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May 24, 2023
Published by Michael Berman at May 24, 2023
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The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules. This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 9, 2023
Published by Michael Berman at May 9, 2023
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“Before me is Plaintiffs’ Motion for Sanctions…. I will not mince words. I hate motions for sanctions. Based on my experience for roughly 25 years as a lawyer, and now for the past five years as a judge, most such motions are without merit—a mere effort by one side to obtain a […]
May 7, 2023
Published by Michael Berman at May 7, 2023
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The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
May 6, 2023
Published by Michael Berman at May 6, 2023
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The Supreme Court of Maryland has approved a proposal to eliminate judicial disappearing ink. However, Maryland has not followed the approach of the Federal Rules of Appellate Procedure. Those differences may present an unresolved issue if an unreported federal decision is cited to a Maryland State court. Until now, Maryland Rule 1-104 […]
April 25, 2023
Published by Michael Berman at April 25, 2023
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The “modern attachments” decision of Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), generated a lot of buzz when it was issued. At its core, Noom held that hyperlinked files are generally not part of a transmitting email. Said differently, when a party produces an email that contains a […]
April 23, 2023
Published by Michael Berman at April 23, 2023
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Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
April 12, 2023
Published by Michael Berman at April 12, 2023
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Cell phones have led to thorny legal issues. For example, in Juror’s Cellphone Not Subject to Search (americanbar.org)(Feb. 21, 2023), Steven B. Chaneles, wrote that, in response to a post-verdict challenge: “A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cellphone….” The […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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The United States District Court for the District of Maryland has proposed an amendment so that Discovery Guideline 5 will conform to amendments to Fed.R.Civ.P. 30(b)(6). I chaired a subcommittee of the Federal Court Bench Bar Committee which submitted a proposed amendment to the Court for its consideration. Subcommittee members included Phil […]
March 23, 2023
Published by Michael Berman at March 23, 2023
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A order granting summary judgment was reversed because the plaintiff was unable to take depositions of relevant witnesses: Several claims by a former Newark, N.J., municipal court judge’s alleging disability bias and other abuses fueled her discharge were wrongly dismissed because she didn’t get a chance to collect potentially helpful evidence, a […]
March 22, 2023
Published by Michael Berman at March 22, 2023
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“Counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification, a California appeals court ruled Tuesday in a dispute among cannabis company co-owners.” Joyce E. Cutler, Counsel’s Disqualification Upheld Over Use of Privileged Emails (bloomberglaw.com)(2023), describing Militello v. VFarm 1509, __ Cal.Rptr.3d __, 2023 WL 2579204 […]
March 21, 2023
Published by Michael Berman at March 21, 2023
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Sidley Austin LLP’s excellent blog, March’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP, describes an interesting work product decision. The blog reported that, in Securities and Exchange Commission v. Volkswagen Aktiengesellschaft, et al., 2023 WL 1793870 (N.D. Cal. Feb. 7, 2023), the SEC’s interrogatory to Volkswagen asked […]
March 20, 2023
Published by Michael Berman at March 20, 2023
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In a case where plaintiff asserted severe emotional distress, a New Jersey appellate court wrote that “there is no New Jersey case law detailing the scope of discovery regarding a litigant’s private social media posts.” Patrick Dorrian, New Jersey Lawyer Suing for Job Bias Must Fork Over Social Media (bloomberglaw.com)(Mar. 17, […]
March 16, 2023
Published by Michael Berman at March 16, 2023
It is well worth downloading eDiscovery Assistant’s excellent 2022 eDiscovery Case Law Year in Review | eDiscovery Assistant. The Report provides interesting metrics about eDiscovery, such as the following chart: Id. The Report states that “failure to produce” was the most litigated issue, followed by proportionality and sanctions. Interestingly, “failure to preserve” […]
March 15, 2023
Published by Michael Berman at March 15, 2023
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In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure. The case involved egregious[1] misconduct that included fraud on the Court, […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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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 incorporate their […]
March 10, 2023
Published by Michael Berman at March 10, 2023
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The Maryland Supreme Court is considering another important ESI case. Recently, it issued a landmark decision concerning cell phone searches in criminal cases. Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland The Court is now considering whether consent to search can be withdrawn after a forensic image is made […]
March 9, 2023
Published by Michael Berman at March 9, 2023
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Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent. In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of […]
February 7, 2023
Published by Michael Berman at February 7, 2023
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In Relativity’s® 2022 Data Discovery Legal Year in Review e-book (8th ed.), David Horrigan, Esq., highlighted a fascinating case, Martley v. City of Basehor, 2022 WL 1302820 (D. Kan. May 2, 2022)(“Martley I”). Mr. Horrigan described the case as a “clever … use [of] the Federal Rules of Civil Procedure to find […]
February 6, 2023
Published by Michael Berman at February 6, 2023
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The Supreme Court’s recent dismissal of In Re Grand Jury, 598 U.S. ___, 143 S.Ct. 543 (2023), leaves the Ninth Circuit’s “primary purpose” analysis of so-called “dual purpose” communications intact as the test for privilege. For a good analysis, see GreenbergTraurig’s blog, quoted in the title bar of this blog, ‘If It Ain’t Broke, […]
February 4, 2023
Published by Michael Berman at February 4, 2023
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The January 30, 2023, 214th Report of the Standing Committee on Rules and Practice proposes an important update of Rule 1-104 regarding unreported opinions. It deletes the provision that, with very limited exceptions, prohibits their citation as precedential or persuasive in any court. If the proposal is approved by the Supreme Court […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000). Similarly, Craig Ball has blogged about […]
December 15, 2022
Published by Michael Berman at December 15, 2022
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It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section. After an introduction by T.J. Keilty, I provided an overview of what constitutes social media. The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
November 19, 2022
Published by Michael Berman at November 19, 2022
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I will be co-presenting a program for the MSBA Young Lawyers Section, together with the Hon. J. Mark Coulson, Alicia L. Shelton, Esq., Thomas J. Keilty, III, Esq., and Ashley Aranega of X1 Social Discovery. Please see the flier below:
November 14, 2022
Published by Michael Berman at November 14, 2022
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The Fourth Amendment to the U.S. Constitution makes a big difference. This is illustrated by two recent Maryland appellate decisions – – one civil, the other criminal – – regarding discovery from cell phones. Cf. Richardson v. State, 481 Md. 423 (2022)(criminal), with St. Francis Academy, et al. v. Gilman School, Inc., […]
November 12, 2022
Published by Michael Berman at November 12, 2022
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If a litigant has actual knowledge that an opponent’s proposed search terms will not “hit” on responsive, proportional ESI, does the litigant have a duty to tell the opponent?[1] In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), the plaintiff, Advanced Magnesium, alleged that defendant Dery conspired […]
November 11, 2022
Published by Michael Berman at November 11, 2022
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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 said – in my […]
September 26, 2022
Published by Michael Berman at September 26, 2022
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A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.” Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022). According […]
September 7, 2022
Published by Michael Berman at September 7, 2022
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In civil discovery, litigants must produce information that is within their “possession, custody, or control,” subject to the applicable scope of discovery. However, federal courts have markedly differing definitions of “possession, custody, or control.” A uniform standard would further the goal of the just, speedy, and inexpensive resolution of many lawsuits. Mike […]
August 14, 2022
Published by Michael Berman at August 14, 2022
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“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
August 12, 2022
Published by Michael Berman at August 12, 2022
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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 […]
August 8, 2022
Published by Michael Berman at August 8, 2022
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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
Published by Michael Berman at August 7, 2022
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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 4, 2022
Published by Michael Berman at August 4, 2022
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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
Published by Michael Berman at August 4, 2022
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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 16, 2022
Published by Michael Berman at July 16, 2022
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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
Published by Michael Berman at July 15, 2022
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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 13, 2022
Published by Michael Berman at July 13, 2022
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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 […]
June 14, 2022
Published by Michael Berman at June 14, 2022
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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
Published by Michael Berman at June 14, 2022
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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 2, 2022
Published by Michael Berman at June 2, 2022
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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 16, 2022
Published by Michael Berman at May 16, 2022
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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 […]
April 29, 2022
Published by Michael Berman at April 29, 2022
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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
Published by Michael Berman at April 29, 2022
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 21, 2022
Published by Michael Berman at April 21, 2022
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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 10, 2022
Published by Michael Berman at April 10, 2022
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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
Published by Michael Berman at April 9, 2022
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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
Published by Michael Berman at April 4, 2022
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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
Published by Michael Berman at April 3, 2022
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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 […]
March 28, 2022
Published by Michael Berman at March 28, 2022
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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
Published by Michael Berman at March 26, 2022
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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
Published by Michael Berman at March 24, 2022
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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
Published by Michael Berman at March 23, 2022
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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 5, 2022
Published by Michael Berman at March 5, 2022
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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 […]
December 9, 2021
Published by Michael Berman at December 9, 2021
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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
Published by Michael Berman at December 8, 2021
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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 […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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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 19, 2021
Published by Michael Berman at November 19, 2021
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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
Published by Michael Berman at November 18, 2021
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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
Published by Michael Berman at November 17, 2021
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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). […]
August 28, 2021
Published by Michael Berman at August 28, 2021
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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
Published by Michael Berman at August 28, 2021
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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
Published by Michael Berman at August 27, 2021
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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 17, 2021
Published by Michael Berman at August 17, 2021
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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
Published by Michael Berman at August 12, 2021
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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
Published by Michael Berman at August 11, 2021
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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
Published by Michael Berman at August 11, 2021
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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
Published by Michael Berman at August 10, 2021
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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
Published by Michael Berman at August 9, 2021
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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
Published by Michael Berman at August 9, 2021
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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
Published by Michael Berman at August 8, 2021
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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 […]
July 27, 2021
Published by Michael Berman at July 27, 2021
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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 20, 2021
Published by Michael Berman at July 20, 2021
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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
Published by Michael Berman at July 19, 2021
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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. […]
March 16, 2021
Published by Michael Berman at March 16, 2021
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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 7, 2021
Published by Michael Berman at March 7, 2021
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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
Published by Michael Berman at March 6, 2021
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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 14, 2021
Published by Michael Berman at February 14, 2021
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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 4, 2021
Published by Michael Berman at February 4, 2021
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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 13, 2021
Published by Michael Berman at January 13, 2021
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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 2, 2021
Published by Michael Berman at January 2, 2021
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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 26, 2020
Published by Michael Berman at December 26, 2020
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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 1, 2020
Published by Michael Berman at December 1, 2020
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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 […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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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 […]
July 30, 2011
Published by Michael Berman at July 30, 2011
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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. […]
June 30, 2011
Published by Michael Berman at June 30, 2011
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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 […]