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April 17, 2024
Published by Michael Berman at April 17, 2024
Categories
I am an advocate of data mapping. I also usually attempt to discuss key custodians with opposing counsel. However, in cases with a large number of custodians, I often find that it is difficult to keep track of them, especially in planning for preservation and attending Fed.R.Civ.P. 26(f) conferences. One tool that […]
April 16, 2024
Published by Michael Berman at April 16, 2024
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In 1968, the movie “Dracula Has Risen from the Grave” was released. Like Dracula, despite being long since buried, boilerplate “general objections” keep popping up in what sometimes looks like the children’s game of “Whac a Mole.” It is difficult to understand why the message about boilerplate “general objections” has not gotten […]
April 10, 2024
Published by Michael Berman at April 10, 2024
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I have followed the suggestion of The Hon. Paul W. Grimm (ret.) to speak out about threats against the Judiciary. American Bar Association Statement on Threats Against the Judiciary (Apr. 8, 2024). In doing so, I reported on then-pending legislative proposals in Maryland. Maryland Bills to Protect Judges and Their Children (Feb. […]
April 10, 2024
Published by Michael Berman at April 10, 2024
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That is what makes the recent decision in M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024), interesting. Both of the disputing litigants were ordered to state under oath that they had produced all responsive documents in a decision in which the court granted […]
April 9, 2024
Published by Michael Berman at April 9, 2024
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In Southern Pine Credit Un. v. Southwest Marine & Gen’l. Ins. Co., et al., 2024 WL 1361891 (M.D. Ga. Mar. 29, 2024), the court addressed the amount of detail that must be in a privilege log. Southern Pine brought a breach of contract action after its claim on a dishonesty bond was […]
April 8, 2024
Published by Michael Berman at April 8, 2024
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In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about […]
April 8, 2024
Published by Michael Berman at April 8, 2024
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Following the lead of the Hon. Paul W. Grimm (ret.), OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023), I wrote that The Judiciary is Under Attack. Lawyers Need to Defend It (Oct. 24, 2023), and Threats Against the Colorado Supreme Court Must Be Called Out (Dec. 23, 2023). […]
March 27, 2024
Published by Michael Berman at March 27, 2024
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In Maryland, “sunshine” statutes such as the Open Meetings Act, Md. Code Ann., Gen’l. Prov. Art. §3-301, et seq., and the Public Information Act, Md. Code Ann., Gen’l. Prov. Art. §4-101, et seq., further the goal of open and transparent government. In State compliance board rules Cassilly’s office violated Public Information Act […]
March 25, 2024
Published by Michael Berman at March 25, 2024
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In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion for protective order that was resolved in the District of Maryland. […]
March 15, 2024
Published by Michael Berman at March 15, 2024
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The use of artificial intelligence in litigation has gotten a lot of criticism for hallucinations. That is why the article by Dorothy Atkins, Judge Applauds Attys’ ‘Very Awesome’ Use Of Google AI Bot – Law360 (Mar.14, 2024), is so interesting. Ms. Atkins wrote that: A California federal judge told counsel Thursday it’s […]
March 15, 2024
Published by Michael Berman at March 15, 2024
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In Baltimore County improperly withheld some documents sought by former official, judge says – Baltimore Sun (Mar. 13, 2024), Jeff Barker reported on a decision by The Hon. Michael J. Finifter under Maryland’s sunshine law, known as the “Maryland Public Information Act.” The MPIA is Maryland’s analog to the federal Freedom of […]
March 14, 2024
Published by Michael Berman at March 14, 2024
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In Smith v. Wormuth, 2024 WL 1012887 (D. Md. Mar. 8, 2024), the District Court again denied a spoliation motion as untimely. In the immortal words of Yankee Hall of Famer Yogi Bera: “It’s deja vu all over again.” Smith was an employment dispute arising out of a contentious relationship, with an […]
March 6, 2024
Published by Michael Berman at March 6, 2024
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Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024). The case is a textbook example of a plaintiff tanking her own case by deleting relevant texts. Ms. Jones, a former waitress, sued a bar […]
March 5, 2024
Published by Michael Berman at March 5, 2024
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A motion for spoliation sanctions under Fed.R.Civ.P. 37(e) was denied in Boshea v. Compass Marketing, Inc., 2024 WL 811468 (D. Md. Feb. 27, 2024). The motion was argued and decided during trial. The suit by a former employee against the employer involved discovery of litigation strategy communications sent by the plaintiff to […]
March 4, 2024
Published by Michael Berman at March 4, 2024
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Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.” The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016). Likely that is due to […]
March 2, 2024
Published by Michael Berman at March 2, 2024
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The Maryland Online Data Privacy Act of 2024 is currently pending before the General Assembly as HB0567, cross-filed as SB0541. Senate President Bill Ferguson said: “Maryland is a middle-temperament state. We learn from others, we’re often not the first but we aren’t the last, and so we like to learn from what’s […]
March 1, 2024
Published by Michael Berman at March 1, 2024
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Can a witness authenticate a video if the video contains images that the witness did not see? In Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authentication issue. She wrote that: The […]
February 29, 2024
Published by Michael Berman at February 29, 2024
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In Baltimore County judge chastises prosecutors for evidence missteps in David Linthicum case – Baltimore Sun (Feb. 28, 2024), Cassidy Jensen reported on an alleged discovery failure in a criminal case. The defendant is charged with shooting two police officers. The Circuit Court issued an order “to show why [prosecutors] had wrongly […]
February 25, 2024
Published by Michael Berman at February 25, 2024
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Several recent articles discuss when the destruction of records becomes a criminal offense. U.S. Attorney’s Office, District of Maryland | Maryland Correctional Officer Pleads Guilty to Conspiracy to Obstruct Justice and Destruction of Records Related to Cover-Up of Excessive Force Incident | United States Department of Justice (Feb. 22, 2024); Rachel Konieczny, […]
February 23, 2024
Published by Michael Berman at February 23, 2024
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The Hon. Paul W. Grimm (ret.) has written about the organized Bar’s duty to support the judiciary from unwarranted attacks. OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023). I have echoed Judge Grimm’s message. I Hear Crickets From the American Bar Association About Threats Against Colorado Justices – […]
February 21, 2024
Published by Michael Berman at February 21, 2024
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In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons expert and her lawyer in the ‘Rust’ film shooting case raises questions about whether attorneys should text with clients and serves as […]
February 16, 2024
Published by Michael Berman at February 16, 2024
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Long ago, when my wife, Patricia, and I were looking for a house, we abandoned the term “master bedroom” in favor of “main bedroom.” Bloomberg Law reports that: The American Bar Association is asking the federal judiciary to follow states’ lead and stop using the term “court-appointed master,” citing accuracy and negative […]
February 6, 2024
Published by Michael Berman at February 6, 2024
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In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game […]
February 2, 2024
Published by Michael Berman at February 2, 2024
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In Attys Split On 5th Circ.’s Proposed AI, Accuracy-Check Rule – Law360 (Jan. 30, 2024), Lauren Berg reported on the current status of a 5th Circuit proposed A.I. rule.[1] Ms. Berg’s article stated that reactions “span from one end of the spectrum to another, with some saying it will stifle the benefits […]
February 1, 2024
Published by Michael Berman at February 1, 2024
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In Client escapes sanction for lawyer’s refusal to appear on camera in Zoom deposition (abajournal.com)(Jan. 25, 2024,), Debra C. Weiss reported on Agnone v. Agnone, 2024 WL 242488 (Cal. App., 2d Dist., Jan. 23, 2024)(unreported). She wrote: The opinion described what happened at the deposition. [Attorney] Katofsky was in the same room […]
January 29, 2024
Published by Michael Berman at January 29, 2024
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It was an honor and pleasure to be interviewed by Rachi Messing and Tom O’Connor on the eDiscovery Channel. The interview is posted on Mike Berman Chats with Rachi and Tom (youtube.com). eDiscovery Channel – YouTube discusses a wide range of topics in the eDiscovery space. The Channel explains that “Tom interviews […]
January 27, 2024
Published by Michael Berman at January 27, 2024
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In a prior blog, And When I Die…. What Happens to My Social Media?, I discussed Maryland’s “Fiduciary Access to Digital Assets Act” (“MFADAA”). The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. […]
January 26, 2024
Published by Michael Berman at January 26, 2024
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In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that: “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.” She […]
January 23, 2024
Published by Michael Berman at January 23, 2024
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“Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.” See J. Ash, Board of Governors adopts ethics guidelines for generative AI use – The Florida Bar (Jan. 23, 2024). Mr. Ash reports that the version is substantially similar […]
January 19, 2024
Published by Michael Berman at January 19, 2024
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“Self-collection” is often viewed as prohibited. Abraham Maslow said that: “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” This blog addresses a methodology designed by Ralph Losey, Esq., through which self-collection may be defensible. At bottom, Ralph[1] […]
January 18, 2024
Published by Michael Berman at January 18, 2024
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In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported),[1] the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant. One important fact was that the defendant had participated in the text messaging and therefore was not surprised […]
January 11, 2024
Published by Michael Berman at January 11, 2024
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One of the primary arguments against incorporating an “ESI Protocol” into a court order is that doing so may be the first step down the road to sanctions.[1] A COURT-ORDERED ESI PROTOCOL MAY BE CARVED IN STONE That fear of sanctions may be well-founded. For example, in her excellent 2023 ESI Protocol […]
January 10, 2024
Published by Michael Berman at January 10, 2024
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In Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024)(per curiam), plaintiffs’ slip and fall claim was dismissed with prejudice, and attorneys’ fees were also awarded, due to improper testimonial coaching during a virtual trial. The coaching was accompanied by a misrepresentation to the court. […]
January 7, 2024
Published by Michael Berman at January 7, 2024
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“To hear crickets” means “silence.”[1] That is what I hear from the American Bar Association regarding the threats to the Justices on the Colorado Supreme Court. The Colorado Supreme Court issued a controversial decision. Anderson v. Griswold, 2023 Co. 63, __ P.3d __, 2023 WL 8770111 (Dec. 19, 2023), cert. granted sub […]
January 5, 2024
Published by Michael Berman at January 5, 2024
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In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4th __ (4th Cir. Jan. 3, 2024). In short, plaintiff filed untimely interrogatories. Defendant responded without objecting that they were untimely. That omission waived the objection. However, defendant […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!” That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 29, 2023
Published by Michael Berman at December 29, 2023
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I posted 104 items this year. Several that may be worth re-reading are: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II Don’t Be Too Nice When You Send a Preservation Notice Relevance Redactions Revisited […]
December 23, 2023
Published by Michael Berman at December 23, 2023
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The Hon. Paul W. Grimm (ret.) recently wrote an OpEd stating that the Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023). Judge Grimm called for members of the legal profession to defend judges “now, and with a renewed sense of urgency.” NBC reported that Colorado justices face flood of […]
December 23, 2023
Published by Michael Berman at December 23, 2023
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In Mediating E-Discovery Can Save Time and Money (jamsadr.com) (Nov. 10, 2023), the Hon. Gail A. Andler (ret.) and Daniel B. Garrie, Esq., wrote that “[o]ne approach” to remediating the costs of e-discovery “is using mediation to resolve some aspects of discovery disputes.” They report “a recent rise” in the application of […]
December 22, 2023
Published by Michael Berman at December 22, 2023
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Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. The United States District Court for the District of Maryland has established several processes for avoiding discovery disputes and promptly resolving those that may arise. First, the “ESI Principles” provide voluntary suggestions […]
December 18, 2023
Published by Michael Berman at December 18, 2023
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It is an honor to be selected as a 2024 Maryland Superlawyer. “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 achievement. Selections are made on an annual, state-by-state basis. […]
December 16, 2023
Published by Michael Berman at December 16, 2023
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One role of an attorney handling ESI is to function as a translator between computer scientists and forensic experts, on the one hand, and laypersons, such as clients and Judges, on the other. When you look at a “load file” it can be intimidating. Figure 1 is the .dat part of a […]
December 15, 2023
Published by Michael Berman at December 15, 2023
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Danielle Ferguson reports in Detroit Federal Courts Propose AI Disclosure Rule – Law360 (Dec. 8, 2023), that: “The Eastern District of Michigan published a proposed rule Friday that would require lawyers to disclose any time they use AI to help them with written filings and verify its citations are real….” She adds […]
December 13, 2023
Published by Michael Berman at December 13, 2023
Modern attachments have garnered a lot of attention. See, e.g., More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”. and T. Thames, Modern attachments and eDiscovery: Navigating the complexities of linked documents (onna.com) Most of that attention has been focused on what I call the “Humpty Dumpty” issue – – when […]
December 13, 2023
Published by Michael Berman at December 13, 2023
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In Francois v. State, 2023 WL 8265659, at *1 (Apl. Ct. Md. Nov. 30, 2023), the defendant was charged with various offenses that included possession of a firearm and ammunition after a disqualifying conviction. On appeal, the defendant challenged the lower court’s admission of text messages relating to otherwise lawful trips to […]
December 10, 2023
Published by Michael Berman at December 10, 2023
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In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the defendant. At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a […]
December 7, 2023
Published by Michael Berman at December 7, 2023
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I have used trial notebooks since my first trial. I use a similar process for depositions and for a Fed.R.Civ.P. 26(f) “meet and confer.” See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference. A recent ABA article provides an excellent guide to preparation of these organizational tools. James W. McElhaney, The Trial […]
December 6, 2023
Published by Michael Berman at December 6, 2023
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As we approach the end of the year, it is an appropriate time to review Philip J. Favro, ed., Selected eDiscovery and ESI Case Law from 2023 (The Sedona Conf. 2023). Phil’s publication is an annual event. Book Review: Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″; Sedona Conference “Selected […]
December 5, 2023
Published by Michael Berman at December 5, 2023
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Hannah Albarazi reported that Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends – Law360 (Dec. 1, 2023). The Law 360 article states: The company intentionally destroyed relevant evidence, failed to preserve internal chat evidence, and appears to have widely instructed its employees to label documents “privileged and confidential” when they should […]
December 4, 2023
Published by Michael Berman at December 4, 2023
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A federal court had to define double-spacing. It apparently wasn’t happy about it. See Debra C. Weiss, Ruling in double-spacing kerfuffle, federal judge observes lawyers don’t need ‘more words on a page’ (abajournal.com) (Nov. 29, 2023). The dispute reminds me of the very funny You Tube video of a deposition called “What […]
December 2, 2023
Published by Michael Berman at December 2, 2023
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Some courts have issued Standing Orders governing the use of A.I. Another viewpoint is that a better approach is to use Local Rules. See Shweta Watwe, Judges Reflect on GenAI Use One Year After ChatGPT’s Debut (bloomberglaw.com)(Nov. 28, 2023). This blog is based on Ms. Watwe’s excellent article and, in the interest […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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The United States Courts reports that: “The following amended and new rules and forms became effective December 1, 2023: Appellate Rules 2, 4, 26, and 45 Bankruptcy Rules 3011, 8003, 9006, and new Rule 9038 Official Bankruptcy Forms 410A and 417A Civil Rules 6, 15, 72, and new Rule 87 Criminal Rules […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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In “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), I wrote about the $156,000 sanction imposed for Dropbox “rummaging” in Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 NY Slip Op. 33448(U) (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.). In Law 360, Mr. […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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Lexbe Inc. (“Lexbe”) posted an informative discussion of de-duplication on LinkedIn. A link to Lexbe’s post is pasted at the foot of this blog. Lexbe’s blog explains that there are two types of de-duplication and: “Here are the differences between them: 𝐆𝐥𝐨𝐛𝐚𝐥: Duplicates are identified and suppressed across the entire dataset (i.e., all […]
November 30, 2023
Published by Michael Berman at November 30, 2023
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The Supreme Court of Maryland has amended Maryland Attorneys’ Rule of Professional Conduct 19-304.4(c) (Rule 4.4(c)). Maryland’s new rule prohibits an attorney from seeking privileged information from a third person. If such information is disclosed to the attorney, the amended rule imposes a duty to terminate the conversation and provide notice to […]
November 29, 2023
Published by Michael Berman at November 29, 2023
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Like most other States, Maryland has enacted the “Fiduciary Access to Digital Assets Act.” The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. Code Ann., Est. & Trusts Art., Title 15, Subtitle 6 […]
November 28, 2023
Published by Michael Berman at November 28, 2023
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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b). The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 21, 2023
Published by Michael Berman at November 21, 2023
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In Duggins v. Haapala, 2023 WL 7627823 (Apls. Ct. Md. Nov. 15, 2023)(unreported), the intermediate appellate Court addressed whether it was spoliation to bury a dead cow that had been involved in an auto accident. By the time suit was filed, two years had passed and the location of the burial spot […]
November 20, 2023
Published by Michael Berman at November 20, 2023
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In No Expert Needed to Introduce Data Pulled From Phone at Trial (bloomberglaw.com) (Oct. 13, 2023), Mr. Peter Hayes reported on United States v. Williams, 83.F4th 994 (5th Cir. Oct. 13, 2023). Mr. Hayes wrote: “A police officer who introduces evidence extracted from a cellphone at trial doesn’t need to be qualified […]
November 17, 2023
Published by Michael Berman at November 17, 2023
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In an unreported decision, In re Francis A., 2023 WL 5948060, at *1 (Apls. Ct. Md. Sept. 13, 2023), Maryland’s intermediate appellate court addressed an issue of first impression, holding that good cause had been shown to discover expunged records in a civil lawsuit: The narrow issue before us in this expedited […]
November 16, 2023
Published by Michael Berman at November 16, 2023
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My legal ethics professor said that the best thing is to do the right thing for the right reason. The next best thing is to do the right thing for the wrong reason. Surreptitiously feeding your client answers to deposition question in a remote deposition should be avoided because it is wrong. […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Maryland’s Standing Committee on Rules of Practice and Procedure (“Rules Committee”) has published an agenda that includes consideration of amendments to Maryland Rule 5-702 (testimony by experts). Two recent developments are the genesis of the proposal. “First, the Federal Rules Committee has recently made changes to Rule 702, the federal equivalent to […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Josh Gilliland’s Bow Tie law blog has often addressed the question of: “What happens when one party argues a producing party should produce all search term hits?” His answer is “no,” production is not required until after review and culling. See How to Avoid Contentious “Hit Report” Problems, and Hit Reports, citing, […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”[1] So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of. One “modern attachment” […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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Emma Cueto reports that the Mich. State Bar Says Judges Ethically Must Keep Up With AI – Law360 (Nov. 9, 2023); see Ethics Opinion: Judges Must Keep up with Advancing Technology (michbar.org). The full ethics opinion is posted at Ethics Opinions Search Detail (michbar.org). I don’t think it is a good idea, […]
November 12, 2023
Published by Michael Berman at November 12, 2023
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In Bland v. Emcor Facilities Services Inc., 2023 WL 6937418 (Apls. Ct. Md. Oct. 20, 2023)(unreported), the Appellate Court of Maryland rejected a litigant’s narrow interpretation of two interrogatories and affirmed the imposition of sanctions.[1] Mr. Bland sued Emcor and LMC for negligence after a slip and fall on ice at his […]
November 10, 2023
Published by Michael Berman at November 10, 2023
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“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
November 3, 2023
Published by Michael Berman at November 3, 2023
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The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts. Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
November 1, 2023
Published by Michael Berman at November 1, 2023
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In three recent decisions culminating in in Re: International Painters & Allied Trades Industry Pension Fund, 2023 WL 6812297 (D. Md. Oct. 16, 2023)(Coulson, J.)(“International Painters III”), the Court held that: discovery objections were waived because they were not timely raised; and, answers to interrogatories cannot merely refer to other documents. It […]
October 27, 2023
Published by Michael Berman at October 27, 2023
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Joan Kim has written an excellent summary in Legal Separateness: The Boundaries on Written Discovery | Proskauer – Minding Your Business – JDSupra (Oct. 23, 2023). Her blog accurately states: The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies […]
October 26, 2023
Published by Michael Berman at October 26, 2023
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“Florida lawyers might soon be required to get their client’s consent before using artificial intelligence on their legal matters.” Karen Sloan, “Florida bar weighs whether lawyers using AI need client consent | Reuters (Oct. 16, 2023). Ms. Sloan’s article reports that “Florida looks to be the first jurisdiction considering a consent rule […]
October 24, 2023
Published by Michael Berman at October 24, 2023
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The Hon. Paul W. Grimm, a retired U.S. District Judge, wrote an article, The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (bloomberglaw.com)(Oct. 24, 2023). As Judge Grimm points out, here in Maryland a Circuit Court Judge was murdered in his driveway last week. While no one has been […]
October 4, 2023
Published by Michael Berman at October 4, 2023
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“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan. J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. […]
September 28, 2023
Published by Michael Berman at September 28, 2023
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In In re Expungement Petition of Franics A., 2023 WL 5948060 (Appellate Ct. of MD Sept. 13, 2023)(unreported), the intermediate appellate court resolved a novel discovery issue. The Appellate Court affirmed a decision that good cause had been shown to open, review, and disclose information contained in Francis A’s expunged criminal records. […]
September 27, 2023
Published by Michael Berman at September 27, 2023
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“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1] The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786. Sedona’s website states: Judge Rodriguez […]
September 26, 2023
Published by Michael Berman at September 26, 2023
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I wrote briefly about the sanctions request in the Georgia poll workers case against Mr. Rudy Giuliani. Sanctions Sought in “Murky Mess” In a recent update, Zoe Tillman reported in Giuliani Owes $236K and Counting Over Defamation Case Failures (bloomberglaw.com)(Sept. 22, 2023), that: Rudy Giuliani owes more than $236,000 — and may […]
September 22, 2023
Published by Michael Berman at September 22, 2023
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This is Part III of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules. The prior blogs can be found using the PIA “tag,” above. Prior blogs addressed many similarities between the PIA and civil discovery, THE ANTIQUATED PIA EXCEPTION FOR METADATA […]
September 21, 2023
Published by Michael Berman at September 21, 2023
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This is Part II of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules. COOPERATION IN REQUESTS FOR PUBLIC RECORDS The duty to cooperate in civil discovery is well established. Rodriguez v. Clarke, 400 Md. 39, 60 (2007); see also J. Pike […]
September 19, 2023
Published by Michael Berman at September 19, 2023
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While this blog generally deals with civil discovery, “sunshine laws” that require disclosure of public records by government agencies raise many parallel, and many different, concerns. Maryland’s analog to the federal Freedom of Information Act (“FOIA”) is known as the “Public Information Act,” “PIA,” or “MPIA,” and it is codified as Md. […]
September 11, 2023
Published by Michael Berman at September 11, 2023
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This weekend, Alicia L. Shelton, Esq., and I taught the first of a three-module electronic discovery class at the Community College of Baltimore County. While I have been teaching electronic discovery classes at the University of Baltimore School of Law for a decade, this is the first program focused on paralegal training. […]
September 8, 2023
Published by Michael Berman at September 8, 2023
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In CSX Transportation, Inc. v. Spiniello Global, Inc., 2023 WL 5515979 (D. Md. Aug. 25, 2023)(Bredar, C.J.), the Court denied spoliation motions, in part because they were filed too late. The plaintiff owned and operated the coal shipment facility. Defendants included the City of Baltimore and “Spiniello,” a contractor. The dispute centered […]
September 7, 2023
Published by Michael Berman at September 7, 2023
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Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023). The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery […]
August 14, 2023
Published by Michael Berman at August 14, 2023
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On May 11, 2023,the federal Advisory Committee on Civil Rules (the “Advisory Committee”) sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”). The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and […]
August 8, 2023
Published by Michael Berman at August 8, 2023
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I have written several blogs on emojis, such as Emoji Forms a Contract and What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other? In both blogs, I pointed to Prof. Eric Goldman’s writings as an excellent resource and he has done it again in A […]
August 4, 2023
Published by Michael Berman at August 4, 2023
Thomas Spahn of McGuireWoods LLP has written an interesting post on the interplay between the attorney-client privilege and a Fed.R.Civ.P. 30(b)(6) deposition of a corporate designee. The Strange Fiction of Rule 30(b)(6) | McGuireWoods LLP – JDSupra (Aug, 3, 2023). The blog highlights Damarr-Faruq v. City of Pleasantville P.D., 2023 U.S. Dist. LEXIS […]
July 31, 2023
Published by Michael Berman at July 31, 2023
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I always advocate for civility and cooperation in e-discovery.[1] But, it may be prudent to expressly threaten a lawsuit in a preservation notice. It may also be cautious to avoid offering to settle a claim in that notice. If you want to make an offer to settle, a separate demand or settlement […]
July 16, 2023
Published by Michael Berman at July 16, 2023
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In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro se spoliation claim. The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when the man allegedly assaulted her in a restaurant. The claims against the restaurant were that […]
July 15, 2023
Published by Michael Berman at July 15, 2023
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Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023). This high-profile case may present interesting ESI and spoliation issues and it is worth watching. Ms. Tillman reports that plaintiffs are seeking a default judgment. Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half […]
July 12, 2023
Published by Michael Berman at July 12, 2023
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In State v. McDonnell, __ Md. __, 2023 WL 4393297, at *1 (July 7, 2023), the Supreme Court of Maryland held that a person who had consented to seizure of his laptop, as well as to creation of a mirror image, could withdraw consent to search it before the government examined the […]
July 8, 2023
Published by Michael Berman at July 8, 2023
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Lots has been written about emojis. See, e.g., What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other? Prof. Eric Goldman, cited in that blog, is one of the leading authorities. In Farmer owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says […]
July 5, 2023
Published by Michael Berman at July 5, 2023
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The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022). In that blog, I suggested that negotiation is the best solution. […]
July 4, 2023
Published by Michael Berman at July 4, 2023
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In Jennings v. Frostburg State University, 2023 WL 4205665 (D. Md. June 27, 2033), defendants wiped two cell phones of departing employees after the duty to preserve was triggered. The Court’s duty to preserve analysis – holding that an administrative rebuttal letter triggered the duty to preserve – is important to all […]
June 8, 2023
Published by Michael Berman at June 8, 2023
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UPDATE (Aug. 3, 2023): See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship […]
June 6, 2023
Published by Michael Berman at June 6, 2023
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The federal Committee on Rules of Practice and Procedure (the “Standing Committee”) has posted pending amendments to the federal appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules. The Standing Committee explained that: “An amendment to a federal rule generally takes about three years.” Rules are promulgated under the Rules […]
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 23, 2023
Published by Michael Berman at May 23, 2023
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In Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.)(“Fowler I”), the Magistrate Judge wrote that preservation of a cell phone “in place” may be acceptable in some instances, but made clear that it is risky. Plaintiff had not backed up his cell phone. He left it […]
May 18, 2023
Published by Michael Berman at May 18, 2023
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Phil Favro and The Sedona Conference have released “Selected eDiscovery and ESI Case Law from 2022-23” (2023). This is a sequel to Phil’s 2021-22 publication. I wrote that the prior book was “an excellent resource in an always-changing field.”[1] As in the prior work, Phil’s new publication runs the gamut of topics […]
May 13, 2023
Published by Michael Berman at May 13, 2023
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This is a thank you to Kevin Spargo, Vice President of Computer Services Limited, and Navid Raoofian, President, Web interactive Technologies. My wife and I sponsored a Ukrainian family whose home and business were bombed and destroyed in Bakhmut. They arrived here about a week ago under a U.S. government program. I […]
May 13, 2023
Published by Michael Berman at May 13, 2023
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My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
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 28, 2023
Published by Michael Berman at April 28, 2023
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When it comes to electronically stored information, Tom O’Connor is a national treasure. He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant. He has generously shared his […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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In Doe v. Willis, 2023 WL 2918507 (M.D. Fl. Apr. 12, 2023), the plaintiff’s lawyer imposed an oral legal hold, telling her that she should not delete texts, throw away evidence, or post anything on Facebook, and: “That’s about it.” The instructions were not memorialized in a writing. Subsequently, the plaintiff dropped […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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Authentication is a central issue when it comes to use of ESI in motions or at trial.[1] In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion. Here, defense counsel dotted all of the […]
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 20, 2023
Published by Michael Berman at April 20, 2023
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Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information. “Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense […]
April 19, 2023
Published by Michael Berman at April 19, 2023
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NBC’s Today show ran an interesting piece on The risks behind sharing your email address with stores (today.com)(Apr. 19, 2023).
April 17, 2023
Published by Michael Berman at April 17, 2023
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Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
April 16, 2023
Published by Michael Berman at April 16, 2023
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A recent article, Josephine M. Bahn, Individual Lawyers—Not Firms—Must Pay Discovery Sanctions (americanbar.org)(Jan. 20, 2023), describes a Sixth Circuit decision, NPF Franchising, LLC v. SY Dawgs LLC, No. 21-3516 (June 15, 2022), holding that individual attorneys – not their law firms – were jointly and severally liable for discovery sanctions. The opinion states […]
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 10, 2023
Published by Michael Berman at April 10, 2023
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Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.), is an important and thoughtful decision demonstrating the peril of preservation in place. In Fowler, the plaintiff left his cell phone in an unlocked car. It was stolen after the duty to preserve had been triggered. It contained […]
April 9, 2023
Published by Michael Berman at April 9, 2023
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A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction. This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction. The history of, and […]
April 8, 2023
Published by Michael Berman at April 8, 2023
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In CSAA Affinity Insurance Company v. The Scott Fetzer Company, 2023 WL 2714026 (D. Md. Mar. 30, 2023), a subrogated insurer sued the manufacturer of a sump pump, alleging that the pump was defective and started a house fire. The defendant-manufacturer asserted spoliation, and it moved for sanctions. However, defendant’s motion for […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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The U.S. District Court for Maryland “has entered Standing Order 2023-01 regarding the pilot project to directly assign certain civil cases to the Magistrate Judges of this Court for all proceedings and the entry of a final judgment, subject to the consent of all parties.” One purpose of the Order is to […]
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 […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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Nicassio v. XYZ Law Firm, 2023 WL 2661156 (Apls. Ct. Md. Mar. 28, 2023)(unreported), demonstrates the wisdom of candor when it comes to potential spoliation.[1] It also reinforces the well-established need to periodically remind custodians of their duty to preserve potentially responsive information. Litigation often drags on long after issuance of an […]
April 5, 2023
Published by Michael Berman at April 5, 2023
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The Maryland State Bar Journal published my article on the Supreme Court’s recent dismissal of an attorney-client privilege case. The first page is reprinted below.
April 4, 2023
Published by Michael Berman at April 4, 2023
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Debra C. Weiss, reported that Reed Smith lawyers must hold ‘Please See Me’ signs at courthouse after failing to provide hearing notice (abajournal.com)(Apr. 4, 2023.) The article states that: A Delaware judge has ordered Reed Smith to station two lawyers at the courthouse Tuesday with “Please See Me” signs, after the law firm […]
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 18, 2023
Published by Michael Berman at March 18, 2023
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Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
March 18, 2023
Published by Michael Berman at March 18, 2023
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Hur v. Lloyd & Williams, LLC, 523 P.3d 861 (Wash. App. Div. 3 2023), presents another in a long list of redaction errors.[1] Two significant errors occurred in the contract dispute action. Defense counsel “inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel […]
March 17, 2023
Published by Michael Berman at March 17, 2023
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“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023)(emphasis added). In this case, the court’s filing deadline was at midnight on April 22nd. The attorney logged on to the […]
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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This blog discusses how the Court interpreted the ESI protocol in McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023)(Bredar, J.), McCormick was a consolidated breach of contract action involving multi-million dollar claims. The Court wrote: The ESI Protocol provides, under a subsection titled “No Presumption of […]
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 […]
March 7, 2023
Published by Michael Berman at March 7, 2023
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The decision in Attorney Grievance Comm’n. of Md. v. Sloane, __ Md. __ (Mar. 2, 2023), covers many issues. The respondent attorney was suspended from the practice of law in Maryland with the right to apply for reinstatement after six months. Much of the sanction was due to discovery misconduct in a […]
March 7, 2023
Published by Michael Berman at March 7, 2023
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This post is not political. It is about redactions and confidentiality. Erik Wemple wrote Opinion | What is Fox News hiding in the Dominion lawsuit? – The Washington Post (Mar. 6, 2023). He describes documents produced in discovery with heavy redactions and asks what is being hidden. The redactions that he reproduced […]
March 3, 2023
Published by Michael Berman at March 3, 2023
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In 360 Security Partners, LLC v. Hammond, 2023 WL 1869633 (N.D. Tex. Feb. 9, 2023), a defendant tried to justify wiping a company laptop by asserting privacy concerns. The court did not accept that excuse. Instead, it sanctioned the defendant. Defendant Hammond was the former CEO of the plaintiff. Plaintiff terminated Hammond […]
February 22, 2023
Published by Michael Berman at February 22, 2023
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In Nolan v. Secretary of Dept. of Public Safety and Correctional Services, No. 1181 (Appellate Court of Md. Feb. 8, 2023)(unreported),[1] Nolan appealed from denial of a “Motion for Injunction” to preserve certain video evidence. The circuit court denied the motion because it had dismissed the case three months earlier. The Appellate […]
February 10, 2023
Published by Michael Berman at February 10, 2023
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The Sedona Conference has issued its public comment version of the TAR Case Law Primer, Second Edition. It is available on Sedona’s website. See also Jason R. Baron, Ralph C. Losey, and Michael D. Berman, eds., “Perspectives on Predicting Coding and Other Advanced Search Methods for the Legal Practitioner” (ABA 2016).
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 […]
January 22, 2023
Published by Michael Berman at January 22, 2023
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In Park v. Axelson, Williamowsky, Bender & Fishman, P.C., No. 1486 (Dec. 29, 2022)(unreported), the Appellate Court of Maryland held that a pro se litigant’s failure to timely respond to requests for admission on critical facts was an admission by operation of law. Park involved a torturous procedural history that will not […]
January 13, 2023
Published by Michael Berman at January 13, 2023
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It is an honor to again receive an AV Preeminent rating from Martindale-Hubbell.
January 4, 2023
Published by Michael Berman at January 4, 2023
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Josh Gilliland’s blog, Search Term Agreements Do Not Eliminate Relevancy Review – Bow Tie Law (Jan. 2, 2023), addresses: What happens when one party argues a producing party should produce all search term hits? The answer is no. Moreover, wishing to get all hits is a formula for madness. Josh writes that, […]
December 28, 2022
Published by Michael Berman at December 28, 2022
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Josh Gilliland’s excellent blog To Use Search Terms Before or After Predictive Coding – Bow Tie Law (Dec. 28, 2022), addresses “a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. […]
December 26, 2022
Published by Michael Berman at December 26, 2022
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In Little v. Pohanka, 2022 WL 17412861 (Appellate Ct. of Md. Dec. 5, 2022), Mr. Little sued Mr. Pohanka for negligent driving. The jury found that Mr. Pohanka was negligent; however, in Maryland, contributory negligence is a complete defense, and the jury determined that Mr. Little was contributorily negligent. As a result, […]
December 23, 2022
Published by Michael Berman at December 23, 2022
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Fed.R.Civ.P. 26(g) has been called the “stop and think” rule. The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….” The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting […]
December 22, 2022
Published by Michael Berman at December 22, 2022
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The voters of Maryland passed a Constitutional Amendment changing the name of the Court of Appeals of Maryland to the “Supreme Court of Maryland.” It also changed the name of the Court of Special Appeals to the “Appellate Court of Maryland.” The Standing Committee on Rules of Practice and Procedure issued a […]
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 16, 2022
Published by Michael Berman at December 16, 2022
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“Zoomers” have their own style of communication. Danielle April, Gen Z’s slang and emojis are confusing older colleagues at work – The Washington Post (Dec. 12-13, 2022). Generation Z, those born between 1997 and 2012, have a “form of messaging” that creates “a quirky challenge for multigenerational workplaces….” Id. For example, Ms. […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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The Daily Record reported that an Orphans’ Cout judge “quit last week amid disciplinary allegations that he misused ‘the prestige of judicial office’ on his Facebook page by posting a profile photo of himself in his judicial robe and engaging in partisan political discussion, giving legal advice and advertising his private business […]
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 […]
December 14, 2022
Published by Michael Berman at December 14, 2022
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I am pleased to report my selection by Thomsen Reuters for the fifth consecutive year as a Maryland Super Lawyer.
November 22, 2022
Published by Michael Berman at November 22, 2022
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Debra C. Weiss reports More than $2M in sanctions sought against Gibson Dunn and Facebook (abajournal.com)(Nov. 22, 2022): Plaintiffs are seeking more than $2 million in sanctions against Facebook and its lawyers at Gibson, Dunn & Crutcher after a federal judge said they engaged in “dilatory discovery conduct.” Id. In a September […]
November 21, 2022
Published by Michael Berman at November 21, 2022
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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 20, 2022
Published by Michael Berman at November 20, 2022
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A recent article in the American Bar Association’s Litigation magazine suggested that: Plaintiffs must ensure preservation of everything from the moment the problem is identified…. Even if the plaintiff hasn’t filed a lawsuit yet, consider a written instruction to the soon-to-be defendant to preserve everything…. The best way for the plaintiff to […]
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 […]
November 9, 2022
Published by Michael Berman at November 9, 2022
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A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email. That is a communication by receiving counsel to sending counsel’s represented client. ABA Formal Opinion 503 states that, when sending counsel […]
November 8, 2022
Published by Michael Berman at November 8, 2022
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UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
October 28, 2022
Published by Michael Berman at October 28, 2022
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In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff served a subpoena […]
October 17, 2022
Published by Michael Berman at October 17, 2022
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The original spoliation case was Armory v. Delamirie, 93 Eng. Rep. 664 (K.B.1722). American courts began addressing spoliation in 1794. M. Berman, et al., Managing Electronically Stored Information and ESI (ABA 2011), at 751 n. 12 (citing Bd. of Justices v. Fennimore, 1 N.J.L., 1794 WL 507 (N.J. 1794). Maryland applied the doctrine in […]
October 16, 2022
Published by Michael Berman at October 16, 2022
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The first fax machine was patented in 1843, several years after the telegraph. Mary Bellis, Alexander Bain and the First Fax (thoughtco.com). Ms. Bellis wrote: Faxing is by definition a method of encoding data, transmitting it over a telephone line or radio broadcast, and receiving a hard copy of the text, line drawings, […]
October 15, 2022
Published by Michael Berman at October 15, 2022
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The mimeograph was replaced by the photocopier: [I]n 1959, Xerox released the “914”—the first easy-to-use photocopier. The culmination of more than 20 years of experimentation, it was a much cleaner, “dry” process. The copier created an electrostatic image of a document on a rotating metal drum, and used it to transfer toner—ink […]
October 14, 2022
Published by Michael Berman at October 14, 2022
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“Thomas Jefferson used a pantograph: As he wrote, a wooden device connected to his pen manipulated another pen in precisely the same movements, creating a mechanical copy.” Clive Thompson, How the Photocopier Changed the Way We Worked—and Played | History| Smithsonian Magazine. The early 20th century saw the a new device[1] and, “[i]n the […]
October 13, 2022
Published by Michael Berman at October 13, 2022
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“In 1946, when the ENIAC computer was dedicated, it weighed over thirty tons.[1] “ENIAC” is the acronym for the Electronic Numeral Integrator and Computer.[2] In the early 1950s, the RAND Corporation built JOHNNIAC, a 2.5- ton computer.[3] In 1966, a team of engineering students re created ENIAC on a single chip.[4] Today, […]
October 12, 2022
Published by Michael Berman at October 12, 2022
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1952 saw the introduction of the “Magic Marker.” The History of Pencils, Markers, Pens, and Erasers (thoughtco.com) Highlighters were introduced in the 1970’s. Id. The fiber tip pen was invented in 1962. And, the “Hi-Liter®” was trademarked in the 1990’s. Id. Gel pens were introduced in 1984. “The gel ink uses pigments […]
October 11, 2022
Published by Michael Berman at October 11, 2022
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The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement. Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022). The paper reports that the trial judge had […]
October 11, 2022
Published by Michael Berman at October 11, 2022
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The typewriter was invented after the Civil War. George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?, 13 Rich. J. L. & Tech. 10 n. 12. “[T]he typewriter is responsible for much of the remarkable progress of the world during the last four decades. . . . […]
October 10, 2022
Published by Michael Berman at October 10, 2022
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Lewis Waterman’s fountain pen, The Fountain Pen, Part II, was not without its shortcomings. Ink smudged. Innovation followed. Laszlo Biro noticed that newspaper ink dried quickly and did not smudge. However, it was too thick for a fountain pen. He patented the ballpoint pen in 1938. “The British government bought the licensing rights to […]
October 9, 2022
Published by Michael Berman at October 9, 2022
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The oldest known fountain pen was designed in 1702. Mary Bellis, Who Invented the Fountain Pen? (thoughtco.com). The fountain pen was patented by a Baltimore shoemaker in the early 1800’s. Id. In 1883, Lewis Waterman went to sign a contract; however, his fountain pen did not work and leaked all over the […]
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 8, 2022
Published by Michael Berman at September 8, 2022
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An article by Jef Feeley, Judge Slams Musk for Mishandling Records in Twitter Fight (1) (bloomberglaw.com) (Sept. 7, 2022), states that Delaware Chancery Judge Kathaleen St. Jude McCormick found “glaring deficiencies” in Elon Musk’s production of text messages in discovery. The article states: “Third parties produced text messages with Musk that Musk himself did […]
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 […]
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 […]
August 29, 2022
Published by Michael Berman at August 29, 2022
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“Legal project management” is receiving increased attention in litigation. See, e.g., Sarah Horstmann and Jill Sonnesyn, A Quick Guide to Legal Project Management in Litigation (americanbar.org) (ABA Aug. 23, 2022)(“Law firms are increasingly relying on Legal Project Management (LPM) to manage litigation matters. LPM takes general project management methodologies and applies them […]
August 28, 2022
Published by Michael Berman at August 28, 2022
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Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors. The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor […]
August 15, 2022
Published by Michael Berman at August 15, 2022
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Several Fourth Circuit, District of Maryland, and Maryland intermediate appellate decisions stand for the proposition that, where a potential litigant is unable to comply with the duty to preserve potentially responsive information, the potential litigant has a duty to notify the anticipated opponent before the information goes missing. For example: I have […]
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 13, 2022
Published by Michael Berman at August 13, 2022
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In re Rainey v. State, __ Md. __, 2022 WL 3269789, at *1 (Md. Aug. 11, 2022), the Court affirmed a jury instruction on destruction or concealment of evidence “based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.” The victim was shot […]
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 10, 2022
Published by Michael Berman at August 10, 2022
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In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *1 (D. Md. Oct. 15, 2021), the Court held that defendant had properly authenticated a disputed signature on an arbitration agreement. The signature was authenticated by testimony of a human resources officer as to defendant’s routine business practices. Mr. Mason was employed […]
August 9, 2022
Published by Michael Berman at August 9, 2022
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An interesting post by Phillip Favro, The Hon. Helen Adams, and Leslie Behaunek, Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History – Innovative Driven (id-edd.com) (June 1, 2022), describes tools provided by Instagram and Facebook that users may employ to delete material posted to […]
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 6, 2022
Published by Michael Berman at August 6, 2022
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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
Published by Michael Berman at August 6, 2022
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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
Published by Michael Berman at August 5, 2022
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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
Published by Michael Berman at August 4, 2022
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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
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 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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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
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 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
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 14, 2022
Published by Michael Berman at July 14, 2022
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“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
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 […]
July 12, 2022
Published by Michael Berman at July 12, 2022
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“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
Published by Michael Berman at July 11, 2022
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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
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 23, 2022
Published by Michael Berman at June 23, 2022
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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
Published by Michael Berman at June 22, 2022
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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
Published by Michael Berman at June 21, 2022
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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
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 13, 2022
Published by Michael Berman at June 13, 2022
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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
Published by Michael Berman at June 13, 2022
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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
Published by Michael Berman at June 4, 2022
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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
Published by Michael Berman at June 3, 2022
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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
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 […]
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 31, 2022
Published by Michael Berman at May 31, 2022
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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
Published by Michael Berman at May 30, 2022
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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
Published by Michael Berman at May 29, 2022
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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
Published by Michael Berman at May 28, 2022
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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
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” […]
May 26, 2022
Published by Michael Berman at May 26, 2022
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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
Published by Michael Berman at May 25, 2022
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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
Published by Michael Berman at May 24, 2022
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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
Published by Michael Berman at May 20, 2022
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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
Published by Michael Berman at May 18, 2022
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“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
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 […]
May 11, 2022
Published by Michael Berman at May 11, 2022
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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
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 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 28, 2022
Published by Michael Berman at April 28, 2022
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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 28, 2022
Published by Michael Berman at April 28, 2022
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Metadata has been embraced, loved, cursed, and vilified. It has been written about in inconsistent ethics opinions about “mining.” Failure to preserve or produce it has led to the imposition of sanctions in litigation. It has been “scrubbed,”[1] sliced, diced, defined, and classified as application or system metadata and system-generated or user-created.[2] […]
April 27, 2022
Published by Michael Berman at April 27, 2022
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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
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 20, 2022
Published by Michael Berman at April 20, 2022
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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
Published by Michael Berman at April 20, 2022
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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
Published by Michael Berman at April 15, 2022
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“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
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 […]
April 2, 2022
Published by Michael Berman at April 2, 2022
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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
Published by Michael Berman at April 1, 2022
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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
Published by Michael Berman at March 31, 2022
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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
Published by Michael Berman at March 29, 2022
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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
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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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
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 23, 2022
Published by Michael Berman at March 23, 2022
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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
Published by Michael Berman at March 17, 2022
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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
Published by Michael Berman at March 12, 2022
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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
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 […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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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
Published by Michael Berman at March 8, 2022
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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
Published by Michael Berman at March 7, 2022
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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
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 […]
February 23, 2022
Published by Michael Berman at February 23, 2022
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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
Published by Michael Berman at February 17, 2022
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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 13, 2022
Published by Michael Berman at February 13, 2022
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In Arconic Corp., et al, v. Novelis Inc., et al., 2022 WL 409488 (W.D. Pa. Feb. 10, 2022), the Court denied a recusal motion that was based on metadata contained in the Court’s order. Specifically, Arconic moved to recuse the Judge based on “author” and “date created” metadata. Arconic asserted that the metadata showed […]
February 6, 2022
Published by Michael Berman at February 6, 2022
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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
Published by Michael Berman at February 5, 2022
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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
Published by Michael Berman at February 4, 2022
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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
Published by Michael Berman at February 4, 2022
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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
Published by Michael Berman at January 16, 2022
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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
Published by Michael Berman at January 16, 2022
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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
Published by Michael Berman at December 18, 2021
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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
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 […]
December 2, 2021
Published by Michael Berman at December 2, 2021
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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
Published by Michael Berman at November 30, 2021
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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
Published by Michael Berman at November 29, 2021
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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
Published by Michael Berman at November 28, 2021
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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
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 27, 2021
Published by Michael Berman at November 27, 2021
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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
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). […]
November 13, 2021
Published by Michael Berman at November 13, 2021
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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
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. […]
September 4, 2021
Published by Michael Berman at September 4, 2021
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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
Published by Michael Berman at August 30, 2021
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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
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 19, 2021
Published by Michael Berman at August 19, 2021
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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
Published by Michael Berman at August 18, 2021
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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
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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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
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 […]
August 3, 2021
Published by Michael Berman at August 3, 2021
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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
Published by Michael Berman at July 28, 2021
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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
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 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 […]
July 23, 2021
Published by Michael Berman at July 23, 2021
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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
Published by Michael Berman at July 22, 2021
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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
Published by Michael Berman at July 21, 2021
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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
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. […]
July 18, 2021
Published by Michael Berman at July 18, 2021
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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
Published by Michael Berman at May 14, 2021
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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
Published by Michael Berman at May 13, 2021
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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
Published by Michael Berman at March 26, 2021
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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
Published by Michael Berman at March 25, 2021
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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
Published by Michael Berman at March 24, 2021
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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
Published by Michael Berman at March 16, 2021
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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
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 14, 2021
Published by Michael Berman at March 14, 2021
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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
Published by Michael Berman at March 12, 2021
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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
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 18, 2021
Published by Michael Berman at February 18, 2021
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“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
Published by Michael Berman at February 17, 2021
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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
Published by Michael Berman at February 16, 2021
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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
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 14, 2021
Published by Michael Berman at February 14, 2021
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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
Published by Michael Berman at February 13, 2021
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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
Published by Michael Berman at February 13, 2021
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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
Published by Michael Berman at February 12, 2021
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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
Published by Michael Berman at February 11, 2021
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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
Published by Michael Berman at February 7, 2021
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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
Published by Michael Berman at February 7, 2021
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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
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 29, 2021
Published by Michael Berman at January 29, 2021
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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
Published by Michael Berman at January 24, 2021
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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
Published by Michael Berman at January 17, 2021
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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
Published by Michael Berman at January 16, 2021
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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
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 11, 2021
Published by Michael Berman at January 11, 2021
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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
Published by Michael Berman at January 9, 2021
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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
Published by Michael Berman at January 8, 2021
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“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
Published by Michael Berman at January 4, 2021
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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
Published by Michael Berman at January 3, 2021
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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
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 28, 2020
Published by Michael Berman at December 28, 2020
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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
Published by Michael Berman at December 27, 2020
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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
Published by Michael Berman at December 27, 2020
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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
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 26, 2020
Published by Michael Berman at December 26, 2020
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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
Published by Michael Berman at December 25, 2020
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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
Published by Michael Berman at December 20, 2020
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“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
Published by Michael Berman at December 19, 2020
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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
Published by Michael Berman at December 11, 2020
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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
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 […]
November 28, 2020
Published by Michael Berman at November 28, 2020
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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
Published by Michael Berman at November 27, 2020
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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
Published by Michael Berman at June 8, 2020
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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
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 […]
September 17, 2017
Published by Michael Berman at September 17, 2017
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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
Published by Michael Berman at September 16, 2017
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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
Published by Michael Berman at July 25, 2015
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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
Published by Michael Berman at August 20, 2012
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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
Published by Michael Berman at August 19, 2012
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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
Published by Michael Berman at August 18, 2012
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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
Published by Michael Berman at August 18, 2012
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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
Published by Michael Berman at August 14, 2012
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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
Published by Michael Berman at July 14, 2012
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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
Published by Michael Berman at August 7, 2011
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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
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. […]
July 15, 2011
Published by Michael Berman at July 15, 2011
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“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
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 […]
May 26, 2011
Published by Michael Berman at May 26, 2011
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“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
Published by Michael Berman at May 24, 2011
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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
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. […]
May 2, 2011
Published by Michael Berman at May 2, 2011
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
Published by Michael Berman at April 25, 2011
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
Published by Michael Berman at April 18, 2011
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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
Published by Michael Berman at April 17, 2011
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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
Published by Michael Berman at April 10, 2011
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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
Published by Michael Berman at April 1, 2011
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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
Published by Michael Berman at October 5, 2010
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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
Published by Michael Berman at September 11, 2010
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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
Published by Michael Berman at July 20, 2010
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
Published by Michael Berman at July 20, 2010
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
Published by Michael Berman at July 20, 2010
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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
Published by Michael Berman at June 3, 2010
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
Published by Michael Berman at May 26, 2010
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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
Published by Michael Berman at May 25, 2010
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
Published by Michael Berman at April 16, 2010
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 […]