Evidentiary issues presented by ESI.
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November 21, 2022
Published by Michael Berman at November 21, 2022
Categories
A juror in an insurance coverage case described the impact of impeachment of the plaintiff using inconsistent deposition testimony. Dan Rodricks: Was it a hack or just a ride between friends? A Baltimore jury — with me on it — decides. | COMMENTARY – Baltimore Sun (Nov. 19, 2022). Plaintiffs, a mother […]
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., […]
September 3, 2022
Published by Michael Berman at September 3, 2022
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In Banuchi v. City of Homestead, 2022 WL 2065049 (S.D. Fla. June 8, 2022), a civil wrongful death lawsuit, evidence of the “CSI Effect” proffered by defendants was excluded, based on lack of qualification of the sponsoring expert and reliability grounds. An appeal is pending. “CSI Effect” evidence has been controversial in […]
July 17, 2022
Published by Michael Berman at July 17, 2022
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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
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 […]
June 25, 2022
Published by Michael Berman at June 25, 2022
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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 1, 2022
Published by Michael Berman at June 1, 2022
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Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw. In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating: Although cases abound […]
May 27, 2022
Published by Michael Berman at May 27, 2022
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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” […]
April 29, 2022
Published by Michael Berman at April 29, 2022
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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 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 […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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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 […]
October 1, 2021
Published by Michael Berman at October 1, 2021
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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. […]
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 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 […]
July 26, 2021
Published by Michael Berman at July 26, 2021
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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 […]
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 […]
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 […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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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 […]
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. […]
May 2, 2011
Published by Michael Berman at May 2, 2011
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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. […]