Commercial Litigation

April 19, 2024

There’s No Right or Wrong Answer – But There Are Mistakes

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

General Objections, Dracula, and “Whac a Mole”

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

Sometimes Discovery Disputes Do Not Bring Out the Best in Us. 

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

How Much Detail is Enough in a Privilege Log?

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

Changing the Forum for a Motion to Quash a Subpoena

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

Failure to Show “Intent to Deprive” Leads to Denial of Rule 37(e)(2) Sanctions

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

Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”

  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

No More “Masters”?

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

Lawyer Refused to Appear on Camera in Virtual Deposition

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

“Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System

“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

The ESI Protocol: Your Word is Your Bond… Or, Is It?

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

If You’re Going to Coach a Witness and Misrepresent it to the Court, Turn Off the Recorder

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

Hallucinations: “Well, here’s another nice mess you’ve gotten me into!” 

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

My Top Blogs From 2023

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

Procedures to Avoid, and Promptly Resolve, Discovery Disputes in the District of Maryland

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

How to Read a Load File

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

Trial Notebooks: Flipping to the Right Spot Instead of Fishing in Folders

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

Sedona Conference’s 2023 Case Law Bibliography by Phil Favro

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

Law 360: “Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends”

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

What is Double Spacing?

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

Sanctions Update in Dropbox “Rummaging” Decision

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

Maryland Amends Ethics Rule 4.4(c)

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

Maryland Rules Order Amends Sanctions Rule

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

Is it Spoliation to Bury a Dead Cow?

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

ABA Formal Opinion on Misconduct in Virtual Depositions

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

Maryland’s Proposed Rule 5-702

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

How to Avoid Contentious “Hit Report” Problems – Part III

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

More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”

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

Don’t “Game” Answering to Interrogatories – Problem Can Be Avoided Using Court Forms

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

“Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable

“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

Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e)

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

Possession, Custody, or Control – Part II

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

A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez

“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

Maryland’s “Sunshine Law”:  Cooperation, Searches, Metadata, and Costs (Part I)

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

New Electronic Discovery Class at Community College of Baltimore County

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

Spoliation Motions Denied as Untimely – Another Wake-Up Call

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

Ethical Contours of Discovery Sanctions and the Duty to Cooperate

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

More on Emoji Law From Prof. Eric Goldman

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

Privilege and a Rule 30(b)(6) Deposition?

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

Don’t Be Too Nice When You Send a Preservation Notice

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

Relevance Redactions Revisited

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

Duty to Preserve Triggered in Administrative Appeal of Employment Decision

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

“Modern Attachments,” ESI Protocols, & Second Chances

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

Pending Amendments to the Federal Rules

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

The Maryland Rules Committee Has Recommended Several Discovery Amendments

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

Fowler Cell Phone Decision Affirmed

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

Thank You to Computer Services Limited and Web interactive Technologies

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

“I hate, hate, hate motions for sanctions.”

“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

ESI 101:  Don’t Spoliate Evidence That’s Been Photographed

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

Elimination of Judicial Disappearing Ink in Maryland

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

Court Holds That Federal Spoliation Rules Are Both Independent and Interrelated in Cell Phone Sanctions Case

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

What Hath Noom Wrought?

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

Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)

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

Lawyers, Not Law Firms, Must Pay Sanctions

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

District of Maryland Sets Guidelines for Cell Phone Preservation in Place

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

Negligent Loss of Video Supports “Missing Evidence” Instruction in Criminal Case

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 21, 2023

Sidley Austin Blog on Interrogatory That Invaded Work Product

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

“Here’s what to expect with [proposed] changes to the federal expert witness rule”

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 17, 2023

Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight

“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

eDiscovery Assistant’s 2022 eDiscovery Case Law Year in Review Report

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

Sua Sponte Dismissal Relying in Part on Fed.R.Civ.P. 41(b)

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

Judicial Interpretation of an ESI Protocol

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

Should an ESI Protocol Be Incorporated Into a Court Order?

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

“Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation

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

Maryland Supreme Court Reiterates Duty to Cooperate in Decision Suspending Attorney

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

Sealing of Documents Filed in Court

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

Concerns About Family Privacy Don’t Justify Spoliation

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

Procedural Failures in Request to Preserve Video Evidence

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

Sedona’s TAR Case Law Primer, 2nd ed.

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

Can a Party Obtain Discovery From Its Opponents’ Former I.T. Service Provider?

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

“‘If It Ain’t Broke, Don’t Fix It’: U.S. Supreme Court Dismisses Case on Attorney-Client Privilege”

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

Proposal to Eliminate Judicial Disappearing Ink

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

Unaswered Requests for Admission Deemed Admitted – Not a Discovery Sanction

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

Bowtielaw.com Blog on Search Terms and Predictive Coding

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

Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction?

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

Does Maryland Have an Analog to Fed.R.Civ.P. 26(g)?

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

A Rose by Any Other Name?

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

Managing Small Cases – Excellent Sedona Conference Resource

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

Md. State Bar Association Social Media Program

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

Selection for Maryland Super Lawyers 2023

I am pleased to report my selection by Thomsen Reuters for the fifth consecutive year as a Maryland Super Lawyer.
November 22, 2022

$2,000,000 Sanctions Request

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

Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland

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

Is There a Duty to “’Fess Up?” – Part II

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

Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II)

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

New ABA “Reply All” Ethics Opinion

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

Pouncing on Little Ambiguities Leads to Discovery Sanctions

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

Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?

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

Hit Reports

“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

“Modern Attachments” or “Pointers”- What is a Document? (Part IV)

  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

“Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History”

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

Court Refuses to Select Search Terms for Parties

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

Court Excused Party From Waiver by Failure to Provide Specific Objections

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

Proposed Changes to the Maryland Rules Regarding Discovery of Experts

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

$1 Million Sanction Award Against Google

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

Denial of Discovery to Oppose Motion for Summary Judgment

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

Use of Phased Discovery to Achieve Proportionality

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

Remote Deposition Misconduct – Again – With Novel Cure – Again

“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

How to Properly Erase Hard Drives?

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

Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages

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

Secret Moonlighting, by Attorney in Plaintiff’s Law Firm, as a Document Reviewer for Defendant, Does Not Result in Disqualification of Plaintiff’s Firm

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

Perils of a Vague Preservation Letter

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

Discovery on Discovery – Steps Taken to Produce Documents

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

FLSA Litigant Cannot Refuse to Provide Relevant Discovery Merely Because It May Open the Responding Party Up to Other Liability

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

Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence

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

Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout

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

Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan

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

Historical ESI Highlights – Part VII – The Sedona Conference and EDRM

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

Sanctions for Discovery Misconduct

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

“The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference

“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

Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV)

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

Recognized by America’s Top 100 Civil Defense Litigators

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

Deposition Errata Pages in Maryland

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

Sedona Conference “Selected eDiscovery and ESI Case Law from 2021-22”

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

Sanctions Imposed for Fabricated and Unproduced Text Messages

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

Rule 11 Sanctions for Impugning Character of Opposing Counsel

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

Ethics: More Remote Misconduct

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

Information Governance – Mis(?)-Labeling Documents as Privileged (Part III)

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

What is a Document? (Part III)

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

Maryland v. Federal Rules on the Scope of Discovery and Proportionality

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

Maryland v. Federal Clawback and Privilege Non-Waiver Rules

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

Sedona Conference’s “Commentary on Protecting Trade Secrets Throughout The Employment Life Cycle”

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

40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

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

A Focused Preservation Letter

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

Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties

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

Discovery of Steps Taken to Implement a Litigation Hold is Permitted

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

Maryland v. Federal Summary Judgment Rule

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

Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones

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

Relevance Redactions Rejected – Rule 26(f) Resolution

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

Information Governance – Mis(?)-Labeling Documents as Privileged

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

Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation

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

UPDATE:  Recovery of ESI Costs:  “The fuss is about money…. [E]lectronic discovery is really expensive.”

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

Secondary Evidence as a “Gap Filler”

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

Failure to Cooperate Costs Clients Money

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

Requests for a Preservation Order

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

Information Governance Decisions Can Carry a Big Price Tag

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

Beyond Email – Slack, “Channels,” and Expert Testimony

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

Court of Appeals Follows My Proposal on Voluntary Dismissal Rule

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

Ethics: Misconduct in Remote Trial

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

Preservation Demand May Have Done More Than Trigger Duty to Preserve

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

Harford County Redistricting Challenge Dismissed

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

No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case

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

Notice of Proposed Changes to the Maryland Rules

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

“Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses

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

New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests

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

Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry

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

Ethics: Misconduct in Remote Depositions

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

Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was

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

Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications

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

The Need for Law School Classes in Discovery Procedures

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

Recent Decision Shows the Need for Information Governance, Computer Usage Policies, and Employee Training

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

Categorical Privilege Log Presented Interpretive Issues

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

“Wayback Machine” Evidence Held to be Insufficient to Support Personal Jurisdiction

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

Satisfactory Secondary Evidence Prevents Sanction

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

Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502

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

The Rule 12(d) Standard for Conversion of Rule 12(b)(6) Motion to Rule 56 Motion

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

What is a Document? (Part II)

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

Waiver of Work Product Protection in Deposition Preparation Sessions

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

Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant

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

What is a “Document?”

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

Document Unitization

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

Maker’s Mark: A Different View of Self Collection

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

Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104

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

Plaintiff Sanctioned for Spoliation of Automobile Engines Due to Inadequate Implementation of Litigation Hold

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

Burden of Proof: Sanctions for Intentional Deletion of Text Messages

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

Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process?

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

Electronic Communications to a Class Action Advertising Web Site Deemed Not Privileged

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

Trade Secret – Can Damaged Party Obtain Ex-Worker’s Emails Sent on New Employer’s System?

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

Marc Hirschfeld’s Legal Week Presentation

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

Recovery of ESI Costs: “The fuss is about money…. [E]lectronic discovery is really expensive.”

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

Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands

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

“The Gang That Couldn’t Spoliate Straight”

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

When Should a Spoliation Motion Be Filed and Decided?

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

No Sanctions Despite Truncated Search

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

The “Practical Ability” Standard for “Control” in Maryland

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

Mention in eDiscoveryPM.com

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

Decision of Court of Appeals of Maryland in Doe v. Alternative Medicine Maryland, LLC

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

The Duty to Preserve & the Spoliation Doctrine in the Maryland State Courts

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

Taxation of E-Discovery Costs Under 28 U.S.C. Sec. 1920(4) after Taniguchi v. Kan Pacific Saipan

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

Book Review: “Electronic Discovery for Small Cases” (ABA 2012)

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

Mock Rule 26(f) Conference of Parties Posted Online

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

What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”

“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

Self-Identification and Self-Preservation: A Fool for a Client?

“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

Metadata May Not Be a Public Record in Maryland

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

Appeals Court Rules in Favor of Premium Finance Cos.

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

Berman Prevails On Commercial Free Speech Issue

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

Sedona Conference and Victor Stanley II Court Cite Law Review Proportionality Article

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

State’s top court rules that referendum on Arundel Mills slots is legal

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

“Slots” Referendum Argument in Maryland Court of Appeals

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

Webcast: Berman’s Oral Argument in Court of Appeals of Maryland

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

Arundel Slots Trial Ends

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

Berman’s Objections to Proffered Evidence Sustained

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

Berman Rebuts Opponent’s Argument

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

Trial Court Argument on Slots Referendum

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 […]