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Maryland’s Digital Media Rules
Maryland’s rules establish specific procedures for handling digital media in court proceedings, motions, and appeals, including approved storage platforms, record preservation, access, and the treatment of audio, audiovisual, and video exhibits.
My Old Friend, “Conditional Relevance,” May Not Be Dead, But It Is on Life Support
A proposed amendment to Federal Rule of Evidence 104(b) would eliminate the longstanding concept of “conditional relevance,” replacing it with a uniform approach to relevance while retaining the ability to admit evidence subject to later...
Recent AI evaluation incidents expose gaps in containment, configuration and evidence
In late July and early August 2026, cybersecurity evaluations involving models from OpenAI, Anthropic, Meta, and Moonshot AI exposed distinct failures involving containment, configuration, authorization, and benchmark integrity. ComplexDiscovery examines why the shared exposure sits...
California’s AI Transparency Act arrives alongside Europe’s Article 50
On August 2, 2026, California’s AI Transparency Act became operative, the same day most EU AI Act Article 50 transparency duties began applying. Covered providers now owe a detection tool, embedded latent disclosures, and a...
Condominium Construction Defect Litigation Leads to Search and Custodian Rulings
Michael D. Berman examines a Vermont federal court’s order requiring a condominium association to disclose its keyword search methodology in detail, while rejecting a developer’s bid to force ESI collection from every current and former...
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...
“Ten depositions are too few for this case…. But twenty-seven depositions is too many….”
A federal court in a LinkedIn subscriber class action alleging monopolization split the difference between the parties’ deposition requests, holding that being a document custodian isn’t enough on its own to justify a deposition.
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...
![An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules, by Michael D. Berman, E-Discovery LLC.](https://edrm.net/wp-content/uploads/2026/07/Berman-Blog-An-ESI-Protocol-Does-Not-Necessarily-Supersede-the-Discovery-Rules.png)
An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules
A federal court held that an ESI Protocol implements the Federal Rules rather than replacing them, rejecting a defendant’s argument that it could skip a plainly relevant custodian simply because he wasn’t named in the...
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.
Glass Houses Proverb—Don’t Throw Stones and Invective
A Court of Federal Claims judge sanctioned plaintiffs’ counsel under RCFC 11 for confidently asserting settled North Carolina law without citing a single supporting case, then calling the government’s correct position “frivolous.” The same opinion...
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...