E-Discovery\u27s Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants\u27 cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties

Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs

Part I of this Article concludes that the current enforcement scheme under Title VII has resulted in underenforcement of the Act in the context of hiring for lower-skilled, entry-level jobs and that testers should be used to fill that enforcement void. Part II agrees with the EEOC\u27s conclusion that testers have standing to sue under Title VII. Parts III and IV assert that the EEOC cannot rely on private testers to fill the enforcement void. First, under current doctrine, prevailing testers can obtain only de minimis or technical relief from an offending employer and therefore cannot recover attorneys\u27 fees. Moreover, opponents of testing may use state common-law causes of action and attorney disciplinary rules against testers and their counsel to deter the use of testers. Parts V and VI conclude that the EEOC currently is not authorized to conduct its own testing program, but that the problems associated with the private use of testers would be solved if Congress amended Title VII to give the EEOC the power to use testers to uncover discrimination in hiring for lower-skilled, entry-level positions. State common law and statutory causes of action would be preempted, and Congress could limit the use of testers specifically to remedy discrimination in hiring for lower-skilled, entry-level positions where the benefits of testing outweigh its potential costs. The EEOC could issue rules and regulations prescribing the methods to be used for testing, including the employer-targeting process. Finally, the Article concludes in Part VII that testing by the EEOC would not constitute entrapment and would not upset the EEOC\u27s relationship with respondent employers or otherwise undermine the agency\u27s effectiveness