Case Law
← Back to Blog
No Affidavit – No Joint Representation/Common Interest Privilege
In Fond Du Lac Band v. Cummins, the court ruled that a vague attorney affidavit failed to establish joint representation, dooming a privilege claim under the joint representation and common interest doctrines.
Will Courts “Search, Forward” with eDiscovery Case Law on AI?
Phil Favro compares early TAR adoption to today’s AI developments in eDiscovery, noting that while case law is scarce, existing precedent offers guidance on defensibility, cooperation, and transparency. He urges practitioners to focus on sound...
Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence
A Maryland appellate court reversed a robbery conviction after prosecutors failed to timely disclose their use of facial recognition technology, an AI tool central to the investigation. The court found the late and incomplete disclosure...
Order for Phased Discovery
Phased discovery, though underused, can be a powerful tool for achieving proportionality in litigation. Recent cases show how courts structure phased approaches to limit costs, avoid unnecessary disputes, and focus on threshold issues before broader...
Sanctions for Loss of ESI Imposed Under Court’s Inherent Power After Privilege Log is Used to Determine the Date that the Duty to Preserve Was Triggered
In Jimenez v. Hyatt Corp., the court imposed sanctions based on its inherent power after a privilege log revealed that the Plaintiff anticipated litigation earlier than claimed, triggering a duty to preserve ESI.
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.
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.
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).