Protecting privileges.
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November 10, 2023
Published by Michael Berman at November 10, 2023
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“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
August 14, 2023
Published by Michael Berman at August 14, 2023
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On May 11, 2023,the federal Advisory Committee on Civil Rules (the “Advisory Committee”) sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”). The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and […]
August 4, 2023
Published by Michael Berman at August 4, 2023
Thomas Spahn of McGuireWoods LLP has written an interesting post on the interplay between the attorney-client privilege and a Fed.R.Civ.P. 30(b)(6) deposition of a corporate designee. The Strange Fiction of Rule 30(b)(6) | McGuireWoods LLP – JDSupra (Aug, 3, 2023). The blog highlights Damarr-Faruq v. City of Pleasantville P.D., 2023 U.S. Dist. LEXIS […]
April 5, 2023
Published by Michael Berman at April 5, 2023
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The Maryland State Bar Journal published my article on the Supreme Court’s recent dismissal of an attorney-client privilege case. The first page is reprinted below.
March 22, 2023
Published by Michael Berman at March 22, 2023
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“Counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification, a California appeals court ruled Tuesday in a dispute among cannabis company co-owners.” Joyce E. Cutler, Counsel’s Disqualification Upheld Over Use of Privileged Emails (bloomberglaw.com)(2023), describing Militello v. VFarm 1509, __ Cal.Rptr.3d __, 2023 WL 2579204 […]
March 21, 2023
Published by Michael Berman at March 21, 2023
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Sidley Austin LLP’s excellent blog, March’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP, describes an interesting work product decision. The blog reported that, in Securities and Exchange Commission v. Volkswagen Aktiengesellschaft, et al., 2023 WL 1793870 (N.D. Cal. Feb. 7, 2023), the SEC’s interrogatory to Volkswagen asked […]
March 18, 2023
Published by Michael Berman at March 18, 2023
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Hur v. Lloyd & Williams, LLC, 523 P.3d 861 (Wash. App. Div. 3 2023), presents another in a long list of redaction errors.[1] Two significant errors occurred in the contract dispute action. Defense counsel “inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel […]
February 6, 2023
Published by Michael Berman at February 6, 2023
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The Supreme Court’s recent dismissal of In Re Grand Jury, 598 U.S. ___, 143 S.Ct. 543 (2023), leaves the Ninth Circuit’s “primary purpose” analysis of so-called “dual purpose” communications intact as the test for privilege. For a good analysis, see GreenbergTraurig’s blog, quoted in the title bar of this blog, ‘If It Ain’t Broke, […]
June 1, 2022
Published by Michael Berman at June 1, 2022
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Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw. In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating: Although cases abound […]
May 29, 2022
Published by Michael Berman at May 29, 2022
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The prior blog discussed the historical acceptance of technology assisted review. However, keyword searching remains an important and useful tool. Mark Twain wrote: “The reports of my death are greatly exaggerated….” The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 27, 2022
Published by Michael Berman at May 27, 2022
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Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 16, 2022
Published by Michael Berman at May 16, 2022
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Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel. The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
April 9, 2022
Published by Michael Berman at April 9, 2022
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When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance. When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that. Information Governance – […]
April 2, 2022
Published by Michael Berman at April 2, 2022
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I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure. See Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and M. Berman & A. Shelton, “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
March 26, 2022
Published by Michael Berman at March 26, 2022
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Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?, When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable? The flip side of the coin is whether the steps taken by a potential […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]
November 17, 2021
Published by Michael Berman at November 17, 2021
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Categorical privilege logs can save time and money. “The concept of categorical privilege logs in connection with ESI is not new.” M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021). […]
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 27, 2021
Published by Michael Berman at August 27, 2021
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In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent. […]
March 25, 2021
Published by Michael Berman at March 25, 2021
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It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery. I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5. In an itemized log, every email and every attachment […]
March 16, 2021
Published by Michael Berman at March 16, 2021
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Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.” The site contained attorney advertising and articles concerning class actions and mass torts. Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 12, 2021
Published by Michael Berman at March 12, 2021
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New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post. If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
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 […]
January 16, 2021
Published by Michael Berman at January 16, 2021
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In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent. In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
December 27, 2020
Published by Michael Berman at December 27, 2020
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As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication. See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 1, 2020
Published by Michael Berman at December 1, 2020
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A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]