Privilege
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Former CEO Had No Reasonable Expectation of Privacy in Company’s Electronic Devices
Michael Berman explores U.S.A. v. Chu as an important reminder of the importance of information governance in connection with assertions of privacy or privilege when an employee uses business devices for personal communications.
Asking When Untimely Discovery Responses Will Be Provided Doesn’t Consent to an Extension
In Dochee v. The Methodist Hospitals, Inc., the court addressed discovery responses served six weeks to two months late. Although it viewed Defendants’ failure to seek an extension or timely respond with disfavor, the court...
The First Amendment Privilege Against Discovery by the Government
Michael D. Berman examines a ruling addressing the First Amendment privilege against government discovery, including internal advocacy materials and the evidentiary showing required to establish a chilling effect on associational rights.
What Substantive Law Governs Sufficiency of a Privilege Log in a Federal Court Sitting in Diversity?
In McSwain v. HOMAG Machinery N. America, Inc., the court distinguished state substantive privilege law from the federal procedural rules governing the sufficiency of a privilege log.
An Attorney-Client Communication Advising Spoliation is Not Privileged
Michael D. Berman examines a ruling that advice to spoliate evidence is not privileged, though the court found no actual destruction because both pre- and post-advice versions of Meta’s disputed documents survived and were ordered...
Two Debatable Holdings
Michael D. Berman examines a S.D.N.Y. discovery order requiring production of every document that hits an agreed search term, without a responsiveness review, and questions whether the ruling reaches beyond the scope allowed under Rule...
Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials
Michael Berman reports on a case with restrictions on the use of AI tools to handle disclosure materials and questions what happens in a clawback situation.
EDRM Project and Advisory Council Leaders Author Groundbreaking Paper on GenAI Prompt Protection
A new paper argues that prompts attorneys write to instruct generative AI in document review deserve work-product protection, distinguishing them from search terms that courts have traditionally required parties to exchange.
Information Governance–Employee’s Use of Employer’s Email for Privileged Communications
Michael Berman analyzed Lalwani v. Trustees of Indiana University where an employee, plaintiff Mr. Lalwani, had communicated with his lawyers using the employer-defendant university’s email system that found Indiana University to be a public institution...
A.I. Protective Order—Again
Two recent Southern District of New York cases highlight a growing trend in discovery practice: protective orders that regulate how parties may use confidential discovery materials with AI tools. While not universal, these provisions increasingly...
Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case
In Litton v. Roblox Corporation, the Northern District of California declined to modify its model protective order to address AI use, relying on existing standing-order provisions. Michael D. Berman contrasts that decision with a growing...
Motion for Reconsideration—It Does Not Exist—But It Is Routinely Entertained—On Limited Grounds
A Colorado federal court denied reconsideration in Stanisaveljevic v. The Standard Fire Ins. Co., finding that evidence already in a party’s possession but left unreviewed is not newly discovered. The opinion reinforces that discovery choices...