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December 2025 Privilege Protection Amendments to Fed.R.Civ.P. 16 and 26
Amendments effective December 1, 2025 to Federal Rules of Civil Procedure 16 and 26 emphasize early planning for privilege claims, encourage Rule 502 non-waiver orders, and highlight flexible approaches to privilege logging. The changes push...
The Purpose of an ESI Protocol
A federal court reminds litigants that disagreement over an ESI protocol does not equal an impasse. Parties must meaningfully meet and confer before seeking judicial intervention.
“The Fire and BPA’s Preservation of Evidence”
An Oregon federal court imposed adverse inference sanctions against BPA for willful spoliation of physical evidence and ESI following the 2020 Holiday Farm Fire. The decision analyzes when the duty to preserve is triggered and...
Two Courts, Two Answers: When Does Using AI Waive Privilege?
Mike Berman explores a post by Jennifer Ellis, JD, LLC. discussing Heppner, the case that says clients using AI, not at the direction of counsel, cannot withhold those documents or that ESI as privileged.
A.I. Privilege, Heppner, and How Did the Court Learn About the Absence of Certain Attorney-Client Communications Between Mr. Heppner and His Attorneys?
In U.S. v. Heppner, Judge Rakoff held that AI-generated documents were neither privileged nor work product. This article examines the court’s reliance on ECF 23-5 and the absence of attorney direction in shaping that outcome.
A “Practical Control” Decision Rejects the “Legal Right” Standard
The Eastern District of Pennsylvania applied the practical ability test for possession, custody, or control under Rule 34, holding that former employees could be compelled to produce a report they had the practical ability to...
Privilege Waived Because Pre-Production Measures Were Not Shown to Be Reasonable
In Wilson Aerospace v. Boeing, the court found Rule 502(b) waiver when the producing party failed to demonstrate reasonable pre-production privilege screening and compliance with its clawback order.
Time of Production of Substantive and Impeachment Video vis-à-vis Date of Deposition
In Frankhouse v. Jobe, the District of Maryland addressed when video evidence must be produced in discovery, holding that a cell extraction video with predominantly substantive value must be produced before the plaintiff’s deposition.
Attorney’s Selection and Ordering of Non-Privileged Documents From a Large Document Set is Work Product—Printing the Universe is Not
In Aliev v. Trans Union, LLC, the court reaffirmed that an attorney’s selection and arrangement of documents may be work product but rejected privilege claims where counsel effectively “printed the universe” rather than selectively compiling...
“The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.”
In Jones Eagle LLC v. Ward, the court ordered “discovery on discovery” and demanded confirmation of a litigation hold after missing text messages and auto-delete settings raised Rule 37(e) concerns. The decision underscores that preservation...
Plaintiffs’ Failure to Timely Raise Lack of Defendant’s Privilege Log Defeats Waiver Claim
In Gurner v. American Family Mutual Ins. Co., the District of Nevada denied a motion to find privilege waiver based on an allegedly untimely privilege log. The court held that Rule 26 requires supplementation within...
Possession, Custody, or Control – Need for a Uniform National Standard – Part II
In L.S. v. Bolduan, the court applied the “legal right” test to deny Rule 34 control over documents held by shared defense counsel while signaling that use of those documents could trigger production. The decision...