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Case Law

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Document Correlation Under Fed.R.Civ.P. 34(b)(2)(E)

July 28, 2025

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.

Blog Articles, Case Law, In the News, Metadata, Recent News, Technology
Michael D. Berman

Discovery 101 – Court Sets Out Ground Rules to Resolve Discovery Dispute

July 24, 2025

In Bouie v. Alzayadi, the court issued a pointed order detailing discovery ground rules, emphasizing cooperation and warning of sanctions for noncompliance.

Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

Decision on How to Best Search for ESI – Court Orders ESI Protocol in “Epic of Dysfunctional Discovery,” With Unique Clawback Provision

July 22, 2025

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...

Blog Articles, Case Law, In the News, Metadata, Recent News, Rules
Michael D. Berman

Standard for Court-Ordered Forensic Examinations – When Does Misconduct “Cross the Rubicon”?

July 21, 2025

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).

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Rules
Michael D. Berman

No Sanctions for Breach of Duty to Preserve Video, Due to Lack of Prejudice

July 16, 2025

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.

Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

Protective Order Barring Use of Discovery Materials in Other Litigation Was Vacated

July 15, 2025

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...

Blog Articles, Case Law, In the News, Recent News, Rules
Michael D. Berman

The “Best Time” to File a Spoliation Motion

July 14, 2025

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.

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Rules
Michael D. Berman

Requests for Documents “Sufficient to Show,” Instead of “Any and All” Documents

July 11, 2025

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...

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News
Michael D. Berman

Application of Work-Product Doctrine to Materials Prepared Years After Incident

July 10, 2025

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...

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Rules
Marris Hoffee, Michael D. Berman

Defendant’s Prejudice From Plaintiff’s Failure to Disclose Photographs Taken by Defendant Was Insufficient to Support an Exclusionary Discovery Sanction

June 26, 2025

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.

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Rules
Michael D. Berman

Fed.R.Civ.P. 26(g) Was Violated by Permitting Client Searches With Minimal Oversight by Counsel

June 26, 2025

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.

Blog Articles, Case Law, In the News, Lawyers Duties, Recent News, Rules
Michael D. Berman

Privilege Log Helps Defeat Summary Judgment on One Count

June 23, 2025

In Conner v. Stark & Stark, a federal court used the defendant’s privilege log to identify factual disputes regarding the timing and motivation behind a termination decision, enabling the plaintiff’s discrimination claims to survive summary...

Blog Articles, Case Law, In the News, Recent News
Michael D. Berman

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With deep sadness, we share the loss of Kaylee Walstad, Chief Strategy Officer of EDRM and an extraordinary advocate, mentor, and friend to so many in the eDiscovery and legal technology community. Kaylee’s generosity, encouragement, and compassion touched countless lives, and her legacy lives on in the people and organizations she lifted.

To honor Kaylee’s remarkable life and lasting contributions, we invite you to share your own memories, reflections, and images. Your tributes will help celebrate the joy she brought to others and the light she shared so freely with everyone she encountered.

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