Author: Michael D. Berman
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Local Rule Prohibiting Definitions in Interrogatories Without Leave of Court
The District of Nebraska prohibits definitions in interrogatories without prior court approval, as highlighted in Payne v. Geer. This contrasts with Maryland and other jurisdictions that provide structured, permissible definitions to streamline discovery. The debate...
Document Correlation Under Fed.R.Civ.P. 34(b)(2)(E)
The Sievert decision reignites a long-standing dispute over whether Rule 34(b)(2)(E) mandates document correlation for ESI. While the majority rule says yes, the article proposes a metadata-based alternative that balances efficiency and fairness.
Discovery 101 – Court Sets Out Ground Rules to Resolve Discovery Dispute
In Bouie v. Alzayadi, the court issued a pointed order detailing discovery ground rules, emphasizing cooperation and warning of sanctions for noncompliance.
Decision on How to Best Search for ESI – Court Orders ESI Protocol in “Epic of Dysfunctional Discovery,” With Unique Clawback Provision
In a discovery battle over $24 million in damages, the court imposed an ESI protocol in Everlast Roofing v. Wilson, mandating cost sharing, TAR-based sampling, and a unique clawback for irrelevant documents—highlighting the perils of...
Standard for Court-Ordered Forensic Examinations – When Does Misconduct “Cross the Rubicon”?
A Nevada federal court ordered a forensic exam after finding bad faith discovery conduct in PlayUp v. Mintas. The decision explores when forensic inspections are justified under Rule 34(a)(1).
No Sanctions for Breach of Duty to Preserve Video, Due to Lack of Prejudice
In Hobson v. Harper, the court found that while the defendants negligently failed to preserve surveillance video, sanctions were unwarranted due to lack of prejudice and the footage’s irrelevance to plaintiff’s discovery requests.
Protective Order Barring Use of Discovery Materials in Other Litigation Was Vacated
In Cordero v. Stemilt, the Ninth Circuit vacated a restrictive protective order that barred plaintiffs’ counsel from using discovery materials in other advocacy, ruling that the district court failed to show good cause or specific...
The “Best Time” to File a Spoliation Motion
This article explores the legal nuances of spoliation motion timing, highlighting the risks of premature or delayed filings. It also offers a proactive framework using ESI Protocols and discovery plans.
Requests for Documents “Sufficient to Show,” Instead of “Any and All” Documents
Discovery requests framed as “sufficient to show” are gaining traction in federal courts for their focus and proportionality. Unlike overbroad “any and all” language, this approach targets relevant facts while aligning with evolving case law...
Application of Work-Product Doctrine to Materials Prepared Years After Incident
The Hall decision explores whether documents prepared decades after a criminal conviction, as part of post-conviction representation, qualify as protected work product. It emphasizes timing and substantial need in distinguishing between fact and opinion work...
Defendant’s Prejudice From Plaintiff’s Failure to Disclose Photographs Taken by Defendant Was Insufficient to Support an Exclusionary Discovery Sanction
In Matter of City of Hagerstown, the Appellate Court of Maryland held that a plaintiff’s failure to disclose photos did not justify their exclusion as a discovery sanction, finding minimal prejudice.
Fed.R.Civ.P. 26(g) Was Violated by Permitting Client Searches With Minimal Oversight by Counsel
A court ruling in Grullon v. Lewis held that allowing clients to self-collect discovery with minimal attorney oversight violates Rule 26(g), highlighting the need for counsel’s active involvement.