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October 9, 2026
Published by Michael Berman at October 9, 2026
Categories
A stipulated AI Protective Order in Dean & Deluca Brands, Inc. v. Fire Brands Innovation, LLC, 2026 WL 2905875 (S.D.N.Y. Sep. 29, 2026)(emphasis added), stated: A producing Party may utilize technology-assisted review, predictive coding, generative artificial intelligence, analytics, keyword searching, clustering, email threading, concept searching, active learning, or other automated or algorithmic […]
October 9, 2026
Published by Michael Berman at October 9, 2026
I have written a series of posts suggesting that AI protective orders are becoming the standard of care. See A.I. Protective Order by Consent in Google Case (Sep. 13, 2026). The jointly requested A.I. protective order in Hoffman v. Univ. of Nebraska Medical Ctr., 2026 WL 2969621 (D. Neb. Oct. 2, 2026), […]
September 24, 2026
Published by Michael Berman at September 24, 2026
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In Tudor v. State Farm General Ins. Co., 2026 WL 2668435 (N.D. Cal. Sep. 10, 2026), the parties were unable to agree on an ESI Protocol. The court established a framework for resolving the dispute. I suggest that, in doing so, the court provided a strong incentive for the parties to resolve […]
September 19, 2026
Published by Michael Berman at September 19, 2026
The plaintiff in EEOC v. Yas Caribe, Inc., 2026 WL 2593286 (D.P.R. Sep. 2, 2026), alleged “that defendants subjected Ms. Wilkerson to a hostile work environment and constructively discharged her after an incident involving Khalid Yassin, the pharmacy manager.” Id. at *9. Defendants denied the allegations. After outlining the discovery disputes, the […]
September 14, 2026
Published by Michael Berman at September 14, 2026
Thank you to Cimplify for citing one of my blogs on protective orders. Stepping Up to the Plate: Protective Orders to Restrict AI Training on Produced Data – Cimplifi Cimplify discussed a number of cases and wrote: As noted by Michael Berman in his blog for his site E-Discovery LLC, “Protective orders […]
September 13, 2026
Published by Michael Berman at September 13, 2026
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The following AI Protective Order was stipulated in Skaf v. Google LLC, 2026 WL 2620563, at *10-11 (S.D.N.Y. Sep. 4, 2026): Use of Generative Artificial Intelligence Tools and Large Language Models. Protected Material, and all information derived therefrom, shall not be inputted, uploaded, or submitted to any open, publicly accessible or freely […]
September 11, 2026
Published by Michael Berman at September 11, 2026
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Courts are routinely granting A.I. protective orders by consent. U.S. v. Paula, 2026 WL 2665024, at *2 (S.D.N.Y. Sep. 10, 2026). In Elgin v. Wells Fargo Bank, N.A., 2026 WL 2664674, at *1 (N.D. Cal. Sep. 9, 2026), Wells Fargo asserted that Plaintiff violated such a protective order. “Specifically, Wells Fargo contends […]
September 3, 2026
Published by Michael Berman at September 3, 2026
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In Greco v. Hon. Robert W. Lane, 2026 WL 2446747 (D. Nev. Aug. 19, 2026), the court held that there was no procedural defect in a request to use AI to record a deposition. Substantive questions were left open. “Plaintiff served two Rule 30(b)(6) notices of deposition on Nye County. ECF No. […]
August 27, 2026
Published by Michael Berman at August 27, 2026
Every search must be validated. It is “entirely self-evident” that “ipse dixit pronouncements from lawyers unsupported by an affidavit or other showing that the search methodology was effective for its intended purpose are of little value to a trial judge.” Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 261 (D. […]
August 27, 2026
Published by Michael Berman at August 27, 2026
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I have been posting about A.I. protective orders since last year. Basically, these orders limit use of artificial intelligence by the recipient of discovery materials. After I posted Another A.I. Protective Order – Part 10 (Aug. 21, 2026), at least three more were reported. In Campbell v. TidalHealth, Inc., 2026 WL 2162749 (D. […]
August 24, 2026
Published by Michael Berman at August 24, 2026
What Substantive Law Governs Sufficiency of a Privilege Log in a Federal Court Sitting in Diversity?
McSwain v. HOMAG Machinery N. America, Inc., 2026 WL 2427645 (D. S. Car. Aug. 19, 2026), is a product liability and wrongful death action in which federal jurisdiction was based on diversity of citizenship. The decedent had been repairing a machine. Another worker turned off the power, causing the motor to drop […]
August 21, 2026
Published by Michael Berman at August 21, 2026
I have been posting about A.I. protective orders since last year. This is the 10th post. A.I. protective orders, in one form or another, are becoming the standard of care. Basically, these orders limit use of artificial intelligence by the recipient of discovery materials. But, they are not always fair. Craig Ball […]
July 30, 2026
Published by Michael Berman at July 30, 2026
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A condominium, Trailsedge Owners Association, Inc., sued the developer, Blue Moon, and others alleging design and construction defects. It requested $10 million in damages. The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s […]
July 28, 2026
Published by Michael Berman at July 28, 2026
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A putative class of subscribers to LinkedIn’s premium services sued and alleged monopolization or attempted monopolization of the social networking market. Crowder v. LinkedIn Corporation, 2026 WL 2076152 (N.D. Cal. Jul. 17, 2026). They sought depositions in excess of those provided for by the Federal Rules of Civil Procedure based on documents […]
July 27, 2026
Published by Michael Berman at July 27, 2026
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In continuing use of protective orders limiting an opponent’s use of discovery materials in the opponent’s AI system, a consent order was entered by consent in a criminal case as follows: Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials. a. “AI tool” means any automated system that uses statistical […]
July 26, 2026
Published by Michael Berman at July 26, 2026
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The following is a stipulated search methodology in an ESI Protocol from James v. Cerebras Systems Inc., 2026 WL 1962840 (N.D. Cal. Lul. 7, 2026): The Parties agree that each Responding Party is best situated to determine the most appropriate method or methods for that Responding Party to search, collect, cull, and […]
July 25, 2026
Published by Michael Berman at July 25, 2026
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The court in Wilson Aerospace LLC v. The Boeing Company, Inc., 2026 WL 2069870 (W.D. Wash. Jul. 17, 2026), held that an ESI Protocol is permissible tool; however, it does not override the discovery rules. Here, defendant did not search a relevant custodian’s documents because he was not listed as an ESI […]
July 24, 2026
Published by Michael Berman at July 24, 2026
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In Sussman Sales Co., Inc. v. VWR International, LLC, 2026 WL 2056582 (S.D.N.Y. Jul. 15, 2026), the court made two holdings that I question. Clearly the court is privy to information I do not have and may have explained its reasoning in greater depth elsewhere. For example, the opinion opens by stating: […]
July 20, 2026
Published by Michael Berman at July 20, 2026
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In a recent action in the Middle District of Florida, the parties’ submitted a Joint Motion for Stipulated Protective Order and a Joint Motion for Stipulated Order Regarding Discovery of Electronically Stored Information. “The Motions respectively seek entry of a Stipulated Protective Order (‘Protective Order’), … and a Stipulated Order Re: Discovery […]
July 9, 2026
Published by Michael Berman at July 9, 2026
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Protective orders addressing the use of A.I. to review materials produced to an opponent in discovery are becoming routine. The stipulated protective order in RMME LLC v. Majestic Steel USA, Inc., 2026 WL 1831063, at *7 (D. Nev. Jun. 24, 2026), covered that topic and added a provision regarding other uses of […]
July 5, 2026
Published by Michael Berman at July 5, 2026
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Tara S. Emory and Maura R. Grossman have authored “GenAI Prompts in eDiscovery: Protected Work Product or Not?,” which will be published in Columbia Sci. and Tech. L. Rev., Vol. 28, No. 1 (forthcoming Dec. 2026). This excellent and comprehensive paper addresses whether draft and final prompts written by attorneys to instruct […]
June 30, 2026
Published by Michael Berman at June 30, 2026
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The stipulated protective order in Waterford Township Gen. Employees Retirement System v. Monolithic Power Systems, Inc., 2026 WL 1858112 (W.D. Wash. Jun. 29, 2026), addressed the protection of A.I. used by a party’s expert. It stated: Neither side must preserve or disclose, including in expert deposition testimony, the following documents or materials:… […]
June 26, 2026
Published by Michael Berman at June 26, 2026
In a breach of contract claim against the City of Salisbury and its Mayor, the Plaintiff sought an order compelling the City to produce certain ESI and metadata. 1 Fitzwater Street, LLC v. Taylor, 2026 WL 1830959 (D. Md. Jun. 25, 2026)(Coulson, J.). The Court ordered production in native form with metadata, […]
June 23, 2026
Published by Michael Berman at June 23, 2026
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A dispute over search terms led to a decision on keywords for searching Microsoft Teams. Kim v. Cushman & Wakefield U.S., Inc., 2026 WL 1353455 (C.D. Cal. Apr. 24, 2026). The court held that search terms that may be appropriate for email may not be sufficient for shorter, less formal communications on […]
June 20, 2026
Published by Michael Berman at June 20, 2026
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Alison L. MacDonald sued her employers alleging discrimination on various grounds. The parties negotiated a partial resolution of disputes, but: “Defendants conditioned their supplemental response as to several of the requests on the parties agreeing to custodians of Electronically Stored Information (‘ESI’) and a set of search terms that Defendants would run […]
June 4, 2026
Published by Michael Berman at June 4, 2026
The Northern District of California has a “Model Stipulated Protective Order (for standard litigation)” and a “Stipulated Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and Trade Secrets (Feb. 2022).” I suggest that the latter was applied too stringently in Litton v. Roblox Corporation, 2026 WL 1483493 (May 27, 2026). […]
June 1, 2026
Published by Michael Berman at June 1, 2026
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The court in Alex v. City of Ann Arbor, 2026 WL 1383768 (E.D. Mich. Mary 18, 2026), rejected plaintiffs’ assertion that they had asked for documents in native form and also rejected their assertion that production of responsive “junk” was improper. The City of Ann Arbor had denied employees’ requested religious exemptions […]
May 5, 2026
Published by Michael Berman at May 5, 2026
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In Medal v. Amazon.Com Services, LLC, 2026 WL 1179763, at *1 (W.D. Wash. Apr. 30, 2026), the parties submitted a dispute over a protective order and ESI Protocol. Three issues addressed by the court were: 1) whether a Fed.R.Evid. 502(d) order could be entered without consent; 2) whether a “clawback” order could […]
May 4, 2026
Published by Michael Berman at May 4, 2026
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“Hit Reports,” also called “search term reports” or “keyword reports,” are commonly accepted. However, United Farm Workers v. Noem, 2026 WL 1045469 (E.D. Cal. Apr. 17, 2026), stated an exception for facially overbroad search terms. The starting point was the court’s observation that: “Although it is abundantly clear from the parties’ filings […]
April 27, 2026
Published by Michael Berman at April 27, 2026
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As the title indicates, In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, 2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026), is complex litigation. One significant issue was an order limiting the use of artificial intelligence to analyze protected materials produced by an opponent in discovery. I have suggested […]
April 26, 2026
Published by Michael Berman at April 26, 2026
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In a recent case, the defendants opposed certain discovery. The court wrote: “Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that [t]he parties should not simultaneously be in production while still negotiating their ESI protocols.’ That is an argument for the parties to […]
April 23, 2026
Published by Michael Berman at April 23, 2026
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Plaintiffs in a Fair Labor Standards Act collective action sought broad discovery from seven apex executives of defendant Perdue Foods. Tripp v. Perdue Foods LLC, 2026 WL 1021135 (D. Md. Apr. 15, 2026)(Coulson, J.). The parties were diametrically opposed: “Plaintiff seeks an order compelling the production of certain ESI from Perdue, and […]
April 20, 2026
Published by Michael Berman at April 20, 2026
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Orders limiting the use of artificial intelligence to analyze information produced by an opposing party are becoming routine. For example, a court recently entered the following stipulated provision: Persons receiving Confidential information under this Stipulated Protective Order shall not upload, input, or otherwise provide any documents, data, or information produced in this […]
April 10, 2026
Published by Michael Berman at April 10, 2026
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“The instant motion represents the latest skirmish in a long-running conflict between the Parties regarding the scope, nature, and volume of Plaintiff’s discovery. The Court will not recite each episode of unpleasantness herein. Now before the Court is a motion for a protective order, in which Defendant seeks the Court’s intervention in […]
April 6, 2026
Published by Michael Berman at April 6, 2026
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The EEOC sued Cemex Construction Materials Florida, LLC, on behalf of a trainee. It alleged that “Defendant unlawfully refused to accommodate Ms. Textor’s religious practice, by forbidding her to wear a skirt at work, and by subsequently terminating her.” The court’s order in EEOC v. Cemex Construction Materials Florida, LLC, 2026 WL […]
April 2, 2026
Published by Michael Berman at April 2, 2026
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Maryland courts, like others, are increasingly being faced with artificial intelligence. E.g., Artificial Intelligence in Maryland Courts (Aug. 24, 2025); “Ex-Pikesville High principal impersonated in racist AI case settles lawsuit” (Nov. 1, 2025). The Administrative Office of the Courts is conducting a pilot program. Maryland’s Artificial Intelligence Evidence Clinic Pilot Program (Mar. […]
March 31, 2026
Published by Michael Berman at March 31, 2026
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Application to Pro Se Litigant and Beyond? “AI is forcing litigants and courts to confront difficult questions about how and to what extent longstanding protections will apply when parties use AI to assist them in the litigation process. In particular, courts are beginning to wrestle with practical questions surrounding confidentiality, work product, […]
March 30, 2026
Published by Michael Berman at March 30, 2026
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Harris v. Washington County, 2026 WL 813917 (D. Ut. Mar. 24, 2026), addresses a gap in the Federal Rules of Civil Procedure. The rules are silent on when a motion for sanctions must be filed. However, in Harris: “Because the Motion is untimely, it is denied.” Where there is a lack of […]
March 26, 2026
Published by Michael Berman at March 26, 2026
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In a putative class action brought by plaintiffs who live within a three-mile radius of a chemical facility, the court addressed restrictions on the use of open artificial intelligence tools to review any of the materials produced by an opponent in discovery, even if they are not confidential. Jeffries v. Harcros Chemicals, […]
March 26, 2026
Published by Michael Berman at March 26, 2026
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I have suggested that litigation hold notices should not be treated as privileged. See Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025); The Honorable Paul W. Grimm (ret.), M. Berman, et al., Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation […]
March 10, 2026
Published by Michael Berman at March 10, 2026
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I previously reported that Bill to Create A.I. Evidence Clinic Pilot Program Was Vetoed in MD (Sep. 15, 2025). That bill has now become law and is codified in Md. Code Ann., Courts & Judicial Proceedings Article §13-101.2. It states in full: 13-101.2. Artificial Intelligence Evidence Clinic Pilot Program Effective: January 15, […]
March 9, 2026
Published by Michael Berman at March 9, 2026
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Two federal rules were amended, effective December 1, 2025.[1] They encourage the use of Fed.R.Evid. 502 non-waiver orders and re-emphasize the flexibility of negotiated privilege logs under Fed.R.Civ.P 26(b)(5)(A). Fed.R.Civ.P. 16 Rule 16 addresses pretrial conferences, scheduling, and management. Subsection (b) covers “Scheduling and Management.” Subsection (b)(3) addresses the contents of a […]
March 5, 2026
Published by Michael Berman at March 5, 2026
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Disagreement is not an impasse. “The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Plata v. Lands’ End, Inc., […]
February 24, 2026
Published by Michael Berman at February 24, 2026
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The time when a video of key events must be produced in discovery is often contentious. Requestors generally contend it must be produced, like other discovery, before their deposition. Producers often contend that the video is impeachment evidence that need not be produced until after the Requestor is deposed. That tension was […]
February 23, 2026
Published by Michael Berman at February 23, 2026
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A non-party did not request authorization to use artificial intelligence to respond to a subpoena until it asked the court to reconsider a prior discovery order. The court wrote: “This proposal comes too late and is far too generic to suffice.” Mi Familia Vota v. Fontes, 344 F.R.D. 496, 529 (D. Ariz. […]
February 18, 2026
Published by Michael Berman at February 18, 2026
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In L.S. v. Bolduan, 2026 WL 95689 (W.D. Wash. Feb. 12, 2026), under the “legal right test,” defense counsel–who obtained information from their institutional client in a State court case–did not have possession, custody, or control of that information in a federal case, brought by the same plaintiff, against only the entities’ […]
February 12, 2026
Published by Michael Berman at February 12, 2026
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In AI Docs Sent By Exec To Attys Not Privileged, Judge Says – Law360 (Feb. 10, 2026), Pete Brush reported a bench ruling holding that “a Texas financial services executive accused of a $150 million fraud cannot claim privilege over documents that he prepared using an artificial intelligence service and sent to […]
January 30, 2026
Published by Michael Berman at January 30, 2026
The Sedona Conference’s Cooperation Proclamation has long and properly suggested that cooperation and transparency are important methodologies. Sedona carefully explains the reasons. However, there are also other practical considerations that support cooperation, negotiation, and mediation of disputes. Specifically, courts have stated that a litigant may be “right,” but “find itself on the […]
January 24, 2026
Published by Michael Berman at January 24, 2026
In Yotta Technologies Inc. v. Evolve Bank & Trust, 2026 WL 172502 (N.D. Cal. Jan. 22, 2026), the court addressed hyperlinked documents, or “modern attachments.” I have called this the “Humpty Dumpty” issue. “The Humpty Dumpty issue – – the question of re-linking pointers and targets – – is very important….” More […]
January 18, 2026
Published by Michael Berman at January 18, 2026
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In Choudhury v. NYC Health and Hospitals Corp., 2026 WL 124376 (S.D.N.Y. Jan. 16, 2026), defendant prevailed because it supported its argument with metrics. The court held that the facts presented demonstrated that requested ESI was not reasonably accessible because of undue burden or cost. Ms. Choudhury asked the court to approve […]
January 16, 2026
Published by Michael Berman at January 16, 2026
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Craig Ball’s “The Leery Lawyer’s Guide to AI and LLMs in Trial Practice” (2026), is available for free from his blog, 2026 Guide to AI and LLMs in Trial Practice | Ball in your Court. Craig is a national resource. A list of his contributions to this field would fill a book. […]
January 2, 2026
Published by Michael Berman at January 2, 2026
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Prof. Ira P. Robbins, published an important article, Against an AI Privilege – Harvard Journal of Law & Technology (Nov. 7, 2025). Prof. Robbins poses the question of whether communications with artificial intelligence systems “deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal privileges.” He argues […]
January 1, 2026
Published by Michael Berman at January 1, 2026
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Flynn-Murphy v. Jaguar Land Rover of N. Amer., LLC, 2025 WL 3771284 (D.N.J. Dec. 31, 2025)(unpublished), was before the court on Class Counsel’s Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Class Representative Service Awards. Plaintiffs asserted defective turbochargers in Defendants’ vehicles and that they cause expensive damage. After […]
December 24, 2025
Published by Michael Berman at December 24, 2025
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Motions to compel were both “unripe” and “untimely” in Mindtickle, Inc. v. Studio Enterprise, LLC, 2025 WL 3691969 (C.D. Cal. Nov. 27, 2025). The court also described an inadequate Rule 26(f) “discovery plan.” Additionally, bilateral agreements could not modify the scheduling order. Mindtickle’s timing theory was deemed “upside down.” Mindtickle echoes Golat […]
December 23, 2025
Published by Michael Berman at December 23, 2025
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Andersen v. Stability AI Ltd., 2025 WL 3564202 (N.D. Cal. Dec. 12, 2025), involved interpretation of an ESI Protocol. The protocol was called a “Stipulated ESI Order.” It stated: “A Requesting Party may request up to twelve custodians per Producing Party….” “The parties may jointly agree to modify these limits without the […]
December 21, 2025
Published by Michael Berman at December 21, 2025
I posted 237 blogs this year to date. Many are on EDRM or JD Supra. Some that may be worth reading are: An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues Artificial Intelligence in Maryland Courts “Just When […]
December 5, 2025
Published by Michael Berman at December 5, 2025
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The decision in Legault v. Costco Wholesale Corporation, 2025 WL 3252653 (E.D. Ark. Nov. 21, 2025), is succinct in its discussion of the production of native files. The court wrote: “Legault’s motion to compel Costco to provide him with native files and metadata is denied because Costco states the files are security […]
December 1, 2025
Published by Michael Berman at December 1, 2025
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A recent decision states: “Subsequently, the parties filed a Joint Status Report, a transcript of their meet and confer session, and a letter update, which ultimately apprised the Court that the parties were unable to resolve their dispute.” Lifestyle Realty, LLC v. Kirn, 2025 WL 2719984, at *2 (D. Md. Sept. 23, […]
November 30, 2025
Published by Michael Berman at November 30, 2025
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A Scheduling Order is, after all, an Order. Violating it has consequences. Estate of Taylor v. Spring, 2025 WL 3294714 (Appl. Ct. Md. Nov. 26, 2025)(unreported).[1] This is an application of the Cinderella principle: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost […]
November 29, 2025
Published by Michael Berman at November 29, 2025
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The purpose of an ESI Protocol “is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Leon v. American Honda Motor Co. Inc., 2025 WL 3255005, […]
November 24, 2025
Published by Michael Berman at November 24, 2025
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I have suggested that an “ESI Protocol” is not a “Discovery Plan.” “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024). The difference is more than semantics. A “discovery plan” is mandated by the Federal Rules of Civil Procedure. No Rule mentions an “ESI Protocol.” While it may be imprudent to do so, […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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Efforts to redact material as irrelevant are generally rejected. Relevance Redactions Prohibited – Again (May 17, 2024); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025). The court in Hughes v. Apple, Inc., 2025 WL 3141836 (N.D. Cal. Nov. 10, 2025), permitted plaintiffs’ “restrained” redactions in connection […]
November 14, 2025
Published by Michael Berman at November 14, 2025
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In a dispute over search term counter-designations, the Special Master found that the ESI Protocol did not establish a milestone date, so none existed. Glaxosmithkline Biologicals SA v. Pfizer, Inc., 2025 WL 3098080 (D. Del. Nov. 6, 2025). Plaintiff GSK alleged infringement of eight patents. The District of Delaware has a “Default […]
November 7, 2025
Published by Michael Berman at November 7, 2025
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In U.S. v. Jones, 2025 WL 3013283 (D. Kans. Oct. 28, 2025), the court rejected both an argument that waiver of privilege was narrow, and an argument that it was broad, applying Fed.R.Evid. 502. The court described and rejected what it called a “newfangled theory” of waiver. That theory was that numerous […]
November 5, 2025
Published by Michael Berman at November 5, 2025
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MuniCap, Inc. v. Wilson, 2025 WL 3003968 (D. Md. Oct. 24, 2025)(Austin, J.), is the latest decision in the long simmering dispute over document correlation under Fed.R.Civ.P. 32. The dispute centers on whether Subsection E(i) or E(ii) governs production of ESI. THE RULE 34(b)(2)(E)(i) & (2) DISPUTE Subsection E(i) states that: “A […]
November 3, 2025
Published by Michael Berman at November 3, 2025
“[T]he Court’s March 18, 2025 Fed. R. Civ. P. 26(c) protective order … is hereby modified to reflect that any documents marked confidential shall not be uploaded onto any AI platform.” Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025)(emphasis in original). Apparently, the concern was that, if confidential […]
October 28, 2025
Published by Michael Berman at October 28, 2025
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The Federal Rules of Civil Procedure do not state when a motion to compel must be filed. This silence has generated a number of discovery disputes. When Must a Motion to Compel Be Filed? (Aug. 26, 2024); When Must a Motion to Compel Be Filed? – Part 2; (Sep. 6, 2024); Half-Baked […]
October 15, 2025
Published by Michael Berman at October 15, 2025
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In its “Order Granting Motion to Compel Disclosure Regarding Preservation Efforts,” a court recently wrote: “For all of the foregoing reasons, plaintiffs motion to compel disclosures regarding Amazon’s preservation[] efforts … is GRANTED. Amazon shall, within fourteen days of the date of this Order, produce the litigation hold notices sent regarding this […]
October 13, 2025
Published by Michael Berman at October 13, 2025
In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections. The court ordered mutual disclosure of search methodology and ruled that it was […]
October 3, 2025
Published by Michael Berman at October 3, 2025
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Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 29, 2025)(Austin, J.), covers a lot of ground. This blog addresses only two of the covered issues: (1) when is a motion for protective order untimely; and, (2) when is the requirement to meet and confer before filing such a motion waived as […]
September 30, 2025
Published by Michael Berman at September 30, 2025
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A “Joint Motion for Entry of Order Adopting Stipulation Regarding Production of Electronically Stored Information and Paper Documents” asked the court to enter an Order adopting the parties’ “Stipulation Regarding Production of Electronically Stored Information and Paper Documents” (“ESI Stipulation”). The Joint Motion was denied. Husidic v. FR8 Solutions, Inc., 2025 WL […]
September 29, 2025
Published by Michael Berman at September 29, 2025
In In Re Tecfidera Antitrust Litigation, 2025 WL 2734539 (N.D. Ill. Sep. 25, 2025), the court wrote: “The parties’ cross motions for entry of their version of the ESI protocol noted that the parties agreed on all issues except for one relating to email threading, which Defendant seeks to include but Plaintiffs […]
September 27, 2025
Published by Michael Berman at September 27, 2025
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The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward. The recipient of a preservation demand is not obligated to respond. The Court wrote: Finally, Mr. Jones also alleges that sanctions are in order because he has “serious spoliation concerns.”… His […]
September 24, 2025
Published by Michael Berman at September 24, 2025
A recent decision demonstrates the importance of following the Rules and the duty to cooperate, after a “quick peek” proved that an opponent’s discovery responses were incomplete. The Court wrote: “Defendants’ responses to Plaintiffs’ interrogatories and requests for production of documents are vague and confusing. The Federal Rules of Civil Procedure and […]
September 20, 2025
Published by Michael Berman at September 20, 2025
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A motion to compel an ESI Protocol was denied in Khan v. Port Washington Hospitality LLC, 2025 WL 2664020 (E.D.N.Y. Sep. 17, 2025). Khan is a collective action case under the FLSA. The court denied conditional certification but permitted related discovery. Defendant PWH operated restaurants. Plaintiff, Ms. Khan, alleged that they were […]
September 16, 2025
Published by Michael Berman at September 16, 2025
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A challenge to a redacted metadata privilege log was partly successful. Jeffries Funding LLC v. Dasagroup Holdings Corp., 2025 WL 2611922 (N.D. Ca. Sep. 10, 2025). For a description of “metadata privilege logs” see How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform – E-Discovery LLC (Aug. […]
September 11, 2025
Published by Michael Berman at September 11, 2025
In Golat v. Wisconsin State Court System, 2025 WL 2466697 (W.D. Wis. Aug. 27, 2025)(“Golat II”), the court wrote that omitting a relevant email that was contained in an email chain violated counsel’s duty of candor to the court. This blog is an update of Half-Baked Motion to Compel Was Not Prompt, […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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“After a one-day trial in the Circuit Court for Montgomery County, a jury found Craig Donnell Johnson guilty of robbery. Before trial, Mr. Johnson had filed a motion to dismiss the case, arguing that the State had withheld the fact that it had used facial recognition technology (‘FRT’) to identify him as […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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Phased discovery is, in my experience, a potentially valuable, but rarely used, cost-saving technique. See Use of Phased Discovery to Achieve Proportionality (Jul. 15, 2022). In appropriate situations, phased discovery can be a useful way to avoid a discovery dispute by “kicking the can down the road.” Fed.R.Civ.P. 26(f)(3) requires that a […]
August 5, 2025
Published by Michael Berman at August 5, 2025
While disfavored, relevant and proportional “discovery on discovery” is permitted “where there is evidence of a specific deficiency in the production.” Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 2187115 (M.D. Tenn. Jul. 25, 2025). Revance moved to compel Allergan “to more fully respond to discovery related to former Allergan and former […]
August 3, 2025
Published by Michael Berman at August 3, 2025
Plaintiff’s motion to compel production of defendants’ organizational chart was granted in a putative class action for alleged unpaid overtime. Castillo v. Albert Einstein College of Medicine, Inc., 2025 WL 1789827 (S.D.N.Y. Jun. 30, 2025). The court wrote that: Plaintiff moves to compel responses to its Requests for Production (“RFPs”) Nos. 11–12 […]
July 31, 2025
Published by Michael Berman at July 31, 2025
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Payne v. Geer, 2025 WL 2061651 (D. Neb. Jul. 23, 2025), involved allegations of malicious prosecution. The court cited a local rule that prohibits use of definitions in interrogatories without leave of court. Plaintiff Payne moved to compel discovery from Defendant Herman. In pertinent part, Herman objected to the definitions in Payne’s […]
July 30, 2025
Published by Michael Berman at July 30, 2025
In Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”), after several rulings adverse to Genesh, the court appointed a Special Master to facilitate the plaintiff EEOC’s discovery from the defendant, Genesh, Inc. THE UNDERLYING CLAIMS “Genesh III” describes the nature of the case: “On […]
July 29, 2025
Published by Michael Berman at July 29, 2025
The long simmering “document correlation” dispute was addressed in Sievert Elec. Svc. and Sales Co. v. Storako, 2025 WL 2084229 (N.D. Ill. Jul. 24, 2025). The court followed the majority rule. While there is a clear split of authority, I respectfully disagree with Sievert and suggest that there is a better mousetrap. […]
July 24, 2025
Published by Michael Berman at July 24, 2025
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A motion for a forensic examination was granted in PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025). On movant’s third try, the court found that the opponent was trying to “gaslight” the court and it granted the motion. While the producing party’s failures were epic, the thoughtful discussion […]
July 23, 2025
Published by Michael Berman at July 23, 2025
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In a case where the plaintiff seeks $24,000,000 in damages, the court stated: “Today we write the next chapter in this litigation, a case which threatens to become an epic of dysfunctional discovery…. The parties have long been embroiled in contentious discovery disputes.” Everlast Roofing, Inc. v. Wilson, 2025 WL 1959345 (M.D. […]
July 15, 2025
Published by Michael Berman at July 15, 2025
A motion for spoliation sanctions was held to be “premature,” and the motion was denied without prejudice, in Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347, at *15 (M.D.N.C. May 28, 2025), report and recommendation adopted, 2025 WL 1755911 (M.D.N.C. June 25, 2025). The Federal Rules of Civil Procedure (and […]
July 1, 2025
Published by Michael Berman at July 1, 2025
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A motion to compel the designation of an “apex” non-party document custodian was granted in In Re Mosaic LLM Litigation, 2025 WL 176001 (N.D. Cal. Jun. 26, 2025). The limiting “apex doctrine” generally does not apply to document custodians. Id. However, the stringent “apex doctrine” applied in this instance, due to the […]
June 25, 2025
Published by Michael Berman at June 25, 2025
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In HET MCPS, LLC v. AutoFlex, Inc., 2025 WL 1615459 (D. Md. June 6, 2025), plaintiffs alleged that defendants interfered with plaintiffs’ contract and customer relationships. In this opinion, the Court addressed, among others, plaintiffs’ motion for forensic imaging. “Plaintiffs contend that Defendants have failed to comply with their discovery obligations and […]
June 19, 2025
Published by Michael Berman at June 19, 2025
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In Gilbane Bldg. Co. v. School Bd. of Broward County, 2025 WL 1615553 (S.D. Fl. Jun 6, 2025), plaintiff moved to compel a “compliant” privilege log. The court decided six issues. The court wrote: “I agree that Defendant must serve an amended privilege log with additional information (as described below), though not […]
May 23, 2025
Published by Michael Berman at May 23, 2025
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Marris Hoffee[1] and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374125 (C.D. Cal. May 12, 2025), addresses the relationship between ESI Protocols and production of text message strings. The Milne court denied a motion to compel further responses to requests for production. The court recited the general principles governing […]
May 17, 2025
Published by Michael Berman at May 17, 2025
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In Hall v. Warren, 2025 WL 1392294 (W.D.N.Y. May 14, 2025), the parties attempted to develop an ESI Protocol. When they were unable to do so, they submitted competing suggestions, and, the United States Magistrate Judge then “issued a Protocol and Order Governing Discovery (the ‘ESI Order’) establishing such a protocol.” The […]
May 14, 2025
Published by Michael Berman at May 14, 2025
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We the Protestors, Inc. v. Sinyangwe, 348 F.R.D. 175 (S.D.N.Y. Dec. 18, 2024), makes several important points about the relationship between ESI Protocols and redaction of produced documents. The decision begins: Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the […]
May 12, 2025
Published by Michael Berman at May 12, 2025
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In Skeans v. Atlantic Marine Corps Communities, LLC, 2025 WL 1298299 (D.S.C. May 5, 2025), the privilege logging term of the parties’ ESI Protocol did not determine when privilege logs for non-ESI material had to be provided. In short, the ESI Protocol applied only to ESI. “The present suit arises from Defendants’ […]
April 21, 2025
Published by Michael Berman at April 21, 2025
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There are countless decisions, law review articles, books, and guides written on search, search design, search methodology, search tools, and search metrics. See, e.g., EDRM Search Guide; The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery The following are a few exemplar decisions that […]
April 20, 2025
Published by Michael Berman at April 20, 2025
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Doug Austin’s blog, Informal Discovery Dispute as to TAR Implementation Resolved by Court (Apr. 17, 2025), provides an excellent description of a recent TAR protocol case. In re Insulin Pricing Litigation, 2025 WL 1112837 (D.N.J. Apr. 11, 2025).
April 16, 2025
Published by Michael Berman at April 16, 2025
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Burge v. Teva Pharmaceutical Industries, Ltd., 2025 WL 1100047 (D. Kans. Apr. 15, 2025), is an exceedingly complex case. Based on the terms of an ESI Protocol, the court granted, in part, and denied, in part, a motion to compel plaintiff to designate additional custodians in Phase I discovery. It applied a […]
April 15, 2025
Published by Michael Berman at April 15, 2025
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In Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025), the court ruled in favor of a discovering party and ordered reproduction of previously-produced documents under the terms of an ESI Protocol. The court also addressed what it considered to be a “dump truck” production. Pincus […]
April 10, 2025
Published by Michael Berman at April 10, 2025
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The Sedona Conference® has posted its “Commentary on Discovery of Collaboration Platforms Data, Public Comment Version” (Apr. 2025). Public comments may be submitted through May 16, 2025. My comment is that the Commentary is excellent and well worth reading. I am not going to try to summarize the comprehensive, 32-page document. Instead, […]
April 7, 2025
Published by Michael Berman at April 7, 2025
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In Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262 (M.D. Fl. Mar. 7, 2025), plaintiff, Orlando Health, sought to compel BBM to comply with an ESI Protocol and BBM sought to compel Orlando Health to do the same. The court rejected BBM’s argument that a filed ESI Protocol that had […]
April 2, 2025
Published by Michael Berman at April 2, 2025
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In Andersen v. Stability AI Ltd., 2025 WL 870358 (N.D. Cal. Mar. 19, 2025), the court resolved a dispute over an ESI Protocol. The starting point was a Standing Order that, absent good cause, parties “shall use” one of the court’s model protocols. The Andersen parties used a Model ESI Order as […]
April 1, 2025
Published by Michael Berman at April 1, 2025
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In 777 Partners, LLC v. Leadenhall Capital Partners LLP, 2025 WL 942414 (S.D. Fl. Mar. 28, 2025), the court entered an order denying plaintiff’s motion to compel supplemental document discovery and closing discovery. While other issues were addressed, two are discussed in this blog. First, the court criticized both parties for failing […]
March 27, 2025
Published by Michael Berman at March 27, 2025
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That was one question in Flores v. Guevara, 2025 WL 790795 (N.D. Ill. Mar. 12, 2025). Plaintiff filed a motion to compel in a Monell case involving the City of Chicago. This was one of a series of cases involving Reynaldo Guevara. Guevara was formerly a Chicago police detective. Cruz v. Guevara, […]
March 26, 2025
Published by Michael Berman at March 26, 2025
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In Wilbert v. Pyramid Healthcare, Inc., 2025 WL 873947 (W.D. Pa. Mar. 20, 2025), the court wrote: From the inception of this action, Counsel for the parties could not agree on the scope and methodology for ESI discovery…. Given [1] the breadth and scope of Attorney XXXX’s[1] ESI Requests and [2] the […]
March 8, 2025
Published by Michael Berman at March 8, 2025
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In Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025), Plaintiff’s claim was for $1,571,754.62. The court essentially held that the ESI Protocol was binding. It wrote: The emails attached to the [Defendant’s] motion to compel show that Defendant notified Plaintiff that […]
March 6, 2025
Published by Michael Berman at March 6, 2025
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues. […]
March 5, 2025
Published by Michael Berman at March 5, 2025
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In Tremblay v. OpenAI, Inc., 2025 WL 635335 (N.D. Cal. Feb. 27, 2025), plaintiffs, the requesting parties, sought to have input in determining search terms to be used by defendant, the producing party. Based on “the specter of too many future delays and disputes over methodology and search term formulation,” the request […]
March 4, 2025
Published by Michael Berman at March 4, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025), the court wrote: The parties negotiated an ESI Protocol that, in relevant part, required Defendants to collect documents from fifty custodians and produce documents and family members that produced a “hit” on agreed-upon search terms. Pursuant to the […]
February 21, 2025
Published by Michael Berman at February 21, 2025
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information.[1] In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025 WL 428547 (W.D.N.Y. Feb. 7, 2025), the court held that litigation hold notices were privileged. There may […]
February 14, 2025
Published by Michael Berman at February 14, 2025
In Parkin v. Avis Rent a Car System LLC, 2025 WL 484588 (D.N.J. Feb. 13, 2025), defendants waived their right to arbitration by moving to dismiss for failure to state a claim, negotiating an ESI Protocol, and engaging in discovery for 17 months. Plaintiffs rented vehicles from defendants on several occasions. They […]
February 11, 2025
Published by Michael Berman at February 11, 2025
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In Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.), Ms. Cooper sued BG&E and another employer for sexual harassment and discrimination.[1] The Court resolved cross-motions to compel. Both discovery motions were granted in part and denied in part. The decision reflects the fact-specific nature […]
February 8, 2025
Published by Michael Berman at February 8, 2025
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In Sullivan v. Wyatt, 2023 WL 1812733 (Appl. Ct. Md. Feb. 7, 2023)(unreported), the Court affirmed an award of damages to plaintiff (“Rebecca”), daughter of the decedent, due to the exertion of undue influence by the second wife of the decedent (“Joan”). After a five-day trial, the jury awarded Rebecca, the daughter, […]
January 31, 2025
Published by Michael Berman at January 31, 2025
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In Jennings v. USAA Casualty Insurance Co., 2025 WL267168 (W.D. Wash. Jan. 22, 2025), each side blamed the other for delay. The court wrote: Here, the Court questions whether the parties have acted with sufficient diligence in pursuing discovery. It seems much of the delay each side blames the other for could […]
January 27, 2025
Published by Michael Berman at January 27, 2025
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The decision in Cook v. Meta Platforms, Inc., 2024 WL 251942 (N.D. Cal. Jan. 21, 2025), packs a lot into very few pages. In two instances, where Meta had offered a compromise solution, the court held Meta to that offer. I. PRIVILEGE LOG DISPUTE First, the court resolved a privilege log […]
January 23, 2025
Published by Michael Berman at January 23, 2025
Many thanks to Doug Austin for Responsive Nonprivileged Documents Attached to a Privileged Communication Must Be Produced (Jan. 23, 2025), discussing In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025). The decision is available on Kelly Twigger’s eDiscovery Assistant. Doug’s excellent blog points out […]
January 15, 2025
Published by Michael Berman at January 15, 2025
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In Zarfati v. Artsana USA, Inc., 2025 WL 50373 (S.D. Fl. Jan. 8, 2025), the court resolved a dispute over an ESI Protocol. Essentially, it adopted the only option provided to it. Plaintiffs sought class certification discovery. They said that they “have attempted to negotiate [with Defendant] an ESI protocol that will […]
January 2, 2025
Published by Michael Berman at January 2, 2025
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Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), addressed the question of whether every document “hit” by a search term must be produced. In Spivey, Plaintiff Spivey and American Petroleum Institute (“API”) agreed to search terms to be used by the producing non-party, API. After […]
December 28, 2024
Published by Michael Berman at December 28, 2024
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Cooperation and transparency are best practices.[1] In Bonds v. NJ Judiciary Administration of the Court, 2024 WL 5220936 (D.N.J. Dec. 26, 2024), the court explained a prior discovery ruling: The Court also found that Plaintiff’s failure, after nearly two years, to confer with Defense counsel regarding an ESI protocol militated against granting […]
December 19, 2024
Published by Michael Berman at December 19, 2024
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In In re Outpatient Medical Center Employee Antitrust Litigation, 2024 WL 4679083 (N.D. Ill. Nov. 5, 2024), the court explained the application of Subsections (b) and (d) of Fed.R.Evid. 502. The parties proposed a Rule 502(d) order and it was entered on an agreed motion. Id. at *1. Plaintiffs later noted the […]
December 12, 2024
Published by Michael Berman at December 12, 2024
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In UMG Recordings, Inc. v. Uncharted Labs, Inc., 2024 WL 4986962 (S.D.N.Y. Dec. 5, 2024), the parties could not agree to an ESI Protocol. The Court appointed the Hon. James C. Francis (ret.) as a special master to bring the ball across the goal. The UMG court wrote: “The Special Master is […]
November 25, 2024
Published by Michael Berman at November 25, 2024
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In Kinnee v. TEI Biosciences Inc., 2024 WL 4860792 (S.D. Cal. Nov. 21, 2024), the court denied the parties’ Joint Motion for Entry of an Order Governing Discovery of Electronically Stored Information. In my words, the Kinnee court denied a joint motion to approve an ESI Protocol because the defendants’ Fed.R.Civ.P. 26(a) […]
November 13, 2024
Published by Michael Berman at November 13, 2024
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In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document […]
November 1, 2024
Published by Michael Berman at November 1, 2024
I’ll give the defendant in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4625727 (M.D. Fl. Oct. 30, 2024), credit. It was candid with the court. Despite several extensions of time, the defendant essentially told the court that it had been too busy to respond to discovery. While candor is commendable, […]
October 18, 2024
Published by Michael Berman at October 18, 2024
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I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The […]
October 11, 2024
Published by Michael Berman at October 11, 2024
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“A stipulation has all the binding force of a contract.” Waterworks Restoration Baltimore, LLC v. Shine Home Improvements, Inc., 2024 WL 4198164, at *1 (Apls. Ct. Md. Sept. 16, 2024) (unreported) (citation and quotations omitted). Parties stipulate “to save the time of the court, the expense and difficulty of producing witnesses, and […]
October 10, 2024
Published by Michael Berman at October 10, 2024
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The decision in EEOC v. Hooters of America, LLC, __ F. Supp. 3d __, 2024 WL 4362863 (M.D. N. Car. Oct. 1, 2024), opens with the court’s statement that: The parties jointly ask to extend the discovery deadline and continue the trial. They have not acted with due diligence or shown good […]
October 8, 2024
Published by Michael Berman at October 8, 2024
In a wage-and-hour claim, the Court in Bobb v. FinePoints Priv. Duty Healthcare, LLC, 2024 WL 4355048, at *1 (D. Md. Sept. 30, 2024), was faced with two “momentous” 😊 issues on a motion to compel: Plaintiffs request an order compelling Defendants to make the following categories of production…: Bates-stamped documents of […]
October 7, 2024
Published by Michael Berman at October 7, 2024
Sometimes, timing is everything. In Kadrey v. Meta Platforms, Inc., 2024 WL 4362744 (N.D. Cal. Oct. 1, 2024), it was dispositive. “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Another Cinderella Situation –Motion Denied as Untimely? (May […]
October 6, 2024
Published by Michael Berman at October 6, 2024
Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision. The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are […]
October 5, 2024
Published by Michael Berman at October 5, 2024
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Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024), applied principles enunciated by the Hon. Andrew J. Peck under the supervision of the court-appointed Special Master, Philip Favro. The parties’ dispute centered on search queries. Defendant asserted that plaintiff’s queries were over broad, excessive in number, and resulted […]
September 23, 2024
Published by Michael Berman at September 23, 2024
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Addison Central School Dist. V. Monsanto Co, Solutia, Inc., 2024 WL 4212351 (D. Vt. Sep. 17, 2024), consists entirely of the publication of an ESI Protocol. The parties stipulated that the following categories of documents need not be produced and “presumptively need not be included on a privilege log….” Communications exclusively between […]
September 14, 2024
Published by Michael Berman at September 14, 2024
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In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote: So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like […]
September 13, 2024
Published by Michael Berman at September 13, 2024
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“Cooperation” has long been a hallmark of resolution of ESI issues. See, e.g., Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation (May 31, 2022). It was an honor to be appointed by the U. S. District Court for the District of Maryland as the “ESI Discovery Supervisor” in […]
September 12, 2024
Published by Michael Berman at September 12, 2024
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The September 6, 2024, decision in In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024), applies the “legal control” standard to Fed.R.Civ.P. 34 discovery requests propounded by defendant Meta Platforms, Inc., seeking documents from non-party State agencies in a lawsuit brought by 35 State plaintiffs.[1] […]
September 6, 2024
Published by Michael Berman at September 6, 2024
A few days ago, I addressed When Must a Motion to Compel Be Filed? (Aug. 26, 2024). The issue was addressed again four days later in Turner v. Apple, Inc., 2024 WL 4008763 (N.D. Ca. Aug. 30, 2024). The Turner court wrote that Turner waited too long to move to compel because […]
September 5, 2024
Published by Michael Berman at September 5, 2024
In Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024), the court denied an unopposed motion to enter a protective order and an unopposed motion to enter an ESI Protocol. The Orlando Health court wrote: “Upon review, the motions fail to establish, by citation to legal […]
August 27, 2024
Published by Michael Berman at August 27, 2024
In Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024), the court wrote: “Before the Court are a litany of motions to seal exhibits to contemporaneously filed briefing on discovery disputes.” The Sazerac court granted a number of those motions; however, it denied […]
August 26, 2024
Published by Michael Berman at August 26, 2024
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While the Federal Rules of Civil Procedure are detailed and precise, there are gaps. For example, the Rules do not specify when a spoliation motion must be filed. That gap has been filled by common-law. When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); Spoliation Motions Denied as Untimely […]
August 23, 2024
Published by Michael Berman at August 23, 2024
In Authentication is key to direct and cross-examination (thedailyrecord.com) (Aug. 22, 2024), my friend Paul Sandler wrote: “It can be said that direct and cross-examination are the central features of the trial, and essential to examinations are the exhibits sought to be introduced in evidence.” Paul cites to the applicable Maryland Rules […]
August 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 8, 2024
Published by Michael Berman at August 8, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for privilege.” For example, if a client sends a privileged email to counsel seeking legal advice, and attaches […]
August 6, 2024
Published by Michael Berman at August 6, 2024
In Tremblay v. OpenAI, Inc., 2024 WL 3638421 (N.D. Cal. July 31, 2024), the court resolved two disputes over an ESI Protocol, writing: “As to the first category of disagreement, the Parties have found themselves at an impasse as to the proper number of document custodians to be set forth in the […]
July 22, 2024
Published by Michael Berman at July 22, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court enforced an ESI Protocol that called for a “metadata-only” privilege log, even though parts of the metadata were redacted by the producing party. The holding ultimately hinged on the text of the ESI Protocol […]
June 20, 2024
Published by Michael Berman at June 20, 2024
In U.S. ex rel. Zafirov v. Physician Partners, LLC, 2024 WL 2846007 (M.D. Fla. June 2, 2024), the court held that a categorical privilege log was insufficient, even after an apparent agreement to that logging process. The role of a privilege log is to “trust, but verify.” In other words, “play, but […]
May 25, 2024
Published by Michael Berman at May 25, 2024
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In U.S. v. Alliance Park LLC, 2024 WL 2230041 (S.D.Ga. May 15, 2024), in a “recently filed” case, “the Court issues the following Order to provide instructions to the parties regarding their initial discovery obligations and to institute initial case management proceedings.” The court wrote: “During the Rule 26(f) Conference, the parties […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
May 17, 2024
Published by Michael Berman at May 17, 2024
Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007, at *6-7 (N.D. Cal. May 14, 2024), is another in a long line of cases prohibiting redaction of purportedly nonresponsive or irrelevant material from responsive documents. I have written several blogs about redactions for relevance or confidentiality: Relevance Redactions Revisited […]
May 10, 2024
Published by Michael Berman at May 10, 2024
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I have posted five blogs – – with links below – – on In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), subsequent opinion, 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024). I did not, and could not, touch on every issue addressed […]
May 8, 2024
Published by Michael Berman at May 8, 2024
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This is the third follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, […]
May 7, 2024
Published by Michael Berman at May 7, 2024
This is a follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), […]
May 6, 2024
Published by Michael Berman at May 6, 2024
This is the first of four follow ups to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. […]
May 18, 2022
Published by Michael Berman at May 18, 2022
“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly. “Getting the steps […]