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Author: Michael D. Berman

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In an Asset Sale, Don’t Sell the Server That Holds Privileged Communications

October 21, 2025

A recent decision in Jim Daws Trucking v. Daws, Inc. underscores how selling a server with privileged emails can waive attorney-client privilege—raising red flags for information governance and asset purchase practices.

Blog Articles, Case Law, In the News, Lawyers Duties, Metadata, Recent News, Technology
Michael D. Berman

“Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold

October 14, 2025

A federal court ordered Amazon to disclose litigation hold notices and preservation efforts in a COVID-19 price gouging case, finding significant gaps and delays in its ESI preservation.

Blog Articles, Case Law, In the News, knowledge, Metadata, Recent News, Rules, Technology
Michael D. Berman

Definition and Application the Crime-Fraud Exception to A-C Privilege

October 13, 2025

In Burge v. Teva, the court applied the crime-fraud exception to attorney-client privilege, requiring disclosure of redacted documents that evidenced fraudulent concealment involving counsel.

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Uncategorized
Michael D. Berman

Rule 37(e)(1) Sanctions for Breach of Duty to Preserve Communications

October 9, 2025

A Maryland court imposed Rule 37(e)(1) sanctions against a plaintiff for failing to preserve key Facebook and text message communications, providing the jury with a special instruction on the spoliation.

Blog Articles, Case Law, In the News, Lawyers Duties, Metadata, Recent News, Rules, Technology
Michael D. Berman

When is a Motion for Protective Order Untimely? Meet and Confer Was Futile

October 1, 2025

In Singleton v. Mazhari, the court held that a protective order motion was timely and excused meet-and-confer efforts as futile, offering guidance on both timing and procedural waivers.

Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

Plaintiff Raised a Troubling Spoliation Issue, But Did Not Surmount All Hurdles, and a Ruling Was Reserved

September 30, 2025

A Maryland court expressed concern over WMATA’s failure to produce key inspection reports after a garage slip-and-fall but declined to impose harsh spoliation sanctions, reserving judgment on narrower remedies.

Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

Request for Email Threading Protocol Rejected & Discussed Use at Trial

September 29, 2025

In In Re Tecfidera Antitrust Litigation, the court rejected a proposed email threading protocol due to usability and metadata concerns, emphasizing Rule 34’s requirement to produce ESI as ordinarily maintained and noting a lack of...

Blog Articles, Case Law, In the News, Metadata, Recent News, Rules
Michael D. Berman

Deepfakes Uncovered – iPhone 6 Could Not Have Captured the A.I.-Generated Evidence

September 24, 2025

A California court in Mendones v. Cushman and Wakefield found that key video and image exhibits were GenAI deepfakes. Metadata and platform inconsistencies, plus an implausible claim that an iPhone 6 on iOS 12.5.5 used...

AI, Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

Court Denies Joint Request to Enter a Proposed ESI Protocol as a Court Order

September 23, 2025

The Middle District of Florida denied a joint motion to adopt an ESI protocol as a court order, stating that private agreement between parties suffices unless a proper legal basis for court involvement is demonstrated.

Blog Articles, Case Law, In the News, Metadata, Recent News, Rules
Michael D. Berman

Rules Matter – So Does the Duty to Cooperate – “Quick Peek” Showed Production Failures

September 22, 2025

A recent ruling in Brito v. New Life highlights how a “quick peek” agreement revealed critical discovery failures, resulting in sanctions and reinforcing the duty to cooperate under federal procedural rules.

Blog Articles, Case Law, Rules
Michael D. Berman

My Father is a Lawyer – Are My Emails With Him Privileged?

September 16, 2025

A federal court ruled that emails between a woman and her father, a litigator, were not protected by attorney-client privilege. The decision highlights that a familial relationship alone doesn’t establish privilege without clear legal intent,...

Blog Articles, Case Law, In the News, Lawyers Duties, Metadata, Recent News, Rules
Michael D. Berman

Challenges to Redacted Metadata Privilege Log

September 16, 2025

A court ruled on a challenge to a metadata privilege log, allowing some redactions but requiring detailed descriptions for redacted entries and email attachments.

Blog Articles, Case Law, In the News, Metadata, Recent News, Rules, Technology
Michael D. Berman
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With deep sadness, we share the loss of Kaylee Walstad, Chief Strategy Officer of EDRM and an extraordinary advocate, mentor, and friend to so many in the eDiscovery and legal technology community. Kaylee’s generosity, encouragement, and compassion touched countless lives, and her legacy lives on in the people and organizations she lifted.

To honor Kaylee’s remarkable life and lasting contributions, we invite you to share your own memories, reflections, and images. Your tributes will help celebrate the joy she brought to others and the light she shared so freely with everyone she encountered.

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