Author: Michael D. Berman
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Motion for Reconsideration—It Does Not Exist—But It Is Routinely Entertained—On Limited Grounds
A Colorado federal court denied reconsideration in Stanisaveljevic v. The Standard Fire Ins. Co., finding that evidence already in a party’s possession but left unreviewed is not newly discovered. The opinion reinforces that discovery choices...
What is a “Shotgun” Pleading?
In Kelly v. City of Cochran, GA, the court applied established Eleventh Circuit precedent to explain the four defining characteristics of an impermissible “shotgun” pleading under the Federal Rules of Civil Procedure.
Supervisory Duties vis-à-vis “Hallucinated” Citations
A California federal court sanctioned a supervising partner for AI-hallucinated citations his associate filed, holding that a firm’s silence on citation-checking policy implicates the whole institution.
Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part
Michael Berman analyzes Madrigal v. Live Nation, where a court granted in part Ticketmaster’s motion to compel a forensic image of the class representative’s cell phone. The decision offers practitioners a clear roadmap on Rule...
Court Refuses to Enter Fed.R.Evid. 502(d) & “Clawback” Order Without Agreement; Also Refuses to Order Production of Responsive Documents That Do Not “Hit” on Search Terms
In Medal v. Amazon, a federal court refused to enter a Rule 502(d) clawback order without party agreement and declined to require production of responsive documents not captured by search terms. Michael Berman respectfully disagrees...
Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production
In a recent case, the defendants opposed certain discovery. The court wrote: “Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that he parties should not simultaneously be in...
Cite Checking to Find Hallucinated Cases Deemed Insufficient
Recent decisions highlight that relying on cite-checking alone cannot cure hallucinated cases in AI-generated briefs, reinforcing lawyers’ duty of competence and verification.
No Right to a “Hit Report” for Facially Overbroad Search Terms?
A federal court rejected a blanket right to hit reports, holding they may be denied when search terms are facially overbroad and disproportionate.
Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney
A federal court ruled that a pro se litigant could not use ChatGPT during a deposition and that such use is not protected by attorney-client privilege, reinforcing limits on AI in litigation.
Request for Broad “Apex” Executive Discovery Replaced by Phased Discovery Order
A federal court rejects broad apex executive discovery requests, instead ordering phased ESI production that balances proportionality, cost, and relevance under Rule 26.
A.I. Protective Orders Are Becoming Routine
Courts are increasingly entering AI protective orders that restrict how parties use generative AI with discovery materials, highlighting growing concerns over confidentiality, privilege, clawbacks, and litigation risk.
It is Improper and a “Perilous Shortcut” to “Outsource” Discovery Positions to A.I.
In White v. Walmart, the court held that relying exclusively on AI for discovery disputes is improper, emphasizing attorneys’ duty to exercise independent judgment and confer in good faith.