Defining a “document” can be complex.
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March 8, 2026
Published by Michael Berman at March 8, 2026
Categories
California enacted an “Artificial Intelligence Training Data Transparency” statute. Cal. Civ. Code §3111. It “requires developers of ‘a generative artificial intelligence system or service’ that is ‘publicly available to Californians for use’ to ‘post on the developer’s internet website documentation regarding the data used by the developer to train the generative artificial […]
January 8, 2026
Published by Michael Berman at January 8, 2026
Categories
Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products. One advantage of using Special Masters like Phil is speed. Phil was appointed by the court on […]
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, […]
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 10, 2025
Published by Michael Berman at September 10, 2025
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Much of the litigation over geofencing has been under the Fourth Amendment in criminal cases, and there has been a lot of it. See, e.g., Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC (Aug. 5, 2025); Alvarez v. State, 2025 WL 2346165, at *4 (Tex. App. […]
August 7, 2025
Published by Michael Berman at August 7, 2025
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The federal court in Delaware has a “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings LLC, 2025 WL 2146099 (D. Del. Jul. 29, 2025). It applied that standard to a request to preserve information in Random Access Memory (“RAM”). Belvac sought preservation […]
May 14, 2025
Published by Michael Berman at May 14, 2025
Categories
We the Protestors, Inc. v. Sinyangwe, 348 F.R.D. 175 (S.D.N.Y. Dec. 18, 2024), makes several important points about the relationship between ESI Protocols and redaction of produced documents. The decision begins: Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the […]
April 10, 2025
Published by Michael Berman at April 10, 2025
Categories
The Sedona Conference® has posted its “Commentary on Discovery of Collaboration Platforms Data, Public Comment Version” (Apr. 2025). Public comments may be submitted through May 16, 2025. My comment is that the Commentary is excellent and well worth reading. I am not going to try to summarize the comprehensive, 32-page document. Instead, […]
March 6, 2025
Published by Michael Berman at March 6, 2025
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues. […]
March 16, 2023
Published by Michael Berman at March 16, 2023
It is well worth downloading eDiscovery Assistant’s excellent 2022 eDiscovery Case Law Year in Review | eDiscovery Assistant. The Report provides interesting metrics about eDiscovery, such as the following chart: Id. The Report states that “failure to produce” was the most litigated issue, followed by proportionality and sanctions. Interestingly, “failure to preserve” […]
November 11, 2022
Published by Michael Berman at November 11, 2022
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In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms. However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context. Alliance said – in my […]
August 12, 2022
Published by Michael Berman at August 12, 2022
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I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
May 18, 2022
Published by Michael Berman at May 18, 2022
“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly. “Getting the steps […]
April 28, 2022
Published by Michael Berman at April 28, 2022
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Metadata has been embraced, loved, cursed, and vilified. It has been written about in inconsistent ethics opinions about “mining.” Failure to preserve or produce it has led to the imposition of sanctions in litigation. It has been “scrubbed,”[1] sliced, diced, defined, and classified as application or system metadata and system-generated or user-created.[2] […]
April 4, 2022
Published by Michael Berman at April 4, 2022
Categories
Fed.R.Civ.P. 34 authorizes discovery of “any designated documents or electronically stored information….” That Rule is limited to the scope of discovery set out in Rule 26(b)(“matter that is relevant to any party’s claim or defense and proportional ….”); see Md. Rules 2-402 and 2-422. In a prior post, I addressed What is a […]
March 23, 2022
Published by Michael Berman at March 23, 2022
Categories
This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate. If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the […]
August 28, 2021
Published by Michael Berman at August 28, 2021
Categories
In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 17, 2021
Published by Michael Berman at August 17, 2021
Categories
Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1] Usually, it was clear where a letter, memo, or contract began and ended. But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]