Law Faculty Scholarship
Permanent URI for this collectionhttps://hdl.handle.net/10601/18
The dynamic faculty of Texas Tech University School of Law continually writes books, articles, and other scholarly materials on a wide range of law-related issues. This collection showcases the scholarly publications written by Tech Law faculty members.
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Browsing Law Faculty Scholarship by Author "Benham, Dustin B."
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Item E-Discovery: Direct Access of Electronic Devices After In re Marion Shipman(Texas Bar Journal, 2019-03) Benham, Dustin B.Provides a quick overview of how an attorney can persuade a court to provide a client direct access to an opponent’s electronic devices during discovery. The article first give a brief overview of the current environment for electronic discovery and then examines the Shipman case. The author then provides some pointers on how an attorney can request direct access to electronic devices. Some points to consider include; scope of the direct access order, looking at the efforts and technical capacity of the responding party and their employees and agents, can you prove the likely existence of the documents, and finally is there evidence that the direct access protocol will succeed.Item Foundational and Contemporary Court Confidentiality(Missouri Law Review, 2021) Benham, Dustin B.Examines the integrated confidentiality system that now pervades American dispute resolution. This Article first considers the structure and impact of court confidentiality. Much of the current system is driven by inertia, tradition, and player incentives (in addition to formal rules). Next, the Article examines some of the existing limitations on court confidentiality and proposes a few alternatives. These proposals include new limitations on private confidentiality agreements for litigation information, an appropriately expanded role for the First Amendment in protective-order disputes, and limitations on umbrella protective orders and sealing orders.Item Tangled Incentives: Proportionality and the Market for Reputation Harm(Temple Law Review, 2018) Benham, Dustin B.Excessive litigation confidentiality and disproportionate discovery are symbiotic problems. Indeed, when a litigant uses discovery to obtain damaging information about an opposing party, the party will often pay money to avoid public disclosure through a confidentiality agreement. As a result, litigants have significant financial incentives to seek damaging information through discovery, whether it is connected to the case or not. Nevertheless, policy makers largely approach discovery proportionality and confidentiality as unrelated problems. Take, for example, the recent proportionality amendment to Rule 26 limiting the scope of discovery, or "sunshine" statutes aimed at reducing litigation confidentiality for the sake of public safety. The reforms ignore one another and the tangled incentives that connect both problems. This Article is the first to address the confidentiality-discovery incentive relationship in the post-proportionality-amendment era. It contends that making private confidentiality agreements illegal, at both the pretrial and settlement stages, would reduce incentives to seek low-merits-value discovery.