Protecting privileges.
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July 29, 2026
Published by Michael Berman at July 29, 2026
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“Courts confronted with lawyers involved in advising spoliation of evidence have concluded [that] such attorney-client communications are not shielded by the privilege due to the crime-fraud doctrine.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2026 WL 1632746 (N.D. Cal. Jun. 5, 2026). The court explained: “The specific crime-fraud at […]
July 21, 2026
Published by Michael Berman at July 21, 2026
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Popovchak v. UnitedHealth Group, Inc., 2026 WL 2078593 (S.D.N.Y. Jul. 17, 2026), contains a number of interesting privilege log rulings, among many other decisions. A few examples follow. “Plaintiffs identify entries on United’s privilege log where no attorney is listed…. The motion to compel on this ground is DENIED. Courts have recognized […]
July 10, 2026
Published by Michael Berman at July 10, 2026
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It is clear that Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024)(citing cases). The recent decision in Lalwani v. Trustees of Indiana University, 2026 WL 1847881 (Jun. 26, 2026), involved three emails in which, an employee, plaintiff Mr. Lalwani, had communicated with his […]
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 28, 2026
Published by Michael Berman at April 28, 2026
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In Elite Semiconductor, Inc. v. Anchor Semiconductor, Inc., 2026 WL 1097741 (N.D. Cal. Apr. 22, 2026),the court addressed the scope of a senior attorney’s duty to check a privilege log prepared by a senior associate. Plaintiff, Elite, was found to be liable for Defendants’ attorney’s fees in a trade secret lawsuit. Defendants […]
April 10, 2026
Published by Michael Berman at April 10, 2026
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“The instant motion represents the latest skirmish in a long-running conflict between the Parties regarding the scope, nature, and volume of Plaintiff’s discovery. The Court will not recite each episode of unpleasantness herein. Now before the Court is a motion for a protective order, in which Defendant seeks the Court’s intervention in […]
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 11, 2026
Published by Michael Berman at March 11, 2026
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In Nippon Life Ins. Co. of America v. OpenAI Foundation, et al., No. 1:26-cv-02448 (N.D. Ill. Mar 4, 2026), the plaintiff alleges that: “As a product of OPENAI, ChatGPT engages in the practice of law by providing users with legal analysis, legal advice, legal research, and produces drafted legal documents.” It alleges […]
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 3, 2026
Published by Michael Berman at March 3, 2026
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Jennifer Ellis, JD, LLC, has posted a very interesting blog, Two Courts, Two Answers: When Does Using AI Waive Privilege? – JLE (Feb. 21, 2026). She compares the holding in U.S. v. Heppner, __ F. Supp. 3d __, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026)(Rakoff J.), with Warner v. Gilbarco, Inc., 2026 […]
March 2, 2026
Published by Michael Berman at March 2, 2026
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U.S. v. Heppner, __ F. Supp. 3d __, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026)(Rakoff J.), has exploded[1] across the blogsphere with its important, novel, and fact-based holding that a client’s artificial intelligence research: 1) was not at the direction of counsel; 2) used a non-confidential A.I. program that did not provide […]
February 26, 2026
Published by Michael Berman at February 26, 2026
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Wilson Aerospace sued Boeing Company alleging misappropriation of trade secrets. Plaintiff failed to follow the terms of the ESI Protocol, losing any protection it may have afforded. Additionally, Plaintiff produced folders marked “Lawsuit” and “Lawsuit Research,” and also failed “to exclude documents warning of attorney-client privilege on the first page, dozens of […]
February 20, 2026
Published by Michael Berman at February 20, 2026
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An attorney’s selection and arrangement of non-privileged documents, contained in a larger universe, in anticipation of litigation, is work product. Aliev v. Trans Union, LLC, 2026 WL 202549 (E.D. Va. Jan. 26, 2026), citing In Re Allen, 106 F.3d 582 (4th Cir. 1997). However, in Aliev, Trans Union failed to demonstrate facts […]
February 19, 2026
Published by Michael Berman at February 19, 2026
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A recent decision clarified the relationship between a requesting and a preserving entity and ordered “discovery on discovery” a/k/a satellite discovery or culpability discovery. The court wrote: “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” “Rule 37 requires the party from whom the information is sought to […]
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 […]
February 12, 2026
Published by Michael Berman at February 12, 2026
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In AI Docs Sent By Exec To Attys Not Privileged, Judge Says – Law360 (Feb. 10, 2026), Pete Brush reported a bench ruling holding that “a Texas financial services executive accused of a $150 million fraud cannot claim privilege over documents that he prepared using an artificial intelligence service and sent to […]
January 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 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 7, 2026
Published by Michael Berman at January 7, 2026
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This blog addresses two of the issues resolved in Toyota Motor Sales, U.S.A., Inc. v. Allen Interchange LLC, 2025 WL 3485862 (D. Minn. Dec. 4, 2025). Toyota moved to compel Allen to produce certain discovery. First, Toyota requested the “Jim Folder.” Allen initially danced — unsuccessfully — around a response, arguing that […]
January 2, 2026
Published by Michael Berman at January 2, 2026
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Prof. Ira P. Robbins, published an important article, Against an AI Privilege – Harvard Journal of Law & Technology (Nov. 7, 2025). Prof. Robbins poses the question of whether communications with artificial intelligence systems “deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal privileges.” He argues […]
December 21, 2025
Published by Michael Berman at December 21, 2025
I posted 237 blogs this year to date. Many are on EDRM or JD Supra. Some that may be worth reading are: An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues Artificial Intelligence in Maryland Courts “Just When […]
December 16, 2025
Published by Michael Berman at December 16, 2025
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A recent decision involved whether voluntary disclosure of work product to the FBI as part of a cooperative effort to investigate an alleged crime was a waiver of work product protection. The court in this case held that it was not. L.M. v. Carnival Corp., 2025 WL 3515503 (S.D. Fl. Dec. 8, […]
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 4, 2025
Published by Michael Berman at December 4, 2025
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A recent decision stated several important principles applying to insurance companies in coverage actions: “A substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured; therefore, such investigations are presumed to be part of the normal […]
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 25, 2025
Published by Michael Berman at November 25, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 3227789 (S.D.N.Y. Nov. 19, 2025), addressed privilege logs. First, the court ordered categorical privilege log. That was challenged and the parties asserting privilege offered a document-by-document log. That was challenged and a supplemental privilege log was ordered. Ms. Lively requested production of documents the Wayfarer […]
November 23, 2025
Published by Michael Berman at November 23, 2025
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The plaintiff in Harrison v. Whole Foods Market, Inc., 2025 WL 3089961 (N.D. Cal. Nov. 5, 2025), was pro se. Plaintiff sued for alleged discrimination. Defendant propounded discovery. In part, Plaintiff raised a work product objection and withheld documents. The court wrote that: “Plaintiff is correct that work product protection is not […]
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 […]
October 21, 2025
Published by Michael Berman at October 21, 2025
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Where a company official used company email for privileged communications and sold the server holding those communications, he waived the attorney-client privilege. Jim Daws Trucking, LLC v. Daws, Inc., 2025 WL 27111278 (D. Neb. Sep. 23, 2025). The Jim Daws court denied defendants’ “Motion for Protective Order and Destruction of Privileged Documents […]
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 […]
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 18, 2025
Published by Michael Berman at September 18, 2025
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Not on these facts. Lively v. Wayfarer Studios LLC, 2025 WL 2606904 (S.D.N.Y. Sep. 9, 2025). This decision is the latest in a long string of discovery decisions in the sexual harassment lawsuit of Ms. Blake Lively against a series of parties denominated as the “Wayfarer Defendants.” The claim arises out of […]
September 6, 2025
Published by Michael Berman at September 6, 2025
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In Lively v. The Skyline Agency LLC, 2025 WL 2532796 (S.D.N.Y. Sep. 3, 2025), the court wrote that Ms. Lively subpoenaed a Signal Chat in connection with Lively v. Wayfarer Studios LLC, No. 24-cv-10049 (S.D.N.Y. filed Dec. 31, 2024) (the “Lively Action”). Id. at *1. Skyline and Ms. Kalantari withheld certain information. […]
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 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 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 10, 2025
Published by Michael Berman at August 10, 2025
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“Here, the Court issues its sanction based on its inherent authority as Plaintiff’s conduct was not in violation of a discovery order under Rule 37.” Jimenez v. Hyatt Corp., 2025 WL 2196105 (E.D. Cal. Aug. 1, 2025). FACTS Ms. Jimenez, Plaintiff, who is blind, filed suit challenging accessibility of Defendant Hyatt’s website. […]
August 8, 2025
Published by Michael Berman at August 8, 2025
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A four-factor test to answer the question of “when can opposing counsel be deposed?” was set out in Safo v. Singh, 2025 WL 2123613 (S.D.N.Y. Jul. 29, 2025), citing In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d. Cir. 2003)(Sotomayer, J.). The four factors are: (1) the need to […]
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 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 14, 2025
Published by Michael Berman at July 14, 2025
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”Applying the clear and convincing standard, Amazon’s withholding of almost 70,000 documents until the eve of, and after, the April 25, 2025 discovery cutoff—including the documents identified above—was tantamount to bad faith.” Federal Trade Comm’n. v. Amazon.Com, Inc., 2025 WL 1907413 (W.D. Wash. Jul. 10, 2025). The FTC filed a “Motion for […]
July 11, 2025
Published by Michael Berman at July 11, 2025
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Marris Hoffee and Michael D. Berman In Hall v. Baltimore Police Dept., 2025 WL 1548560 (D. Md. May 30, 2025)(Austin, J.), the Court considered whether materials created many years after the underlying incident were protected under the work-product doctrine. The materials were prepared as part of legal representation of the plaintiff. They […]
July 6, 2025
Published by Michael Berman at July 6, 2025
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A privilege log had substantive implications in Cáceres v. Sidley Austin LLP, 2025 WL 1826140 (N.D. Ga. Jul. 2, 2025). This is parallel to Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025)(unpublished), where a Privilege Log Helped Defeat Summary Judgment on One Count (Jun. 17, 2025). In […]
July 4, 2025
Published by Michael Berman at July 4, 2025
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In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2025 WL 1393216 (N.D. Cal. May 14, 2025), the court resolved discovery disputes over a corporate designee deposition under Fed.R.Civ.P. 30(b)(6). The court: Narrowed a request for “discovery on discovery”; Ordered that, with limitations, Uber’s deponent must bring an Uber laptop to […]
June 24, 2025
Published by Michael Berman at June 24, 2025
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In Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025), defendant’s privilege log helped partially defeat defendant’s summary judgment motion. Plaintiff sued alleging wrongful termination. Defendant asserted that termination was first considered on June 26 or 27. However, its privilege log contained entries showing earlier privileged communications relating […]
June 19, 2025
Published by Michael Berman at June 19, 2025
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In Gilbane Bldg. Co. v. School Bd. of Broward County, 2025 WL 1615553 (S.D. Fl. Jun 6, 2025), plaintiff moved to compel a “compliant” privilege log. The court decided six issues. The court wrote: “I agree that Defendant must serve an amended privilege log with additional information (as described below), though not […]
June 8, 2025
Published by Michael Berman at June 8, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1591282 (S.D.N.Y. June 5, 2025), is another in a series of discovery decisions in the dispute involving Ms. Blake Lively and Mr. Justin Baldoni, among many others. See, e.g., “It Ends With Us” (Apr. 8, 2025); Lively v. Wayfarer Studios LLC, 2025 WL 1397047 (S.D.N.Y. […]
June 6, 2025
Published by Michael Berman at June 6, 2025
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In Riffle v. Excellent Auto Glass LLC, 2025 WL 1519164 (D. Ariz. May 28, 2025), Mr. Riffle filed a putative Telephone Consumer Protection Act class action against Excellent Auto Glass (“EAG”). EAG did not respond, and Mr. Riffle was granted leave to conduct discovery in support of a planned motion for default […]
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 20, 2025
Published by Michael Berman at May 20, 2025
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Mayor & City Council of Baltimore v. Lambert, __ Md. App. __, 2025 WL 1291491 (Appl. Ct. Md. May 5, 2025), addressed the important issue of “apex” depositions in the governmental context. Plaintiffs, a parent and a school-age minor, in a personal injury claim against a school system sought the depositions of […]
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 14, 2025
Published by Michael Berman at April 14, 2025
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In Hall v. Baltimore Police Dept., 2025 WL 1024069 (D. Md. Mar. 31, 2025)(Austin, J.), the Court entered an order granting in camera review to address disputes regarding plaintiff Hall’s claim of work product protection: The purpose of the in-camera review is to ascertain whether all items are, as Plaintiff contends, opinion […]
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 […]
February 21, 2025
Published by Michael Berman at February 21, 2025
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information.[1] In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025 WL 428547 (W.D.N.Y. Feb. 7, 2025), the court held that litigation hold notices were privileged. There may […]
February 9, 2025
Published by Michael Berman at February 9, 2025
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In Epic Games, Inc. v. Apple, Inc., 2024 WL 4947269 (N.D. Cal. Dec. 2, 2024)(Hixon, J.), aff’d, 2024 WL 5318836 (N.D. Cal. Dec. 31, 2024)(Rogers, J.), the Hon. Thomas S. Hixson wrote: The parties have a dispute about attorney-client privilege. With respect to document production concerning compliance with the injunction, Apple has […]
January 27, 2025
Published by Michael Berman at January 27, 2025
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The decision in Cook v. Meta Platforms, Inc., 2024 WL 251942 (N.D. Cal. Jan. 21, 2025), packs a lot into very few pages. In two instances, where Meta had offered a compromise solution, the court held Meta to that offer. I. PRIVILEGE LOG DISPUTE First, the court resolved a privilege log […]
January 23, 2025
Published by Michael Berman at January 23, 2025
Many thanks to Doug Austin for Responsive Nonprivileged Documents Attached to a Privileged Communication Must Be Produced (Jan. 23, 2025), discussing In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025). The decision is available on Kelly Twigger’s eDiscovery Assistant. Doug’s excellent blog points out […]
January 9, 2025
Published by Michael Berman at January 9, 2025
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In Fond-du-Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 26046 (Jan. 3, 2025), the court addressed privilege among two jointly related companies. Plaintiff, the “Band,” sought judicial review of a land exchange between the U.S. Forest Service and a mining company, “PolyMet.” PolyMet sought review of the U.S. Magistrate Judge’s […]
January 7, 2025
Published by Michael Berman at January 7, 2025
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In Howard v. Ashworth, 2024 WL 5264677 (E.D. Wis. Dec. 31, 2024), an inmate sued correctional officers from Waupun Correctional Institution for allegedly intercepting his correspondence based on a retaliatory motive. The court held that a party need not show that litigation was anticipated when the party is actually in litigation. The […]
December 19, 2024
Published by Michael Berman at December 19, 2024
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In In re Outpatient Medical Center Employee Antitrust Litigation, 2024 WL 4679083 (N.D. Ill. Nov. 5, 2024), the court explained the application of Subsections (b) and (d) of Fed.R.Evid. 502. The parties proposed a Rule 502(d) order and it was entered on an agreed motion. Id. at *1. Plaintiffs later noted the […]
November 24, 2024
Published by Michael Berman at November 24, 2024
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In Homeland Ins. Co. of Del. V. Independent Health Ass’n., Inc., 2024 WL 4815127 (W.D.N.Y. Nov. 18, 2024), the court ordered production of litigation hold notices and implementation communications. Homeland Insurance sought a declaratory judgment that it had no duty to defend or indemnify Independent Health Association. A third-party defendant, Ace Insurance, sought […]
November 13, 2024
Published by Michael Berman at November 13, 2024
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In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document […]
November 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 5, 2024
Published by Michael Berman at November 5, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the District Court found a relationship between work product designations and triggering of the common-law duty to preserve. The point at which the duty to preserve has been triggered is central to any subsequent spoliation issue. […]
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 17, 2024
Published by Michael Berman at October 17, 2024
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GLD3, LLC v. Albra, 2024 WL 4471672 (S.D.N.Y. Oct. 11, 2024), involved a request for discovery from a former Town attorney concerning an offer that he allegedly made to plaintiffs. The defendants, a Town and others, denied knowledge of the alleged offer. The court: set out the governing standard for discovery from […]
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 2, 2024
Published by Michael Berman at October 2, 2024
Are “dash cam” videos protected from disclosure as work product? That was one issue posed in Jones v. Burch, 2024 WL 4276109 (M.D. Fl. Sep. 24, 2024). It was presented in an oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce.” Plaintiff sued for personal injuries arising out of a […]
October 1, 2024
Published by Michael Berman at October 1, 2024
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In Design With Friends, Inc. v. Target Corporation, 2024 WL 433114 (D. Del. Sept. 27, 2024), the court rejected defendant’s effort to discover documents sent by plaintiff to a litigation funder that permitted the lender to evaluate the value of plaintiff’s claims. The Little Engine That Could | Barnes & Noble® (barnesandnoble.com) […]
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 18, 2024
Published by Michael Berman at September 18, 2024
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In Faulkenberry v. Austin, 2024 WL 4056761 (D. Md. Sept. 5, 2024)(Coulson, J.), the Court addressed two important discovery issues. Ms. Faulkenberry sued her employer for alleged employment discrimination. First, where the plaintiff designated her therapist as an expert witness on emotional distress damages, her disclosure of privileged attorney-client communications in otherwise […]
September 14, 2024
Published by Michael Berman at September 14, 2024
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In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote: So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like […]
August 28, 2024
Published by Michael Berman at August 28, 2024
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An “and/or” privilege log entry was deemed insufficient in Deltondo v. The School Dist. Of Pittsburgh, 2024 WL 3861036 (W.D. Pa. Aug. 19, 2024). The Deltondo court began its memorandum order by stating: “Regrettably, this action is notable for the nature and extent of the parties’ discovery disputes.” After reciting prior disputes […]
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 8, 2024
Published by Michael Berman at August 8, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for privilege.” For example, if a client sends a privileged email to counsel seeking legal advice, and attaches […]
August 7, 2024
Published by Michael Berman at August 7, 2024
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Metadata logs can be an acceptable, cost-effective method of privilege logging. For example, please see Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024), and Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024). The primary difference between a “metadata” log […]
August 3, 2024
Published by Michael Berman at August 3, 2024
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In Troung v. KPC Healthcare, Inc., 2024 WL 3496865 (C.D. Cal. July 17, 2024), the court held that no privilege log was required until scope of discovery objections were resolved. The general rule is that a privilege log is due at the time discovery responses are filed. “Absent consent of the adverse […]
July 22, 2024
Published by Michael Berman at July 22, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court enforced an ESI Protocol that called for a “metadata-only” privilege log, even though parts of the metadata were redacted by the producing party. The holding ultimately hinged on the text of the ESI Protocol […]
July 9, 2024
Published by Michael Berman at July 9, 2024
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The purpose of a privilege log is to provide sufficient information for the recipient of the log to determine whether the withheld information is, at least on its face, privileged. In short: “Trust, but verify.” See, e.g., Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); How […]
July 8, 2024
Published by Michael Berman at July 8, 2024
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I have heard of many privileges, including, for example, the attorney-client privilege, spousal privilege, executive or deliberative process privilege,[1] Fifth Amendment privilege, patient-therapist privilege, clergy person privilege, news media privilege, accountant-client privilege, and others. However, I was unaware of the federal, common-law, qualified, “official information” privilege discussed in Hipschman v. County of […]
July 2, 2024
Published by Michael Berman at July 2, 2024
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In Documents Withheld Under Deliberative Privilege – No Privilege Log Needed? (May 23, 2024), I discussed the holding of Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024). The Ninth Circuit held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding […]
July 2, 2024
Published by Michael Berman at July 2, 2024
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The decision in Estate of LeRoux v. Montg. County, MD, 2024 WL 1703939 (D. Md. Apr. 19, 2024), states that “[t]here is no binding legal authority on the application of deliberative process privilege in the Fourth Circuit.” Id. at *3. In LeRoux, the Hon. Aimel A. Quereshi provided a comprehensive analysis of […]
June 27, 2024
Published by Michael Berman at June 27, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634 (C.D. Cal. Jun 14, 2024), the assertion of work product protection in a privilege log supported an inference that the subsequent deletion of ESI was done with a culpable state of mind. “Work product” protection begins when material is prepared in anticipation of […]
June 25, 2024
Published by Michael Berman at June 25, 2024
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In Wagner v. Norcold, Inc., 2024 WL 2703015, at *3 (E.D. N. Car. May 24, 2024), plaintiffs claimed that defendants’ allegedly defective refrigerator had caused a destructive fire. They asserted that defendants had waived privileges “in the absence of a privilege log….” There were several other discovery disputes and the parties submitted […]
June 24, 2024
Published by Michael Berman at June 24, 2024
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In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a waiver of the privilege. GENERALLY, FAILURE TO TIMELY […]
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 […]
June 3, 2024
Published by Michael Berman at June 3, 2024
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In Robins Kaplan Can’t Escape Sanction Over Dropbox Access – Law360 (May 31, 2024), Emily Johnson reported on an appellate decision in the “Dropbox rummaging” sanctions case. A $150,000 sanction against both a law firm and its client was affirmed. Ms. Johnson reported: “The First Department of the New York Appellate Division […]
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 23, 2024
Published by Michael Berman at May 23, 2024
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In Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024), the court held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding documents under the deliberative privilege need not provide a privilege log to a party seeking judicial review of […]
May 9, 2024
Published by Michael Berman at May 9, 2024
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This is the fourth and final follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1808607 (N.D. Cal. […]
April 19, 2024
Published by Michael Berman at April 19, 2024
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In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”[1] A […]
April 9, 2024
Published by Michael Berman at April 9, 2024
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In Southern Pine Credit Un. v. Southwest Marine & Gen’l. Ins. Co., et al., 2024 WL 1361891 (M.D. Ga. Mar. 29, 2024), the court addressed the amount of detail that must be in a privilege log. Southern Pine brought a breach of contract action after its claim on a dishonesty bond was […]
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 […]
March 4, 2024
Published by Michael Berman at March 4, 2024
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Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.” The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016). Likely that is due to […]
February 21, 2024
Published by Michael Berman at February 21, 2024
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In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons expert and her lawyer in the ‘Rust’ film shooting case raises questions about whether attorneys should text with clients and serves as […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!” That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 6, 2023
Published by Michael Berman at December 6, 2023
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As we approach the end of the year, it is an appropriate time to review Philip J. Favro, ed., Selected eDiscovery and ESI Case Law from 2023 (The Sedona Conf. 2023). Phil’s publication is an annual event. Book Review: Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″; Sedona Conference “Selected […]
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 […]