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August 8, 2026
Published by Michael Berman at August 8, 2026
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This is my second post on Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026). Plaintiff in a copyright infringement action moved to compel discovery under Fed.R.Civ.P. 37. The court wrote that: Under Rule 37(a)(1), a “motion to compel ‘must include a certification that the movant has in good faith […]
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 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 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 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 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 7, 2026
Published by Michael Berman at June 7, 2026
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The explanation of a litigant’s duties in responding to written discovery, as laid out in Williamson v. First Horizon Bank, 2026 WL 1492594 (E.D. La. May 28, 2026), does not break new ground. However, it is clear and succinct. A refresher never hurts.[1] It is important to “do it right.” Age-old Habit […]
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 28, 2026
Published by Michael Berman at May 28, 2026
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“Federal Rule of Civil Procedure 26(d)(1) does not allow discovery from any source prior to a Rule 26 conference. However, the district court has discretion to order expedited discovery.” McIntyre v. Little Miami School Dist., 2026 WL 1284127 (S.D. Oh. May 11, 2026). Mr. McIntyre sued the School District defendants seeking to […]
May 26, 2026
Published by Michael Berman at May 26, 2026
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A recent protective order entered by consent stated: The Receiving Party shall not load, import, submit, or otherwise transfer Discovery Material (defined as any documents produced in this matter) to any Large Language Model (“LLM”) or Artificial Intelligence (“AI”) platform without agreement of the parties. Should the Receiving Party want to load, […]
May 13, 2026
Published by Michael Berman at May 13, 2026
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Fed.R.Civ.P. 37(b)(2)(A) authorizes sanctions for failure to comply with a court order. In Mirae Asset Securities Co., Ltd. v. Ryze Renewables Holdings, LLC, 2026 WL 1298156 (D. Nev. May 12, 2026), defendants sought sanctions under that Rule. One issue was whether a party moving for sanctions under that Rule is required to […]
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 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 25, 2026
Published by Michael Berman at April 25, 2026
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An example of an ineffective use of artificial intelligence was provided in Camarillo Hospitality LLC v. G6 Hospitality LLC, 2026 WL 1113871 (E.D. Cal. Apr. 24, 2026). Defendant logged on to a virtual meeting using free Microsoft Teams software. Unknown to both parties, that triggered a recording by Otter.ai. Both counsel were […]
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 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 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 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’ […]
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 8, 2026
Published by Michael Berman at January 8, 2026
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Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products. One advantage of using Special Masters like Phil is speed. Phil was appointed by the court on […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In Allen v. Amazon, 2025 WL 3719889 (N.D. Tex. Dec. 23, 2025), the court applied a discretionary exception to the “meet and confer” requirement. It also declined to impose sanctions for violation of a Local Rule mandating disclosure of the use of artificial intelligence. EXCEPTION TO “MEET AND CONFER” REQUIREMENT In yesterday’s […]
December 27, 2025
Published by Michael Berman at December 27, 2025
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Plaintiff filed an ex parte motion seeking an order requiring defendants to produce documents without redactions. The motion was denied without prejudice for failure to meet and confer, and failure to follow ordinary discovery procedures. Additionally, Plaintiff and Plaintiff’s counsel were ordered “to show cause as to why they should not be […]
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 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 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 18, 2025
Published by Michael Berman at November 18, 2025
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Where a producing party argued, ten months after discovery was propounded, that a motion to compel was “unnecessary” because it had agreed to produce the information at some unspecified time, the court held that the offer was meaningless. Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, […]
November 8, 2025
Published by Michael Berman at November 8, 2025
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Plaintiffs alleged that defendants improperly delayed market entry of their generic medication. Defendants filed a motion to dismiss and sought to stay all discovery until after that motion was resolved. They contended that plaintiffs waited 10 years to file suit and were barred by limitations. The motion to stay discovery was denied: […]
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 4, 2025
Published by Michael Berman at November 4, 2025
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A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit. Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, […]
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 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 […]
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 29, 2025
Published by Michael Berman at September 29, 2025
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A motion for sanctions was denied in an alleged misappropriation of trade secrets action by a former employer against departed employees. Lifestyle Realty, LLC v. Kirn, et al., 2025 WL 2719984 (D. Md. Sep. 23, 2025)(Simms, J.). Lifestyle Realty (“DKG”) is a real estate brokerage firm. It sued four individual defendants and […]
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 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 5, 2025
Published by Michael Berman at September 5, 2025
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Yesterday, I posted a blog titled “Discovery on Discovery” Permitted. “Discovery on Discovery” was denied in Lively v. Wayfarer Studios LLC, 2025 WL 2496307 (S.D.N.Y. Aug. 29, 2025). Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if […]
September 2, 2025
Published by Michael Berman at September 2, 2025
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There is a problem when the court writes that it “reminds the Parties … that they are engaged in civil litigation, and the Court urges all involved to conduct themselves accordingly.” Pendleton v. Revature LLC, 2025 WL 2493090, at *5 (W.D. Wash. Aug. 11, 2025)(emphasis in original; citation and quotation omitted). It […]
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 11, 2025
Published by Michael Berman at August 11, 2025
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A party that fails to timely provide a privilege log does so at its peril. In J.T. v. City and County of San Francisco, 2025 WL 2213208 (N.D. Cal. Aug. 4, 2025), plaintiffs[1] sued over a mass arrest. Defendants asserted the qualified, official information privilege, but failed to provide a privilege log […]
August 7, 2025
Published by Michael Berman at August 7, 2025
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The federal court in Delaware has a “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings LLC, 2025 WL 2146099 (D. Del. Jul. 29, 2025). It applied that standard to a request to preserve information in Random Access Memory (“RAM”). Belvac sought preservation […]
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 […]
August 1, 2025
Published by Michael Berman at August 1, 2025
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In a family law decision that may impact all time-delimited offers, the Maryland Supreme Court held that the offeror had conditioned acceptance by a date certain, and acceptance came too late. Pattison v. Pattison, __ Md. __, 2025 WL 2057986 (Jul. 23, 2025). The Court wrote: “The issue here is whether a […]
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 25, 2025
Published by Michael Berman at July 25, 2025
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The order in Bouie v. Alzayadi, 2025 WL 2042261 (E.D. Mich. Jul. 21, 2025)(Stafford, J.), clearly sets out a series of rules governing discovery disputes. At a status conference, each party asserted that the other had not adequately responded to discovery requests. Judge Stafford wrote: “The Court’s efforts to resolve the disputes […]
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 […]
May 24, 2025
Published by Michael Berman at May 24, 2025
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Marris Hoffee and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374124 (C.D. Cal. May 12, 2025), presents an unremarkable holding arising from remarkable facts. Plaintiffs brought tort claims, including fraud, against Defendants and later filed a motion for discovery sanctions. Under the court’s local rules, such motions require a […]
May 18, 2025
Published by Michael Berman at May 18, 2025
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In Adams-Devonish v. KEHE Distributors, 2025 WL 1413282 (D. Md. May 15, 2025)(Aslan, J.), a pro se plaintiff sued for alleged discrimination. Plaintiff’s “renewed” motion for sanctions was denied for several reasons. First, the Court declined to entertain a repetitive motion. It wrote: The Court has ordered production of the redacted materials, […]
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 […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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Sports Rehab Consulting LLC v. Vail Clinic, Inc., 2025 WL 1144559 (D. Col. Apr. 18, 2025), has a “tortuous procedural history….” The case turned on allegations of a monopoly over physical therapy services. Both sides objected to a report and recommendation of a special master. In the portion of the decision pertinent […]
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 20, 2025
Published by Michael Berman at April 20, 2025
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Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), was an early decision on cooperation, boilerplate objections, waiver by failure to object properly, and a court-ordered meet-and-confer. The case was a collective action under the Fair Labor Standards Act and Maryland wage and overtime law. The Court outlined a […]
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 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 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 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 […]
March 2, 2025
Published by Michael Berman at March 2, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025)(Bryan, J.), the District Judge overruled objections to several rulings of the Magistrate Judge. “Rolling discovery” was not permitted: In August 2024, the Magistrate Judge decided that continuous rolling discovery after April or September 2023 would be unduly burdensome […]
February 26, 2025
Published by Michael Berman at February 26, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in a lawsuit by a terminated employee against her former employer. I have written three detailed blogs about the case: Consulting an Attorney Did Not Trigger the Duty to […]
February 24, 2025
Published by Michael Berman at February 24, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. For prior posts on this case, please see Spoliation Discovery Permitted – E-Discovery LLC. “Document unitization” is the issue […]
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 […]
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 28, 2025
Published by Michael Berman at January 28, 2025
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In Rivera v. Costco Wholesale Corporation, 2025 WL 295667 (D. P. R. Jan. 24, 2025), the court imposed sanctions on a pro se litigant who, in the court’s words, “has engaged in unseemly behavior towards counsel as well as improper discovery litigation.” In part, Mr. Rivera filed a motion to “To obtain […]
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 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 3, 2025
Published by Michael Berman at January 3, 2025
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In Sterling Computers Corporation v. International Busn. Machines Corp., 2024 WL 5168014 (D. S. Dak. Dec. 19, 2024), the court addressed: (1) whether the duty to meet and confer before moving to compel extends the time for filing such a motion; and, (2) how to show that an opponent’s production is incomplete. […]
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 Walker v. AIU Ins. Co., 2024 WL 4607473 (D. Ariz. Oct. 29, 2024), Plaintiff Walker served a subpoena duces tecum on non-party JBHH, which had represented defendant AIU in workers’ compensation proceedings involving Mr. Walker. The subpoena requested a complete copy of the file in Mr. Walker’s case. JBHH moved to […]
December 18, 2024
Published by Michael Berman at December 18, 2024
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In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus […]
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 […]
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 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 27, 2024
Published by Michael Berman at September 27, 2024
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EEOC v. Exxon Mobile Corp., 2024 WL 4249229 (M.D. La. Sept. 11, 2024), was a Title VII action alleging a hostile work environment. One of many discovery disputes involved the scope of protective order. The court explained that: This circuit recognizes three types of protective orders: (1) specific, (2) blanket, and (3) […]
September 24, 2024
Published by Michael Berman at September 24, 2024
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In Deckers Outdoor Corp. v. Last Brand, Inc., 2024 WL 4245407 (N.D. Cal. Sept. 18, 2024), the parties disagreed over when a formal ESI agreement was needed. However, the court held that “entry of some form of ESI order” was appropriate. It directed the parties to meet and confer. They did and: […]
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 9, 2024
Published by Michael Berman at September 9, 2024
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Thanks to Sidley Austin for publishing a blog on Ravin Crossbows, LLC v. Hunter’s Manufacturing Company, Inc., 2024 WL 3253265 (E.D. Ohio July 1, 2024), August’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP (Aug. 21, 2024) and August’s Notable Cases and Events in E-Discovery – EDRM. In […]
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 30, 2024
Published by Michael Berman at August 30, 2024
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Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe […]
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 25, 2024
Published by Michael Berman at August 25, 2024
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I blogged about an earlier decision in Fiskars in Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024). There, plaintiff Fiskars’ motion to compel source code was denied as untimely. In a subsequent decision, defendant Woodland’s challenge to Fiskars’ privilege log was defective. Fiskars Finland OY AB v. Woodland Tools, Inc., […]
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 16, 2024
Published by Michael Berman at August 16, 2024
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In the latest iteration of In Re StubHub Refund Litigation, 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024), the court began its decision of discovery issues with: “At the hearing Plaintiffs tried to walk back this [discovery] request and said it was limited to refund data, rather than a wholesale redo of […]
August 14, 2024
Published by Michael Berman at August 14, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date. This is the second blog of a four-part blog on Felder, an employment discrimination case. See Felder: Part 1 of 4: […]
August 13, 2024
Published by Michael Berman at August 13, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination. The Court “presided over a discovery dispute hearing related to Plaintiff’s motions to compel interrogatory requests and requests for production of documents, and related to […]
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 9, 2024
Published by Michael Berman at July 9, 2024
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I have come across cases in which a Court’s law clerk conducted an informal conference with parties to resolve a discovery dispute. For example, in Hipschman v. County of San Diego, 2024 WL 3206909 (S.D. Cal. June 26, 2024), counsel “participated in an informal discovery conference with the undersigned’s Judicial Law Clerk […]
July 6, 2024
Published by Michael Berman at July 6, 2024
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In a 2021 blog, I wrote that Requests for “Any and All” Documents Are Obsolete. That blog suggests alternative approaches. Recently, in Nelson v. I.Q. Data International, Inc., 2024 WL 2963790 (E.D. Mich. June 12, 2024), the court wrote: Courts have long condemned omnibus “any and all” document requests. See Cheney v. […]
July 1, 2024
Published by Michael Berman at July 1, 2024
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Frequently, courts deny motions presenting a discovery dispute due to the failure of the moving party to engage in a good faith, pre-filing “meet and confer.” See, e.g., There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024) (“If two sides are battling over nine separate discovery issues […]
June 26, 2024
Published by Michael Berman at June 26, 2024
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Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022). Word processing has not been immune from disputes. One court recently criticized a […]
June 20, 2024
Published by Michael Berman at June 20, 2024
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It is not auspicious when a court writes: “The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2 meet-and-confer sessions for the court’s review. Given the history of this case, […]
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 30, 2024
Published by Michael Berman at May 30, 2024
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Many decisions state that the failure to timely provide an adequate privilege log may result in a waiver of the privilege. However, frequently they hold that there is no waiver on the facts presented.[1] In Bautech USA, Inc. v. Resolve Equip., Inc., 2024 WL 1929486 (S.D. Fla. May 2, 2024), untimely privilege […]
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 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 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. […]
April 29, 2024
Published by Michael Berman at April 29, 2024
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In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical presentations by sophisticated experts. I have called “modern attachments,” “pointers,” or the problems associated with hyperlinked target documents, the “Humpty Dumpty Issue.” […]
April 18, 2024
Published by Michael Berman at April 18, 2024
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In the unusual context of a Delaware federal subpoena for discovery in a Spanish proceeding, a court ordered the parties “to meet and confer to discuss the scope of each request and to enter an agreed-upon ESI protocol and protective order.” In re Application of FourWorld Capital Management LLC, Petitioner, for an […]
April 8, 2024
Published by Michael Berman at April 8, 2024
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In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about […]
February 1, 2024
Published by Michael Berman at February 1, 2024
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In Client escapes sanction for lawyer’s refusal to appear on camera in Zoom deposition (abajournal.com)(Jan. 25, 2024,), Debra C. Weiss reported on Agnone v. Agnone, 2024 WL 242488 (Cal. App., 2d Dist., Jan. 23, 2024)(unreported). She wrote: The opinion described what happened at the deposition. [Attorney] Katofsky was in the same room […]
January 19, 2024
Published by Michael Berman at January 19, 2024
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“Self-collection” is often viewed as prohibited. Abraham Maslow said that: “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” This blog addresses a methodology designed by Ralph Losey, Esq., through which self-collection may be defensible. At bottom, Ralph[1] […]
January 18, 2024
Published by Michael Berman at January 18, 2024
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In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported),[1] the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant. One important fact was that the defendant had participated in the text messaging and therefore was not surprised […]
January 11, 2024
Published by Michael Berman at January 11, 2024
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One of the primary arguments against incorporating an “ESI Protocol” into a court order is that doing so may be the first step down the road to sanctions.[1] A COURT-ORDERED ESI PROTOCOL MAY BE CARVED IN STONE That fear of sanctions may be well-founded. For example, in her excellent 2023 ESI Protocol […]
December 23, 2023
Published by Michael Berman at December 23, 2023
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In Mediating E-Discovery Can Save Time and Money (jamsadr.com) (Nov. 10, 2023), the Hon. Gail A. Andler (ret.) and Daniel B. Garrie, Esq., wrote that “[o]ne approach” to remediating the costs of e-discovery “is using mediation to resolve some aspects of discovery disputes.” They report “a recent rise” in the application of […]
December 16, 2023
Published by Michael Berman at December 16, 2023
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One role of an attorney handling ESI is to function as a translator between computer scientists and forensic experts, on the one hand, and laypersons, such as clients and Judges, on the other. When you look at a “load file” it can be intimidating. Figure 1 is the .dat part of a […]
December 7, 2023
Published by Michael Berman at December 7, 2023
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I have used trial notebooks since my first trial. I use a similar process for depositions and for a Fed.R.Civ.P. 26(f) “meet and confer.” See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference. A recent ABA article provides an excellent guide to preparation of these organizational tools. James W. McElhaney, The Trial […]
November 16, 2023
Published by Michael Berman at November 16, 2023
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My legal ethics professor said that the best thing is to do the right thing for the right reason. The next best thing is to do the right thing for the wrong reason. Surreptitiously feeding your client answers to deposition question in a remote deposition should be avoided because it is wrong. […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Josh Gilliland’s Bow Tie law blog has often addressed the question of: “What happens when one party argues a producing party should produce all search term hits?” His answer is “no,” production is not required until after review and culling. See How to Avoid Contentious “Hit Report” Problems, and Hit Reports, citing, […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”[1] So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of. One “modern attachment” […]
September 27, 2023
Published by Michael Berman at September 27, 2023
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“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1] The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786. Sedona’s website states: Judge Rodriguez […]
September 8, 2023
Published by Michael Berman at September 8, 2023
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In CSX Transportation, Inc. v. Spiniello Global, Inc., 2023 WL 5515979 (D. Md. Aug. 25, 2023)(Bredar, C.J.), the Court denied spoliation motions, in part because they were filed too late. The plaintiff owned and operated the coal shipment facility. Defendants included the City of Baltimore and “Spiniello,” a contractor. The dispute centered […]
July 5, 2023
Published by Michael Berman at July 5, 2023
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The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022). In that blog, I suggested that negotiation is the best solution. […]
June 8, 2023
Published by Michael Berman at June 8, 2023
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UPDATE (Aug. 3, 2023): See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship […]
April 28, 2023
Published by Michael Berman at April 28, 2023
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When it comes to electronically stored information, Tom O’Connor is a national treasure. He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant. He has generously shared his […]
April 25, 2023
Published by Michael Berman at April 25, 2023
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The “modern attachments” decision of Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), generated a lot of buzz when it was issued. At its core, Noom held that hyperlinked files are generally not part of a transmitting email. Said differently, when a party produces an email that contains a […]
April 17, 2023
Published by Michael Berman at April 17, 2023
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Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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The United States District Court for the District of Maryland has proposed an amendment so that Discovery Guideline 5 will conform to amendments to Fed.R.Civ.P. 30(b)(6). I chaired a subcommittee of the Federal Court Bench Bar Committee which submitted a proposed amendment to the Court for its consideration. Subcommittee members included Phil […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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This blog discusses how the Court interpreted the ESI protocol in McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023)(Bredar, J.), McCormick was a consolidated breach of contract action involving multi-million dollar claims. The Court wrote: The ESI Protocol provides, under a subsection titled “No Presumption of […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter. In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporate their […]
February 7, 2023
Published by Michael Berman at February 7, 2023
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In Relativity’s® 2022 Data Discovery Legal Year in Review e-book (8th ed.), David Horrigan, Esq., highlighted a fascinating case, Martley v. City of Basehor, 2022 WL 1302820 (D. Kan. May 2, 2022)(“Martley I”). Mr. Horrigan described the case as a “clever … use [of] the Federal Rules of Civil Procedure to find […]
December 28, 2022
Published by Michael Berman at December 28, 2022
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Josh Gilliland’s excellent blog To Use Search Terms Before or After Predictive Coding – Bow Tie Law (Dec. 28, 2022), addresses “a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000). Similarly, Craig Ball has blogged about […]
November 11, 2022
Published by Michael Berman at November 11, 2022
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In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms. However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context. Alliance said – in my […]
October 28, 2022
Published by Michael Berman at October 28, 2022
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In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff served a subpoena […]
August 14, 2022
Published by Michael Berman at August 14, 2022
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“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
August 12, 2022
Published by Michael Berman at August 12, 2022
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I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
May 31, 2022
Published by Michael Berman at May 31, 2022
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Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1] It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by […]
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 […]
March 31, 2022
Published by Michael Berman at March 31, 2022
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Although the ABA’s “technological competence” standard is a good “first step,” it could be improved. Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball. Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate. If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the […]
March 5, 2022
Published by Michael Berman at March 5, 2022
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The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
December 9, 2021
Published by Michael Berman at December 9, 2021
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In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests. Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
December 8, 2021
Published by Michael Berman at December 8, 2021
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The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version). The Primer is a valuable contribution. It gathers a substantial body of research in an easy-to-read, authoritative resource. It focuses entirely on discovery requests, not responses, and does so in depth. And, it […]
August 30, 2021
Published by Michael Berman at August 30, 2021
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Federal Rule of Evidence 502 was passed in 2008 by a unanimous vote in the Senate, overwhelmingly in the House, and signed by President George W. Bush. Anything with that degree of support has to be good and Rule 502 provides substantial and necessary benefits. An excellent publication describes the rule in […]
August 17, 2021
Published by Michael Berman at August 17, 2021
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Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1] Usually, it was clear where a letter, memo, or contract began and ended. But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
July 20, 2021
Published by Michael Berman at July 20, 2021
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There has long been a split of opinion as to the applicability of the “document correlation” provision of Rule 34(E)(i) to the production of ESI.* In April of this year, the Eastern District of Pennsylvania weighed in.** There is, however, a straightforward way to avoid the problem. It involves negotiation, cooperation, and […]
February 14, 2021
Published by Michael Berman at February 14, 2021
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Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services. Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video. Among […]