Author: Michael D. Berman
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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...
Geofencing, Geotargeting, and Geo-blocking, in Civil Litigation, Information Governance, and Regulation
Geofencing and its digital cousins are increasingly showing up in civil litigation and regulatory discussions. From jury influence to healthcare privacy, this post flags the key issues.
When Does a Final Judgment Constitute Denial of a Motion That Was Not Expressly Denied?
The Fourth Circuit ruled that final judgment implicitly denies outstanding motions like Rule 56(d) discovery requests, clarifying standards while remanding an excessive force claim.
Half-Baked Motion to Compel Was Not Prompt, Not Ripe, Not Complete, and Not Likely to Succeed
In Golat v. Wisconsin State Court System, the court rejected a motion to compel as untimely, incomplete, and lacking good faith, highlighting the importance of candor and proper timing in discovery disputes.
Three Depositions Reopened to Address After-Produced Documents – Fed.R.Civ.P. 30(d)(1)
A recent decision in In re Sandisk SSDs Litigation highlights how delayed document production, especially tied to withdrawn privilege assertions, can justify reopening depositions under Fed.R.Civ.P. 30(d)(1).
The Best Defense Was Not a Weak Offense
In back-to-back July 2025 rulings, the S.D.N.Y. sanctioned Charles Oakley for failing to preserve thousands of text messages after his 2017 MSG ejection, crediting MSG’s expert over Oakley’s and granting an adverse inference. Oakley’s counter-motion...
No Affidavit – No Joint Representation/Common Interest Privilege
In Fond Du Lac Band v. Cummins, the court ruled that a vague attorney affidavit failed to establish joint representation, dooming a privilege claim under the joint representation and common interest doctrines.
Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence
A Maryland appellate court reversed a robbery conviction after prosecutors failed to timely disclose their use of facial recognition technology, an AI tool central to the investigation. The court found the late and incomplete disclosure...
Order for Phased Discovery
Phased discovery, though underused, can be a powerful tool for achieving proportionality in litigation. Recent cases show how courts structure phased approaches to limit costs, avoid unnecessary disputes, and focus on threshold issues before broader...
Sanctions for Loss of ESI Imposed Under Court’s Inherent Power After Privilege Log is Used to Determine the Date that the Duty to Preserve Was Triggered
In Jimenez v. Hyatt Corp., the court imposed sanctions based on its inherent power after a privilege log revealed that the Plaintiff anticipated litigation earlier than claimed, triggering a duty to preserve ESI.