Construction litigation is among the most data-intensive areas of law, requiring attorneys to manage CAD files, BIM models, project management systems, accounting records, and massive volumes of communications across multiple parties. This checklist outlines a strategic workflow for handling construction disputes, from early case assessment and ESI protocols to document review and persuasive trial presentation.
In Medal v. Amazon, a federal court refused to enter a Rule 502(d) clawback order without party agreement and declined to require production of responsive documents not captured by search terms. Michael Berman respectfully disagrees on both counts, drawing on legislative history, advisory committee notes, and circuit authority.
A federal court rejected a blanket right to hit reports, holding they may be denied when search terms are facially overbroad and disproportionate.
A federal court rejects broad apex executive discovery requests, instead ordering phased ESI production that balances proportionality, cost, and relevance under Rule 26.
In Aerosonic LLC v. Joby Aero, Inc., the court held that inadvertent disclosure of work product did not waive protection under Rule 502 and the ESI Protocol. However, the receiving party demonstrated substantial need and inability to obtain the equivalent, overcoming the protection and compelling production.
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.
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.
The court in In Re: GoodRX settled several ESI protocol disputes, rejecting automatic relevance of confidential documents and limiting redactions. It also enforced cooperation in discovery processes and ordered privilege logs for redacted materials.
EDRM issues an open call for contributors to four cornerstone projects tackling AI ethics, discovery workflows, ESI protocols, and testimony evidence, inviting collaboration across the legal tech community.
Tom O'Connor's latest book, Artificial Intelligence for the Rest of Us, is a practical guide for legal professionals navigating AI tools and ethics. With contributions from Rakesh Madhava, Brett Burney, Elizabeth Guthrie, and David D. Lewis, the book emphasizes caution, curiosity, and competence. It covers use cases, vendor evaluation, and ethical duties, all delivered in O'Connor’s signature accessible style.
The Federal Rules mandate a discovery plan under Rule 26(f), but not an ESI Protocol. Understanding this difference is critical for defensible and compliant discovery practices.
In Glaxosmithkline v. Pfizer, the Special Master denied a motion to compel, holding that no deadline existed for proposing additional search terms since the ESI Protocol set no milestone.