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August 7, 2026
Published by Michael Berman at August 7, 2026
Categories
In a recent case, the Defendants moved to dismiss a copyright infringement claim. Plaintiff issued discovery; Defendants answered; and, Plaintiff moved to compel. One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.” Sadeghpour v. Nakamoto, 2026 […]
July 28, 2026
Published by Michael Berman at July 28, 2026
Categories
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 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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A decision involving a so-called “dual-hat expert” arose out of tragedy. “This case arises from a flood that swept through Waverly, Tennessee on August 21, 2021 ’killing at least 20 people, including children.’ … Plaintiffs claim that the flood resulted because Defendant allowed debris to clog one of its culverts, which caused […]
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 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 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). […]
May 31, 2026
Published by Michael Berman at May 31, 2026
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Courts do not lightly issue preservation orders. A request for a preservation order was denied in In Re Zeta Global Data Privacy Litigation, 2026 WL 1283618 (S.D.N.Y. May 11, 2026). Frequently, movants apply an incorrect preliminary injunction standard: A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued a business that managed apartment complexes, alleging employment discrimination. The court wrote that the parties had been “embroiled” in a discovery dispute over GEM’s responses. The EEOC diligently pursued discovery. After a “provisional” discovery order was entered, EEOC’s subsequent motion to compel was substantially granted. EEOC v. GEM Management, […]
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 17, 2026
Published by Michael Berman at May 17, 2026
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A recent decision addresses assertion of a Fifth Amendment privilege to refuse to answer questions in a deposition in a civil case. A pro se plaintiff sued a management company asserting discrimination and retaliation. After discovery rulings by a U.S. Magistrate Judge, plaintiff objected and asserted error. Not only did the court […]
May 11, 2026
Published by Michael Berman at May 11, 2026
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In Pfeffer v. Bank of America Corp., 2026 WL 1235426, at n. 2 (W.D. N. Car. May 5, 2026), the court wrote: A party uses privilege as a shield when it refuses to disclose attorney-client communications and uses privilege as a sword when it affirmatively relies on those same communications to support […]
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 […]
April 30, 2026
Published by Michael Berman at April 30, 2026
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Fed.R.Civ.P. 33(a)(1) states that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” In Banerjee v. Rueger, 2026 WL 1078791 (D. Md. Apr. 21, 2026), Plaintiffs asserted that the following interrogatory contains seven subparts: INTERROGATORY NO. 2[ ]. Please describe in full detail […]
April 29, 2026
Published by Michael Berman at April 29, 2026
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When a litigant seeks “a bridge too far,” it often fails. Baker v. State, 2026 WL 1113401 (App. Ct. Md. Apr. 24, 2026), so held in a criminal context. Mr. Baker sought drastic discovery sanctions. He did not seek less drastic ones. He got nothing.[1] The case arose out of a shooting […]
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 12, 2026
Published by Michael Berman at April 12, 2026
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Decisions involving the use of “hallucinated” or fictitious case citations are blooming like flowers in spring. Show cause orders, reprimands, admonishments, or sanctions often follow an allegation that an opponent relied on nonexistent “authority.” But allegations of misuse of artificial intelligence should not be lightly made. Vigorous advocacy is markedly different: 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 […]
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, […]
February 27, 2026
Published by Michael Berman at February 27, 2026
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What happens when improper boilerplate objections meet improper discovery requests? Generally, boilerplate objections are deemed to constitute a waiver of objections. However, a court held that it would be inequitable to find waiver “ because so many of Plaintiffs’ requests are sufficiently premature, overly broad, unduly burdensome, and/or disproportionate given Arch’s third-party […]
February 24, 2026
Published by Michael Berman at February 24, 2026
Categories
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 17, 2026
Published by Michael Berman at February 17, 2026
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A motion to hold that defendant waived all asserted privileges due to failure to timely log them was denied. While the court confirmed a continuing duty to supplement initial disclosures, it refused to impose a “rolling” duty. Plaintiffs sued their insurer, alleging unfair claims settlement practices arising out of property damage 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 27, 2026
Published by Michael Berman at January 27, 2026
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Succinctly stated: In response to Plaintiff’s Motion [to Compel], Defendant advised the Court that documents describing the coverage determination would be produced in the future…. “[S]tating one will ‘supplement’ at a later date does not amount to an initial response to a request for information but rather, is an attempt to subvert […]
January 25, 2026
Published by Michael Berman at January 25, 2026
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Plaintiff KISS sought discovery of certain otherwise-privileged communications made by defendant Ardell to Ms. Theresa Cooper, an executive vice president at Ardell. Initially, Ms. Cooper was designated as a fact witness. Later, she was designated as a “non-reporting expert” pursuant to Fed.R.Civ.P. 26(a)(2)(c). The court explained that “Ardell’s Expert Disclosures state that […]
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 23, 2026
Published by Michael Berman at January 23, 2026
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Lively v. Wayfarer Studios LLC, 2026 WL 145483 (S.D.N.Y. Jan. 20, 2026), is the latest in a long line of discovery and other decisions in this matter. The court wrote: “Before the Court are various requests for sealing and unsealing filed by both parties and non-parties regarding materials submitted in connection with” […]
January 21, 2026
Published by Michael Berman at January 21, 2026
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In Cassels Brock & Blackwell LLP v. Veroblue Farms USA, Inc., 2026 WL 66893 (N.D. Iowa Jan. 8, 2026), the court addressed the theory supporting the principle that an inadequate privilege log may defeat a claim of privilege. The case was before a U.S. Magistrate Judge on review of the decisions of […]
January 20, 2026
Published by Michael Berman at January 20, 2026
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“Privilege logs can be admissible evidence.” Carefirst of Maryland, v. Johnson & Johnson, 2026 WL 114415, at *3 (E.D. Va. Jan. 14, 2026)(citations omitted). I have written about related topics in: Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025); Privilege Log Helps Defeat Summary […]
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 9, 2026
Published by Michael Berman at January 9, 2026
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“Plaintiffs’ evidence of printouts of websites is not presented in an admissible form. Evidence must be authentic to be admissible.” Goldstein v. Hindle, 2026 WL 63116 (D. Md. Jan. 8, 2026)(Crawford, J.). Defendant’s website, video and direct-message via social media evidence was also excluded. Cross-motions for summary judgment were pending. The Court […]
January 4, 2026
Published by Michael Berman at January 4, 2026
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In its verified discovery responses, Defendant PHH identified two people as “key actors” in connection with the loan at issue. Further: “At a hearing before this Court on this very point – the level of authority of these employees – PHH stood by its responses, a point which the Court confirms from […]
December 29, 2025
Published by Michael Berman at December 29, 2025
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In Powell-Hatcher v. Wal-Mart Stores East, LP, 2025 WL 3722385 (E.D. Mich. Dec. 23, 2025), the court stated several general principles governing requests to produce documents and objections to those requests. The decision was issued in the context of a motion to compel. First, parties must address the relevance of each request […]
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 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 9, 2025
Published by Michael Berman at December 9, 2025
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The answer is “Popcorned Planet, Inc., moves to quash a subpoena for documents served by Blake Lively, who responds in opposition.” Popcorned Planet, Inc. v. Lively, 2025 WL 3458601 (M.D. Fl. Dec. 2, 2025). The court wrote that: “This matter relates to Lively v. Wayfarer Studios, LLC, et al., Case No. 1:24-cv-10049-LJL, […]
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 3, 2025
Published by Michael Berman at December 3, 2025
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Ms. Blake Lively moved for an order confirming that her requests for admission (“RFA’s”) were deemed admitted due to the Wayfarer Parties’ alleged failure to timely respond to them. Lively v. Wayfarer Studios LLC, 2025 WL 3442593 (S.D.N.Y. Dec. 1, 2025). While the court held that the Wayfarer Parties’ responses were insufficient, […]
December 2, 2025
Published by Michael Berman at December 2, 2025
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The court in Carter v. Uzglobal LLC, 2025 WL 3443521 (D. N. Mex. Dec. 1, 2025), succinctly summarized a number of important discovery issues, writing: “A. Rule 26(b)’s Scope of Discovery. Discoverable material includes ‘any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs […]
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 28, 2025
Published by Michael Berman at November 28, 2025
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The scope of the right to seal portions of motions for spoliation sanctions was carefully explained in Lively v. Wayfarer Studios, LLC, 2025 WL 3295147 (S.D.N.Y. Nov. 26, 2025). The lawsuit involving Ms. Lively, Mr. Baldoni, and others has received substantial attention. How Much Attention Does a Big Case Deserve? (Nov. 22, […]
November 22, 2025
Published by Michael Berman at November 22, 2025
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Ms. Blake Lively’s lawsuit against the “Wayfarer Defendants,” including Mr. Justin Baldoni, presents very serious, complex, and novel, discovery and substantive issues. In the court’s words: “This case stems from Lively’s claims of sexual harassment that she was allegedly subjected to during production of the Film [It Ends With Us], and from […]
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 19, 2025
Published by Michael Berman at November 19, 2025
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In Re Ex Parte Application of Xiaomi Technology Netherlands B.V., 2025 WL 3068736 (E.D. Tex. Nov. 3, 2025), was an action for “purported need for discovery to assist in a patent dispute in Germany. Xiaomi seeks discovery from Celerity IP, LLC (‘Celerity’), who serves as the exclusive licensing agent of the company […]
November 17, 2025
Published by Michael Berman at November 17, 2025
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“Netskope requested production of certain emails sent or received by John Whittle, a Fortinet executive who has held both business and legal counsel roles.” Netskope, Inc. v. Fortinet, Inc., 2025 WL 3190693 (N.D. Cal. Nov. 14, 2025). Fortinet contended that its internal emails were either irrelevant or “privileged as attorney-client communications or […]
November 13, 2025
Published by Michael Berman at November 13, 2025
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Defining the scope of discovery is fundamental. Certain language has changed three times. First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The intent was to make it clear […]
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: […]
October 14, 2025
Published by Michael Berman at October 14, 2025
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After in camera review of 46 documents, the court in Burge v. Teva Pharmaceuticals Industries, Ltd., 2025 WL 2846688 (D. Kans. Oct. 7, 2025), defined and applied the crime-fraud exception to the attorney-client privilege and required production of previously-redacted information. Under the crime-fraud exception, communications with counsel in furtherance of a crime […]
October 5, 2025
Published by Michael Berman at October 5, 2025
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Deamonte Spencer was convicted of murder and handgun charges. Among the evidentiary errors alleged on appeal was a challenge to authentication of printouts of profiles of Instagram pages. The Appellate Court of Maryland rejected the challenges and affirmed. Spencer v. State, 2025 WL 2741459 (Apl. Ct. Md. Sep. 26, 2025)(unreported). A local […]
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 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 28, 2025
Published by Michael Berman at September 28, 2025
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Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 25, 2025), answered that question in the negative. Maryland’s “Public Information Act” (“MPIA”) is a State analog to the federal Freedom of Information Act (“FOIA”). Like FOIA, the MPIA provides a broad right to inspect public records, subject to enumerated exceptions. Singleton addressed […]
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 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, […]
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 4, 2025
Published by Michael Berman at September 4, 2025
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“Discovery on Discovery,” sometimes called “satellite discovery,” “discovery about discovery,” or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025). Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Plaintiff sought a Rule 30(b)(6) deposition; however, Defendants refused. Plaintiff moved to […]
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 29, 2025
Published by Michael Berman at August 29, 2025
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In Rutherford v. Central Bank of Kansas City, 2025 WL 2432218, at *6-7 (W.D. Wash. Aug. 21, 2025), one of several issues was whether a litigant must produce information that was already in possession of the opponent’s counsel from other litigation. The court held that duplicative production was unnecessary; however, it ordered […]
August 27, 2025
Published by Michael Berman at August 27, 2025
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Mr. Escobar-Salmeron sued several correctional officers alleging excessive force. Defendants moved for summary judgment. Plaintiff filed a Fed.R.Civ.P. 56(d) motion[1] for more time to conduct discovery before responding to the summary judgment motion. The district court did not rule on the plaintiff’s Rule 56(d) motion, but granted a final summary judgment for […]
August 23, 2025
Published by Michael Berman at August 23, 2025
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Two weeks before trial, the defense disclosed an expert opinion: “Mr. Williams [the plaintiff] presents one issue on appeal: whether the circuit court abused its discretion when it denied his motion to strike [defendant] Transdev’s supplemental expert designation.” Williams v. Transdev Services, Inc., 2025 WL 2416427 (Appl. Ct. Md. Aug. 21, 2025)(unreported).[1] […]
August 22, 2025
Published by Michael Berman at August 22, 2025
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Golat v. Wisconsin State Court System, 2025 WL 2390556 (W.D. Wisc. Aug. 18, 2025), involved a motion to compel that was not prompt, not ripe, and not complete. The court wrote: Parties must allow a reasonable amount of time for the other side to address alleged discovery deficiencies. Waiting until the last […]
August 16, 2025
Published by Michael Berman at August 16, 2025
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A pro se litigant unsuccessfully argued that (1) as a pro se litigant, she should not have been required to timely comply with all the rules; and, (2) she had requested and received an accommodation under the Americans with Disabilities Act to take “as much time as needed….” Chieffallo v. Morgan Properties […]
August 15, 2025
Published by Michael Berman at August 15, 2025
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The standard for reopening completed depositions to address after-produced documents was explained in In re Sandisk SSDs Litigation, 2025 WL 2304805 (N.D. Cal. Aug. 11, 2025). The court stated that: “Plaintiffs move to reopen fact discovery to reopen three depositions of Defendants’ employees in light of Defendants’ belated production of documents that […]
August 12, 2025
Published by Michael Berman at August 12, 2025
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The failure to submit a sufficient affidavit of representation doomed an assertion of the joint representation or common interest privilege in Fond Du Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 2251920 (D. Minn. Aug. 7, 2025). The Band of Chippewa (the “Band”) sued the Forest Service and others over […]
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 9, 2025
Published by Michael Berman at August 9, 2025
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Attorney-expert communications and documents were discoverable under the principle of subject matter waiver of work product and privileged information in Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025). FACTS An advocacy group and 94 individuals brought this environmental action against 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
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Untimely privilege objections to a subpoena were waived. However, the dissolved entity no longer had any privilege. Utah Physicians for a Healthy Environment, Inc. v. Diesel Power Gear, LLC, 2025 WL 2144788 (D. Ut. Jul. 29, 2025). In this case, the plaintiff is attempting to collect on a judgment. Presumably, plaintiff is […]
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 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 26, 2025
Published by Michael Berman at July 26, 2025
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“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted). Here, the […]
July 20, 2025
Published by Michael Berman at July 20, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1999355 (S.D.N.Y. Jul. 17, 2025), involves a lot of money. It has also generated a cottage industry of discovery decisions. Westlaw lists 13 decisions (not all on discovery) since February 2025. For blogs on some of them, please see “It Ends With Us” (Apr. 8, […]
July 18, 2025
Published by Michael Berman at July 18, 2025
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A protective order barring post-settlement use by plaintiffs’ counsel of defendant’s discovery responses in other litigation was vacated in Cordero v. Stemilt AG Services, LLC, __ F. 4th__, 2025 WL 1902292 (9th Cir. Jul. 10, 2025). Columbia Legal Services (“Columbia”) is part of a network of attorneys that provide legal services to […]
July 14, 2025
Published by Michael Berman at July 14, 2025
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Bloomberg Law reports that Meta Files for Appellate Relief to Bar Zuckerberg Deposition (Jul. 11, 2025). Mr. Ufonobong Umanah wrote that “Meta claims Ninth Circuit courts have split over apex doctrine.” He added: The presumption that CEOs get to avoid depositions—formalized under the apex doctrine—may be weakening. But some experts have defended […]
July 2, 2025
Published by Michael Berman at July 2, 2025
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The entire opinion in Metro Light and Power LLC v. Furnlite, 2025 WL 1805793 (S.D.N.Y. Jul. 1, 2025), states: Defendants oppose the non-party subpoenas on undue burden and relevance grounds. But a “party lacks standing to challenge subpoenas issued to non-parties on the grounds of relevancy or undue burden.” Universitas Educ., LLC […]
June 10, 2025
Published by Michael Berman at June 10, 2025
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In EEOC v. Mia Aesthetics Clinic ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. May 30, 2025), the EEOC prevailed on several discovery disputes. It prevailed because its attorneys did their homework and supported their litigation position with facts. The EEOC sued Mia Aesthetics on behalf of Kiera Webb, alleging disability discrimination. The agency […]
May 31, 2025
Published by Michael Berman at May 31, 2025
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In Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025), the court wrote: “The City’s objection that it did not understand the request as phrased is disingenuous at best and frankly appears more likely to be intentionally obstructionist.” After a fire in Richmond, Indiana, plaintiffs sued, among […]
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 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 22, 2025
Published by Michael Berman at April 22, 2025
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In U.S. EEOC v. Aspire Regional Partners, Inc., 2025 WL 1115300 (S.D. Oh. Apr. 15, 2025), the court ordered discovery of litigation hold notices. In my opinion, and while I agree with the result, the legal issues governing the discovery of litigation hold notices and implementation need clarity and national uniformity. In […]
April 8, 2025
Published by Michael Berman at April 8, 2025
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In Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025), the court granted in part and denied in part a motion to quash subpoenas issued to AT&T, Verizon, and T-Mobile (the “Wayfarer Parties”) by Ms. Blake Lively. Contextually, the litigation has been described in popular media. B. Lang, Ruling […]
April 5, 2025
Published by Michael Berman at April 5, 2025
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An exception to the requirement of a timely privilege log was applied in Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025). In previous blogs, I addressed decisions holding that Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log […]
April 4, 2025
Published by Michael Berman at April 4, 2025
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In Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025)(Austin, J.), the Court set out and applied the principles governing subpoenas and objections to them. The Court explained the dispute: “Mr. Hall alleges that BPD and three former officers—Donald Licato, Frank Barlow, and John Barrick—concealed exculpatory evidence and […]
March 13, 2025
Published by Michael Berman at March 13, 2025
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In MJ Enterprise Holdings, Inc. v. Spiffy Franchising, LLC, 2025 WL 775515 (D. Md. Mar. 10, 2025)(Austin, J.), Defendants moved to stay all discovery deadlines pending a resolution of their motion to compel arbitration and for a stay pending arbitration. The motion to stay discovery was granted. Plaintiffs alleged fraud and misrepresentation […]
February 25, 2025
Published by Michael Berman at February 25, 2025
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A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts
In Canales v. OPW Fueling Components LLC, 2025 WL 553623, at *3 (E.D. N. Cal. Feb. 19, 2025), the court wrote: Throughout his responses, Canales objects to OPW’s requests on the ground that they are not reasonably calculated to lead to the discovery of admissible evidence. OPW correctly notes that while this […]
January 29, 2025
Published by Michael Berman at January 29, 2025
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In CT Install America, LLC v. Boryszewski, 2025 WL 257127 (E.D. Pa. Jan. 21, 2025), the court wrote that: “Neither side distinguishes between waiver of untimely objections to interrogatories and waiver of untimely objections to RFPs, even though important differences exist in both the applicable rules of civil procedure and the case […]
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. […]
November 11, 2024
Published by Michael Berman at November 11, 2024
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In Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.), non-party TEDCO’s blanket privilege and work product objections to a subpoena were denied; however, it lived to fight another day because the denial was without prejudice to file supported objections after a “meet and confer.” One core principle set […]
November 6, 2024
Published by Michael Berman at November 6, 2024
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If I got a nickel for every mistake I made, we’d be talking about this on the balcony of my condo in Aruba, watching the sunset. Alas, I didn’t get the nickels and don’t have the condo. 😊 Rig Consulting, Inc. v. Rogers, 2024 WL 4608354 (W.D. Pa. Oct. 29, 2024), is […]
October 28, 2024
Published by Michael Berman at October 28, 2024
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In FG Hemisphere Associates, LLC v. Democratic Rep. of Congo, 2024 WL 4553371 (D. Md. Oct. 23, 2024), plaintiff FGH sought to enforce a judgment against the Democratic Republic of Congo and others. In doing so, FGH propounded discovery. In pertinent part, FGH served 20 subpoenas on third-party financial institutions. The defendants […]
October 22, 2024
Published by Michael Berman at October 22, 2024
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In U.S. v. Novo Nordisk, Inc., 2024 WL 4519962 (W.D. Wash. Oct.17, 2024), the court rejected Washington’s dilatory challenge to Fed.R.Civ.P. 30(b)(6) topics. The Novo court also rejected Washington’s attempt to fight fire with fire. It denied Washington’s “blanket” request to de-designate documents that had been marked as “confidential” by NNI in […]
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 15, 2024
Published by Michael Berman at October 15, 2024
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In Trusted Sci. & Tech., Inc. v. Evancich, 262 Md. App. 621, 2024 WL 3490547 (Apl. Ct. Md. July 22, 2024), the Court addressed the type of objections that a subpoenaed non-party may make. That was a novel issue in Maryland. The Court held “that [nonparty] TST had standing to challenge the […]
October 12, 2024
Published by Michael Berman at October 12, 2024
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In Williams v. Zaragoza, 2024 WL 4443790 (E.D. Cal. Oct. 8, 2024), a pro se former prisoner sued alleging excessive force and retaliation. The court addressed plaintiff’s motion to compel documents, holding that his requests sought irrelevant data and: “The scope of subparts 1 and 3 will therefore be appropriately narrowed to […]
October 9, 2024
Published by Michael Berman at October 9, 2024
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In Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024), “boilerplate” objections were sustained on the specific facts presented. BOILERPLATE OBJECTIONS HAVE GENERALLY BEEN CONDEMNED Boilerplate objections have generally been condemned. For example, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), […]
September 25, 2024
Published by Michael Berman at September 25, 2024
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Bender v. Wiegand Sports GMBH, 2024 WL 4202155 (D. Md. Sep. 16, 2024)(Bredar, J.), grabbed my attention because it involved a claim for personal injuries arising out of the mountain coaster ride at Wisp Resort. That is a ride I have taken my children and grandchildren on many times. One of three […]
April 16, 2024
Published by Michael Berman at April 16, 2024
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In 1968, the movie “Dracula Has Risen from the Grave” was released. Like Dracula, despite being long since buried, boilerplate “general objections” keep popping up in what sometimes looks like the children’s game of “Whac a Mole.” It is difficult to understand why the message about boilerplate “general objections” has not gotten […]