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October 1, 2021
Published by Michael Berman at October 1, 2021
Categories
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 […]