“Discovery on Discovery,” sometimes called “satellite discovery,” "discovery about discovery," or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025). Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Pl| E-Discovery LLC
The Federal Rules of Civil Procedure do not state when a motion to compel must be filed. This silence has generated a number of discovery disputes. When Must a Motion to Compel Be Filed? (Aug. 26, 2024); When Must a Motion to Compel Be Filed? – Part 2; (Sep. 6, 2024); Half-Baked […]| E-Discovery LLC
Where a company official used company email for privileged communications and sold the server holding those communications, he waived the attorney-client privilege. Jim Daws Trucking, LLC v. Daws, Inc., 2025 WL 27111278 (D. Neb. Sep. 23, 2025). The Jim Daws court denied defendants’ “Motion for Protective Order and Destruction of Privileged Documents […]| E-Discovery LLC
Elie Honig’s book, “When You Come at the King: Inside DOJ’s Pursuit of the President from Nixon to Trump” (Harper 2025), is well worth reading. It is entertaining, educational, prescriptive, disturbing, and optimistic, in that it suggests that we learn from precedent and make it better. The title of the book seems […]| E-Discovery LLC
In its “Order Granting Motion to Compel Disclosure Regarding Preservation Efforts,” a court recently wrote: “For all of the foregoing reasons, plaintiffs motion to compel disclosures regarding Amazon’s preservation[] efforts … is GRANTED. Amazon shall, within fourteen days of the date of this Order, produce the litigation hold notices sent regarding this […]| E-Discovery LLC
After in camera review of 46 documents, the court in Burge v. Teva Pharmaceuticals Industries, Ltd., 2025 WL 2846688 (D. Kans. Oct. 7, 2025), defined and applied the crime-fraud exception to the attorney-client privilege and required production of previously-redacted information. Under the crime-fraud exception, communications with counsel in furtherance of a crime […]| E-Discovery LLC
In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections. The court ordered mutual disclosure of search methodo| E-Discovery LLC
Sanctions were imposed on plaintiff for breach of the duty to preserve certain communications in Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025)(Rubin, J.). The Court held that it would instruct the jury: You are instructed that Plaintiff had a duty to preserve all relevant […]| E-Discovery LLC
Deamonte Spencer was convicted of murder and handgun charges. Among the evidentiary errors alleged on appeal was a challenge to authentication of printouts of profiles of Instagram pages. The Appellate Court of Maryland rejected the challenges and affirmed. Spencer v. State, 2025 WL 2741459 (Apl. Ct. Md. Sep. 26, 2025)(unreported). A local […]| E-Discovery LLC
Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 29, 2025)(Austin, J.), covers a lot of ground. This blog addresses only two of the covered issues: (1) when is a motion for protective order untimely; and, (2) when is the requirement to meet and confer before filing such a motion waived as […]| E-Discovery LLC
“Although Plaintiff has not established each element of spoliation, the Court is troubled by Defendant’s conduct.” Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025)(Quereshi, J.).[1] The Court reserved on the issue of narrower-than-requested sanctions, which will be the focus of this blog. THE SLIP AND […]| E-Discovery LLC
The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward. The recipient of a preservation demand is not obligated to respond. The Court wrote: Finally, Mr. Jones also alleges that sanctions are in order because he has “serious| E-Discovery LLC
Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), demonstrates the importance of following court disclosure rules and protocols. The value of critical evidence was blunted by a failure to do so. “The practice of law may be poetically likened to sailing a ship. Co| E-Discovery LLC
Much of the litigation over geofencing has been under the Fourth Amendment in criminal cases, and there has been a lot of it. See, e.g., Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC (Aug. 5, 2025); Alvarez v. State, 2025 WL 2346165, at *4 (Tex. App. Au| E-Discovery LLC
In Southern Pine Credit Un. v. Southwest Marine & Gen’l. Ins. Co., et al., 2024 WL 1361891 (M.D. Ga. Mar. 29, 2024), the court addressed the amount of detail that must be in a privilege log. Southern Pine brought a breach of contract action after its claim on a dishonesty bond was denied. Th| E-Discovery LLC
Lively v. Wayfarer Studios LLC, 2025 WL 2463633 (S.D.N.Y. Aug. 27, 2025) continues to generate discovery opinions. Two out of several issues in the latest decision center on: (1) reciprocal discovery of search terms; and, (2) discovery of Signal messages. In brief summary, “Lively, 37, has accus| E-Discovery LLC
In Rutherford v. Central Bank of Kansas City, 2025 WL 2432218, at *6-7 (W.D. Wash. Aug. 21, 2025), one of several issues was whether a litigant must produce information that was already in possession of the opponent’s counsel from other litigation. The court held that duplicative production was unn| E-Discovery LLC
Plaintiff’s offensive motion for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2076080, at *1 (S.D.N.Y. July 23, 2025)(“Oakley II”), was no match for defendants’ earlier request for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2061665, at *1 (S.D.N.Y. July 23, 2025)(“Oakley I”). In Oak| E-Discovery LLC
In this alleged wrongful termination and retaliation case, a “whistleblower” complaint was dismissed and monetary sanctions were also imposed. Pable v. Chicago Transit Authority, __ F. 4th __, 2025 WL 2102202 (7th Cir. Jul. 28, 2025). The appellate court affirmed sanctions against both an attorne| E-Discovery LLC
In Equal Emp. Opportunity Comm'n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”), after several rulings adverse to Genesh, the court appointed a Special Master to facilitate the plaintiff EEOC’s discovery from the defendant, Genesh, Inc. THE UNDERLYING CLAIMS “Genesh II| E-Discovery LLC
The Hon. Paul W. Grimm, a retired U.S. District Judge, wrote an article, The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (bloomberglaw.com)(Oct. 24, 2023). As Judge Grimm points out, here in Maryland a Circuit Court Judge was murdered in his driveway last week. While no one has b| E-Discovery LLC
“To hear crickets” means “silence.”[1] That is what I hear from the American Bar Association regarding the threats to the Justices on the Colorado Supreme Court. The Colorado Supreme Court issued a controversial decision. Anderson v. Griswold, 2023 Co. 63, __ P.3d __, 2023 WL 8770111 (Dec. 19,| E-Discovery LLC
In the ancient year of 2009, Gil Greenman and James Weingarten, of Williams & Connolly LLP, wrote “Beware the Use of Absolute Language Regarding Electronically Stored Information,” 9 Digital Discovery and e-Evidence 11 (BNA Nov. 1, 2009). Their thesis was simple and correct: “All,” “any,” an| E-Discovery LLC
In a 2021 blog, I wrote that Requests for “Any and All” Documents Are Obsolete. That blog suggests alternative approaches. Recently, in Nelson v. I.Q. Data International, Inc., 2024 WL 2963790 (E.D. Mich. June 12, 2024), the court wrote: Courts have long condemned omnibus “any and all” document| E-Discovery LLC
In Webb v. Giant of Maryland, LLC, __ Md. __, 2021 WL 6016453, at *1 (Dec. 21, 2021), the Court held that it was error to instruct the jury on spoliation on the facts presented. The store where plaintiff was injured had more than 30 cameras in operation and was notified of its duty to preserve. It| E-Discovery LLC
An unreported decision of the intermediate appellate court provides an interesting contrast to Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), which is discussed in a prior blog. In Benson v. ALDI, Inc., 2019 WL 5704532 (Md. Ct. Spl. Apls. Nov. 5, 2019), summary j| E-Discovery LLC
“I just delete. I delete - delete. Anything there that I don’t want, don’t need anymore, I delete.” Peterson v. Evapco, Inc., 238 Md. App. 1, 21 (2018). That is an invitation to disaster. Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), involved spoliation in the| E-Discovery LLC
The prior blog discussed the historical acceptance of technology assisted review. However, keyword searching remains an important and useful tool. Mark Twain wrote: “The reports of my death are greatly exaggerated….” The same may be true of keyword searching. While there are many decisions and| E-Discovery LLC
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an| E-Discovery LLC
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date. This is the second blog of a four-part blog on Felder, an employment discrimination case. See Fe| E-Discovery LLC
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination. The Court “presided over a discovery dispute hearing related to Plaintiff's motions to compel interrogatory requests and requests f| E-Discovery LLC
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 meet-and-confer sessions for the court's review. Given the history of this case, an| E-Discovery LLC
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 waiver of the privilege. GENERALLY, FAILURE TO TIMELY PROVIDE A PRIVILEGE| E-Discovery LLC
In Troung v. KPC Healthcare, Inc., 2024 WL 3496865 (C.D. Cal. July 17, 2024), the court held that no privilege log was required until scope of discovery objections were resolved. The general rule is that a privilege log is due at the time discovery responses are filed. “Absent consent of the adve| E-Discovery LLC
In Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.), non-party TEDCO’s blanket privilege and work product objections to a subpoena were denied; however, it lived to fight another day because the denial was without prejudice to file supported objections after a “meet and confe| E-Discovery LLC
“The Making of a Surgeon” In 1968, Dr. William A. Nolen wrote “The Making of a Surgeon” (Mid-List Press 1968, 1990): How do you make a surgeon? Not by the preliminaries, the four years of college and four years of medical school that have to be gone through to earn an M.D. degree, but by the five,| E-Discovery LLC
Fed.R.Civ.P. 34 authorizes discovery of “any designated documents or electronically stored information….” That Rule is limited to the scope of discovery set out in Rule 26(b)(“matter that is relevant to any party's claim or defense and proportional ….”); see Md. Rules 2-402 and 2-422. In a prior| E-Discovery LLC
In Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530 (D. Md. Jul. 11, 2022)(Quereshi, J.), the Court addressed a motion to compel discovery in a breach of contract action. The Court held that defendant’s discovery objections were too general; however, on the facts presented, including t| E-Discovery LLC
In Authentication is key to direct and cross-examination (thedailyrecord.com) (Aug. 22, 2024), my friend Paul Sandler wrote: “It can be said that direct and cross-examination are the central features of the trial, and essential to examinations are the exhibits sought to be introduced in evidence.”| E-Discovery LLC
Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1] Usually, it was clear where a letter, memo, or contract began and ended. But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeuti| E-Discovery LLC
I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and Slac| E-Discovery LLC
UPDATE (Aug. 3, 2023): See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)("Accordingly, the ESI protocol should make clear that hyperlinked documents are n| E-Discovery LLC
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 Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016)| E-Discovery LLC
In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff| E-Discovery LLC
In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms. However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context. Alliance sa| E-Discovery LLC
Many decisions state that the failure to timely provide an adequate privilege log may result in a waiver of the privilege. However, frequently they hold that there is no waiver on the facts presented.[1] In Bautech USA, Inc. v. Resolve Equip., Inc., 2024 WL 1929486 (S.D. Fla. May 2, 2024), untim| E-Discovery LLC
It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery. I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5. In an itemized log,| E-Discovery LLC
The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version). The Primer is a valuable contribution. It gathers a substantial body of research in an easy-to-read, authoritative resource. It focuses entirely o| E-Discovery LLC
There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter. In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporat| E-Discovery LLC
In 1968, the movie “Dracula Has Risen from the Grave” was released. Like Dracula, despite being long since buried, boilerplate “general objections” keep popping up in what sometimes looks like the children’s game of “Whac a Mole.” It is difficult to understand why the message about boilerplate “| E-Discovery LLC
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 declarations in which they swear they are telling the truth about complying wi| E-Discovery LLC
Following the lead of the Hon. Paul W. Grimm (ret.), OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023), I wrote that The Judiciary is Under Attack. Lawyers Need to Defend It (Oct. 24, 2023), and Threats Against the Colorado Supreme Court Must Be Called Out (De| E-Discovery LLC
In Maryland, “sunshine” statutes such as the Open Meetings Act, Md. Code Ann., Gen’l. Prov. Art. §3-301, et seq., and the Public Information Act, Md. Code Ann., Gen’l. Prov. Art. §4-101, et seq., further the goal of open and transparent government. In State compliance board rules Cassilly’s offic| E-Discovery LLC
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 for protective order that was resolved in the District of Maryland. Rullan| E-Discovery LLC
In Smith v. Wormuth, 2024 WL 1012887 (D. Md. Mar. 8, 2024), the District Court again denied a spoliation motion as untimely. In the immortal words of Yankee Hall of Famer Yogi Bera: “It’s deja vu all over again.” Smith was an employment dispute arising out of a contentious relationship, with an| E-Discovery LLC
Can a witness authenticate a video if the video contains images that the witness did not see? In Md. Supreme Court to rule on Baltimore criminal case involving video authentication - Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authe| E-Discovery LLC
“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 Rule requires a “report” with a “discovery plan” that contains information| E-Discovery LLC
