Commercial Litigation

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 […]
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 […]