Author: Michael D. Berman
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When is a Motion for Protective Order Untimely? Meet and Confer Was Futile
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.
Plaintiff Raised a Troubling Spoliation Issue, But Did Not Surmount All Hurdles, and a Ruling Was Reserved
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.
Request for Email Threading Protocol Rejected & Discussed Use at Trial
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...
Deepfakes Uncovered – iPhone 6 Could Not Have Captured the A.I.-Generated Evidence
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...
Court Denies Joint Request to Enter a Proposed ESI Protocol as a Court Order
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.
Rules Matter – So Does the Duty to Cooperate – “Quick Peek” Showed Production Failures
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.
My Father is a Lawyer – Are My Emails With Him Privileged?
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,...
Challenges to Redacted Metadata Privilege Log
A court ruled on a challenge to a metadata privilege log, allowing some redactions but requiring detailed descriptions for redacted entries and email attachments.
Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery
The court in Lively v. Skyline confirmed that including materials on a privilege log concedes their relevance for discovery, reinforcing Rule 26’s implications for privilege assertions.
What is a “Document?”: Interior Email Omitted from Email Chain – Sanctions Follow for Lack of Candor to Court
In Golat II, the court sanctioned counsel for omitting a key email in a discovery dispute, spotlighting the duty of candor and redefining what qualifies as a “document” in ESI.
Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us”
The Lively v. Wayfarer Studios case continues to raise key eDiscovery issues, with the latest ruling mandating production of Signal messages and search terms, while dismissing reciprocal demands as unfounded.
No Duty to Produce Documents That Requestor Already Has
In Rutherford v. Central Bank of Kansas City, the court ruled that a party need not reproduce discovery already in opposing counsel’s possession. However, it required a gap analysis to determine what unique materials remained...