATE COURTS ii REPORT OF THE 2005 FORUM FOR STATE APPELLATE COURT JUDGES Foreword he Roscoe Pound Institute’s (presently known as the Pound Civil Justice Institute) thirteenth annual TForum for State Appellate Court Judges was held in July 2005, in Toronto, Canada.