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Possession, Custody, or Control of Responsive Information by States Suing Meta

The September 6, 2024, decision in In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024), applies the “legal control” standard to Fed.R.Civ.P. 34 discovery...more

Takeaways From Felder v. MGM National Harbor

​​​​​​​Felder v. MGM National Harbor, LLC, 2024 WL 3690779(D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session.  That,...more

“Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But….

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for...more

Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court enforced an ESI Protocol that called for a “metadata-only” privilege log, even though parts of the metadata were...more

The Standard for In Camera Review of Assertedly Privileged Documents

The purpose of a privilege log is to provide sufficient information for the recipient of the log to determine whether the withheld information is, at least on its face, privileged.  In short:  “Trust, but verify.”  See,...more

When is Failure to Provide a Timely Privilege Log Excusable?

In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a...more

Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II

It is not auspicious when a court writes: “The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2...more

StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible

In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,”...more

Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work

It is generally unwise to use private email accounts for company business.  Clark v. Council of Unit Owners of the 100 Harborview Drive Condominium Association, 2024 WL 2155021 (D. Md. May 13, 2024)(Quereshi, J.), provides a...more

An Epilog: 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in...

I have posted five blogs – – with links below – – on In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), subsequent opinion, 2024 WL 1808607 (N.D....more

4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case

In one of the opening paragraphs of In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293, at *1 (N.D. Cal. Feb. 20, 2024), the court wrote: At the hearing, the Court...more

ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue”

In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical...more

There’s No Right or Wrong Answer – But There Are Mistakes

In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but...more

Sometimes Discovery Disputes Do Not Bring Out the Best in Us.

That is what makes the recent decision in M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024), interesting.  Both of the disputing litigants were ordered to state under oath that they...more

What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?

In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide...more

Changing the Forum for a Motion to Quash a Subpoena

In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion...more

Ninth Circuit – – Don’t Destroy Relevant Texts

Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024). The case is a textbook example of a plaintiff tanking her own case...more

Failure to Show “Intent to Deprive” Leads to Denial of Rule 37(e)(2) Sanctions

A motion for spoliation sanctions under Fed.R.Civ.P. 37(e) was denied in Boshea v. Compass Marketing, Inc., 2024 WL 811468 (D. Md. Feb. 27, 2024). The motion was argued and decided during trial. The suit by a former...more

Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log”

Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.”  The Sedona...more

“Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System

“Self-collection” is often viewed as prohibited.  Abraham Maslow said that: “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”    This blog addresses a methodology...more

Defendant Who Participated in Text Message Exchange Was Not Prejudiced by Disclosure on the Eve of Trial

In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).   the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant.  One...more

“ESI Protocol” v. “Discovery Plan”

“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs.  They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f).  After a Rule 26(f) conference, that...more

Procedures to Avoid, and Promptly Resolve, Discovery Disputes in the District of Maryland

Parties can live with a good call or a bad one, but they need the balls and strikes called promptly.   The United States District Court for the District of Maryland has established several processes for avoiding discovery...more

Text Messages Used to Support Conviction: Prejudice Did Not Outweigh Probative Value

In Francois v. State, 2023 WL 8265659, at *1 (Apl. Ct. Md. Nov. 30, 2023), the defendant was charged with various offenses that included possession of a firearm and ammunition after a disqualifying conviction.  On appeal, the...more

Secondary Evidence of Missing Video Permitted

In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the...more

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