How Does an “Attorney’s Eyes Only” Order Apply to an Unrepresented Party?

A New York federal court ordered that Attorney’s Eyes Only material produced in redacted form to an unrepresented defendant must come with a detailed redaction log, so they can meaningfully decide whether to challenge the...

Cite Checking to Find Hallucinated Cases Deemed Insufficient – Part II

A North Carolina federal court in Smith v. Polk Co. held that running briefs through LexisNexis cite checking software does not satisfy a standing order requiring an attorney, or a supervised paralegal, to verify citations....

It May Be an Abuse of Discretion to Grant Summary Judgment for a Defendant Before Deciding a Plaintiff’s Sanctions Motion

Michael D. Berman examines Smith v. Polk Co., where the court addressed two spoliation sanctions motions before granting summary judgment. Applying Shaw v. Foreman, the court recognized that a sanctions motion involving evidence significant to...

Condominium Construction Defect Litigation Leads to Search and Custodian Rulings

Michael D. Berman examines a Vermont federal court’s order requiring a condominium association to disclose its keyword search methodology in detail, while rejecting a developer’s bid to force ESI collection from every current and former...

An Attorney-Client Communication Advising Spoliation is Not Privileged

Michael D. Berman examines a ruling that advice to spoliate evidence is not privileged, though the court found no actual destruction because both pre- and post-advice versions of Meta’s disputed documents survived and were ordered...

“Ten depositions are too few for this case…. But twenty-seven depositions is too many….”

Two Debatable Holdings

Michael D. Berman examines a S.D.N.Y. discovery order requiring production of every document that hits an agreed search term, without a responsiveness review, and questions whether the ruling reaches beyond the scope allowed under Rule...

An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules

A federal court held that an ESI Protocol implements the Federal Rules rather than replacing them, rejecting a defendant’s argument that it could skip a plainly relevant custodian simply because he wasn’t named in the...

A Deep Dive Into the Pikesville, MD, Racist/Antisemitic Deepfake Audio

A viral deepfake audio recording nearly destroyed a Maryland principal’s career and led to criminal charges, two civil suits, and a Daubert hearing where a forensic audio expert could not confirm AI was used, but...

Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials

Glass Houses Proverb—Don’t Throw Stones and Invective

A Court of Federal Claims judge sanctioned plaintiffs’ counsel under RCFC 11 for confidently asserting settled North Carolina law without citing a single supporting case, then calling the government’s correct position “frivolous.” The same opinion...

Information Governance–Employee’s Use of Employer’s Email for Privileged Communications

Michael Berman analyzed Lalwani v. Trustees of Indiana University where an employee, plaintiff  Mr. Lalwani, had communicated with his lawyers using the employer-defendant university’s email system that found Indiana University to be a public institution...