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July 23, 2026
Published by Michael Berman at July 23, 2026
Categories
Mr. Gruendel took a collection of documents from his former employer, defendant Figure AI, Inc. The court ordered them returned and, “Mr. Gruendel and his counsel must destroy and must not retain any of the Figure documents, and must cause the vendor to destroy the vendor’s copy of the Figure documents….” Figure […]
June 7, 2026
Published by Michael Berman at June 7, 2026
Categories
The explanation of a litigant’s duties in responding to written discovery, as laid out in Williamson v. First Horizon Bank, 2026 WL 1492594 (E.D. La. May 28, 2026), does not break new ground. However, it is clear and succinct. A refresher never hurts.[1] It is important to “do it right.” Age-old Habit […]
June 4, 2026
Published by Michael Berman at June 4, 2026
The Northern District of California has a “Model Stipulated Protective Order (for standard litigation)” and a “Stipulated Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and Trade Secrets (Feb. 2022).” I suggest that the latter was applied too stringently in Litton v. Roblox Corporation, 2026 WL 1483493 (May 27, 2026). […]
June 3, 2026
Published by Michael Berman at June 3, 2026
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“This is not a Professional Ethics issue spotter. These are the facts of Quinn Emanuel’s conduct in the instant litigation, as investigated by the appointed Special Master. The Special Master reviewed internal firm communications and took testimony from the involved attorneys under oath. His thorough investigation revealed not the misstatement or inadvertence […]
May 17, 2026
Published by Michael Berman at May 17, 2026
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A recent decision addresses assertion of a Fifth Amendment privilege to refuse to answer questions in a deposition in a civil case. A pro se plaintiff sued a management company asserting discrimination and retaliation. After discovery rulings by a U.S. Magistrate Judge, plaintiff objected and asserted error. Not only did the court […]
May 11, 2026
Published by Michael Berman at May 11, 2026
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In Pfeffer v. Bank of America Corp., 2026 WL 1235426, at n. 2 (W.D. N. Car. May 5, 2026), the court wrote: A party uses privilege as a shield when it refuses to disclose attorney-client communications and uses privilege as a sword when it affirmatively relies on those same communications to support […]
April 3, 2026
Published by Michael Berman at April 3, 2026
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In Kafeel v. Apple, Inc., 2026 WL 892016 (N.D. Cal. Apr. 1, 2026), the court denied a request for a preservation order. The decision, properly, in my opinion, does not apply the preliminary injunction standard to a motion for a preservation order. Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent […]
March 4, 2026
Published by Michael Berman at March 4, 2026
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On September 7, 2020, trees fell on a transmission line operated by Bonneville Power Administration (“BPA”). A fire resulted. It joined another fire and caused widespread destruction. A lawsuit also resulted, with a spoliation motion. Sanctions were granted for spoliation of physical evidence and ESI. The applicable legal standard differed based on […]
February 27, 2026
Published by Michael Berman at February 27, 2026
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What happens when improper boilerplate objections meet improper discovery requests? Generally, boilerplate objections are deemed to constitute a waiver of objections. However, a court held that it would be inequitable to find waiver “ because so many of Plaintiffs’ requests are sufficiently premature, overly broad, unduly burdensome, and/or disproportionate given Arch’s third-party […]
January 30, 2026
Published by Michael Berman at January 30, 2026
The Sedona Conference’s Cooperation Proclamation has long and properly suggested that cooperation and transparency are important methodologies. Sedona carefully explains the reasons. However, there are also other practical considerations that support cooperation, negotiation, and mediation of disputes. Specifically, courts have stated that a litigant may be “right,” but “find itself on the […]
January 25, 2026
Published by Michael Berman at January 25, 2026
Categories
Plaintiff KISS sought discovery of certain otherwise-privileged communications made by defendant Ardell to Ms. Theresa Cooper, an executive vice president at Ardell. Initially, Ms. Cooper was designated as a fact witness. Later, she was designated as a “non-reporting expert” pursuant to Fed.R.Civ.P. 26(a)(2)(c). The court explained that “Ardell’s Expert Disclosures state that […]
January 24, 2026
Published by Michael Berman at January 24, 2026
In Yotta Technologies Inc. v. Evolve Bank & Trust, 2026 WL 172502 (N.D. Cal. Jan. 22, 2026), the court addressed hyperlinked documents, or “modern attachments.” I have called this the “Humpty Dumpty” issue. “The Humpty Dumpty issue – – the question of re-linking pointers and targets – – is very important….” More […]
January 8, 2026
Published by Michael Berman at January 8, 2026
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Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products. One advantage of using Special Masters like Phil is speed. Phil was appointed by the court on […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In USA Today, Anthony Robledo reports that Dr Phil bankruptcy case filing has accusations of deleting texts (USA Today Oct. 29, 31, 2025), citing Variety and The Hollywood Reporter It is reported that: 1) the Bankruptcy Judge found that text messages had been improperly deleted; and, 2) the finding has been, and is, disputed […]
December 21, 2025
Published by Michael Berman at December 21, 2025
I posted 237 blogs this year to date. Many are on EDRM or JD Supra. Some that may be worth reading are: An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues Artificial Intelligence in Maryland Courts “Just When […]
December 10, 2025
Published by Michael Berman at December 10, 2025
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Plaintiff filed a motion to compel Defendants to respond to requests for production. Defendants asserted that the motion was untimely. The court wrote that: “Defendants’ untimeliness argument is appropriate.” Harris v. Landmark Recovery of Carmel LLC, 2025 WL 3505446 (N.D. Ind. Nov. 12, 2025). The March 18, 2024, Scheduling Order set milestone […]
December 4, 2025
Published by Michael Berman at December 4, 2025
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A recent decision stated several important principles applying to insurance companies in coverage actions: “A substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured; therefore, such investigations are presumed to be part of the normal […]
November 23, 2025
Published by Michael Berman at November 23, 2025
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The plaintiff in Harrison v. Whole Foods Market, Inc., 2025 WL 3089961 (N.D. Cal. Nov. 5, 2025), was pro se. Plaintiff sued for alleged discrimination. Defendant propounded discovery. In part, Plaintiff raised a work product objection and withheld documents. The court wrote that: “Plaintiff is correct that work product protection is not […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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The movie Jaws famously contained the line “Just when you thought it was safe to go back in the water…” Law360 reports Attys Beware: Generative AI Can Also Hallucinate Metadata – Law360 in a November 4th article by Daniel Garrie, Jennifer Deutsch, and Morgan Ward Doran. The article states: When AI generates […]
November 19, 2025
Published by Michael Berman at November 19, 2025
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In Re Ex Parte Application of Xiaomi Technology Netherlands B.V., 2025 WL 3068736 (E.D. Tex. Nov. 3, 2025), was an action for “purported need for discovery to assist in a patent dispute in Germany. Xiaomi seeks discovery from Celerity IP, LLC (‘Celerity’), who serves as the exclusive licensing agent of the company […]
November 18, 2025
Published by Michael Berman at November 18, 2025
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Where a producing party argued, ten months after discovery was propounded, that a motion to compel was “unnecessary” because it had agreed to produce the information at some unspecified time, the court held that the offer was meaningless. Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, […]
November 13, 2025
Published by Michael Berman at November 13, 2025
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Defining the scope of discovery is fundamental. Certain language has changed three times. First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The intent was to make it clear […]
November 4, 2025
Published by Michael Berman at November 4, 2025
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A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit. Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, […]
November 3, 2025
Published by Michael Berman at November 3, 2025
“[T]he Court’s March 18, 2025 Fed. R. Civ. P. 26(c) protective order … is hereby modified to reflect that any documents marked confidential shall not be uploaded onto any AI platform.” Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025)(emphasis in original). Apparently, the concern was that, if confidential […]
October 21, 2025
Published by Michael Berman at October 21, 2025
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Where a company official used company email for privileged communications and sold the server holding those communications, he waived the attorney-client privilege. Jim Daws Trucking, LLC v. Daws, Inc., 2025 WL 27111278 (D. Neb. Sep. 23, 2025). The Jim Daws court denied defendants’ “Motion for Protective Order and Destruction of Privileged Documents […]
October 13, 2025
Published by Michael Berman at October 13, 2025
In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections. The court ordered mutual disclosure of search methodology and ruled that it was […]
September 29, 2025
Published by Michael Berman at September 29, 2025
In In Re Tecfidera Antitrust Litigation, 2025 WL 2734539 (N.D. Ill. Sep. 25, 2025), the court wrote: “The parties’ cross motions for entry of their version of the ESI protocol noted that the parties agreed on all issues except for one relating to email threading, which Defendant seeks to include but Plaintiffs […]
September 28, 2025
Published by Michael Berman at September 28, 2025
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Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 25, 2025), answered that question in the negative. Maryland’s “Public Information Act” (“MPIA”) is a State analog to the federal Freedom of Information Act (“FOIA”). Like FOIA, the MPIA provides a broad right to inspect public records, subject to enumerated exceptions. Singleton addressed […]
September 25, 2025
Published by Michael Berman at September 25, 2025
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Rossbach v. Montefiore became famous because a defense forensic expert proved that an emoji, which was allegedly displayed on plaintiff’s cell phone with a harassing text message, could not have been displayed on plaintiff’s iPhone 5. The expert opined that the operating system for that phone did not support the emoji allegedly […]
September 24, 2025
Published by Michael Berman at September 24, 2025
A recent decision demonstrates the importance of following the Rules and the duty to cooperate, after a “quick peek” proved that an opponent’s discovery responses were incomplete. The Court wrote: “Defendants’ responses to Plaintiffs’ interrogatories and requests for production of documents are vague and confusing. The Federal Rules of Civil Procedure and […]
September 11, 2025
Published by Michael Berman at September 11, 2025
In Golat v. Wisconsin State Court System, 2025 WL 2466697 (W.D. Wis. Aug. 27, 2025)(“Golat II”), the court wrote that omitting a relevant email that was contained in an email chain violated counsel’s duty of candor to the court. This blog is an update of Half-Baked Motion to Compel Was Not Prompt, […]
September 10, 2025
Published by Michael Berman at September 10, 2025
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Much of the litigation over geofencing has been under the Fourth Amendment in criminal cases, and there has been a lot of it. See, e.g., Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC (Aug. 5, 2025); Alvarez v. State, 2025 WL 2346165, at *4 (Tex. App. […]
September 7, 2025
Published by Michael Berman at September 7, 2025
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“The following factors, originally set forth in Taliaferro v. State, 295 Md. 376, 390–91 (1983), guide a trial court’s decision of whether to impose sanctions for a discovery violation: (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the […]
September 5, 2025
Published by Michael Berman at September 5, 2025
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Yesterday, I posted a blog titled “Discovery on Discovery” Permitted. “Discovery on Discovery” was denied in Lively v. Wayfarer Studios LLC, 2025 WL 2496307 (S.D.N.Y. Aug. 29, 2025). Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if […]
September 4, 2025
Published by Michael Berman at September 4, 2025
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“Discovery on Discovery,” sometimes called “satellite discovery,” “discovery about discovery,” or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025). Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Plaintiff sought a Rule 30(b)(6) deposition; however, Defendants refused. Plaintiff moved to […]
September 3, 2025
Published by Michael Berman at September 3, 2025
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In an important decision, the Ninth Circuit applied California law and held that “the People,” i.e., State Attorneys General, are generally not deemed to have possession, custody, or control of State agency documents, when they are prosecuting an enforcement action. In Re: People of the State of California v. U.S. District Court […]
August 29, 2025
Published by Michael Berman at August 29, 2025
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In Rutherford v. Central Bank of Kansas City, 2025 WL 2432218, at *6-7 (W.D. Wash. Aug. 21, 2025), one of several issues was whether a litigant must produce information that was already in possession of the opponent’s counsel from other litigation. The court held that duplicative production was unnecessary; however, it ordered […]
August 13, 2025
Published by Michael Berman at August 13, 2025
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In Schmitz v. Verdad Asset Management, Inc., 2025 WL 2306291 (D. Md. Aug. 11, 2025)(Xinis, J.), Count V of plaintiff’s complaint alleged spoliation of a website. It failed, and defendant’s motion to dismiss was granted. The parties entered into a joint venture to launch a hedge fund. After ballooning to $50 million […]
August 12, 2025
Published by Michael Berman at August 12, 2025
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The failure to submit a sufficient affidavit of representation doomed an assertion of the joint representation or common interest privilege in Fond Du Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 2251920 (D. Minn. Aug. 7, 2025). The Band of Chippewa (the “Band”) sued the Forest Service and others over […]
August 9, 2025
Published by Michael Berman at August 9, 2025
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Attorney-expert communications and documents were discoverable under the principle of subject matter waiver of work product and privileged information in Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025). FACTS An advocacy group and 94 individuals brought this environmental action against a […]
August 8, 2025
Published by Michael Berman at August 8, 2025
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A four-factor test to answer the question of “when can opposing counsel be deposed?” was set out in Safo v. Singh, 2025 WL 2123613 (S.D.N.Y. Jul. 29, 2025), citing In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d. Cir. 2003)(Sotomayer, J.). The four factors are: (1) the need to […]
August 7, 2025
Published by Michael Berman at August 7, 2025
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The federal court in Delaware has a “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings LLC, 2025 WL 2146099 (D. Del. Jul. 29, 2025). It applied that standard to a request to preserve information in Random Access Memory (“RAM”). Belvac sought preservation […]
August 5, 2025
Published by Michael Berman at August 5, 2025
While disfavored, relevant and proportional “discovery on discovery” is permitted “where there is evidence of a specific deficiency in the production.” Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 2187115 (M.D. Tenn. Jul. 25, 2025). Revance moved to compel Allergan “to more fully respond to discovery related to former Allergan and former […]
August 3, 2025
Published by Michael Berman at August 3, 2025
Plaintiff’s motion to compel production of defendants’ organizational chart was granted in a putative class action for alleged unpaid overtime. Castillo v. Albert Einstein College of Medicine, Inc., 2025 WL 1789827 (S.D.N.Y. Jun. 30, 2025). The court wrote that: Plaintiff moves to compel responses to its Requests for Production (“RFPs”) Nos. 11–12 […]
August 3, 2025
Published by Michael Berman at August 3, 2025
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Untimely privilege objections to a subpoena were waived. However, the dissolved entity no longer had any privilege. Utah Physicians for a Healthy Environment, Inc. v. Diesel Power Gear, LLC, 2025 WL 2144788 (D. Ut. Jul. 29, 2025). In this case, the plaintiff is attempting to collect on a judgment. Presumably, plaintiff is […]
August 1, 2025
Published by Michael Berman at August 1, 2025
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In a family law decision that may impact all time-delimited offers, the Maryland Supreme Court held that the offeror had conditioned acceptance by a date certain, and acceptance came too late. Pattison v. Pattison, __ Md. __, 2025 WL 2057986 (Jul. 23, 2025). The Court wrote: “The issue here is whether a […]
July 30, 2025
Published by Michael Berman at July 30, 2025
In Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”), after several rulings adverse to Genesh, the court appointed a Special Master to facilitate the plaintiff EEOC’s discovery from the defendant, Genesh, Inc. THE UNDERLYING CLAIMS “Genesh III” describes the nature of the case: “On […]
July 29, 2025
Published by Michael Berman at July 29, 2025
The long simmering “document correlation” dispute was addressed in Sievert Elec. Svc. and Sales Co. v. Storako, 2025 WL 2084229 (N.D. Ill. Jul. 24, 2025). The court followed the majority rule. While there is a clear split of authority, I respectfully disagree with Sievert and suggest that there is a better mousetrap. […]
July 26, 2025
Published by Michael Berman at July 26, 2025
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“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted). Here, the […]
July 25, 2025
Published by Michael Berman at July 25, 2025
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The order in Bouie v. Alzayadi, 2025 WL 2042261 (E.D. Mich. Jul. 21, 2025)(Stafford, J.), clearly sets out a series of rules governing discovery disputes. At a status conference, each party asserted that the other had not adequately responded to discovery requests. Judge Stafford wrote: “The Court’s efforts to resolve the disputes […]
July 18, 2025
Published by Michael Berman at July 18, 2025
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A protective order barring post-settlement use by plaintiffs’ counsel of defendant’s discovery responses in other litigation was vacated in Cordero v. Stemilt AG Services, LLC, __ F. 4th__, 2025 WL 1902292 (9th Cir. Jul. 10, 2025). Columbia Legal Services (“Columbia”) is part of a network of attorneys that provide legal services to […]
July 15, 2025
Published by Michael Berman at July 15, 2025
A motion for spoliation sanctions was held to be “premature,” and the motion was denied without prejudice, in Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347, at *15 (M.D.N.C. May 28, 2025), report and recommendation adopted, 2025 WL 1755911 (M.D.N.C. June 25, 2025). The Federal Rules of Civil Procedure (and […]
July 14, 2025
Published by Michael Berman at July 14, 2025
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”Applying the clear and convincing standard, Amazon’s withholding of almost 70,000 documents until the eve of, and after, the April 25, 2025 discovery cutoff—including the documents identified above—was tantamount to bad faith.” Federal Trade Comm’n. v. Amazon.Com, Inc., 2025 WL 1907413 (W.D. Wash. Jul. 10, 2025). The FTC filed a “Motion for […]
July 14, 2025
Published by Michael Berman at July 14, 2025
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Bloomberg Law reports that Meta Files for Appellate Relief to Bar Zuckerberg Deposition (Jul. 11, 2025). Mr. Ufonobong Umanah wrote that “Meta claims Ninth Circuit courts have split over apex doctrine.” He added: The presumption that CEOs get to avoid depositions—formalized under the apex doctrine—may be weakening. But some experts have defended […]
July 6, 2025
Published by Michael Berman at July 6, 2025
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A privilege log had substantive implications in Cáceres v. Sidley Austin LLP, 2025 WL 1826140 (N.D. Ga. Jul. 2, 2025). This is parallel to Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025)(unpublished), where a Privilege Log Helped Defeat Summary Judgment on One Count (Jun. 17, 2025). In […]
July 4, 2025
Published by Michael Berman at July 4, 2025
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In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2025 WL 1393216 (N.D. Cal. May 14, 2025), the court resolved discovery disputes over a corporate designee deposition under Fed.R.Civ.P. 30(b)(6). The court: Narrowed a request for “discovery on discovery”; Ordered that, with limitations, Uber’s deponent must bring an Uber laptop to […]
July 2, 2025
Published by Michael Berman at July 2, 2025
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The entire opinion in Metro Light and Power LLC v. Furnlite, 2025 WL 1805793 (S.D.N.Y. Jul. 1, 2025), states: Defendants oppose the non-party subpoenas on undue burden and relevance grounds. But a “party lacks standing to challenge subpoenas issued to non-parties on the grounds of relevancy or undue burden.” Universitas Educ., LLC […]
June 30, 2025
Published by Michael Berman at June 30, 2025
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In The Loan Source Inc. v. Newity LLC, 2025 WL 1755230 (D. Del. Jun. 25, 2025), plaintiffs’ request for production number 19 sought documents “sufficient to show Defendants’ efforts to settle a lawsuit….” Their motion to compel was granted over relevance and other objections. The court wrote: “Thus, Defendants must produce documents […]
June 18, 2025
Published by Michael Berman at June 18, 2025
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Fed.R.Civ.P. 26(g) is called the “stop and think” rule. In Grullon v. Lewis, 2025 WL 1693425 (S.D.N.Y. Jun. 17, 2025), the court found a violation of that rule. The court held that: To satisfy the requirements of Rule 26(g)(1) and comply with counsel’s ethical obligations as an officer of the Court, counsel […]
May 24, 2025
Published by Michael Berman at May 24, 2025
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Marris Hoffee and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374124 (C.D. Cal. May 12, 2025), presents an unremarkable holding arising from remarkable facts. Plaintiffs brought tort claims, including fraud, against Defendants and later filed a motion for discovery sanctions. Under the court’s local rules, such motions require a […]
May 20, 2025
Published by Michael Berman at May 20, 2025
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Mayor & City Council of Baltimore v. Lambert, __ Md. App. __, 2025 WL 1291491 (Appl. Ct. Md. May 5, 2025), addressed the important issue of “apex” depositions in the governmental context. Plaintiffs, a parent and a school-age minor, in a personal injury claim against a school system sought the depositions of […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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Sports Rehab Consulting LLC v. Vail Clinic, Inc., 2025 WL 1144559 (D. Col. Apr. 18, 2025), has a “tortuous procedural history….” The case turned on allegations of a monopoly over physical therapy services. Both sides objected to a report and recommendation of a special master. In the portion of the decision pertinent […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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In U.S. EEOC v. Aspire Regional Partners, Inc., 2025 WL 1115300 (S.D. Oh. Apr. 15, 2025), the court ordered discovery of litigation hold notices. In my opinion, and while I agree with the result, the legal issues governing the discovery of litigation hold notices and implementation need clarity and national uniformity. In […]
April 3, 2025
Published by Michael Berman at April 3, 2025
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In Hernandez v. Event Tickets Center, Inc., 2025 WL 958193 (E.D. Ca. Mar. 31, 2025), the court denied defendant’s request to stay discovery pending a ruling on defendant’s motion to dismiss the complaint. Hernandez is a putative class action concerning the secondary ticket marketplace. The stay was presented by plaintiff’s motion to […]
March 31, 2025
Published by Michael Berman at March 31, 2025
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That’s what the court wrote in Khal Anshei Tallymawr, Inc. v. Township of Toms River, 2025 WL 934761 (D.N.J. Mar. 27, 2025)(citation omitted). The opinion opens with the following: Over four years into litigation, Defendants have failed to produce complete discovery responses. If the Court were writing on a blank slate to […]
March 13, 2025
Published by Michael Berman at March 13, 2025
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In MJ Enterprise Holdings, Inc. v. Spiffy Franchising, LLC, 2025 WL 775515 (D. Md. Mar. 10, 2025)(Austin, J.), Defendants moved to stay all discovery deadlines pending a resolution of their motion to compel arbitration and for a stay pending arbitration. The motion to stay discovery was granted. Plaintiffs alleged fraud and misrepresentation […]
March 6, 2025
Published by Michael Berman at March 6, 2025
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues. […]
March 2, 2025
Published by Michael Berman at March 2, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025)(Bryan, J.), the District Judge overruled objections to several rulings of the Magistrate Judge. “Rolling discovery” was not permitted: In August 2024, the Magistrate Judge decided that continuous rolling discovery after April or September 2023 would be unduly burdensome […]
February 25, 2025
Published by Michael Berman at February 25, 2025
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A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts
In Canales v. OPW Fueling Components LLC, 2025 WL 553623, at *3 (E.D. N. Cal. Feb. 19, 2025), the court wrote: Throughout his responses, Canales objects to OPW’s requests on the ground that they are not reasonably calculated to lead to the discovery of admissible evidence. OPW correctly notes that while this […]
February 21, 2025
Published by Michael Berman at February 21, 2025
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information.[1] In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025 WL 428547 (W.D.N.Y. Feb. 7, 2025), the court held that litigation hold notices were privileged. There may […]
February 15, 2025
Published by Michael Berman at February 15, 2025
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Farace v. Cross, 2025 WL 484543 (Appl. Ct. Md. Feb. 13, 2025)(unreported), arose out of a tragedy – – the death of both parents of a two-year-old child in an auto accident. Both sets of grandparents then sought custody. In this unreported decision, the Court addressed a novel[1] Maryland issue where out-of-State […]
February 14, 2025
Published by Michael Berman at February 14, 2025
In Parkin v. Avis Rent a Car System LLC, 2025 WL 484588 (D.N.J. Feb. 13, 2025), defendants waived their right to arbitration by moving to dismiss for failure to state a claim, negotiating an ESI Protocol, and engaging in discovery for 17 months. Plaintiffs rented vehicles from defendants on several occasions. They […]
February 9, 2025
Published by Michael Berman at February 9, 2025
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In Epic Games, Inc. v. Apple, Inc., 2024 WL 4947269 (N.D. Cal. Dec. 2, 2024)(Hixon, J.), aff’d, 2024 WL 5318836 (N.D. Cal. Dec. 31, 2024)(Rogers, J.), the Hon. Thomas S. Hixson wrote: The parties have a dispute about attorney-client privilege. With respect to document production concerning compliance with the injunction, Apple has […]
February 1, 2025
Published by Michael Berman at February 1, 2025
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N. Kelly Hoang Law Firm sued Minh Quant Hoang for $568,000 for allegedly unpaid legal services over roughly five years. N. Kelly Hoang Law Firm v. Hoang, 2023 WL 3150110 (C.D. Cal. Apr. 14, 2023). I. THE DISCOVERY VIOLATION AND COURT ORDER Minh propounded discovery on Kelly. After Kelly failed to […]
January 29, 2025
Published by Michael Berman at January 29, 2025
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In CT Install America, LLC v. Boryszewski, 2025 WL 257127 (E.D. Pa. Jan. 21, 2025), the court wrote that: “Neither side distinguishes between waiver of untimely objections to interrogatories and waiver of untimely objections to RFPs, even though important differences exist in both the applicable rules of civil procedure and the case […]
January 23, 2025
Published by Michael Berman at January 23, 2025
Many thanks to Doug Austin for Responsive Nonprivileged Documents Attached to a Privileged Communication Must Be Produced (Jan. 23, 2025), discussing In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025). The decision is available on Kelly Twigger’s eDiscovery Assistant. Doug’s excellent blog points out […]
January 16, 2025
Published by Michael Berman at January 16, 2025
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In Digital Forensics Corporation, LLC v. King Machine, Inc., __ So.3d __, 2025 WL 63935 (Ala. Sup. Ct. Jan. 10, 2025), the issue was whether an electronic discovery services vendor, DFC, could compel its former client to arbitrate a breach of contract claim. The Supreme Court of Alabama held that arbitration was […]
January 9, 2025
Published by Michael Berman at January 9, 2025
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In Fond-du-Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 26046 (Jan. 3, 2025), the court addressed privilege among two jointly related companies. Plaintiff, the “Band,” sought judicial review of a land exchange between the U.S. Forest Service and a mining company, “PolyMet.” PolyMet sought review of the U.S. Magistrate Judge’s […]
January 8, 2025
Published by Michael Berman at January 8, 2025
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Red-D-Arc Inc. v AMP 2 LLC, 2025 WL 26648 (M.D. Fl. Jan. 3, 2025), was a breach of contract action. Plaintiff contended that, in response to plaintiff’s interrogatories, “Defendants improperly refer to hundreds of pages of documents, which is non-responsive, evasive, and in violation of Federal Rule of Civil Procedure 33(d).” The […]
December 18, 2024
Published by Michael Berman at December 18, 2024
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In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus […]
December 17, 2024
Published by Michael Berman at December 17, 2024
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In Jackson v. Tesla, Inc., 2024 WL 5011620 (N.D. Ca. Dec. 6, 2024), the court held that the work of a non-testifying consultant that was provided to a testifying expert was discoverable. The non-testifying consultant reviewed unintended acceleration complaints in a federal (NHTSA) database. The consultant used criteria supplied by plaintiffs’ testifying […]
December 8, 2024
Published by Michael Berman at December 8, 2024
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In Boblitt v. BP Exploration & Production, Inc., 2024 WL 4956749 (M.D. Fl. Dec. 3, 2024), the court denied an unopposed motion to seal court records. In doing so, it followed a well-worn path. Plaintiff Boblitt moved for leave to file specific exhibits under seal. The exhibits supported his opposition to a […]
November 27, 2024
Published by Michael Berman at November 27, 2024
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In OL Private Counsel, LLC v. Olson, 2024 WL 4839277 (D. Utah Nov. 20, 2024), the court addressed recovery of expenses by non-parties for responding to a subpoena. Fed.R.Civ.P. 45 (“Subpoena”) states: (b)(1) – Under some circumstances, witness fees and mileage must be paid.[1] (d)(1) – “A party or attorney responsible for […]
November 26, 2024
Published by Michael Berman at November 26, 2024
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In Whitmore v. Kroger Limited Partnership, 2024 WL 4795686 (W.D. Va. Nov. 14, 2024), defendant Kroger’s inadvertent failure to preserve surveillance video footage of the area at the time of the alleged tort was a factor leading to its waiver of fact work production protection. Defendant Kroger moved to quash a subpoena […]
November 24, 2024
Published by Michael Berman at November 24, 2024
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In Homeland Ins. Co. of Del. V. Independent Health Ass’n., Inc., 2024 WL 4815127 (W.D.N.Y. Nov. 18, 2024), the court ordered production of litigation hold notices and implementation communications. Homeland Insurance sought a declaratory judgment that it had no duty to defend or indemnify Independent Health Association. A third-party defendant, Ace Insurance, sought […]
November 14, 2024
Published by Michael Berman at November 14, 2024
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Plastics Industry Assoc. v. Bonta, 2024 WL 4699927 (D.D.C. Nov. 6, 2024), held in part that the defendant’s act of serving a “preservation demand” on the plaintiff in the forum district did not confer long-arm jurisdiction over the serving-defendant in that forum. “Preservation notices” are routinely sent to a potential opposing party […]
November 1, 2024
Published by Michael Berman at November 1, 2024
I’ll give the defendant in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4625727 (M.D. Fl. Oct. 30, 2024), credit. It was candid with the court. Despite several extensions of time, the defendant essentially told the court that it had been too busy to respond to discovery. While candor is commendable, […]
October 29, 2024
Published by Michael Berman at October 29, 2024
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In Vita v. New England Baptist Hosp., __ Mass __, __ N.E.3d __, 2024 WL 4558621 (Mass. Oct. 24, 2024), the court held that the Massachusetts wiretap statute does not criminalize interception of web browsing and sale of the intercepted information to third parties. The plaintiff, Kathleen Vita, alleged that she accessed […]
October 22, 2024
Published by Michael Berman at October 22, 2024
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In U.S. v. Novo Nordisk, Inc., 2024 WL 4519962 (W.D. Wash. Oct.17, 2024), the court rejected Washington’s dilatory challenge to Fed.R.Civ.P. 30(b)(6) topics. The Novo court also rejected Washington’s attempt to fight fire with fire. It denied Washington’s “blanket” request to de-designate documents that had been marked as “confidential” by NNI in […]
October 17, 2024
Published by Michael Berman at October 17, 2024
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GLD3, LLC v. Albra, 2024 WL 4471672 (S.D.N.Y. Oct. 11, 2024), involved a request for discovery from a former Town attorney concerning an offer that he allegedly made to plaintiffs. The defendants, a Town and others, denied knowledge of the alleged offer. The court: set out the governing standard for discovery from […]
October 16, 2024
Published by Michael Berman at October 16, 2024
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Kranz & Associates Holdings, LLC v. Lain, 2024 WL 4476655 (N.D. Cal. Oct. 11, 2024), appeared to be a run-of-the-mine trade secrets dispute. When it came to discovery, it wasn’t. Kranz, a former employer, sued Kimberly Lain, a former employee, alleging misuse of confidential information. Ms. Lain also owned Tekvantage, Inc. Her […]
October 15, 2024
Published by Michael Berman at October 15, 2024
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In Trusted Sci. & Tech., Inc. v. Evancich, 262 Md. App. 621, 2024 WL 3490547 (Apl. Ct. Md. July 22, 2024), the Court addressed the type of objections that a subpoenaed non-party may make. That was a novel issue in Maryland. The Court held “that [nonparty] TST had standing to challenge the […]
October 13, 2024
Published by Michael Berman at October 13, 2024
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“These types of disputes tend to make a court wonder, which of the court’s other cases the requesting party feels deserve to be put on the back burner in favor of theirs.” Dale v. Deutsche Telekom AG, 2024 WL 4416761, at *4 (Oct. 4, 2024). The plaintiff moved to compel use of […]
October 9, 2024
Published by Michael Berman at October 9, 2024
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In Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024), “boilerplate” objections were sustained on the specific facts presented. BOILERPLATE OBJECTIONS HAVE GENERALLY BEEN CONDEMNED Boilerplate objections have generally been condemned. For example, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), […]
October 8, 2024
Published by Michael Berman at October 8, 2024
In a wage-and-hour claim, the Court in Bobb v. FinePoints Priv. Duty Healthcare, LLC, 2024 WL 4355048, at *1 (D. Md. Sept. 30, 2024), was faced with two “momentous” 😊 issues on a motion to compel: Plaintiffs request an order compelling Defendants to make the following categories of production…: Bates-stamped documents of […]
October 7, 2024
Published by Michael Berman at October 7, 2024
Sometimes, timing is everything. In Kadrey v. Meta Platforms, Inc., 2024 WL 4362744 (N.D. Cal. Oct. 1, 2024), it was dispositive. “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Another Cinderella Situation –Motion Denied as Untimely? (May […]
October 6, 2024
Published by Michael Berman at October 6, 2024
Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision. The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are […]
October 1, 2024
Published by Michael Berman at October 1, 2024
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In Design With Friends, Inc. v. Target Corporation, 2024 WL 433114 (D. Del. Sept. 27, 2024), the court rejected defendant’s effort to discover documents sent by plaintiff to a litigation funder that permitted the lender to evaluate the value of plaintiff’s claims. The Little Engine That Could | Barnes & Noble® (barnesandnoble.com) […]
September 26, 2024
Published by Michael Berman at September 26, 2024
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With that headline, Jackson Walker reported that FTC reports surveillance by social media, streaming services (baltimoresun.com)(Sept. 19, 2024). According to the Baltimore Sun, “[r]eport authors called on Congress to pass federal privacy legislation to protect users.” I recently blogged about a similar issue in Data Collection by Cars With Connectivity (Sept. 17, […]
September 24, 2024
Published by Michael Berman at September 24, 2024
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In Deckers Outdoor Corp. v. Last Brand, Inc., 2024 WL 4245407 (N.D. Cal. Sept. 18, 2024), the parties disagreed over when a formal ESI agreement was needed. However, the court held that “entry of some form of ESI order” was appropriate. It directed the parties to meet and confer. They did and: […]
September 16, 2024
Published by Michael Berman at September 16, 2024
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Ho v. Jefferson Financial Credit Union, 2024 WL 4119422 (E.D. La. Sept. 9, 2024), provides a succinct summary of the scope of discovery under the December 2015 amendments to the Federal Rules of Civil Procedure. It – surprisingly – sustained boilerplate objections. The case involved a loan gone south. Scope of Discovery […]
September 6, 2024
Published by Michael Berman at September 6, 2024
A few days ago, I addressed When Must a Motion to Compel Be Filed? (Aug. 26, 2024). The issue was addressed again four days later in Turner v. Apple, Inc., 2024 WL 4008763 (N.D. Ca. Aug. 30, 2024). The Turner court wrote that Turner waited too long to move to compel because […]
September 5, 2024
Published by Michael Berman at September 5, 2024
In Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024), the court denied an unopposed motion to enter a protective order and an unopposed motion to enter an ESI Protocol. The Orlando Health court wrote: “Upon review, the motions fail to establish, by citation to legal […]
August 28, 2024
Published by Michael Berman at August 28, 2024
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An “and/or” privilege log entry was deemed insufficient in Deltondo v. The School Dist. Of Pittsburgh, 2024 WL 3861036 (W.D. Pa. Aug. 19, 2024). The Deltondo court began its memorandum order by stating: “Regrettably, this action is notable for the nature and extent of the parties’ discovery disputes.” After reciting prior disputes […]
August 27, 2024
Published by Michael Berman at August 27, 2024
In Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024), the court wrote: “Before the Court are a litany of motions to seal exhibits to contemporaneously filed briefing on discovery disputes.” The Sazerac court granted a number of those motions; however, it denied […]
August 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 21, 2024
Published by Michael Berman at August 21, 2024
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Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify […]
August 16, 2024
Published by Michael Berman at August 16, 2024
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In the latest iteration of In Re StubHub Refund Litigation, 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024), the court began its decision of discovery issues with: “At the hearing Plaintiffs tried to walk back this [discovery] request and said it was limited to refund data, rather than a wholesale redo of […]
August 14, 2024
Published by Michael Berman at August 14, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date. This is the second blog of a four-part blog on Felder, an employment discrimination case. See Felder: Part 1 of 4: […]
August 13, 2024
Published by Michael Berman at August 13, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination. The Court “presided over a discovery dispute hearing related to Plaintiff’s motions to compel interrogatory requests and requests for production of documents, and related to […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail (abajournal.com)(Aug. 8, 2024), Debra Cassens Weiss reported on an information governance issue: “A federal judge who ruled that Google is a monopolist declined to sanction the search engine for failing to preserve internal chat messages, even […]
August 7, 2024
Published by Michael Berman at August 7, 2024
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Metadata logs can be an acceptable, cost-effective method of privilege logging. For example, please see Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024), and Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024). The primary difference between a “metadata” log […]
August 6, 2024
Published by Michael Berman at August 6, 2024
In Tremblay v. OpenAI, Inc., 2024 WL 3638421 (N.D. Cal. July 31, 2024), the court resolved two disputes over an ESI Protocol, writing: “As to the first category of disagreement, the Parties have found themselves at an impasse as to the proper number of document custodians to be set forth in the […]
August 5, 2024
Published by Michael Berman at August 5, 2024
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Much has been written about the common-law duty to preserve proportionate information that is potentially relevant to reasonably anticipated litigation. Much less has been written about the duty to destroy information. For example, Maryland’s Public Information Act limits the records that governmental entities may retain. It provides that: The State, a political […]
August 3, 2024
Published by Michael Berman at August 3, 2024
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In Troung v. KPC Healthcare, Inc., 2024 WL 3496865 (C.D. Cal. July 17, 2024), the court held that no privilege log was required until scope of discovery objections were resolved. The general rule is that a privilege log is due at the time discovery responses are filed. “Absent consent of the adverse […]
July 23, 2024
Published by Michael Berman at July 23, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….” In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior […]
July 6, 2024
Published by Michael Berman at July 6, 2024
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In a 2021 blog, I wrote that Requests for “Any and All” Documents Are Obsolete. That blog suggests alternative approaches. Recently, in Nelson v. I.Q. Data International, Inc., 2024 WL 2963790 (E.D. Mich. June 12, 2024), the court wrote: Courts have long condemned omnibus “any and all” document requests. See Cheney v. […]
July 2, 2024
Published by Michael Berman at July 2, 2024
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In Documents Withheld Under Deliberative Privilege – No Privilege Log Needed? (May 23, 2024), I discussed the holding of Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024). The Ninth Circuit held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding […]
July 1, 2024
Published by Michael Berman at July 1, 2024
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Frequently, courts deny motions presenting a discovery dispute due to the failure of the moving party to engage in a good faith, pre-filing “meet and confer.” See, e.g., There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024) (“If two sides are battling over nine separate discovery issues […]
June 26, 2024
Published by Michael Berman at June 26, 2024
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Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022). Word processing has not been immune from disputes. One court recently criticized a […]
June 25, 2024
Published by Michael Berman at June 25, 2024
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In Wagner v. Norcold, Inc., 2024 WL 2703015, at *3 (E.D. N. Car. May 24, 2024), plaintiffs claimed that defendants’ allegedly defective refrigerator had caused a destructive fire. They asserted that defendants had waived privileges “in the absence of a privilege log….” There were several other discovery disputes and the parties submitted […]
June 24, 2024
Published by Michael Berman at June 24, 2024
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In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a waiver of the privilege. GENERALLY, FAILURE TO TIMELY […]
June 20, 2024
Published by Michael Berman at June 20, 2024
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It is not auspicious when a court writes: “The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2 meet-and-confer sessions for the court’s review. Given the history of this case, […]
June 20, 2024
Published by Michael Berman at June 20, 2024
In U.S. ex rel. Zafirov v. Physician Partners, LLC, 2024 WL 2846007 (M.D. Fla. June 2, 2024), the court held that a categorical privilege log was insufficient, even after an apparent agreement to that logging process. The role of a privilege log is to “trust, but verify.” In other words, “play, but […]
June 3, 2024
Published by Michael Berman at June 3, 2024
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In Robins Kaplan Can’t Escape Sanction Over Dropbox Access – Law360 (May 31, 2024), Emily Johnson reported on an appellate decision in the “Dropbox rummaging” sanctions case. A $150,000 sanction against both a law firm and its client was affirmed. Ms. Johnson reported: “The First Department of the New York Appellate Division […]
June 1, 2024
Published by Michael Berman at June 1, 2024
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When the Appellate Court of Maryland issued its unreported opinion in St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Apl. Ct. Md., Mar. 21, 2022), it addressed a novel issue and I wrote that: “In my view, the only error was that the appellate court did not publish its […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
May 23, 2024
Published by Michael Berman at May 23, 2024
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In Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024), the court held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding documents under the deliberative privilege need not provide a privilege log to a party seeking judicial review of […]
May 20, 2024
Published by Michael Berman at May 20, 2024
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It is generally unwise to use private email accounts for company business. Clark v. Council of Unit Owners of the 100 Harborview Drive Condominium Association, 2024 WL 2155021 (D. Md. May 13, 2024)(Quereshi, J.), provides a good example. The Clark Court did two relevant things: It ordered targeted searches of the private […]
May 17, 2024
Published by Michael Berman at May 17, 2024
Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007, at *6-7 (N.D. Cal. May 14, 2024), is another in a long line of cases prohibiting redaction of purportedly nonresponsive or irrelevant material from responsive documents. I have written several blogs about redactions for relevance or confidentiality: Relevance Redactions Revisited […]
May 11, 2024
Published by Michael Berman at May 11, 2024
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Sam Skolnik reported that the ABA Issues Opinion on Disclosing to Clients When Using Listservs (bloomberglaw.com)(May 8, 2024). The article states: Without informed client consent, the opinion found, “a lawyer participating in listserv groups should not disclose any information relating to the representation that may be reasonably connected to an identifiable client.” […]
May 9, 2024
Published by Michael Berman at May 9, 2024
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This is the fourth and final follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1808607 (N.D. Cal. […]
May 7, 2024
Published by Michael Berman at May 7, 2024
This is a follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), […]
May 6, 2024
Published by Michael Berman at May 6, 2024
This is the first of four follow ups to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. […]
April 29, 2024
Published by Michael Berman at April 29, 2024
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In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical presentations by sophisticated experts. I have called “modern attachments,” “pointers,” or the problems associated with hyperlinked target documents, the “Humpty Dumpty Issue.” […]
April 19, 2024
Published by Michael Berman at April 19, 2024
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In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”[1] A […]
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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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 […]
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 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 […]
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 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 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 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 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 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 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 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 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. […]
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 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 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 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 […]
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 […]
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 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 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 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 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 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 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 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 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 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 […]
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 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 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 […]
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 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 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 […]
September 26, 2022
Published by Michael Berman at September 26, 2022
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A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.” Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022). According […]
September 7, 2022
Published by Michael Berman at September 7, 2022
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In civil discovery, litigants must produce information that is within their “possession, custody, or control,” subject to the applicable scope of discovery. However, federal courts have markedly differing definitions of “possession, custody, or control.” A uniform standard would further the goal of the just, speedy, and inexpensive resolution of many lawsuits. Mike […]
August 14, 2022
Published by Michael Berman at August 14, 2022
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“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
August 12, 2022
Published by Michael Berman at August 12, 2022
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I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
August 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 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 […]
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 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 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 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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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 […]
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 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
“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
An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains: If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. […]
April 21, 2022
Published by Michael Berman at April 21, 2022
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Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022). This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 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 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 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 […]
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 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 […]
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 […]
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 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. […]
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 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 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 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 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 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 […]
March 16, 2021
Published by Michael Berman at March 16, 2021
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Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.” The site contained attorney advertising and articles concerning class actions and mass torts. Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 7, 2021
Published by Michael Berman at March 7, 2021
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Trade secret litigation invariably involves ESI. Craig Ball has written “What’s in a Name (or Hash Value)?,” discussing the use of hash values and file names in tracking down stolen data. In “The Gang That Couldn’t Spoliate Straight,” I discussed an order that the alleged wrongdoer preserve ESI and the potential issues […]
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 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 […]
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 […]
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 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 […]
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 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 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. […]
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 […]
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 […]