Author: Michael D. Berman
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Court Finds Subject Matter Waiver in Expert Communications Under Fed.R.Evid. 502(a)
A federal court applied subject matter waiver to expert communications in Fresh Air for the Eastside v. Waste Mgmt., requiring disclosure of documents under Fed.R.Evid. 502(a).
When Can Opposing Counsel be Deposed?
When can opposing counsel be deposed? A new decision in Safo v. Singh lays out a four-part test and affirms the flexible, fact-intensive standard set by the Second Circuit.
Motion to Compel Preservation of RAM Denied Without Prejudice
A Delaware federal court denied, without prejudice, Belvac’s motion to compel preservation of RAM data, citing lack of good cause under its Default Standard. The case highlights the challenges of ephemeral data preservation in eDiscovery...
7th Circuit Affirms Dismissal and Monetary Sanctions Against Both Attorney and Client
In Pable v. CTA, the Seventh Circuit affirmed dismissal and over $150,000 in sanctions for ESI spoliation, marking a key precedent on attorney and client liability under Rule 37(e)(1), (e)(2), (a)(5), and 28 U.S.C. §1927.
Court’s Use of a Special Master to Assist EEOC in Obtaining Discovery from Defendant
A Kansas court appointed a Special Master in EEOC v. Genesh, Inc. to resolve electronic discovery disputes, signaling a firm stance on procedural fairness.
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...