United States District Court for the District of Maryland
- Filter by
- Categories
- Tags
- Authors
- Show all
- All
- "Slots" Litigation in MD
- Book Reviews
- Commercial Litigation
- District of MD
- ESI
- ESI Protocol a/k/a Discovery Plans
- Important Posts
- News Stories
- Protecting the Judiciary
- Social Media
- Software
- Uncategorized
- All
- Anecdote
- Artificial Intelligence
- Citations
- Computer Usage Policies
- Conference of Parties
- Cooperation
- cost
- Costs
- Data Map
- Discoverability
- Ethics
- Evidence
- Evidence: Authentication
- Experts
- Forensics
- FRCP 26(g)
- Historical Highlights
- information governance
- Inherent power
- Litigation Hold: Proportionality
- Litigation Hold: Scope
- Litigation Hold: Trigger
- MD Public Information Act
- MD Rules v. Federal Rules of Civil Procedure
- Mediation
- Metadata
- Objections
- Privacy
- Privilege
- Rules
- Sanctions
- Search
- Self Preservation
- Slots
- Summary Judgment
- Trade Secrets
- What is a Document?
August 11, 2026
Published by Michael Berman at August 11, 2026
Categories
“A lawsuit by an attorney against a state judge who sanctioned him should be dismissed, a federal magistrate judge recommended Friday.” I. Round, MD attorney’s lawsuit against judge should be thrown out, magistrate says – Maryland Daily Record (Aug. 10, 2026). [Attorney Nathan] Charles sued [Judge Louis] Leibowitz last October after the […]
August 10, 2026
Published by Michael Berman at August 10, 2026
Categories
The United States District Court for the District of Maryland has issued Standing Order 2026-03 titled “In Re: Use of Generative Artificial Intelligence in Court Filings.” Paragraph 1 states that, under Fed.R.Civ.P. 11, when an attorney or unrepresented party signs a pleading, written motion, or other paper, they are certifying that the […]
June 26, 2026
Published by Michael Berman at June 26, 2026
In a breach of contract claim against the City of Salisbury and its Mayor, the Plaintiff sought an order compelling the City to produce certain ESI and metadata. 1 Fitzwater Street, LLC v. Taylor, 2026 WL 1830959 (D. Md. Jun. 25, 2026)(Coulson, J.). The Court ordered production in native form with metadata, […]
May 8, 2026
Published by Michael Berman at May 8, 2026
Categories
Not a day goes by without at least one judicial decision addressing misuse of artificial intelligence in litigation, such as hallucinations or fabricated quotations. See, e.g., D. Belson, “Avalanche” of likely AI-generated filings decried by MD judge in pro se case (Apr. 28, 2026); District of Maryland “Hallucination” Decision (May 5, 2026). […]
May 5, 2026
Published by Michael Berman at May 5, 2026
Categories
Aziz v. U.S., 2026 WL 1132884 (D. Md. Apr. 27, 2026)(Abelson, J.), is of note only because it is in the District of Maryland, where I practice. Plaintiffs “filed an unusually high number of motions in a short amount of time.” The latest flurry worsens a pattern of repeated filings: the Court’s […]
April 30, 2026
Published by Michael Berman at April 30, 2026
Categories
Fed.R.Civ.P. 33(a)(1) states that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” In Banerjee v. Rueger, 2026 WL 1078791 (D. Md. Apr. 21, 2026), Plaintiffs asserted that the following interrogatory contains seven subparts: INTERROGATORY NO. 2[ ]. Please describe in full detail […]
April 16, 2026
Published by Michael Berman at April 16, 2026
Categories
In Roberson v. Acxiom LLC, 2026 WL 824055 (E.D. Va. Mar. 2026), Mr. Roberson and others unsuccessfully sued an alleged data broker, Acxiom, under two Virginia statutes. The court granted Acxiom’s motion to dismiss. As such the court assumed, and this blog assumes, all of the allegations in the Complaint to be […]
March 13, 2026
Published by Michael Berman at March 13, 2026
Categories
Hallucination decisions are “old news.” Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2026). Courts and litigants alike have erred. Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases (Mar. 11, 2026). The primary reason to discuss In re: Nwaubani, 2026 WL 687194 (4th […]
February 24, 2026
Published by Michael Berman at February 24, 2026
Categories
The time when a video of key events must be produced in discovery is often contentious. Requestors generally contend it must be produced, like other discovery, before their deposition. Producers often contend that the video is impeachment evidence that need not be produced until after the Requestor is deposed. That tension was […]
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 9, 2026
Published by Michael Berman at January 9, 2026
Categories
“Plaintiffs’ evidence of printouts of websites is not presented in an admissible form. Evidence must be authentic to be admissible.” Goldstein v. Hindle, 2026 WL 63116 (D. Md. Jan. 8, 2026)(Crawford, J.). Defendant’s website, video and direct-message via social media evidence was also excluded. Cross-motions for summary judgment were pending. The Court […]
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 1, 2025
Published by Michael Berman at December 1, 2025
Categories
A recent decision states: “Subsequently, the parties filed a Joint Status Report, a transcript of their meet and confer session, and a letter update, which ultimately apprised the Court that the parties were unable to resolve their dispute.” Lifestyle Realty, LLC v. Kirn, 2025 WL 2719984, at *2 (D. Md. Sept. 23, […]
November 5, 2025
Published by Michael Berman at November 5, 2025
Categories
MuniCap, Inc. v. Wilson, 2025 WL 3003968 (D. Md. Oct. 24, 2025)(Austin, J.), is the latest decision in the long simmering dispute over document correlation under Fed.R.Civ.P. 32. The dispute centers on whether Subsection E(i) or E(ii) governs production of ESI. THE RULE 34(b)(2)(E)(i) & (2) DISPUTE Subsection E(i) states that: “A […]
October 11, 2025
Published by Michael Berman at October 11, 2025
Categories
Sanctions were imposed on plaintiff for breach of the duty to preserve certain communications in Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025)(Rubin, J.). The Court held that it would instruct the jury: You are instructed that Plaintiff had a duty to preserve all relevant […]
October 3, 2025
Published by Michael Berman at October 3, 2025
Categories
Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 29, 2025)(Austin, J.), covers a lot of ground. This blog addresses only two of the covered issues: (1) when is a motion for protective order untimely; and, (2) when is the requirement to meet and confer before filing such a motion waived as […]
October 2, 2025
Published by Michael Berman at October 2, 2025
Categories
“Although Plaintiff has not established each element of spoliation, the Court is troubled by Defendant’s conduct.” Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025)(Quereshi, J.).[1] The Court reserved on the issue of narrower-than-requested sanctions, which will be the focus of this blog. THE SLIP AND […]
September 28, 2025
Published by Michael Berman at September 28, 2025
Categories
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 27, 2025
Published by Michael Berman at September 27, 2025
Categories
The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward. The recipient of a preservation demand is not obligated to respond. The Court wrote: Finally, Mr. Jones also alleges that sanctions are in order because he has “serious spoliation concerns.”… His […]
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 6, 2025
Published by Michael Berman at September 6, 2025
Categories
In Lively v. The Skyline Agency LLC, 2025 WL 2532796 (S.D.N.Y. Sep. 3, 2025), the court wrote that Ms. Lively subpoenaed a Signal Chat in connection with Lively v. Wayfarer Studios LLC, No. 24-cv-10049 (S.D.N.Y. filed Dec. 31, 2024) (the “Lively Action”). Id. at *1. Skyline and Ms. Kalantari withheld certain information. […]
September 3, 2025
Published by Michael Berman at September 3, 2025
Categories
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 26, 2025
Published by Michael Berman at August 26, 2025
Categories
In USA v. Chief Judge George L. Russell III, in his official capacity, et al., No. 1:25-cv-02029 (D. Md. Aug. 26, 2025), the Hon. Thomas T. Cullen dismissed all claims against the Maryland Federal Bench and Court. Much could be written; however, I suggest that the decision “speaks for itself.” Excerpts follow: […]
August 25, 2025
Published by Michael Berman at August 25, 2025
Categories
A default judgment was entered in Cook v. Superior Assisted Living, LLC, 2025 WL 2306268 (D. Md. Aug. 11, 2025). “Where missed deadlines become the norm rather than the exception, … there comes a time when the court must say that enough is enough.” Id. at *1. Plaintiff sued, alleging failure to […]
August 13, 2025
Published by Michael Berman at August 13, 2025
Categories
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 11, 2025
Published by Michael Berman at August 11, 2025
Categories
Phased discovery is, in my experience, a potentially valuable, but rarely used, cost-saving technique. See Use of Phased Discovery to Achieve Proportionality (Jul. 15, 2022). In appropriate situations, phased discovery can be a useful way to avoid a discovery dispute by “kicking the can down the road.” Fed.R.Civ.P. 26(f)(3) requires that a […]
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 […]
July 31, 2025
Published by Michael Berman at July 31, 2025
Categories
Payne v. Geer, 2025 WL 2061651 (D. Neb. Jul. 23, 2025), involved allegations of malicious prosecution. The court cited a local rule that prohibits use of definitions in interrogatories without leave of court. Plaintiff Payne moved to compel discovery from Defendant Herman. In pertinent part, Herman objected to the definitions in Payne’s […]
July 22, 2025
Published by Michael Berman at July 22, 2025
Categories
The Judges and Clerk of the United States District Court for the District of Maryland filed a “Motion to Dismiss & Opposing Plaintiffs’ Motion for Preliminary Injunction” in USA v. Russell, et al., No. 1:25-cv-2029 (D. Md. Jul. 21, 2025). This is a lawsuit against all of the Judges of the District […]
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 11, 2025
Published by Michael Berman at July 11, 2025
Categories
Marris Hoffee and Michael D. Berman In Hall v. Baltimore Police Dept., 2025 WL 1548560 (D. Md. May 30, 2025)(Austin, J.), the Court considered whether materials created many years after the underlying incident were protected under the work-product doctrine. The materials were prepared as part of legal representation of the plaintiff. They […]
July 3, 2025
Published by Michael Berman at July 3, 2025
Categories
In two related decisions, plaintiff’s motions for sanctions for spoliation of a cell phone and for destruction of drug testing swabs, were denied. Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403350 (D. Md. May 15, 2025)(Coulson, J.)( “Cooper I”); Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403334 (D. […]
July 2, 2025
Published by Michael Berman at July 2, 2025
Categories
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 25, 2025
Published by Michael Berman at June 25, 2025
Categories
In HET MCPS, LLC v. AutoFlex, Inc., 2025 WL 1615459 (D. Md. June 6, 2025), plaintiffs alleged that defendants interfered with plaintiffs’ contract and customer relationships. In this opinion, the Court addressed, among others, plaintiffs’ motion for forensic imaging. “Plaintiffs contend that Defendants have failed to comply with their discovery obligations and […]
June 17, 2025
Published by Michael Berman at June 17, 2025
Categories
In Heym v. APG Housing, LLC, 2025 WL 1661414 (D. Md. June 11, 2025)(Coulson, J.), the Court applied its Principles for the Discovery of Electronically Stored Information in Civil Cases (“ESI Principles”) to order that a discovering party narrow its request for metadata. THE DISTRICT OF MARYLAND’S “ESI PRINCIPLES” The development of […]
June 16, 2025
Published by Michael Berman at June 16, 2025
Categories
Marris Hoffee and Michael Berman In Moore v. Wash. Metro. Area Transit Auth., 2025 WL 1374125 (D. Md. May 30, 2025), the District of Maryland applied a three-part test for imposing spoliation sanctions. Ms. Moore alleged that she was injured when the wheelchair lift of a MetroAccess van suddenly jolted, causing her […]
May 19, 2025
Published by Michael Berman at May 19, 2025
Categories
In Cooper v. Baltimore Gas & Electric Co., 2025 WL 1416943 (D. Md. May16, 2025)(Coulson, J.), the Court did justice and partially rescued a party that overreached by moving for sanctions under Rule 37(e)(2) while not making an alternative, “belts and suspenders” request under Rule 37(e)(1). Defendants moved for “game ending” sanctions […]
May 18, 2025
Published by Michael Berman at May 18, 2025
Categories
In Adams-Devonish v. KEHE Distributors, 2025 WL 1413282 (D. Md. May 15, 2025)(Aslan, J.), a pro se plaintiff sued for alleged discrimination. Plaintiff’s “renewed” motion for sanctions was denied for several reasons. First, the Court declined to entertain a repetitive motion. It wrote: The Court has ordered production of the redacted materials, […]
April 23, 2025
Published by Michael Berman at April 23, 2025
Categories
In Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025)(Xinis, J.), plaintiffs notified the Court of “seemingly intractable discovery disputes….” The case is before the District Court after the United States Supreme Court’s ruling in Noem v. Abrego Garcia, 604 U.S. –––– (2025). The District Court expedited […]
April 21, 2025
Published by Michael Berman at April 21, 2025
Categories
There are countless decisions, law review articles, books, and guides written on search, search design, search methodology, search tools, and search metrics. See, e.g., EDRM Search Guide; The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery The following are a few exemplar decisions that […]
April 20, 2025
Published by Michael Berman at April 20, 2025
Categories
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), was an early decision on cooperation, boilerplate objections, waiver by failure to object properly, and a court-ordered meet-and-confer. The case was a collective action under the Fair Labor Standards Act and Maryland wage and overtime law. The Court outlined a […]
April 19, 2025
Published by Michael Berman at April 19, 2025
Categories
Thompson v. HUD, 199 F.R.D. 168 (D. Md. 2001)(“Thompson I”), was a class action by Baltimore public housing residents. Thompson I explained the 2000 change in the scope of discovery that remains in force, with some changes, today.[1] Thompson I dealt in part with the December 2000 amendment to Fed.R.Civ.P. 26 which […]
April 18, 2025
Published by Michael Berman at April 18, 2025
Categories
In Jayne H. Lee, Inc. v. Flagstaff Industries Corp., 173 F.R.D. 651 (D. Md. 1997), plaintiff’s counsel “was dissatisfied with the response by the defendant to the interrogatories and requests for production of documents which the plaintiff had filed….” What happened next was a mistake. Plaintiff, “without ever seeking to file a […]
April 17, 2025
Published by Michael Berman at April 17, 2025
Categories
Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35 (D. Md. 2000), was an employment dispute. Plaintiff filed a motion to compel discovery responses. The Court directed defendant to spend 40 hours searching for responsive information. If the plaintiff wanted more, it could get more; provided that it paid the actual cost […]
April 16, 2025
Published by Michael Berman at April 16, 2025
Categories
My blogs generally focus on new cases. However, sometimes it is helpful to look backwards. A “golden oldie” is “something once popular or valued that has retained its appeal or for which interest has been reawakened….” Definition & Meaning | Dictionary.com. The term refers to something that is still important, even though […]
April 14, 2025
Published by Michael Berman at April 14, 2025
Categories
In Hall v. Baltimore Police Dept., 2025 WL 1024069 (D. Md. Mar. 31, 2025)(Austin, J.), the Court entered an order granting in camera review to address disputes regarding plaintiff Hall’s claim of work product protection: The purpose of the in-camera review is to ascertain whether all items are, as Plaintiff contends, opinion […]
April 5, 2025
Published by Michael Berman at April 5, 2025
Categories
An exception to the requirement of a timely privilege log was applied in Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025). In previous blogs, I addressed decisions holding that Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log […]
April 4, 2025
Published by Michael Berman at April 4, 2025
Categories
In Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025)(Austin, J.), the Court set out and applied the principles governing subpoenas and objections to them. The Court explained the dispute: “Mr. Hall alleges that BPD and three former officers—Donald Licato, Frank Barlow, and John Barrick—concealed exculpatory evidence and […]
March 13, 2025
Published by Michael Berman at March 13, 2025
Categories
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 3, 2025
Published by Michael Berman at March 3, 2025
Categories
Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.), is an employment discrimination case. At its most general level, the holding was that “a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.” At issue was ESI […]
February 26, 2025
Published by Michael Berman at February 26, 2025
Categories
In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in a lawsuit by a terminated employee against her former employer. I have written three detailed blogs about the case: Consulting an Attorney Did Not Trigger the Duty to […]
February 25, 2025
Published by Michael Berman at February 25, 2025
Categories
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 23, 2025
Published by Michael Berman at February 23, 2025
Categories
An article was published yesterday by Wesley Case, titled Elon Musk calls for impeachment of Baltimore judge in DEI case – The Baltimore Banner (Feb. 22, 2025).[1] Mr. Case wrote: After a Baltimore judge blocked President Donald Trump’s executive order to end federal support for diversity, equity and inclusion programs, Elon Musk […]
February 11, 2025
Published by Michael Berman at February 11, 2025
Categories
In Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.), Ms. Cooper sued BG&E and another employer for sexual harassment and discrimination.[1] The Court resolved cross-motions to compel. Both discovery motions were granted in part and denied in part. The decision reflects the fact-specific nature […]
February 9, 2025
Published by Michael Berman at February 9, 2025
Categories
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 […]
January 29, 2025
Published by Michael Berman at January 29, 2025
Categories
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 […]
December 19, 2024
Published by Michael Berman at December 19, 2024
Categories
In Walker v. AIU Ins. Co., 2024 WL 4607473 (D. Ariz. Oct. 29, 2024), Plaintiff Walker served a subpoena duces tecum on non-party JBHH, which had represented defendant AIU in workers’ compensation proceedings involving Mr. Walker. The subpoena requested a complete copy of the file in Mr. Walker’s case. JBHH moved to […]
December 19, 2024
Published by Michael Berman at December 19, 2024
Categories
In In re Outpatient Medical Center Employee Antitrust Litigation, 2024 WL 4679083 (N.D. Ill. Nov. 5, 2024), the court explained the application of Subsections (b) and (d) of Fed.R.Evid. 502. The parties proposed a Rule 502(d) order and it was entered on an agreed motion. Id. at *1. Plaintiffs later noted the […]
November 29, 2024
Published by Michael Berman at November 29, 2024
Categories
In Doe v. Vanderpool, 2024 WL 4881928 (D. Md. Nov. 25, 2024)(Sullivan, J.), the Court held that the Town of Fairmount Heights breached its preservation duty. Ms. Doe claimed that, after arrest, a Town police officer sexually assaulted her. She sued officers and the Town. Discovery had been conducted for almost a […]
November 13, 2024
Published by Michael Berman at November 13, 2024
Categories
In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document […]
November 11, 2024
Published by Michael Berman at November 11, 2024
Categories
In Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.), non-party TEDCO’s blanket privilege and work product objections to a subpoena were denied; however, it lived to fight another day because the denial was without prejudice to file supported objections after a “meet and confer.” One core principle set […]
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 28, 2024
Published by Michael Berman at October 28, 2024
Categories
In FG Hemisphere Associates, LLC v. Democratic Rep. of Congo, 2024 WL 4553371 (D. Md. Oct. 23, 2024), plaintiff FGH sought to enforce a judgment against the Democratic Republic of Congo and others. In doing so, FGH propounded discovery. In pertinent part, FGH served 20 subpoenas on third-party financial institutions. The defendants […]
October 18, 2024
Published by Michael Berman at October 18, 2024
Categories
I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The […]
October 11, 2024
Published by Michael Berman at October 11, 2024
Categories
“A stipulation has all the binding force of a contract.” Waterworks Restoration Baltimore, LLC v. Shine Home Improvements, Inc., 2024 WL 4198164, at *1 (Apls. Ct. Md. Sept. 16, 2024) (unreported) (citation and quotations omitted). Parties stipulate “to save the time of the court, the expense and difficulty of producing witnesses, and […]
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 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 […]
September 27, 2024
Published by Michael Berman at September 27, 2024
Categories
EEOC v. Exxon Mobile Corp., 2024 WL 4249229 (M.D. La. Sept. 11, 2024), was a Title VII action alleging a hostile work environment. One of many discovery disputes involved the scope of protective order. The court explained that: This circuit recognizes three types of protective orders: (1) specific, (2) blanket, and (3) […]
September 25, 2024
Published by Michael Berman at September 25, 2024
Categories
Bender v. Wiegand Sports GMBH, 2024 WL 4202155 (D. Md. Sep. 16, 2024)(Bredar, J.), grabbed my attention because it involved a claim for personal injuries arising out of the mountain coaster ride at Wisp Resort. That is a ride I have taken my children and grandchildren on many times. One of three […]
September 13, 2024
Published by Michael Berman at September 13, 2024
Categories
“Cooperation” has long been a hallmark of resolution of ESI issues. See, e.g., Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation (May 31, 2022). It was an honor to be appointed by the U. S. District Court for the District of Maryland as the “ESI Discovery Supervisor” in […]
September 10, 2024
Published by Michael Berman at September 10, 2024
Categories
Klock v. Wal-Mart Stores East, LP, 2024 WL 4041536 (D. Md. Sept. 4, 2024), is another in a long line of missing surveillance video decisions. Defendants’ employee – – the store’s asset manager – – testified that “he reviewed video footage after Plaintiff’s fall, but the Store’s video cameras did not capture […]
August 30, 2024
Published by Michael Berman at August 30, 2024
Categories
Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe […]
August 29, 2024
Published by Michael Berman at August 29, 2024
Categories
Covington v. Union Memorial Hospital, 2024 WL 3784539 (D. Md. Aug. 13, 2024)(Chasanow, J.), presented a factually detailed claim of discrimination with ten counts. The opinion fills 38 pages. This blog addresses only one spoliation issue. Defendants moved to dismiss based on spoliation. Id. at *6. The opinion may not explicitly state […]
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 26, 2024
Published by Michael Berman at August 26, 2024
Categories
While the Federal Rules of Civil Procedure are detailed and precise, there are gaps. For example, the Rules do not specify when a spoliation motion must be filed. That gap has been filled by common-law. When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); Spoliation Motions Denied as Untimely […]
August 25, 2024
Published by Michael Berman at August 25, 2024
Categories
I blogged about an earlier decision in Fiskars in Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024). There, plaintiff Fiskars’ motion to compel source code was denied as untimely. In a subsequent decision, defendant Woodland’s challenge to Fiskars’ privilege log was defective. Fiskars Finland OY AB v. Woodland Tools, Inc., […]
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
Categories
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 14, 2024
Published by Michael Berman at August 14, 2024
Categories
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
Categories
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 […]
July 2, 2024
Published by Michael Berman at July 2, 2024
Categories
The decision in Estate of LeRoux v. Montg. County, MD, 2024 WL 1703939 (D. Md. Apr. 19, 2024), states that “[t]here is no binding legal authority on the application of deliberative process privilege in the Fourth Circuit.” Id. at *3. In LeRoux, the Hon. Aimel A. Quereshi provided a comprehensive analysis of […]
July 1, 2024
Published by Michael Berman at July 1, 2024
Categories
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
Categories
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 […]
May 20, 2024
Published by Michael Berman at May 20, 2024
Categories
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 13, 2024
Published by Michael Berman at May 13, 2024
Categories
Blogs frequently focus on recent decisions. I came across an older one that is also worth noting. Everyone has seen discovery responses that seek to hide the ball. In Management and Constr. Svcs., LLC v. Sayers Constr., LLC, 2021 WL 981780 (D. Md. Mar. 16, 2021)(Coulson, J.), the Court took a very […]
April 16, 2024
Published by Michael Berman at April 16, 2024
Categories
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 9, 2024
Published by Michael Berman at April 9, 2024
Categories
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
Categories
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 14, 2024
Published by Michael Berman at March 14, 2024
Categories
In Smith v. Wormuth, 2024 WL 1012887 (D. Md. Mar. 8, 2024), the District Court again denied a spoliation motion as untimely. In the immortal words of Yankee Hall of Famer Yogi Bera: “It’s deja vu all over again.” Smith was an employment dispute arising out of a contentious relationship, with an […]
March 5, 2024
Published by Michael Berman at March 5, 2024
Categories
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
Categories
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 25, 2024
Published by Michael Berman at February 25, 2024
Categories
Several recent articles discuss when the destruction of records becomes a criminal offense. U.S. Attorney’s Office, District of Maryland | Maryland Correctional Officer Pleads Guilty to Conspiracy to Obstruct Justice and Destruction of Records Related to Cover-Up of Excessive Force Incident | United States Department of Justice (Feb. 22, 2024); Rachel Konieczny, […]
February 6, 2024
Published by Michael Berman at February 6, 2024
Categories
In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game […]
January 5, 2024
Published by Michael Berman at January 5, 2024
Categories
In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4th __ (4th Cir. Jan. 3, 2024). In short, plaintiff filed untimely interrogatories. Defendant responded without objecting that they were untimely. That omission waived the objection. However, defendant […]
January 2, 2024
Published by Michael Berman at January 2, 2024
Categories
“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
December 29, 2023
Published by Michael Berman at December 29, 2023
Categories
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
Categories
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 […]
November 16, 2023
Published by Michael Berman at November 16, 2023
Categories
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 1, 2023
Published by Michael Berman at November 1, 2023
Categories
In three recent decisions culminating in in Re: International Painters & Allied Trades Industry Pension Fund, 2023 WL 6812297 (D. Md. Oct. 16, 2023)(Coulson, J.)(“International Painters III”), the Court held that: discovery objections were waived because they were not timely raised; and, answers to interrogatories cannot merely refer to other documents. It […]
September 19, 2023
Published by Michael Berman at September 19, 2023
Categories
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 8, 2023
Published by Michael Berman at September 8, 2023
Categories
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
Categories
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 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
Categories
I always advocate for civility and cooperation in e-discovery.[1] But, it may be prudent to expressly threaten a lawsuit in a preservation notice. It may also be cautious to avoid offering to settle a claim in that notice. If you want to make an offer to settle, a separate demand or settlement […]
July 16, 2023
Published by Michael Berman at July 16, 2023
Categories
In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro se spoliation claim. The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when the man allegedly assaulted her in a restaurant. The claims against the restaurant were that […]
July 4, 2023
Published by Michael Berman at July 4, 2023
Categories
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
Categories
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 […]
May 23, 2023
Published by Michael Berman at May 23, 2023
Categories
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 […]
April 26, 2023
Published by Michael Berman at April 26, 2023
Categories
In Doe v. Willis, 2023 WL 2918507 (M.D. Fl. Apr. 12, 2023), the plaintiff’s lawyer imposed an oral legal hold, telling her that she should not delete texts, throw away evidence, or post anything on Facebook, and: “That’s about it.” The instructions were not memorialized in a writing. Subsequently, the plaintiff dropped […]
April 26, 2023
Published by Michael Berman at April 26, 2023
Categories
Authentication is a central issue when it comes to use of ESI in motions or at trial.[1] In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion. Here, defense counsel dotted all of the […]
April 23, 2023
Published by Michael Berman at April 23, 2023
Categories
Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
April 20, 2023
Published by Michael Berman at April 20, 2023
Categories
Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information. “Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense […]
April 17, 2023
Published by Michael Berman at April 17, 2023
Categories
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 12, 2023
Published by Michael Berman at April 12, 2023
Categories
Cell phones have led to thorny legal issues. For example, in Juror’s Cellphone Not Subject to Search (americanbar.org)(Feb. 21, 2023), Steven B. Chaneles, wrote that, in response to a post-verdict challenge: “A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cellphone….” The […]
April 10, 2023
Published by Michael Berman at April 10, 2023
Categories
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 8, 2023
Published by Michael Berman at April 8, 2023
Categories
In CSAA Affinity Insurance Company v. The Scott Fetzer Company, 2023 WL 2714026 (D. Md. Mar. 30, 2023), a subrogated insurer sued the manufacturer of a sump pump, alleging that the pump was defective and started a house fire. The defendant-manufacturer asserted spoliation, and it moved for sanctions. However, defendant’s motion for […]
April 7, 2023
Published by Michael Berman at April 7, 2023
Categories
The U.S. District Court for Maryland “has entered Standing Order 2023-01 regarding the pilot project to directly assign certain civil cases to the Magistrate Judges of this Court for all proceedings and the entry of a final judgment, subject to the consent of all parties.” One purpose of the Order is to […]
April 7, 2023
Published by Michael Berman at April 7, 2023
Categories
Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
April 6, 2023
Published by Michael Berman at April 6, 2023
Categories
The United States District Court for the District of Maryland has proposed an amendment so that Discovery Guideline 5 will conform to amendments to Fed.R.Civ.P. 30(b)(6). I chaired a subcommittee of the Federal Court Bench Bar Committee which submitted a proposed amendment to the Court for its consideration. Subcommittee members included Phil […]
March 17, 2023
Published by Michael Berman at March 17, 2023
Categories
“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
Categories
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
Categories
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
Categories
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
Categories
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 […]
December 26, 2022
Published by Michael Berman at December 26, 2022
Categories
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
Categories
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 15, 2022
Published by Michael Berman at December 15, 2022
Categories
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 […]
November 19, 2022
Published by Michael Berman at November 19, 2022
Categories
I will be co-presenting a program for the MSBA Young Lawyers Section, together with the Hon. J. Mark Coulson, Alicia L. Shelton, Esq., Thomas J. Keilty, III, Esq., and Ashley Aranega of X1 Social Discovery. Please see the flier below:
November 11, 2022
Published by Michael Berman at November 11, 2022
Categories
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 […]
October 28, 2022
Published by Michael Berman at October 28, 2022
Categories
In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff served a subpoena […]
October 11, 2022
Published by Michael Berman at October 11, 2022
Categories
The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement. Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022). The paper reports that the trial judge had […]
September 7, 2022
Published by Michael Berman at September 7, 2022
Categories
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 15, 2022
Published by Michael Berman at August 15, 2022
Categories
Several Fourth Circuit, District of Maryland, and Maryland intermediate appellate decisions stand for the proposition that, where a potential litigant is unable to comply with the duty to preserve potentially responsive information, the potential litigant has a duty to notify the anticipated opponent before the information goes missing. For example: I have […]
August 10, 2022
Published by Michael Berman at August 10, 2022
Categories
In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *1 (D. Md. Oct. 15, 2021), the Court held that defendant had properly authenticated a disputed signature on an arbitration agreement. The signature was authenticated by testimony of a human resources officer as to defendant’s routine business practices. Mr. Mason was employed […]
August 9, 2022
Published by Michael Berman at August 9, 2022
Categories
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 7, 2022
Published by Michael Berman at August 7, 2022
Categories
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 […]
July 16, 2022
Published by Michael Berman at July 16, 2022
Categories
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
Categories
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
Categories
“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022). Counsel was disqualified as a result. Like many depositions during the pandemic, the Barksdale deposition took place remotely over […]
July 13, 2022
Published by Michael Berman at July 13, 2022
Categories
In Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022), the Court denied a request for a preservation order that was made in the form of a motion for a temporary restraining order. Plaintiffs sought an order to preserve certain information after expiration of a statutory preservation mandate […]
June 21, 2022
Published by Michael Berman at June 21, 2022
Categories
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
Categories
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 1, 2022
Published by Michael Berman at June 1, 2022
Categories
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw. In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating: Although cases abound […]
May 31, 2022
Published by Michael Berman at May 31, 2022
Categories
Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1] It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by […]
May 29, 2022
Published by Michael Berman at May 29, 2022
Categories
The prior blog discussed the historical acceptance of technology assisted review. However, keyword searching remains an important and useful tool. Mark Twain wrote: “The reports of my death are greatly exaggerated….” The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 27, 2022
Published by Michael Berman at May 27, 2022
Categories
Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
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 20, 2022
Published by Michael Berman at April 20, 2022
Categories
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 10, 2022
Published by Michael Berman at April 10, 2022
Categories
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 […]
March 24, 2022
Published by Michael Berman at March 24, 2022
Categories
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 23, 2022
Published by Michael Berman at March 23, 2022
Categories
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 11, 2022
Published by Michael Berman at March 11, 2022
Categories
In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted: As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute […]
March 11, 2022
Published by Michael Berman at March 11, 2022
Categories
In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages. The Court described the missing texts as “the primary basis of [plaintiff’s] […]
March 8, 2022
Published by Michael Berman at March 8, 2022
Categories
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
Categories
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 […]
November 28, 2021
Published by Michael Berman at November 28, 2021
Categories
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 […]
August 27, 2021
Published by Michael Berman at August 27, 2021
Categories
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
Categories
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 11, 2021
Published by Michael Berman at August 11, 2021
Categories
In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.” The Court answered that in the negative. In doing so, it differentiated between the loss or destruction of […]
February 7, 2021
Published by Michael Berman at February 7, 2021
Categories
In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court penalized a litigant for her untimely filing of a spoliation motion, even though the motion had merit. While the Court granted the request for sanctions, it denied a request for attorneys’ fees due to the […]
December 26, 2020
Published by Michael Berman at December 26, 2020
Categories
UPDATE: on August 10, 2021, the Court issued an opinion in Strike3 Holdings, LLC v. John Doe, 2021 WL 3511124 (D. Md. Aug. 10, 2021). ***** In Strike 3 Holdings, LLC v. John Doe, 2020 WL 7640943 (D. Md. Dec. 23, 2020), the Court authorized, but only in a strictly limited way, […]
December 26, 2020
Published by Michael Berman at December 26, 2020
Categories
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
Categories
In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce an inconsistent email to search parameters that were too narrow. The Court held that […]
December 20, 2020
Published by Michael Berman at December 20, 2020
Categories
“The burden of proof on a motion for spoliation sanctions is unsettled.” Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). Two recent District of Maryland decisions have held that, at least where a relatively harsh sanction is involved, a clear and convincing standard applies: “The burden […]
August 18, 2012
Published by Michael Berman at August 18, 2012
Categories
The Maryland Daily Record reports that Mr. Mark T. Pappas, protagonist in the “Victor Stanley case,” was denied bail “because of his ‘long history’ of noncompliance [with Court orders] and ‘lack of candor’ in the [Victor Stanley] litigation. Ben Mook, “Back from Belize, Pappas denied bail,” The Daily Record, Aug. 15, 2012. […]