Michael Berman at EDRM - Electronic Discovery Reference Model

Self-Collection, Discovery About Discovery, and Curative Sanctions

EEOC v. Formel D USA, Inc., 2024 WL 4172527 (E.D. Mich. Sept. 12, 2024), addressed several interesting issues. Among them were: general principles of discovery; the role of counsel in self-collection; discovery on discovery;...more

9/30/2024 / Data Preservation , Discovery , Document Productions , Document Review , e-Discovery Professionals , Electronically Stored Information , Evidence , Federal Rules of Civil Procedure , Laptop Computers

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

9/12/2024 / Discovery , Discovery Disputes , Document Productions , Document Review , e-Discovery Professionals , Electronically Stored Information , Federal Rules of Civil Procedure , Right to Control , State Agencies

Court Denied Unopposed Motions for Protective Order and Approval of ESI Protocol

In Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024), the court denied an unopposed motion to enter a protective order and an unopposed motion to enter an ESI Protocol....more

9/6/2024 / Confidential Documents , Confidential Information , Confidentiality Agreements , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Federal Rules of Civil Procedure , Protective Orders

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

8/27/2024 / Data Preservation , Depositions , Discovery , Discovery Disputes , Document Productions , e-Discovery Professionals , Electronically Stored Information , Evidence , Video Recordings

A Protective Order Has Teeth – Counsel Disqualified After Court Finds Violations

In US Dominion, Inc. v. Byrne, 2024 WL 3792654 (D.D.C. Aug. 13, 2024), violations of protective orders led to disqualification of counsel. The court began its decision by stating: “This case arises out of the 2020 U.S....more

8/15/2024 / Attorney Misconduct , Data Preservation , Disclosure , Discovery , Discovery Disputes , Document Review , e-Discovery Professionals , Electronically Stored Information , Evidence , Protective Orders

Maryland Bar Association Promotes Increased Judicial Security

It was great to read MSBA Leads the Way in Advocating for Judicial and Attorney Security | Maryland State Bar Association (July 30, 2024), written by the MSBA President, Raphael J. Santini....more

8/9/2024 / Discovery , e-Discovery Professionals , Electronically Stored Information , Judges , Maryland , Security Standards , State Bar Associations

“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

8/7/2024 / Attorney-Client Privilege , Data Preservation , Discovery , Document Productions , e-Discovery Professionals , Electronic Communications , Electronically Stored Information , Evidence , Metadata , Privilege Logs , Privileged Communication

Discovery About Discovery – When Was Duty to Preserve Triggered?

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have...more

7/31/2024 / Data Collection , Data Preservation , Discovery , Duty to Preserve , e-Discovery Professionals , Electronically Stored Information , Evidence , Privilege Logs , Privileged Communication

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

7/22/2024 / Discovery , Discovery Disputes , Document Productions , e-Discovery Professionals , Electronically Stored Information , Metadata , Privilege Logs

Mediation of Discovery Disputes by Court’s Law Clerk?

I have come across cases in which a Court’s law clerk conducted an informal conference with parties to resolve a discovery dispute. For example, in Hipschman v. County of San Diego, 2024 WL 3206909 (S.D. Cal. June 26, 2024),...more

7/10/2024 / Discovery , Discovery Disputes , e-Discovery Professionals , Electronically Stored Information , Law Clerks , Mediation

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

7/8/2024 / Crime-Fraud Exception , Discovery , Document Productions , Document Review , e-Discovery Professionals , Electronically Stored Information , Evidence , Privilege Logs , Privileged Documents

Geofence Search Warrant Held Valid

County police officers were investigating a theft of farm equipment. They applied for a “geofence warrant” to be served on Google: “A geofence warrant authorizes the seizure of location data collected from smartphones of...more

6/28/2024 / Cell Phones , Data Preservation , Discovery , e-Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Fourth Amendment , Geolocation , Location Data , Mobile Devices , Smartphones , Warrants

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

6/24/2024 / Discovery , Document Productions , e-Discovery Professionals , Electronically Stored Information , Evidence , Federal Rules of Civil Procedure , Privilege Logs , Privileged Communication

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

6/20/2024 / Contention Interrogatories , Discovery , Discovery Disputes , Document Productions , e-Discovery Professionals , Electronically Stored Information , Evidence , Good Faith , Interrogatories

Another Cinderella Situation – Motion Denied as Untimely?

In Fiskars Finland OY AB v. Woodland Tools Inc., 2024 WL 2504717 (W.D. Wisc. May 24, 2024), plaintiff sued for alleged misappropriation of trade secrets. Defendants counterclaimed....more

5/30/2024 / Deadlines , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Motion to Compel , Request for Production , Rules of Civil Procedure , Source Code , Trade Secrets

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

5/23/2024 / Data Preservation , Discovery , Document Productions , e-Discovery Professionals , Electronically Stored Information , Email , Evidence , Sanctions

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

5/20/2024 / Data Preservation , Discovery , Document Productions , e-Discovery Professionals , Electronically Stored Information , Email , Evidence

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

5/10/2024 / Data Preservation , Depositions , Discovery , Document Productions , e-Discovery Professionals , Electronically Stored Information , Evidence , Online Platforms , Social Media , Witnesses

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

5/2/2024 / Data Preservation , Discovery , Discovery Disputes , Document Productions , e-Discovery Professionals , Electronically Stored Information , Evidence , Litigation Hold , Social Media

Michael Berman

EDRM - Electronic Discovery Reference Model

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