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….”

Why Private Copies Are the Next Privacy Risk Frontier

Sheila Grela examines how unofficial, duplicative private copies saved on laptops, in email threads, and across collaboration platforms create privacy, discovery, and breach exposure that formal governance systems fail to track, drawing on the updated...

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...

Drafting RFPs for Robots to Read

With producing parties increasingly letting large language models make first-pass relevance calls, this piece argues that requests for production should be drafted as prompts and demonstrates this approach using the Dominion Voting Systems v. Fox...

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

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...

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...

If “Junk” is Responsive to Your Request, You Can’t Complaint About Getting “Junk”

EEOC v. Mia Aesthetics Clinic ATL, LLC – Round III

In EEOC v. Mia Aesthetics Clinic ATL, LLC – Round III, the court rejected reliance on routine document destruction policies as a shield against spoliation sanctions and held that deposition testimony is not an adequate...

EEOC’s Tenacious Pursuit of Discovery Bore Fruit

In EEOC v. GEM Management, LLC, the EEOC’s persistent pursuit of discovery led to a substantially granted motion to compel. The court criticized GEM’s ESI search methodology, custodial self-collection, form of production, Bates numbering, and...