Blog

August 8, 2022

Court Refuses to Select Search Terms for Parties

In Deal Genius, LLC v. O2 Cool, LLC, 2022 WL 874690, at *3 (N.D. Ill. Mar. 24, 2022), the court was faced with two parties that failed to cooperate concerning discovery of ESI, including design of search terms.  The court wrote: It should go without saying that months of arguing over five […]
August 7, 2022

Court Excused Party From Waiver by Failure to Provide Specific Objections

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 the manner in which […]
August 6, 2022

Maryland’s Special Rule for Discovery Sanctions in Child Custody Cases

In Kadish v. Kadish, 254 Md. App. 467 (2022), the Court was faced with egregious discovery violations in a child custody case.  Stated simply, the child’s mother failed or refused to provide discovery responses several times, failed to appear for depositions on three separate occasions, and also violated a series of escalating […]
August 6, 2022

Possible Additional Fallout From Alex Jones Cell Phone Disclosure

Bloomberg Law reports: Two attorneys for Alex Jones could potentially face discipline for wrongfully releasing the medical information of plaintiffs in a case accusing the InfoWars host of defaming them, Connecticut court filings show. … On Thursday, the Superior Court for the Judicial District of Waterbury ordered two of Jones’ attorneys, Andino […]
August 5, 2022

Phones of top Pentagon officials were wiped of Jan. 6 messages

The Washington Post reports that: “The Pentagon erased a potential trove of material related to the Jan. 6, 2021, attack on the Capitol from the phones of senior defense officials in the Trump administration, according to legal filings.”  Karoun Demirjian and Jacqueline Alemany, Phones of top Pentagon officials wiped of Jan. 6 […]
August 4, 2022

Trump Aide Navarro Sued by US Over Private Email Account Records

Bloomberg Law reports that: The US Justice Department sued former White House trade adviser Peter Navarro, claiming he’s refused to provide the National Archives with emails retained on a private account he used while working for President Donald Trump. “Mr. Navarro is wrongfully retaining presidential records that are the property of the […]
August 4, 2022

Proposed Changes to the Maryland Rules Regarding Discovery of Experts

The Maryland Standing Committee on Rules of Practice and Procedure has issued its 211th Report and proposed rules changes. One of the most significant proposals is to modify Rule 2-402 to follow the 2010 amendments to Fed.R.Civ.P. 26 regarding expert discovery.  The Committee explained: In 2010, the Federal Rule was amended to […]
August 4, 2022

“Sandy Hook lawyers say Alex Jones’s attorneys accidentally gave them his phone contents”

Brittany Shammas and Kim Bellware reported that Alex Jones attorneys accidentally gave up his phone’s contents, Sandy Hook lawyers say – The Washington Post  (Aug. 3, 2022). The Post reports that: The legal team representing Infowars founder Alex Jones inadvertently sent the contents of his cellphone to a lawyer representing the parents of […]
July 17, 2022

Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone

In State v. Galicia, __ Md. __, 2022 WL 2301437, at *1 (June 27, 2022), the Court of Appeals held that expert testimony was not required to show that a user can disable location tracking on a smartphone. Two teenagers were shot by four men in June 2017.  Mr. Galicia was convicted […]
July 16, 2022

$1 Million Sanction Award Against Google

A $971,715.09 sanction was imposed by The Hon. Susan Van Keulen in Brown v. Google, No. 20-cv-03664-YGR, Dkt. No. 631 (N.D. Ca. July 15, 2022).  “The Court has already determined that the appropriate measure of the monetary sanction for Google’s discovery misconduct is the attorneys’ fees and costs incurred in bringing the […]
July 16, 2022

Denial of Discovery to Oppose Motion for Summary Judgment

In Markel Ins. Co. v. Sumpter, 2022 WL 2703832 (D. Md. July 11, 2022)(Hazel, J.), the Court denied a request for discovery to oppose a motion for summary judgment. Markel Insurance defended an alleged auto tort under a reservation of rights.  It then filed this action against both drivers for a declaration […]
July 15, 2022

Secret Service erased texts from Jan. 5 and 6, 2021, official says

In Maria Sacchetti and Carol D. Leonnig, Secret Service erased texts from January 5 and 6, 2021, official says – The Washington Post (July 14, 2022), the Washington Post reports that Joseph V. Cuffari, head of the Department of Homeland Security’s Office of Inspector General, “accused the U.S. Secret Service of erasing texts from […]
July 15, 2022

Use of Phased Discovery to Achieve Proportionality

In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations.  The Court addressed a number of discovery issues.[1] The case provides a textbook example of the use of phased discovery to achieve proportionality. Plaintiff had worked for the defendants […]
July 14, 2022

Remote Deposition Misconduct – Again – With Novel Cure – Again

“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022).  Counsel was disqualified as a result. Like many depositions during the pandemic, the Barksdale deposition took place remotely over […]
July 13, 2022

Failed Request for a Preservation Order

In Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022), the Court denied a request for a preservation order that was made in the form of a motion for a temporary restraining order.  Plaintiffs sought an order to preserve certain information after expiration of a statutory preservation mandate […]
July 12, 2022

Directive to Collect Less Evidence

“Prosecutors struggling to pore through mushrooming amounts of electronic data they uncover during corporate crime investigations are beginning to hear counterintuitive advice from the Justice Department: Collect less evidence. The nascent strategy of selectively seizing fewer computers, cell phones, and hard drives coincides with an exponential growth of available e-data. It comes […]
July 11, 2022

How to Properly Erase Hard Drives?

The Washington Post recently published an article by Chris Velazco, titled How to securely erase your old hard drives once and for all (July 8, 2022). “There are so many stories about people buying used computers online and recovering data,” said Andrés Arrieta, director of consumer privacy engineering at the Electronic Frontier […]
June 25, 2022

Admissibility of Photogrammetric Evidence – Trial Court is a “Gatekeeper” But Not an “Armed Guard”

Two people were murdered.  It was late at night in an area of known drug deals.  There were witnesses, but many had consumed legal or illegal substances and others were inconsistent.  There was video, but not of the shooting.  The Court called it “incomplete.”  An FBI analyst testified to a photogrammetric analysis […]
June 23, 2022

Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages

Two recent articles describe alleged “win-at-all-costs” tactics in defense of wrongful conviction lawsuits in Baltimore and Chicago.  They point to, on the one hand, allegations of damages claims for unreasonable amounts by exonerees and, on the other, alleged scorched earth defenses costing millions of dollars and subjecting exonerees to unreasonable indignity. I […]
June 22, 2022

Secret Moonlighting, by Attorney in Plaintiff’s Law Firm, as a Document Reviewer for Defendant, Does Not Result in Disqualification of Plaintiff’s Firm

In Troyce Manassa v. National Collegiate Athletic Association, 2022 WL 2176334 (S.D. Ind. June 16, 2022), a motion to disqualify counsel was denied.  Plaintiffs are represented by the law firm of “FeganScott.”  They sued the NCAA. “Upon learning that a FeganScott staff attorney moonlighted as a document reviewer for the NCAA in […]
June 21, 2022

Perils of a Vague Preservation Letter

Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021), reemphasizes that a preservation letter needs to be well-drafted and provide details sufficient to put the recipient on notice of the factual nature of the claim.  In Nolan, because plaintiff’s preservation demand was purportedly too vague, it may have […]
June 14, 2022

Discovery on Discovery – Steps Taken to Produce Documents

Josh Gilliland recently posted an excellent blog about an interesting discovery case in Failure to Launch a Protective Order to Stop a 30(b)(6) on Responding to Requests for Production – Bow Tie Law.   As Josh explained, the court in that case permitted discovery of the “method and manner used” to identify the documents produced […]
June 14, 2022

FLSA Litigant Cannot Refuse to Provide Relevant Discovery Merely Because It May Open the Responding Party Up to Other Liability

In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations.  The Court addressed a number of discovery issues.  This blog focuses on one of them – defendants’ assertion that it need not provide discovery because doing so […]
June 13, 2022

When is a Haircut Spoliation? – Recent Oral Argument in Court of Appeals

I have been following with interest a case in the Maryland Court of Appeals on whether and when a potential criminal defendant cutting his hair may be viewed as spoliation.  See When is a Haircut Spoliation? Certiorari Granted and When is a Haircut Spoliation? The Maryland Daily Record recently reported on oral argument. S. Lash,  MD […]
June 13, 2022

Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence

In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos.   Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104. That decision was affirmed “as a matter of […]
June 4, 2022

Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout

The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
June 3, 2022

Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan

When it comes to ESI, it has been stated that: “The fuss is about money. Discovery is expensive, and electronic discovery is really expensive.”[1] The award of litigation costs will never be the stuff of cocktail party discussions.  However, in many cases, large sums of money are at issue. See, e.g., Ralph […]
June 2, 2022

Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure

As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006.  And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 31, 2022

Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation

Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1] It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by […]
May 30, 2022

Historical ESI Highlights – Part VII – The Sedona Conference and EDRM

It would be difficult to overstate the significance of The Sedona Conference and the EDRM in shaping the contours of ESI in civil litigation. Kenneth J. Withers is the Deputy Executive Director of The Sedona Conference.  In “The Sedona Conference and Its Impact on E-Discovery,” Chap. 35 in M. Berman, et al., eds., […]
May 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

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 articles on keyword searching, one of the […]
May 28, 2022

Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology. In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 26, 2022

Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”

Zubulake was not the first e-discovery case to impose sanctions. Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 794 (2010). Mr. Willoughby explains that that distinction belongs to Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. […]
May 25, 2022

Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them. Zubulake was a series of cases.  Zubulake v. UBS Warburg, […]
May 24, 2022

Historical ESI Highlights – Part I

This is the first in a series of blogs on historical developments in civil litigation related to electronically stored information.  The speed of change has been remarkable.  For example, The Hon. John M. Facciola recently asked: “Did anyone get the license plate of the rocket ship that hit me?”[1] The value of […]
May 20, 2022

Sanctions for Discovery Misconduct

The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1]  Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
May 18, 2022

“The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference

“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly.  “Getting the steps […]
May 16, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV)

Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel.  The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
May 11, 2022

Recognized by America’s Top 100 Civil Defense Litigators

It is an honor to be selected as one of America’s Top 100 Civil Defense Litigators. If you would like more information about America’s Top 100 Civil Defense Litigators® or the selection process, please visit the website at www.Top100CivilDefenseLitigators.com
April 29, 2022

Discovery on Discovery

A “Gibbons Law Alert,” B. Basso, Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown – Gibbons Law Alert (Apr. 28, 2022), describes a recent “discovery on discovery” decision. Gibbons describes plaintiff’s discovery request for defendant to “identify all electronic devices ‘used … to transmit documents […]
April 29, 2022

Deposition Errata Pages in Maryland

An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains: If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. […]
April 29, 2022

“Friending” by Undercover Police Officer

Much has been written about “friending,” especially deceptive friending or friending of represented parties, in the civil litigation context. For example, under Philadelphia Bar Association Professional Guidance Committee Opin. 2009-02 (Mar. 2009), an attorney or those supervised by the attorney may not use deceptive conduct to access an unrepresented person’s social media […]
April 28, 2022

Recognized by Super Lawyers for 2022

It is an honor to be among the attorneys at Rifkin Weiner Livingston LLC who are Recognized by Super Lawyers for 2022. “Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional […]
April 27, 2022

Proposal to Lift Geographic Limits on Practice of Law – Implications for ESI

The ABA recently reported on a proposal that Lawyers should be able to practice law in any state, says group urging ABA model rule change (abajournal.com). The proposal appears especially well-suited to ESI.[1] The author, Debra Cassens Weiss, reports that “[t]he proposed rule change by the Association of Professional Responsibility Lawyers emphasizes the concept […]
April 21, 2022

Sedona Conference “Selected eDiscovery and ESI Case Law from 2021-22”

Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022).  This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 20, 2022

Sanctions Imposed for Fabricated and Unproduced Text Messages

In Gunter v. Alutiiq Advanced Security Solutions, LLC, 2022 WL 1139875 (D. Md. Apr. 18, 2022), a pro se plaintiff alleged various employment discrimination claims. After defendant provided forensic testimony, the plaintiff was sanctioned under Rule 41(b), Rule 37(e), Rule 26(g), and the Court’s inherent power, for fabricating and failing to produce […]
April 20, 2022

Rule 11 Sanctions for Impugning Character of Opposing Counsel

Doe I v. Exxon Mobile Corp., 2022 WL 1124902 (D.D.C. Apr. 14, 2022), describes the imposition of a Rule 11 sanction for defense counsel impugning the character of plaintiffs’ counsel in a paper filed in court.  The court wrote: The Court also ordered defense counsel … [names omitted] …to show cause why […]
April 15, 2022

Attorney’s Duty to Protect Smartphone Data

“An attorney who stores the confidential identity of their clients on a smartphone must not consent to share contact information with an app unless that information won’t be shared with any human, the New York State Bar Association said.” D. McAfee, New York Bar Outlines Attorneys’ Duty to Protect Smartphone Data (bloomberglaw.com) (Apr. 13, […]
April 10, 2022

Ethics: More Remote Misconduct

I have written about Misconduct in Remote Trials and Misconduct in Remote Depositions. In the words of Yogi Berra, “it’s deja vue all over again.”  Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP. Traci McKee […]
April 9, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part III)

When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance.  When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that.  Information Governance – […]
April 4, 2022

What is a Document? (Part III)

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 post, I addressed What is a […]
April 3, 2022

Maryland v. Federal Rules on the Scope of Discovery and Proportionality

In several recent blogs, I have highlighted many of the differences between the Federal Rules of Civil Procedure and the Maryland Rules.  Those blogs are listed in Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties. The Maryland Rules regarding the scope of discovery and proportionality limits contain significant differences […]
April 2, 2022

Maryland v. Federal Clawback and Privilege Non-Waiver Rules

I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure.  See  Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and  M. Berman & A. Shelton,  “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
April 1, 2022

Sedona Conference’s “Commentary on Protecting Trade Secrets Throughout The Employment Life Cycle”

The Sedona Conference has published its “Commentary on Protecting Trade Secrets Throughout The Employment Life Cycle” (March 2022).  It is another excellent and authoritative work in its series on trade secret protection.  See Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation. The Commentary describes the protection problem as the […]
March 31, 2022

40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

Although the ABA’s “technological competence” standard is a good “first step,” it could be improved.  Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball.  Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 29, 2022

A Focused Preservation Letter

I recently wrote about The Perils of a Misfocused Preservation Letter, discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), and Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands. Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative […]
March 28, 2022

Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties

Unlike the Federal Rules of Civil Procedure, the Maryland Rules do not generally mandate a conference of the parties.  However, Rule 2-504.1(a)(4) provides a mechanism for a party to request that a State court order a “meet and confer.” The federal rule has a convoluted history.  Rule 26(f) – – the conference […]
March 26, 2022

Discovery of Steps Taken to Implement a Litigation Hold is Permitted

Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?,  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable? The flip side of the coin is whether the steps taken by a potential […]
March 24, 2022

Maryland v. Federal Summary Judgment Rule

After the December 2015 amendments to the Federal Rules of Civil Procedure, I co-authored two publications noting some of the differences between the new Federal Rules and the Maryland Rules. M. Berman & A. Shelton,  “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June 17, 2016); M. Berman, et al., […]
March 24, 2022

Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones

In St. Francis Academy, et al. v. Gilman School, Inc., No. 1390 (Md. Ct. Spl. Apls. Mar. 21, 2022) (unreported), the intermediate appellate court affirmed an order directing forensic imaging and searching of non-parties’ cell phones under a strict protocol to protect the cell phone owners’ privacy.  It carefully balanced the discovering […]
March 23, 2022

Relevance Redactions Rejected – Rule 26(f) Resolution

This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate.  If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the […]
March 23, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged

Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]
March 17, 2022

Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation

Earlier this month, the Sedona Conference published its “Commentary on Equitable Remedies in Trade Secret Litigation” (Mar. 2022). The comprehensive Sedona Commentary offers five Principles and 24 Guidelines. Its premise is that: “Obtaining or resisting some form of equitable relief is a key component of many trade secret disputes, both at an […]
March 12, 2022

UPDATE:  Recovery of ESI Costs:  “The fuss is about money…. [E]lectronic discovery is really expensive.”

Taxation of costs in federal court is governed by 28 U.S.C. §1920.  An ABA Litigation Section article, W. Newman, Prevailing Parties Recover Some, Not All, E-discovery Costs (americanbar.org) (ABA Winter 2022), cited a recent decision and noted that “ABA Litigation Section leaders believe this decision reveals that section 1920 is out of […]
March 11, 2022

Secondary Evidence as a “Gap Filler”

In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted: As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute […]
March 11, 2022

No Sanction Despite Convoluted and Murky Explanation for Missing Texts

In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages.  The Court described the missing texts as “the primary basis of [plaintiff’s] […]
March 8, 2022

Failure to Cooperate Costs Clients Money

Much has been written about the duty to cooperate.  In 1850, Abraham Lincoln wrote: “Persuade your neighbors to compromise whenever you can…. As a peacemaker, the lawyer has a superior opportunity of being a good man [or woman].” [1] No attorney wants a judicial opinion stating that they have wasted the client’s […]
March 7, 2022

Requests for a Preservation Order

Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing.  Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order.  Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its […]
March 5, 2022

Are Litigation Hold Notices Discoverable?

The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
February 23, 2022

Information Governance Decisions Can Carry a Big Price Tag

Businesses need to carefully consider whether they will permit employees to use business information technology systems for private work.  For example, while allowing an employee to use company resources for charitable work may be commendable, it can impose substantial costs if the non-business work leads to litigation. A recent article about a […]
February 17, 2022

Beyond Email – Slack, “Channels,” and Expert Testimony

Mike Hamilton’s blog, “Defendant Ordered to Produce 30,000 Slack Messages” (Exterro Feb. 7, 2022), provides an excellent description of Benebone LLC v. Pet Qwerks, Inc., 2021 WL 831025 (C.D. Cal. Feb. 18, 2021).  The blog correctly points out that, as to discovery of Slack messages, “proportionality was the key issue.” Benebone is […]
February 6, 2022

Court of Appeals Follows My Proposal on Voluntary Dismissal Rule

The Maryland Court of Appeals recently considered a proposed amendment of the voluntary dismissal rule. In rejecting the proposal, the State’s highest Court quoted my opposition to it and also quoted my suggested language for any needed clarification.  The Court’s discussion begins at 1:55:29 of the video recording. Rule 2-506(a) currently permits […]
February 5, 2022

Ethics: Misconduct in Remote Trial

I recently wrote a blog Ethics: Misconduct in Remote Depositions. The ABA Journal has provided an example of misconduct in a virtual trial.  D. Weiss, “Lawyer is suspended for coaching client using chat function during virtual trial” (ABA Journal Feb. 1, 2022).  Ms. Weiss reports that: “An Arizona lawyer has consented to a two-month […]
February 4, 2022

Preservation Demand May Have Done More Than Trigger Duty to Preserve

The Washington Post recently reported on the departure of Jeff Zucker as president of CNN.  J. Barr, “After Jeff Zucker’s ouster, CNN staffers raise questions about a Chris Cuomo connection” (Wash. Post Feb. 3, 2022).  The article asks: “Jeff Zucker’s surprise ouster Wednesday left CNN with a leadership void and an irresistible […]
February 4, 2022

Harford County Redistricting Challenge Dismissed

With the excellent attorneys and staff of Rifkin Weiner Livingston LLC, I was lead counsel in the defense of a redistricting lawsuit in Harford County, MD.  The firm press release states: “RWL was pleased to represent the Harford County Council and its members in the above matter. The statement below was just […]
January 16, 2022

No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case

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 […]
January 16, 2022

When is a Haircut Spoliation? Certiorari Granted.

On January 11, 2022, the  Maryland Court of Appeals granted certiorari in the “haircut spoliation” case that I wrote about in “When is a Haircut Spoliation?”  The Court’s website lists the issues on which certiorari was granted: “Issues – Criminal Law – 1) As a matter of first impression, can a suspect’s […]
December 18, 2021

Notice of Proposed Changes to the Maryland Rules

In its 209th Report, the Standing Committee on Rules of Practice and Procedure proposed a number of rules changes.  The proposals were transmitted to the Court of Appeals on December 10, 2021.  The comment period will close on January 10, 2022.  The date of the Court’s open meeting on the proposed changes […]
December 9, 2021

“Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses

In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests.  Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
December 8, 2021

New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests

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 on discovery requests, not responses, and does so in depth.  And, it […]
December 2, 2021

Two Recent Maryland Decisions on Authentication of Text Messages

Sykes v. State, 2021 WL 5366047 (Md. Ct. Spl. Apls. Nov. 18, 2021), and Burks v. State, 2021 WL 1747943 (Md. Ct. Spl. Apls. May 3, 2021), address authentication of text messages in criminal cases. In Sykes, the cell phone was seized from the defendant after he was seen making a call […]
November 30, 2021

Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry

In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9th Cir. Jun. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings.  Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing.  The […]
November 29, 2021

Ethics: Misconduct in Remote Depositions

This blog addresses two remote deposition issues: 1) coaching by text messages; and, 2) coaching behind a COVID face mask. “A Florida lawyer has been suspended for 91 days for texting advice to a witness during a phone deposition and then failing to come clean when questioned by the opposing counsel and […]
November 28, 2021

Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was

Sanctions were imposed in DG BF LLC v. Ray, No. 2020-0459 (Del. Ch. Nov. 19, 2021).[1] The court dismissed a fraud and retaliation lawsuit for discovery abuse.  Among other issues, plaintiff testified that he did not know what a “litigation hold” was, even though defendants sent a preservation demand to him. It […]
November 28, 2021

Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications

Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
November 27, 2021

The Need for Law School Classes in Discovery Procedures

The Hon. Paul W. Grimm recently wrote of the need for more education about discovery.  Judge Grimm wrote that law schools share some of the blame for discovery abuses “for not spending sufficient time teaching students about discovery obligations in civil procedure classes.”  P. Grimm, “Good Faith in Discovery,” 46 Litigation 23 […]
November 19, 2021

Recent Decision Shows the Need for Information Governance, Computer Usage Policies, and Employee Training

Information governance and computer usage policies should caution employees not to include embarrassing information in business communications.  Once that information is included in an email, if the communication is filed in court, the public likely gets to see it.  Callahan v. Un. Network for Organ Sharing, __ F.4th __, 2021 WL 5351863 […]
November 18, 2021

Proportionality Analysis in Vanessa Bryant’s Emotional Distress Case

In a lawsuit seeking emotional distress damages arising out of events following the January 26, 2020, death of Kobe Bryant and his daughter, the court held that some of his widow’s more recent therapy records were relevant and discoverable.  However, the cost of discovery of older records was held to be disproportionate, […]
November 17, 2021

Categorical Privilege Log Presented Interpretive Issues

Categorical privilege logs can save time and money.  “The concept of categorical privilege logs in connection with ESI is not new.”  M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021). […]
November 13, 2021

“Wayback Machine” Evidence Held to be Insufficient to Support Personal Jurisdiction

In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine.  Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery.  […]
October 1, 2021

When is a Haircut Spoliation?

In Rainey v. State, No. 3094, __ Md. App. ___ (Sept. 28, 2021), a defendant in a criminal case spoliated evidence when he got a haircut after the crime, but before his arrest.  Mr. Rainey was charged with murder.  An eyewitness and surveillance video showed that a man with dreadlocks was involved. […]
September 4, 2021

Satisfactory Secondary Evidence Prevents Sanction

In Via Vadis, LLC, et al. v. Amazon.Com, Inc., 2021 WL 3134257 (W.D. Tex. Jul. 23, 2021), a request for sanctions was denied because the spoliating party provided satisfactory secondary evidence. When potentially relevant information goes missing, it is always a good practice to look for secondary evidence to replace it.  See […]
August 30, 2021

Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502

Federal Rule of Evidence 502 was passed in 2008 by a unanimous vote in the Senate, overwhelmingly in the House, and signed by President George W. Bush.  Anything with that degree of support has to be good and Rule 502 provides substantial and necessary benefits. An excellent publication describes the rule in […]
August 28, 2021

The Rule 12(d) Standard for Conversion of Rule 12(b)(6) Motion to Rule 56 Motion

In Vorleamesi v. Esper, 2021 WL 3681163 (D. Md. Aug. 19, 2021) (Grimm, J.), the Court explained and applied the rules governing conversion of a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment when the movant has filed a motion to dismiss or, in the alternative, for […]
August 28, 2021

What is a Document? (Part II)

In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  […]
August 19, 2021

Does Maryland Require that Spoliation be “Intentional”?

In Six Flags America, L.P. v. Mims, 2021 WL 1627055 (Md. Ct. Spl. Apls. Apr. 27, 2021) (unreported), the appellate court held that it was error to allow plaintiff/appellee’s rebuttal arguments concerning the overwriting of defendant’s surveillance footage of the park entrance taken at the time of the occurrence.  The Court pointed […]
August 18, 2021

Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant

In McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021) (Copperthite, J.), data on Defendant’s former employee’s cell phone was erased after Plaintiffs had sent a preservation letter.[1] Defendant Transdev admitted that it had a duty to preserve the evidence and had control over it when it was […]
August 17, 2021

What is a “Document?”

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. Therapeutics […]
August 12, 2021

When Does a Litigation Hold End?

Much has been written about what triggers a litigation hold, i.e., reasonable anticipation of litigation.[1] Less has been written about when a litigation hold ends.  That became a potential problem for the defendant in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114 (N.D. Cal. Mar. 16, 2021). The question of when a […]
August 11, 2021

Snapchat Spoliation Blog: More on the Dangers of Unsupervised Self Collection

Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs.  I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 11, 2021

There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions

In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.”  The Court answered that in the negative.  In doing so, it differentiated between the loss or destruction of […]
August 10, 2021

Document Unitization

Josh Gilliland’s Bow Tie Law Blog has an excellent discussion of several recent decisions governing document unitization.  “Identifying Logical Document Breaks in Discovery Order” (Bowtielaw.com Aug. 8, 2021). Proper document unitization maintains the organizational structure of the original documents.  It is logical and facilitates use in litigation support platforms. Improper unitization – […]
August 10, 2021

District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data

Many social media programs provide their members with a non-forensic download tool.  For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019). However, those tools may not provide the same information that a forensic download collects. In Allen v. PPE […]
August 9, 2021

When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective.

Much has been written about discoverability of litigation hold notices.  See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities). In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote:  “This matter is back before the undersigned on […]
August 9, 2021

District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases

The District of Maryland has drawn a sharp distinction between discovery of social media posts in physical impairment cases, “garden variety” emotional distress cases, and “severe and specific” emotional distress cases.  See Blog, “District of Maryland Clarifies Rules Governing Discovery of Social Media.” The scope of discovery of social media in physical […]
August 8, 2021

District of Maryland Clarifies Rules Governing Discovery of Social Media

In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), and Gaske v. Crabcake Factory Seafood House, LLC, 2021 WL 3188007 (D. Md. Jul. 28, 2021), the Honorable J. Mark Coulson described the principles governing discovery of social media.  Both decisions involved employment […]
August 3, 2021

Maker’s Mark: A Different View of Self Collection

In Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), the court addressed self-collection. I have previously written on self-collection in “Unsupervised Self-Collection Predictably Led to Problems,” and in “Self-Identification and Self-Preservation: A Fool for a Client?,” I cited to R. Losey, “Another “Fox Guarding […]
July 28, 2021

Maker’s Mark: What Happens When Neither Party Cooperates?

Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), is often – and properly – cited for its discussion of the use of Microsoft Outlook for ESI searches. However, another interesting issue addressed in that opinion is mutual abrogation of the duty to cooperate.  It […]
July 27, 2021

Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation

Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. Jun. 9, 2021), involved a suit for alleged brake defects.  Near the end of discovery, plaintiff moved to compel further searches by Ford.  The motion was denied. The Weidman court provided a comprehensive discussion of the December 2015 amendments to the Federal […]
July 26, 2021

Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104

In Pifer v. Irwin Industrial Tool Co., 2021 WL 3076855 (Md. Ct. Spl. Apls. Jul. 21, 2021) (unreported), the appellate Court addressed a novel authenticity issue.  Specifically, the Court addressed the authentication of chalk samples gathered by plaintiff on eBay several decades after the date of manufacture, many of which contained a […]
July 23, 2021

Plaintiff Sanctioned for Spoliation of Automobile Engines Due to Inadequate Implementation of Litigation Hold

In Hyundai Motor Amer. Corp. v. N. American Automotive Svcs., Inc., et al., 2021 WL 3111191 (S.D. Fl. Jul. 22, 2021), sanctions were imposed against the plaintiff, Hyundai Motor America Corp. (“HMA”). At bottom, HMA failed to follow basic, well-established procedures to implement a litigation hold, and crucial evidence then went missing.  […]
July 22, 2021

The Perils of a Misfocused Preservation Letter

In a preservation letter, a potential litigant demands that the opponent preserve specific ESI and documents.  The purpose of the letter is to trigger the common-law duty to preserve potentially responsive information.  However, if not properly drafted, a preservation letter can have the opposite effect.  Malone v. Wicomico County, MD, 2021 WL […]
July 21, 2021

Burden of Proof: Sanctions for Intentional Deletion of Text Messages

In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference […]
July 20, 2021

Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process?

There has long been a split of opinion as to the applicability of the “document correlation” provision of Rule 34(E)(i) to the production of ESI.*  In April of this year, the Eastern District of Pennsylvania weighed in.**  There is, however, a straightforward way to avoid the problem.  It involves negotiation, cooperation, and […]
July 19, 2021

Facebook: Deactivation v. Deletion; Authentication With Native Files; and, Searching

As one of the most popular social media sites, Facebook is the subject of numerous ESI cases.  Three recent decisions address deactivation v. deletion, the value of native Facebook files when authentication is disputed, and the search for responsive information. DEACTIVATION OR DELETION? Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D.Ga. […]
July 18, 2021

Feds Can’t Hire ESI Vendor in Capitol Siege Criminal Cases

Federal prosecutors have been precluded from hiring an ESI vendor to assist with massive e-discovery in criminal cases arising out of the January 6th prosecutions. Deloitte Financial Advisory Services LLP is barred from helping federal prosecutors and other government staff sort and organize the huge volumes of electronic data and other evidence […]
May 14, 2021

The Duty of Inquiry and Sanctions for Failure to Investigate Client’s Claim

In two recent decisions, the District of Maryland has imposed sanctions for failure to properly investigate a client’s documents.  Taken together, Bioiberica Nebraska and Membreno show that the Court expects a reasonable inquiry into information that is within a party’s possession, custody, or practical control.  Filings or representations that contradict such information […]
May 13, 2021

Damage Control Method

Bloomberg Law reports that a company has allegedly mishandled potentially important emails in a 70,000 person class action.  J. Feeley and D. Glovin, “Sanofi Accused of Destroying Emails Tied to Zantac Recall” (Bloomberg May 11, 2021).  The potential spoliator’s response is instructive. In the products liability action, plaintiffs allege that the defendant’s […]
March 26, 2021

Negotiating Searches Using “Hit” Reports

Josh Gilliland’s Bow Tie Law blog published a description of search term negotiations using “hit reports” in a recent decision from the Southern District of New York.  J. Gilliland, “Precision Search Terms in Discovery” (Mar. 23, 2021). Josh describes the back-and-forth exchange of information necessary in a cooperative approach to search. For […]
March 25, 2021

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun

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, every email and every attachment […]
March 24, 2021

Using Digital Forensics to Protect Trade Secrets

Misappropriation of trade secrets cases are increasingly digital. For example, a former employer may seek discovery of a new employer’s information.  As discussed in “The Gang That Couldn’t Spoliate Straight,” forensic analysis is often necessary.  Craig Ball’s post, “What’s in a Name (or Hash Value)?” discussed some forensic options. A recent American […]
March 16, 2021

Surveillance Video of Robbery Was Properly Authenticated by Eyewitness

In Karn v. State, 2021 WL 515388 (Md. Ct. Spl. Apls. Feb. 11, 2021) (unreported), the Court affirmed a holding that the State had laid a proper foundation for admitting surveillance video. The Court applied the Court of Appeals’ decisions in State v. Sample, 468 Md. 560, 588 (2020), and Sublet v. […]
March 16, 2021

Electronic Communications to a Class Action Advertising Web Site Deemed Not Privileged

Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.”  The site contained attorney advertising and articles concerning class actions and mass torts.  Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 14, 2021

Maryland’s Confusing Spoliation Doctrine

In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice.  The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction […]
March 12, 2021

Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
March 7, 2021

Trade Secret – Can Damaged Party Obtain Ex-Worker’s Emails Sent on New Employer’s System?

Trade secret litigation invariably involves ESI.  Craig Ball has written “What’s in a Name (or Hash Value)?,” discussing the use of hash values and file names in tracking down stolen data.  In “The Gang That Couldn’t Spoliate Straight,” I discussed an order that the alleged wrongdoer preserve ESI and the potential issues […]
March 6, 2021

Rules Matter: A “Perry Mason Moment” Was Derailed by a Discovery Violation

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. Constitutions, case […]
February 18, 2021

Email: “It seemed like a neat idea.”

“Ray Tomlinson is quoted as saying he invented email, ‘Mostly because it seemed like a neat idea.’ No one was asking for email.”  M. Bellis, “The History of Email” (ThoughtCo. Aug. 4, 2017).
February 17, 2021

Who Invented the Mouse a/k/a the X-Y Position Indicator for a Display System?

It is often amazing how little we know of the history of everyday devices. Who invented the telephone?  We all know the answer. What about the mouse that is sitting next to your hand right now? The mouse was invented by Douglas Engelbart.  J. Freeman, The Tyranny of E-Mail:  The Four-Thousand Year […]
February 16, 2021

Who First Used the @ Sign in Domains and What Does It Mean?

Every day, we use computers and drive cars with no knowledge of what makes them tick.  Consider the humble “@” sign.  How many times did you use it today? “Ray Tomlinson chose the @ symbol to tell which user was ‘at’ what computer. The @ goes in between the user’s login name […]
February 14, 2021

Marc Hirschfeld’s Legal Week Presentation

Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services.  Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video.  Among […]
February 14, 2021

What Was the First Email Message?

On May 24, 1844, Samuel Morse sent a telegraph message and famously asked: “What hath G-d wrought?” Do you know who sent the first email or the message it conveyed? In 1971, Ray Tomlinson sent the first email message.  It was “QWERTYUIOP.”  M. Bellis, “The History of Email” (ThoughtCo. Aug. 4, 2017). […]
February 13, 2021

Recovery of ESI Costs: “The fuss is about money…. [E]lectronic discovery is really expensive.”

In 2012, the Supreme Court’s Kan Pacific decision narrowed the scope of costs that may be awarded in federal cases.  “Taxation of E-Discovery Costs Under 28 U.S.C. §1920(4) after Taniguchi v. Kan Pacific Saipan” (Aug. 14, 2012).  In that blog, I suggested: When it comes to electronically stored information (“ESI”), “[t]he fuss […]
February 13, 2021

What Was the First Online Game Played?

In the 1840’s, the telegraph was used to play board games between towns.  See M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 753, citing Standage, “The Victorian Internet” (Walker & Co. 1998, 2007).  “Bored and lonely [telegraph] operators would also play checkers over the wires, […]
February 12, 2021

“[I]t is no longer amateur hour.”

In a February 11, 2021, post,   Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating: As noted by Judge Johnson, “[i]t […]
February 11, 2021

When Was the First Online Wedding? – William Storey and Clara Choate’s Love Story

Today, you can get married on Zoom.  But nothing’s new. The first online wedding took place by telegraph in the 1800’s.  See M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 753, citing Standage, “The Victorian Internet” (Walker & Co. 1998, 2007), 127-28.  Standage describes a […]
February 7, 2021

District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court applied the spoliation doctrine in an employment discrimination case. The plaintiff alleged injury due to a hostile work environment and discrimination based on gender identity and sex.  The Court wrote: “Discovery was contentious….”  The plaintiff […]
February 7, 2021

When Should a Spoliation Motion Be Filed and Decided? – – An Update

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court penalized a litigant for her untimely filing of a spoliation motion, even though the motion had merit.  While the Court granted the request for sanctions, it denied a request for attorneys’ fees due to the […]
February 4, 2021

Requests for “Any and All” Documents Are Obsolete

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,” and “every” are dangerous words when describing […]
January 29, 2021

Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands

After litigation starts, a business faced with unreasonable preservation or discovery demands can resort to the court’s procedural rules to request relief from a judge.  However, the duty to preserve potentially responsive information often arises in a “free for all” zone before litigation is commenced.  In that situation, there is no umpire […]
January 24, 2021

“The Gang That Couldn’t Spoliate Straight”

A few years ago, the Hon. Paul W. Grimm wrote: “At the end of the day, this is the case of the ‘gang that couldn’t spoliate straight.’”  Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501 (D. Md. 2010). That description is equally applicable to the conduct that led to a […]
January 17, 2021

Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered

It may be prudent to document the analysis of the point at which a potential litigant believes that its duty to impose a legal hold, or “litigation hold,” has or has not been triggered.  While it may not be dispositive, documentation may be useful in the event of a subsequent allegation of […]
January 16, 2021

Courts Cannot Order a “Quick Peek” Without Consent

In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent.  In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 11, 2021

Maryland’s Spoliation Standard

Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
January 9, 2021

Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence

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 judgment was affirmed […]
January 8, 2021

Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence

“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 context […]
January 4, 2021

The Ethical Dangers of Attorneys Using “Reply All”

In a May 2011 post, I discussed Computer Usage Policies and the “Reply All” Button. A recent article has expanded on that discussion.  Erika Stillabower, “The (Ethical) Risks of ‘Reply All’,” The Washington Lawyer (July/August 2020), 54. Ms. Stillabower describes situations where opposing counsel “cc’s” that attorney’s client on an email.  She […]
January 3, 2021

Is Cremation, Burial, or Suicide Spoliation?

While this blog is focused on ESI, Maryland State courts have been asked to apply the spoliation doctrine in unique contexts.  They have addressed whether: Cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md.App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014); Burial is spoliation, Hollingsworth & Vose Co. v. […]
January 2, 2021

Unsupervised Self-Collection Predictably Led to Problems

In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.”  There, an attorney permitted the client to determine what ESI it would search for and produce.  This process ran afoul […]
December 28, 2020

Forensic Analysis Trips Up Oklahoma Attorney

A post in Bloomberg Law, authored by Rebekah Mintzer, describes a “State Attorney Who Sent Threatening Emails to Herself [and Was] Suspended” (June 18, 2020).  The article states that the attorney obtained a fictitious email account and sent threatening emails to her official government email address.  She then allegedly reported them to […]
December 27, 2020

Searching for Privileged Information

As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 27, 2020

Triggering the Duty to Preserve ESI

Two recent decisions of the District of Maryland demonstrate when the duty to preserve is triggered in the context of spoliation motions.  Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020) (“MVM“); Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. […]
December 26, 2020

Discovery of the Identity of a Person Associated With an I.P. Address

UPDATE:  on  August 10, 2021, the Court issued an opinion in Strike3 Holdings, LLC v. John Doe, 2021 WL 3511124 (D. Md. Aug. 10, 2021). ***** In Strike 3 Holdings, LLC v. John Doe, 2020 WL 7640943 (D. Md. Dec. 23, 2020), the Court authorized, but only in a strictly limited way, […]
December 26, 2020

When Should a Spoliation Motion Be Filed and Decided?

Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided.  Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); […]
December 25, 2020

No Sanctions Despite Truncated Search

In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce  an inconsistent email to search parameters that were too narrow.  The Court held that […]
December 20, 2020

Burden of Proof of Spoliation

“The burden of proof on a motion for spoliation sanctions is unsettled.”  Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). Two recent District of Maryland decisions have held that, at least where a relatively harsh sanction is involved, a clear and convincing standard applies: “The burden […]
December 19, 2020

Judicial Postings on Social Media

A few months ago, a Tennessee judge who was going through “a rough time” in his life, was publicly reprimanded for sending inappropriate messages to women on social media platforms. Some of the messages pictured him in a judicial robe.  D. Weiss, “Judge is reprimanded for ‘flirtatious to overtly sexual social media […]
December 11, 2020

The “Practical Ability” Standard for “Control” in Maryland

In Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020), the Court again followed a “practical ability” plus notification standard for determining when ESI is within a party’s possession, custody, or control, and what should be done if it is not.  Maryland State courts appear to […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
November 28, 2020

The Duty to Preserve Continues Even After Production of Social Media

In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
November 27, 2020

Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review

In Optronic Tech, Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 WL 2838806 (N.D. Cal. June 1, 2020), sanctions were imposed against defense counsel, essentially because the court determined that trial counsel had attempted to hand off their Rule 26(g) obligations to their client’s inside counsel. There were several key points.  Defense […]
June 8, 2020

The Sedona Conference and Its Impact on E-Discovery

Kenneth J. Withers of the Sedona Conference has posted a chapter from M. Berman, et al., eds., “Electronic Discovery in Maryland Courts” (MSBA 2020), on the Sedona Conference’s web site.  The Sedona Conference has had, and continues to have, a pivotal role in e-discovery.  Sedona papers were cited by the Court of Appeals […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 12, 2020

“Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media

In State v Sample, __ Md. __, 2020 WL 2316709 at *3 (May 11, 2020), the Court of Appeals of Maryland concluded that “that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find […]
September 17, 2017

Mention in eDiscoveryPM.com

It was very nice to be mentioned by Michael I. Quartararo, Esq., author of “Project Management in Electronic Discovery” (2016) in the eDiscoveryPM blog.  See “Correcting the Record: Searching Attachments in Outlook.”  Mr. Quartararo’s book explains the application of legal project management principles (“LPM”) to e-discovery projects.  He defines “project management” as “the structured application […]
September 16, 2017

Decision of Court of Appeals of Maryland in Doe v. Alternative Medicine Maryland, LLC

After issuing a bypass writ or certiorari and hearing oral argument, the Court of Appeals of Maryland issued its decision in Doe v Alternative Medicine Maryland LLC, __ Md.__, 2017 WL 3668100 (2017).
July 25, 2015

The Duty to Preserve & the Spoliation Doctrine in the Maryland State Courts

My article, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts” was recently published in the University of Baltimore Law Forum, Vol. 45 (2015).  The article discusses Maryland case law addressing the issue, suggests a modern analytical framework, and concludes with a cautionary […]
August 20, 2012

News Report: Update on Mark T. Pappas of Victor Stanley v. Creative Pipe “Fame”

The August 19 2012, Maryland Daily Record reports that “Fuvista” CEO Mark T. Pappas was conditionally released after two weeks in jail.  He reportedly wired $120,000 to pay a portion of the civil sanctions in the Victor Stanley v. Creative Pipe case.  The Daily Record reports that The Hon. Marvin J. Garbis […]
August 19, 2012

“Too Much Evidence” – Criminal Charges Dismissed

The ABA reports that federal prosecutors have dropped criminal charges against a doctor in a massive online pharmacy case because it has become too costly to pursue the case.  M. McDonough, “Too Much Evidence Cited as Reason for Dropping Drug Charges Against Fugitive Doctor,” (ABA Aug. 17, 2012).  The case involved two […]
August 18, 2012

News Report: Mr. Mark T. Pappas of Victor Stanley v. Creative Pipe “Fame” Denied Bail

The Maryland Daily Record reports that Mr. Mark T. Pappas, protagonist in the “Victor Stanley case,” was denied bail “because of his ‘long history’ of noncompliance [with Court orders] and ‘lack of candor’ in the [Victor Stanley] litigation.  Ben Mook, “Back from Belize, Pappas denied bail,” The Daily Record, Aug. 15, 2012.  […]
August 18, 2012

Book Review: “Zubulake’s e-Discovery: The Untold Story of My Search for Justice,” by Ms. Laura A. Zubulake

Ms. Laura A. Zubulake has published an account of her experiences as the plaintiff in the groundbreaking “Zubulake case.”  The book is entitled Zubulake’s e-Discovery: The Untold Story of My Quest for Justice. According to Shepard’s, the first decision in that string of decisions, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 […]
August 14, 2012

Taxation of E-Discovery Costs Under 28 U.S.C. Sec. 1920(4) after Taniguchi v. Kan Pacific Saipan

UPDATED February 13, 2021: “Recovery of ESI Costs: ‘The fuss is about money…. [E]lectronic discovery is really expensive.’” Note: This post was first published in “The Daily Record” on Aug. 12, 2012.  The original may be viewed by clicking here. * * * * When it comes to electronically stored information (“ESI”), […]
July 14, 2012

Book Review: “Electronic Discovery for Small Cases” (ABA 2012)

Bruce Olson and Tom O’Connor, “Electronic Discovery for Small Cases” (ABA 2012), addresses one of the most important topics in the ESI field, proportionality, in an elegant, clear, and concise manner. Its chief virtue is that, instead of listing a parade of horribles and describing multi-million dollar sanctions awards, it provides low-cost […]
August 7, 2011

Mock Rule 26(f) Conference of Parties Posted Online

A mock Rule 26(f) conference of parties has been posted online through the Technology Committee of the Litigation Section of the Maryland State Bar Association. Although much has been written about Rule 26(f) conferences, see, e.g., Chapter 19 in M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and […]
July 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]
July 15, 2011

What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”

“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. […]
June 30, 2011

Proportionality in Government e-Discovery – June 2011 IQPC Presentation

Government litigants have an enormous impact on civil litigation. Because the United States is the most frequent and successful litigant in the federal courts, the federal government as a litigant plays “a central role in the development of law and policy in the United States courts.” G. Sisk, Litigation with the Federal […]
May 26, 2011

Self-Identification and Self-Preservation: A Fool for a Client?

“Self-preservation” is the ESI equivalent of “do-it-yourself” home repair.  If successful, it can save money.  If not, it can lead to bigger problems.  Recent decisions arising out of self-preservation disasters have posed the question of whether it is ever a viable technique to preserve and review ESI. A well-known commentator and The […]
May 24, 2011

Metadata May Not Be a Public Record in Maryland

As of October 1, 2011, Maryland will permit custodians of public records to scrub unprivileged metadata from those records, apparently at the requestor’s cost, before producing those records under the State analog to the Freedom of Information Act.  The statute, SB 74, Chapter 536 of the 2011 Laws of Maryland, amends the […]
May 2, 2011

Maryland Murder Conviction Reversed Over MySpace Page

May 2020 UPDATE:  Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media. In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated. Mr. Griffin was charged with shooting another person.  […]
May 2, 2011

Computer Usage Policies and the “Reply All” Button

Businesses manage their information technology assets through computer usage policies. Tonya L. Johnson recently provided an interesting post on the American Bar Association site.  Noting the potential for error when “reply all” is selected inadvertently, she wrote that the market research firm, Nielsen, had removed that option from employee email systems.  Ms. Johnson […]
April 25, 2011

iPad App for Depositions

Joshua Gilliland, author of the Bow Tie blog and Bow Tie Law blog, and president of Majority Opinion, LLC, was kind enough to provide me with a complimentary copy of  his new iPad App, called The Deponent App.  Deponent marries document assembly principles with a database of stock deposition questions that can be […]
April 18, 2011

Kate Paslin Demonstrates Access Data CaseVantage 6 and Summation iBlaze

Kate Paslin, Assistant General Counsel of AccessData Corporation, presented and discussed a number of the company’s software products to a University of Baltimore law school ESI seminar.  Kate discussed  CaseVantage 6 with secure sharing over web-based portals and the ability to define user profiles for, for example, expert witnesses or document reviewers, […]
April 17, 2011

Patrick Burke Demonstrates EnCase Portable

Patrick Burke, Assistant General Counsel, described the capabilities of Guidance Software’s EnCase suite of applications to a University of Baltimore School of Law ESI seminar.  In addition to enterprise collection and forensic preservation capabilities, Mr. Burke discussed the project-based capabilities of the new, low-cost EnCase Portable software.  This product is simple to […]
April 10, 2011

Berman is Co-Developer of Law School ESI Seminar

Sensei Enterprises, Inc., president Sharon D. Nelson, reported on a law school ESI seminar, as follows:  “In the spring of 2008, The Honorable Paul W. Grimm and [Mike Berman] developed a three-credit ESI workshop for law school students.  The class was first offered at the University of Baltimore School of Law, and […]
April 1, 2011

Appeals Court Rules in Favor of Premium Finance Cos.

The Court of Special Appeals of Maryland ruled in favor of a large group of premium finance companies that had been denied the timely hearing required by Maryland statutes, in a recent decision in AFCO Credit Corp., et al. v. Maryland Insurance Administration.  The companies are challenging a ruling of the former […]
October 5, 2010

Berman Prevails On Commercial Free Speech Issue

The Attorney General of Maryland issued a formal opinion agreeing with commercial free speech arguments presented by Berman and RLLS in a matter pending before the Maryland Lottery Commission.  “Referenda – First Amendment – Gaming – Slot Machines – Whether State Lottery Commission May Limit Licensee’s Participation in Referendum Related to Another […]
September 11, 2010

Sedona Conference and Victor Stanley II Court Cite Law Review Proportionality Article

In a law review article, co-authored  by Michael Berman, entitled “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U.Balt.L.Rev. 381, 384 (2008), the writers argued that application of the cost-benefit provisions of the Federal Rules of Civil Procedure to pre-litigation preservation decisions would help reduce the current uncertainty regarding the […]
July 20, 2010

State’s top court rules that referendum on Arundel Mills slots is legal

The Baltimore Sun reported on the arguments before the Court of Appeals of Maryland, the State’s highest Court, on the “slots” referendum.  “Michael D. Berman, an attorney for the Maryland Jockey Club and the citizens group Citizens Against Slots at the Mall, argued before the court Tuesday morning that the right to […]
July 20, 2010

“Slots” Referendum Argument in Maryland Court of Appeals

WBAL TV reported that during oral argument in the State’s highest court, “Michael Berman, an attorney for a group that opposes putting the casino near Arundel Mills Mall, said the framework of the constitutional amendment approved by Maryland voters in 2008 imposed the possibility of local discretion on where a casino could […]
July 20, 2010

Webcast: Berman’s Oral Argument in Court of Appeals of Maryland

This is a link to a webcast of Berman’s July 20, 2010, oral argument in the Court of  Appeals of Maryland.  The Court issued an order that same day ruling in favor of the appellants represented by Mr. Berman.  Citizens Against Slots at the Mall, et al. v. PPE Casino Resorts Maryland, LLC, […]
June 3, 2010

Arundel Slots Trial Ends

The Baltimore Sun reported on the seven-day hearing on the “slots” referendum in the Circuit Court for Anne Arundel County, reporting that: “Michael Berman, an attorney for the community group, said the board [of elections] used ‘evenhanded, reasonable decision-making’ and that further examination of the carefully completed process would ‘disenfranchise voters based on […]
May 26, 2010

Berman’s Objections to Proffered Evidence Sustained

On May 26, 2010, the Maryland Daily Record reported that Judge “Silkworth granted lawyer Michael Berman’s objections to both types of testimony, saying the line of questioning was beyond the scope of his inquiry into Cordish’s legal challenge to the Anne Arundel County Board of Elections’ approval of the petition drive. [Judge] […]
May 25, 2010

Berman Rebuts Opponent’s Argument

When opponents of the referendum petition argued that CASM is a “non-existent entity” created by the jockey club to disguise its involvement in the petition drive, they said:  “It [CASM] was a deception to the prospective signers.” Michael Berman, arguing for CASM and others, responded:  “I am here representing the non-existent entity […]
April 16, 2010

Trial Court Argument on Slots Referendum

On April 16, the Annapolis Capital reported that Michael D. Berman argued in favor of a referendum petition and stated that the challenge “seeks to chill and taint the ongoing election campaign,’ said attorney Michael Berman, who represents Citizens Against Slots at The Mall, one of the groups formed to push the petition […]