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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...
Another A.I. Protective Order
Protective orders addressing the use of A.I. to review materials produced to an opponent in discovery are becoming routine. The stipulated protective order in RMME LLC v. Majestic Steel USA, Inc., 2026 WL 1831063, at...
It is Improper to Combine Interrogatories and Document Requests
Michael Berman surveys a consistent line of authority holding that the two discovery tools should be served separately, with some courts concluding that defendants need not respond to requests that combine both forms of discovery.
Does Microsoft Teams Require Different Search Terms Than Email?
In Kim v. Cushman & Wakefield, a Central District of California court found that keyword searches adequate for email may be insufficient for Microsoft Teams, where messages are shorter, more informal, and less likely to...
Is it OK if “Actual Authorities” Support the “Bogus” Proposition Set Out in a Hallucinated Case?
In Withers v. City of Aberdeen, a federal court rejected the argument that attorneys should avoid sanctions for citing AI-hallucinated cases simply because legitimate authorities support the same legal propositions. The decision emphasizes that fake...