Author: Michael D. Berman
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My Most Interesting Blogs From 2024
A recap of Michael Berman’s most compelling 2024 blogs, including key topics in eDiscovery, privilege logs, and innovative litigation strategies, along with gratitude for guest contributors.
Failure to Cooperate Leads to Judicially-Imposed ESI Protocol
The Zarfati court mandated a robust ESI protocol after the Defendant failed to propose alternatives, stressing the importance of cooperation and transparency in discovery.
It is Important to Understand an E-Discovery Vendor’s Contract
The Supreme Court of Alabama emphasized the importance of understanding vendor contracts in Digital Forensics Corporation, LLC v. King Machine, Inc. The case showcases how arbitration clauses can impact litigation and highlights key considerations for...
Fabricated Text Messages – – Some Lessons Are Never Learned
This article delves into recent legal cases where fabricated text messages played a central role, leading to severe professional and legal repercussions. Learn about key rulings with an expert analysis.
When a Parent (Corporation) Talks With its “Child” (Corporation) is it Privileged?
The Fond-du-Lac Band case raises critical questions about privilege in joint representation for parent and subsidiary corporations. Courts may not universally recognize automatic privilege, as demonstrated in this 2025 ruling.
When Can a Party Refer to Produced Records as an Answer to an Interrogatory?
In Red-D-Arc Inc. v. AMP 2 LLC (2025), the court examined the proper application of Rule 33(d) for answering interrogatories via business records. It highlighted the burden on both parties and emphasized that illegible or...
Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request
In Taylor v. Google LLC, the court denied plaintiffs’ request for additional discovery, emphasizing that “discovery on discovery” requires proof of specific deficiencies. The plaintiffs failed to demonstrate Google’s chat messages contained unpreserved relevant evidence.
Request to Produce Documents Collected “to the Present” is Improper “Rolling Discovery”
The court in Rouse v. H.B. Fuller Co. rejected a request for “rolling discovery,” emphasizing that such practices violate prior rulings on temporal limits and proportionality in discovery. This case underscores the importance of adhering...
Court Appointed a Special Master to Negotiate ESI Protocol
In UMG Recordings, Inc. v. Uncharted Labs, the court appointed Hon. James C. Francis (ret.) as a Special Master to mediate ESI Protocol disputes, facilitate settlement efforts, and expedite the case. This decision highlights the...
Authentication of Surveillance Video by Lay Witness Under Silent Witness Doctrine
The Reddick v. State case expands the role of lay witnesses in authenticating surveillance video under the “silent witness” doctrine. It highlights evolving legal standards for video evidence reliability in complex digital systems.
What “Expenses” Can a Non-Party Recover for Complying with a Discovery Subpoena?
A recent decision in OL Private Counsel, LLC v. Olson examines the recovery of expenses by non-parties complying with discovery subpoenas under Rule 45. While significant expenses for document production may be reimbursed, deposition costs...
Does Every “Hit” on a “Hit Report” Have to be Produced?
Courts often allow parties to review documents for relevance before production, even when a document is flagged in a “hit report.” This article discusses the legal nuances of hit report relevance in discovery, including how...