Insights
Practical writing on ESI dispute resolution.
Short, plain-English pieces for litigation counsel weighing whether — and how — to put a discovery dispute in front of a neutral.
Articles
When to appoint a discovery special master
There is no bright-line rule, but FRCP 53 gives courts a powerful option for technical, data-heavy, or contentious discovery. A practical framework for the roles, the triggers, the cost answer, and how to scope the order.
California discovery referees: CCP §638 vs. §639
One path runs on the parties' agreement and binds; the other on the court's own motion and advises. The difference shapes who controls the appointment, the scope, and how the referee's decisions are reviewed.
Resolving spoliation disputes with a forensic neutral
Most spoliation fights turn on what actually happened on the systems. Under FRCP 37(e), a forensic neutral can separate genuine loss from ordinary system behavior and give the court a defensible, proportionate record.
Forensic neutrals in large-scale litigation
Large commercial disputes increasingly turn on digital trails and the integrity of electronic evidence. A forensic neutral bridges the technical and the legal — especially where neither side can expose its systems to an adversary.
Building ESI protocols for modern data
Legacy protocol language assumes email and static attachments. Modern discovery runs on cloud collaboration, hyperlinks, and cross-platform chat — and a defensible ESI protocol has to say so up front.
When a special master makes the difference in digital-evidence disputes
Some digital-evidence disputes simply outgrow the bench. A special master under FRCP 53 brings ESI expertise, time, and bespoke procedure that keep complex cases moving.
Resolving TAR and search-term disputes with a neutral
Predictive coding and search-term fights are methodology disputes dressed up as motions. A neutral sets a defensible validation protocol so they don't stall production.
Building a defensible privilege log at scale
Privilege review is where productions bog down. Categorical and metadata logs, a Rule 502(d) order, and a neutral for volume disputes keep it defensible and moving.
Forensic inspection protocols: inspecting an opponent's systems
When the evidence lives on the other side's systems, a neutral examiner designs the protocol — scope, tooling, chain of custody, and what the requesting party may see.
Mediating ESI disputes to save time and money
Most ESI protocol fights are negotiations that stall. Mediating the dispute before it hardens into a motion resolves in a session what a motion calendar takes months to reach.
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