ESI

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 18, 2024

Court Orders Parties to Enter Into an ESI Protocol

In the unusual context of a Delaware federal subpoena for discovery in a Spanish proceeding, a court ordered the parties “to meet and confer to discuss the scope of each request and to enter an agreed-upon ESI protocol and protective order.”  In re Application of FourWorld Capital Management LLC, Petitioner, for an […]
April 17, 2024

One Form of a Custodial Data Map

I am an advocate of data mapping. I also usually attempt to discuss key custodians with opposing counsel.  However, in cases with a large number of custodians, I often find that it is difficult to keep track of them, especially in planning for preservation and attending Fed.R.Civ.P. 26(f) conferences. One tool that […]
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 […]
April 8, 2024

What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?

In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about […]
March 27, 2024

Maryland County Deemed to Have Failed to Provide Open Government Documents

In Maryland, “sunshine” statutes such as the Open Meetings Act, Md. Code Ann., Gen’l. Prov. Art. §3-301, et seq., and the Public Information Act, Md. Code Ann., Gen’l. Prov. Art. §4-101, et seq., further the goal of open and transparent government. In State compliance board rules Cassilly’s office violated Public Information Act […]
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 15, 2024

Law360: “Judge Applauds Attys’ ‘Very Awesome’ Use Of Google AI Bot”

The use of artificial intelligence in litigation has gotten a lot of criticism for hallucinations.  That is why the article by Dorothy Atkins, Judge Applauds Attys’ ‘Very Awesome’ Use Of Google AI Bot – Law360 (Mar.14, 2024), is so interesting.  Ms. Atkins wrote that: A California federal judge told counsel Thursday it’s […]
March 14, 2024

Another Spoliation Motion Denied as Untimely

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 6, 2024

Ninth Circuit – – Don’t Destroy Relevant Texts

Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024).  The case is a textbook example of a plaintiff tanking her own case by deleting relevant texts. Ms. Jones, a former waitress, sued a bar […]
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 […]
March 2, 2024

Maryland’s Proposed Data Privacy Act – Part of a Trend?

The Maryland Online Data Privacy Act of 2024 is currently pending before the General Assembly as HB0567, cross-filed as SB0541. Senate President Bill Ferguson said: “Maryland is a middle-temperament state. We learn from others, we’re often not the first but we aren’t the last, and so we like to learn from what’s […]
March 1, 2024

Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video

Can a witness authenticate a video if the video contains images that the witness did not see?  In Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authentication issue. She wrote that: The […]
February 29, 2024

Prosecutors Ordered to Show Cause on Alleged Discovery Failure

In Baltimore County judge chastises prosecutors for evidence missteps in David Linthicum case – Baltimore Sun (Feb. 28, 2024), Cassidy Jensen reported on an alleged discovery failure in a criminal case. The defendant is charged with shooting two police officers.  The Circuit Court issued an order “to show why [prosecutors] had wrongly […]
February 25, 2024

Criminal Destruction of Records Followed by Deception Leads to Guilty Plea

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 21, 2024

Rusty Texts: Sending Privileged Information to Clients

In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons expert and her lawyer in the ‘Rust’ film shooting case raises questions about whether attorneys should text with clients and serves as […]
February 6, 2024

Do “Evasive and Incomplete” Discovery Responses Support Draconian FRCP 37(d) Sanctions?

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 […]
February 2, 2024

Public Comments on Proposed 5th Circuit A.I. Rule

In Attys Split On 5th Circ.’s Proposed AI, Accuracy-Check Rule – Law360 (Jan. 30, 2024), Lauren Berg reported on the current status of a 5th Circuit proposed A.I. rule.[1] Ms. Berg’s article stated that reactions “span from one end of the spectrum to another, with some saying it will stifle the benefits […]
January 29, 2024

eDiscovery Channel

It was an honor and pleasure to be interviewed by Rachi Messing and Tom O’Connor on the eDiscovery Channel. The interview is posted on Mike Berman Chats with Rachi and Tom (youtube.com). eDiscovery Channel – YouTube discusses a wide range of topics in the eDiscovery space.  The Channel explains that “Tom interviews […]
January 27, 2024

And When I Die… What Happens to My Social Media? – – Part II

In a prior blog, And When I Die….  What Happens to My Social Media?, I discussed Maryland’s “Fiduciary Access to Digital Assets Act” (“MFADAA”).  The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability.  It is codified in Md. […]
January 26, 2024

“Ninth Circuit Creates Panel to Study Artificial Intelligence”

In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that:  “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.”  She […]
January 23, 2024

Florida Adopts Ethics Guidelines for Use of Generative A.I.

“Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.”  See J. Ash, Board of Governors adopts ethics guidelines for generative AI use – The Florida Bar (Jan. 23, 2024).  Mr. Ash reports that the version is substantially similar […]
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 18, 2024

Defendant Who Participated in Text Message Exchange Was Not Prejudiced by Disclosure on the Eve of Trial

In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported),[1] the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant.  One important fact was that the defendant had participated in the text messaging and therefore was not surprised […]
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 5, 2024

Failure to Object to Untimely Interrogatories Coupled With a Discovery Violation Leads to Reversal

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

“ESI Protocol” v. “Discovery Plan”

“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 […]
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 23, 2023

JAMS: “Mediating E-Discovery Can Save Time and Money”

In Mediating E-Discovery Can Save Time and Money (jamsadr.com) (Nov. 10, 2023), the Hon. Gail A. Andler (ret.) and Daniel B. Garrie, Esq., wrote that “[o]ne approach” to remediating the costs of e-discovery “is using mediation to resolve some aspects of discovery disputes.”  They report “a recent rise” in the application of […]
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 18, 2023

2024 Maryland Superlawyer Selection

It is an honor to be selected as a 2024 Maryland Superlawyer. “Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. […]
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 15, 2023

Proposed A.I. Rule in Eastern District of Michigan

Danielle Ferguson reports in Detroit Federal Courts Propose AI Disclosure Rule – Law360 (Dec. 8, 2023), that: “The Eastern District of Michigan published a proposed rule Friday that would require lawyers to disclose any time they use AI to help them with written filings and verify its citations are real….”  She adds […]
December 13, 2023

Doug Austin Reports on Google Export Feature Re: Hyperlinked Documents

Modern attachments have garnered a lot of attention. See, e.g., More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”.  and T. Thames, Modern attachments and eDiscovery: Navigating the complexities of linked documents (onna.com) Most of that attention has been focused on what I call the “Humpty Dumpty” issue – – when […]
December 13, 2023

Text Messages Used to Support Conviction: Prejudice Did Not Outweigh Probative Value

In Francois v. State, 2023 WL 8265659, at *1 (Apl. Ct. Md. Nov. 30, 2023), the defendant was charged with various offenses that included possession of a firearm and ammunition after a disqualifying conviction.  On appeal, the defendant challenged the lower court’s admission of text messages relating to otherwise lawful trips to […]
December 10, 2023

Secondary Evidence of Missing Video Permitted

In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the defendant. At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a […]
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 2, 2023

Should Courts Use Standing Orders or Local Rules to Address A.I.?

Some courts have issued Standing Orders governing the use of A.I.  Another viewpoint is that a better approach is to use Local Rules.  See Shweta Watwe, Judges Reflect on GenAI Use One Year After ChatGPT’s Debut (bloomberglaw.com)(Nov. 28, 2023).  This blog is based on Ms. Watwe’s excellent article and, in the interest […]
December 1, 2023

Amended Federal Rules Become Effective Today

The United States Courts reports that: “The following amended and new rules and forms became effective December 1, 2023: Appellate Rules 2, 4, 26, and 45 Bankruptcy Rules 3011, 8003, 9006, and new Rule 9038 Official Bankruptcy Forms 410A and 417A Civil Rules 6, 15, 72, and new Rule 87 Criminal Rules […]
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. […]
December 1, 2023

De-Duplication Explained by Lexbe Inc.

Lexbe  Inc. (“Lexbe”) posted an informative discussion of de-duplication on LinkedIn. A link to Lexbe’s post is pasted at the foot of this blog. Lexbe’s blog explains that there are two types of de-duplication and: “Here are the differences between them:  𝐆𝐥𝐨𝐛𝐚𝐥: Duplicates are identified and suppressed across the entire dataset (i.e., all […]
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 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 13, 2023

Michigan Ethics Opinion Requires Judicial Technological Competence

Emma Cueto reports that the Mich. State Bar Says Judges Ethically Must Keep Up With AI – Law360 (Nov. 9, 2023); see Ethics Opinion: Judges Must Keep up with Advancing Technology (michbar.org).  The full ethics opinion is posted at Ethics Opinions Search Detail (michbar.org). I don’t think it is a good idea, […]
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 […]
November 1, 2023

Court Uses an Informal Discovery Procedure to Hold That Untimely Objections Were Waived, and Answers to Interrogatories Defectively Referred to Deposition

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 […]
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 […]
October 26, 2023

“Florida bar weighs whether lawyers using AI need client consent”

“Florida lawyers might soon be required to get their client’s consent before using artificial intelligence on their legal matters.”  Karen Sloan, “Florida bar weighs whether lawyers using AI need client consent | Reuters (Oct. 16, 2023).  Ms. Sloan’s article reports that “Florida looks to be the first jurisdiction considering a consent rule […]
October 4, 2023

Bob Dylan Awarded Discovery Sanctions After Dismissal of Tort Claims

“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan.  J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. […]
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 26, 2023

Additional Monetary Sanctions in Freeman v. Giuliani

I wrote briefly about the sanctions request in the Georgia poll workers case against Mr. Rudy Giuliani. Sanctions Sought in “Murky Mess” In a recent update, Zoe Tillman reported in Giuliani Owes $236K and Counting Over Defamation Case Failures (bloomberglaw.com)(Sept. 22, 2023), that: Rudy Giuliani owes more than $236,000 — and may […]
September 22, 2023

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

This is Part III of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules.  The prior blogs can be found using the PIA “tag,” above.  Prior blogs addressed many similarities between the PIA and civil discovery, THE ANTIQUATED PIA EXCEPTION FOR METADATA […]
September 21, 2023

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

This is Part II of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules. COOPERATION IN REQUESTS FOR PUBLIC RECORDS The duty to cooperate in civil discovery is well established. Rodriguez v. Clarke, 400 Md. 39, 60 (2007); see also J. Pike […]
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 14, 2023

Proposed Amendments to the Federal Rules of Civil Procedure

On May 11, 2023,the federal Advisory Committee on Civil Rules (the “Advisory Committee”)   sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”). The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and […]
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 […]
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 16, 2023

Bare Allegation of Refusal to Preserve Evidence Does Not State a Claim

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 15, 2023

Sanctions Sought in “Murky Mess”

Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023).  This high-profile case may present interesting ESI and spoliation issues and it is worth watching. Ms. Tillman reports that plaintiffs are seeking a default judgment.  Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half […]
July 12, 2023

Revocation of Consent to Search Mirror Image of Laptop

In State v. McDonnell, __ Md. __,  2023 WL 4393297, at *1 (July 7, 2023), the Supreme Court of Maryland held that a person who had consented to seizure of his laptop, as well as to creation of a mirror image, could withdraw consent to search it before the government examined the […]
July 8, 2023

Emoji Forms a Contract

Lots has been written about emojis. See, e.g., What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?  Prof. Eric Goldman, cited in that blog, is one of the leading authorities. In Farmer owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says […]
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

Maryland Moves Closer to Replacing the Obsolete “Safe Harbor” Rule

My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
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. […]
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 26, 2023

Authentication of ESI on Motion Compelling Arbitration Despite Factual Dispute

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 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 23, 2023

A Wolf in Sheep’s Clothing:  Litigant Can’t Convert a Discovery Dispute Into a Sanctions Motion

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

Authentication of a Disputed Email and Attachment

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

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 12, 2023

“Juror’s Cellphone Not Subject to Search”

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

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 […]
April 7, 2023

District of Maryland’s Proposed Amendment to “Good Faith” Conference Rule

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

Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar

Nicassio v. XYZ Law Firm, 2023 WL 2661156 (Apls. Ct. Md. Mar. 28, 2023)(unreported), demonstrates the wisdom of candor when it comes to potential spoliation.[1] It also reinforces the well-established need to periodically remind custodians of their duty to preserve potentially responsive information. Litigation often drags on long after issuance of an […]
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 20, 2023

Discovery of Social Media Permitted Under Protective Protocol in NJ

  In a case where plaintiff asserted severe emotional distress, a New Jersey appellate court wrote that “there is no New Jersey case law detailing the scope of discovery regarding a litigant’s private social media posts.”   Patrick Dorrian, New Jersey Lawyer Suing for Job Bias Must Fork Over Social Media (bloomberglaw.com)(Mar. 17, […]
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 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 10, 2023

Can Consent to Search Be Withdrawn After a “Mirror Image” is Made by Law Enforcement?

The Maryland Supreme Court is considering another important ESI case.  Recently, it issued a landmark decision concerning cell phone searches in criminal cases.  Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland The Court is now considering whether consent to search can be withdrawn after a forensic image is made […]
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 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 […]
January 4, 2023

How to Avoid Contentious “Hit Report” Problems

Josh Gilliland’s blog, Search Term Agreements Do Not Eliminate Relevancy Review – Bow Tie Law (Jan. 2, 2023), addresses: What happens when one party argues a producing party should produce all search term hits? The answer is no. Moreover, wishing to get all hits is a formula for madness. Josh writes that, […]
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 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 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 16, 2022

What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?

“Zoomers” have their own style of communication.  Danielle April, Gen Z’s slang and emojis are confusing older colleagues at work – The Washington Post (Dec. 12-13, 2022). Generation Z, those born between 1997 and 2012, have a “form of messaging” that creates “a quirky challenge for multigenerational workplaces….” Id.  For example, Ms. […]
December 16, 2022

Maryland Judge Quits After Facebook Posts

The Daily Record reported that an Orphans’ Cout judge “quit last week amid disciplinary allegations that he misused ‘the prestige of judicial office’ on his Facebook page by posting a profile photo of himself in his judicial robe and engaging in partisan political discussion, giving legal advice and advertising his private business […]
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 20, 2022

ABA Article Suggests a Need to “Preserve Everything”

A recent article in the American Bar Association’s Litigation magazine suggested that: Plaintiffs must ensure preservation of everything from the moment the problem is identified….  Even if the plaintiff hasn’t filed a lawsuit yet, consider a written instruction to the soon-to-be defendant to preserve everything…. The best way for the plaintiff to […]
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 […]
November 8, 2022

It’s Time to Replace Maryland’s “Safe Harbor” Rule

UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
October 28, 2022

Sanctions Denied, But Be Careful What You Agree To (Part I)

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

Turtle and Tourist Photos Were Insufficient to Authenticate Texts in Criminal Case

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 8, 2022

Missing Text Messages Shown By Third-Party Production & Responsive Texts

An article by Jef Feeley, Judge Slams Musk for Mishandling Records in Twitter Fight (1) (bloomberglaw.com) (Sept. 7, 2022), states that Delaware Chancery Judge Kathaleen St. Jude McCormick found “glaring deficiencies” in Elon Musk’s production of text messages in discovery. The article states: “Third parties produced text messages with Musk that Musk himself did […]
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 […]
September 3, 2022

Is the “CSI Effect” Relevant in Civil Jury Trials?

In Banuchi v. City of Homestead, 2022 WL 2065049 (S.D. Fla. June 8, 2022), a civil wrongful death lawsuit, evidence of the “CSI Effect” proffered by defendants was excluded, based on lack of qualification of the sponsoring expert and reliability grounds.  An appeal is pending. “CSI Effect” evidence has been controversial in […]
August 29, 2022

Legal Project Management – Review of Two Recent Publications

“Legal project management” is receiving increased attention in litigation.  See, e.g., Sarah Horstmann and Jill Sonnesyn, A Quick Guide to Legal Project Management in Litigation (americanbar.org) (ABA Aug. 23, 2022)(“Law firms are increasingly relying on Legal Project Management (LPM) to manage litigation matters. LPM takes general project management methodologies and applies them […]
August 28, 2022

Some of the Perils of Group Texts and “Reply All” Emails

Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors. The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor […]
August 15, 2022

Is There a Duty to “’Fess Up?”

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 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 13, 2022

Suspect’s Haircut = Destruction or Concealment of Evidence Leading to “Missing Evidence” Jury Instruction

In re Rainey v. State, __ Md. __, 2022 WL 3269789, at *1 (Md. Aug. 11, 2022), the Court affirmed a jury instruction on destruction or concealment of evidence “based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.” The victim was shot […]
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 6, 2022

Possible Additional Fallout From Alex Jones Cell Phone Disclosure

Bloomberg Law reports: Two attorneys for Alex Jones could potentially face discipline for wrongfully releasing the medical information of plaintiffs in a case accusing the InfoWars host of defaming them, Connecticut court filings show. … On Thursday, the Superior Court for the Judicial District of Waterbury ordered two of Jones’ attorneys, Andino […]
August 5, 2022

Phones of top Pentagon officials were wiped of Jan. 6 messages

The Washington Post reports that: “The Pentagon erased a potential trove of material related to the Jan. 6, 2021, attack on the Capitol from the phones of senior defense officials in the Trump administration, according to legal filings.”  Karoun Demirjian and Jacqueline Alemany, Phones of top Pentagon officials wiped of Jan. 6 […]
August 4, 2022

Trump Aide Navarro Sued by US Over Private Email Account Records

Bloomberg Law reports that: The US Justice Department sued former White House trade adviser Peter Navarro, claiming he’s refused to provide the National Archives with emails retained on a private account he used while working for President Donald Trump. “Mr. Navarro is wrongfully retaining presidential records that are the property of the […]
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 […]
August 4, 2022

“Sandy Hook lawyers say Alex Jones’s attorneys accidentally gave them his phone contents”

Brittany Shammas and Kim Bellware reported that Alex Jones attorneys accidentally gave up his phone’s contents, Sandy Hook lawyers say – The Washington Post  (Aug. 3, 2022). The Post reports that: The legal team representing Infowars founder Alex Jones inadvertently sent the contents of his cellphone to a lawyer representing the parents of […]
July 17, 2022

Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone

In State v. Galicia, __ Md. __, 2022 WL 2301437, at *1 (June 27, 2022), the Court of Appeals held that expert testimony was not required to show that a user can disable location tracking on a smartphone. Two teenagers were shot by four men in June 2017.  Mr. Galicia was convicted […]
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

Secret Service erased texts from Jan. 5 and 6, 2021, official says

In Maria Sacchetti and Carol D. Leonnig, Secret Service erased texts from January 5 and 6, 2021, official says – The Washington Post (July 14, 2022), the Washington Post reports that Joseph V. Cuffari, head of the Department of Homeland Security’s Office of Inspector General, “accused the U.S. Secret Service of erasing texts from […]
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 13, 2022

Failed Request for a Preservation Order

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 […]
July 12, 2022

Directive to Collect Less Evidence

“Prosecutors struggling to pore through mushrooming amounts of electronic data they uncover during corporate crime investigations are beginning to hear counterintuitive advice from the Justice Department: Collect less evidence. The nascent strategy of selectively seizing fewer computers, cell phones, and hard drives coincides with an exponential growth of available e-data. It comes […]
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 25, 2022

Admissibility of Photogrammetric Evidence – Trial Court is a “Gatekeeper” But Not an “Armed Guard”

Two people were murdered.  It was late at night in an area of known drug deals.  There were witnesses, but many had consumed legal or illegal substances and others were inconsistent.  There was video, but not of the shooting.  The Court called it “incomplete.”  An FBI analyst testified to a photogrammetric analysis […]
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

When is a Haircut Spoliation? – Recent Oral Argument in Court of Appeals

I have been following with interest a case in the Maryland Court of Appeals on whether and when a potential criminal defendant cutting his hair may be viewed as spoliation.  See When is a Haircut Spoliation? Certiorari Granted and When is a Haircut Spoliation? The Maryland Daily Record recently reported on oral argument. S. Lash,  MD […]
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 […]
June 2, 2022

Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure

As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006.  And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 31, 2022

Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation

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 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 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

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 28, 2022

Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology. In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

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” […]
May 26, 2022

Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”

Zubulake was not the first e-discovery case to impose sanctions. Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 794 (2010). Mr. Willoughby explains that that distinction belongs to Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. […]
May 25, 2022

Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them. Zubulake was a series of cases.  Zubulake v. UBS Warburg, […]
May 24, 2022

Historical ESI Highlights – Part I

This is the first in a series of blogs on historical developments in civil litigation related to electronically stored information.  The speed of change has been remarkable.  For example, The Hon. John M. Facciola recently asked: “Did anyone get the license plate of the rocket ship that hit me?”[1] The value of […]
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

Discovery on Discovery

A “Gibbons Law Alert,” B. Basso, Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown – Gibbons Law Alert (Apr. 28, 2022), describes a recent “discovery on discovery” decision. Gibbons describes plaintiff’s discovery request for defendant to “identify all electronic devices ‘used … to transmit documents […]
April 27, 2022

Proposal to Lift Geographic Limits on Practice of Law – Implications for ESI

The ABA recently reported on a proposal that Lawyers should be able to practice law in any state, says group urging ABA model rule change (abajournal.com). The proposal appears especially well-suited to ESI.[1] The author, Debra Cassens Weiss, reports that “[t]he proposed rule change by the Association of Professional Responsibility Lawyers emphasizes the concept […]
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 15, 2022

Attorney’s Duty to Protect Smartphone Data

“An attorney who stores the confidential identity of their clients on a smartphone must not consent to share contact information with an app unless that information won’t be shared with any human, the New York State Bar Association said.” D. McAfee, New York Bar Outlines Attorneys’ Duty to Protect Smartphone Data (bloomberglaw.com) (Apr. 13, […]
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 11, 2022

No Sanction Despite Convoluted and Murky Explanation for Missing Texts

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

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 […]
March 5, 2022

Are Litigation Hold Notices Discoverable?

The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
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 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 […]
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 […]
January 16, 2022

When is a Haircut Spoliation? Certiorari Granted.

On January 11, 2022, the  Maryland Court of Appeals granted certiorari in the “haircut spoliation” case that I wrote about in “When is a Haircut Spoliation?”  The Court’s website lists the issues on which certiorari was granted: “Issues – Criminal Law – 1) As a matter of first impression, can a suspect’s […]
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 […]
December 2, 2021

Two Recent Maryland Decisions on Authentication of Text Messages

Sykes v. State, 2021 WL 5366047 (Md. Ct. Spl. Apls. Nov. 18, 2021), and Burks v. State, 2021 WL 1747943 (Md. Ct. Spl. Apls. May 3, 2021), address authentication of text messages in criminal cases. In Sykes, the cell phone was seized from the defendant after he was seen making a call […]
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 18, 2021

Proportionality Analysis in Vanessa Bryant’s Emotional Distress Case

In a lawsuit seeking emotional distress damages arising out of events following the January 26, 2020, death of Kobe Bryant and his daughter, the court held that some of his widow’s more recent therapy records were relevant and discoverable.  However, the cost of discovery of older records was held to be disproportionate, […]
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.  […]
October 1, 2021

When is a Haircut Spoliation?

In Rainey v. State, No. 3094, __ Md. App. ___ (Sept. 28, 2021), a defendant in a criminal case spoliated evidence when he got a haircut after the crime, but before his arrest.  Mr. Rainey was charged with murder.  An eyewitness and surveillance video showed that a man with dreadlocks was involved. […]
September 4, 2021

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

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 19, 2021

Does Maryland Require that Spoliation be “Intentional”?

In Six Flags America, L.P. v. Mims, 2021 WL 1627055 (Md. Ct. Spl. Apls. Apr. 27, 2021) (unreported), the appellate court held that it was error to allow plaintiff/appellee’s rebuttal arguments concerning the overwriting of defendant’s surveillance footage of the park entrance taken at the time of the occurrence.  The Court pointed […]
August 18, 2021

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 12, 2021

When Does a Litigation Hold End?

Much has been written about what triggers a litigation hold, i.e., reasonable anticipation of litigation.[1] Less has been written about when a litigation hold ends.  That became a potential problem for the defendant in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114 (N.D. Cal. Mar. 16, 2021). The question of when a […]
August 11, 2021

Snapchat Spoliation Blog: More on the Dangers of Unsupervised Self Collection

Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs.  I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 11, 2021

There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions

In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.”  The Court answered that in the negative.  In doing so, it differentiated between the loss or destruction of […]
August 10, 2021

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 10, 2021

District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data

Many social media programs provide their members with a non-forensic download tool.  For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019). However, those tools may not provide the same information that a forensic download collects. In Allen v. PPE […]
August 9, 2021

When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective.

Much has been written about discoverability of litigation hold notices.  See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities). In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote:  “This matter is back before the undersigned on […]
August 9, 2021

District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases

The District of Maryland has drawn a sharp distinction between discovery of social media posts in physical impairment cases, “garden variety” emotional distress cases, and “severe and specific” emotional distress cases.  See Blog, “District of Maryland Clarifies Rules Governing Discovery of Social Media.” The scope of discovery of social media in physical […]
August 8, 2021

District of Maryland Clarifies Rules Governing Discovery of Social Media

In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), and Gaske v. Crabcake Factory Seafood House, LLC, 2021 WL 3188007 (D. Md. Jul. 28, 2021), the Honorable J. Mark Coulson described the principles governing discovery of social media.  Both decisions involved employment […]
August 3, 2021

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 28, 2021

Maker’s Mark: What Happens When Neither Party Cooperates?

Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), is often – and properly – cited for its discussion of the use of Microsoft Outlook for ESI searches. However, another interesting issue addressed in that opinion is mutual abrogation of the duty to cooperate.  It […]
July 27, 2021

Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation

Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. Jun. 9, 2021), involved a suit for alleged brake defects.  Near the end of discovery, plaintiff moved to compel further searches by Ford.  The motion was denied. The Weidman court provided a comprehensive discussion of the December 2015 amendments to the Federal […]
July 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 22, 2021

The Perils of a Misfocused Preservation Letter

In a preservation letter, a potential litigant demands that the opponent preserve specific ESI and documents.  The purpose of the letter is to trigger the common-law duty to preserve potentially responsive information.  However, if not properly drafted, a preservation letter can have the opposite effect.  Malone v. Wicomico County, MD, 2021 WL […]
July 21, 2021

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 […]
July 19, 2021

Facebook: Deactivation v. Deletion; Authentication With Native Files; and, Searching

As one of the most popular social media sites, Facebook is the subject of numerous ESI cases.  Three recent decisions address deactivation v. deletion, the value of native Facebook files when authentication is disputed, and the search for responsive information. DEACTIVATION OR DELETION? Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D.Ga. […]
July 18, 2021

Feds Can’t Hire ESI Vendor in Capitol Siege Criminal Cases

Federal prosecutors have been precluded from hiring an ESI vendor to assist with massive e-discovery in criminal cases arising out of the January 6th prosecutions. Deloitte Financial Advisory Services LLP is barred from helping federal prosecutors and other government staff sort and organize the huge volumes of electronic data and other evidence […]
May 14, 2021

The Duty of Inquiry and Sanctions for Failure to Investigate Client’s Claim

In two recent decisions, the District of Maryland has imposed sanctions for failure to properly investigate a client’s documents.  Taken together, Bioiberica Nebraska and Membreno show that the Court expects a reasonable inquiry into information that is within a party’s possession, custody, or practical control.  Filings or representations that contradict such information […]
May 13, 2021

Damage Control Method

Bloomberg Law reports that a company has allegedly mishandled potentially important emails in a 70,000 person class action.  J. Feeley and D. Glovin, “Sanofi Accused of Destroying Emails Tied to Zantac Recall” (Bloomberg May 11, 2021).  The potential spoliator’s response is instructive. In the products liability action, plaintiffs allege that the defendant’s […]
March 26, 2021

Negotiating Searches Using “Hit” Reports

Josh Gilliland’s Bow Tie Law blog published a description of search term negotiations using “hit reports” in a recent decision from the Southern District of New York.  J. Gilliland, “Precision Search Terms in Discovery” (Mar. 23, 2021). Josh describes the back-and-forth exchange of information necessary in a cooperative approach to search. For […]
March 25, 2021

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun

It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery. I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5.  In an itemized log, every email and every attachment […]
March 24, 2021

Using Digital Forensics to Protect Trade Secrets

Misappropriation of trade secrets cases are increasingly digital. For example, a former employer may seek discovery of a new employer’s information.  As discussed in “The Gang That Couldn’t Spoliate Straight,” forensic analysis is often necessary.  Craig Ball’s post, “What’s in a Name (or Hash Value)?” discussed some forensic options. A recent American […]
March 16, 2021

Surveillance Video of Robbery Was Properly Authenticated by Eyewitness

In Karn v. State, 2021 WL 515388 (Md. Ct. Spl. Apls. Feb. 11, 2021) (unreported), the Court affirmed a holding that the State had laid a proper foundation for admitting surveillance video. The Court applied the Court of Appeals’ decisions in State v. Sample, 468 Md. 560, 588 (2020), and Sublet v. […]
March 16, 2021

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 14, 2021

Maryland’s Confusing Spoliation Doctrine

In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice.  The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction […]
March 12, 2021

Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
March 7, 2021

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 […]
March 6, 2021

Rules Matter: A “Perry Mason Moment” Was Derailed by a Discovery Violation

Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), demonstrates the importance of following court disclosure rules and protocols.  The value of critical evidence was blunted by a failure to do so. “The practice of law may be poetically likened to sailing a ship. Constitutions, case […]
February 18, 2021

Email: “It seemed like a neat idea.”

“Ray Tomlinson is quoted as saying he invented email, ‘Mostly because it seemed like a neat idea.’ No one was asking for email.”  M. Bellis, “The History of Email” (ThoughtCo. Aug. 4, 2017).
February 17, 2021

Who Invented the Mouse a/k/a the X-Y Position Indicator for a Display System?

It is often amazing how little we know of the history of everyday devices. Who invented the telephone?  We all know the answer. What about the mouse that is sitting next to your hand right now? The mouse was invented by Douglas Engelbart.  J. Freeman, The Tyranny of E-Mail:  The Four-Thousand Year […]
February 16, 2021

Who First Used the @ Sign in Domains and What Does It Mean?

Every day, we use computers and drive cars with no knowledge of what makes them tick.  Consider the humble “@” sign.  How many times did you use it today? “Ray Tomlinson chose the @ symbol to tell which user was ‘at’ what computer. The @ goes in between the user’s login name […]
February 14, 2021

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 14, 2021

What Was the First Email Message?

On May 24, 1844, Samuel Morse sent a telegraph message and famously asked: “What hath G-d wrought?” Do you know who sent the first email or the message it conveyed? In 1971, Ray Tomlinson sent the first email message.  It was “QWERTYUIOP.”  M. Bellis, “The History of Email” (ThoughtCo. Aug. 4, 2017). […]
February 13, 2021

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 […]
February 13, 2021

What Was the First Online Game Played?

In the 1840’s, the telegraph was used to play board games between towns.  See M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 753, citing Standage, “The Victorian Internet” (Walker & Co. 1998, 2007).  “Bored and lonely [telegraph] operators would also play checkers over the wires, […]
February 12, 2021

“[I]t is no longer amateur hour.”

In a February 11, 2021, post,   Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating: As noted by Judge Johnson, “[i]t […]
February 11, 2021

When Was the First Online Wedding? – William Storey and Clara Choate’s Love Story

Today, you can get married on Zoom.  But nothing’s new. The first online wedding took place by telegraph in the 1800’s.  See M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 753, citing Standage, “The Victorian Internet” (Walker & Co. 1998, 2007), 127-28.  Standage describes a […]
February 7, 2021

District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court applied the spoliation doctrine in an employment discrimination case. The plaintiff alleged injury due to a hostile work environment and discrimination based on gender identity and sex.  The Court wrote: “Discovery was contentious….”  The plaintiff […]
February 7, 2021

When Should a Spoliation Motion Be Filed and Decided? – – An Update

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court penalized a litigant for her untimely filing of a spoliation motion, even though the motion had merit.  While the Court granted the request for sanctions, it denied a request for attorneys’ fees due to the […]
February 4, 2021

Requests for “Any and All” Documents Are Obsolete

In the ancient year of 2009, Gil Greenman and James Weingarten, of Williams & Connolly LLP, wrote “Beware the Use of Absolute Language Regarding Electronically Stored Information,” 9 Digital Discovery and e-Evidence 11 (BNA Nov. 1, 2009). Their thesis was simple and correct: “All,” “any,” and “every” are dangerous words when describing […]
January 29, 2021

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 […]
January 17, 2021

Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered

It may be prudent to document the analysis of the point at which a potential litigant believes that its duty to impose a legal hold, or “litigation hold,” has or has not been triggered.  While it may not be dispositive, documentation may be useful in the event of a subsequent allegation of […]
January 16, 2021

Courts Cannot Order a “Quick Peek” Without Consent

In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent.  In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 11, 2021

Maryland’s Spoliation Standard

Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
January 9, 2021

Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence

An unreported decision of the intermediate appellate court provides an interesting contrast to Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), which is discussed in a prior blog. In Benson v. ALDI, Inc., 2019 WL 5704532 (Md. Ct. Spl. Apls. Nov. 5, 2019), summary judgment was affirmed […]
January 8, 2021

Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence

“I just delete. I delete – delete. Anything there that I don’t want, don’t need anymore, I delete.” Peterson v. Evapco, Inc., 238 Md. App. 1, 21 (2018).  That is an invitation to disaster.  Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), involved spoliation in the context […]
January 4, 2021

The Ethical Dangers of Attorneys Using “Reply All”

In a May 2011 post, I discussed Computer Usage Policies and the “Reply All” Button. A recent article has expanded on that discussion.  Erika Stillabower, “The (Ethical) Risks of ‘Reply All’,” The Washington Lawyer (July/August 2020), 54. Ms. Stillabower describes situations where opposing counsel “cc’s” that attorney’s client on an email.  She […]
January 3, 2021

Is Cremation, Burial, or Suicide Spoliation?

While this blog is focused on ESI, Maryland State courts have been asked to apply the spoliation doctrine in unique contexts.  They have addressed whether: Cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md.App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014); Burial is spoliation, Hollingsworth & Vose Co. v. […]
January 2, 2021

Unsupervised Self-Collection Predictably Led to Problems

In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.”  There, an attorney permitted the client to determine what ESI it would search for and produce.  This process ran afoul […]
December 28, 2020

Forensic Analysis Trips Up Oklahoma Attorney

A post in Bloomberg Law, authored by Rebekah Mintzer, describes a “State Attorney Who Sent Threatening Emails to Herself [and Was] Suspended” (June 18, 2020).  The article states that the attorney obtained a fictitious email account and sent threatening emails to her official government email address.  She then allegedly reported them to […]
December 27, 2020

Searching for Privileged Information

As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 27, 2020

Triggering the Duty to Preserve ESI

Two recent decisions of the District of Maryland demonstrate when the duty to preserve is triggered in the context of spoliation motions.  Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020) (“MVM“); Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. […]
December 26, 2020

Discovery of the Identity of a Person Associated With an I.P. Address

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

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 20, 2020

Burden of Proof of Spoliation

“The burden of proof on a motion for spoliation sanctions is unsettled.”  Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). Two recent District of Maryland decisions have held that, at least where a relatively harsh sanction is involved, a clear and convincing standard applies: “The burden […]
December 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 […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
November 28, 2020

The Duty to Preserve Continues Even After Production of Social Media

In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
November 27, 2020

Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review

In Optronic Tech, Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 WL 2838806 (N.D. Cal. June 1, 2020), sanctions were imposed against defense counsel, essentially because the court determined that trial counsel had attempted to hand off their Rule 26(g) obligations to their client’s inside counsel. There were several key points.  Defense […]
June 8, 2020

The Sedona Conference and Its Impact on E-Discovery

Kenneth J. Withers of the Sedona Conference has posted a chapter from M. Berman, et al., eds., “Electronic Discovery in Maryland Courts” (MSBA 2020), on the Sedona Conference’s web site.  The Sedona Conference has had, and continues to have, a pivotal role in e-discovery.  Sedona papers were cited by the Court of Appeals […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 12, 2020

“Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media

In State v Sample, __ Md. __, 2020 WL 2316709 at *3 (May 11, 2020), the Court of Appeals of Maryland concluded that “that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find […]
September 17, 2017

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 […]
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 19, 2012

“Too Much Evidence” – Criminal Charges Dismissed

The ABA reports that federal prosecutors have dropped criminal charges against a doctor in a massive online pharmacy case because it has become too costly to pursue the case.  M. McDonough, “Too Much Evidence Cited as Reason for Dropping Drug Charges Against Fugitive Doctor,” (ABA Aug. 17, 2012).  The case involved two […]
August 18, 2012

News Report: Mr. Mark T. Pappas of Victor Stanley v. Creative Pipe “Fame” Denied Bail

The Maryland Daily Record reports that Mr. Mark T. Pappas, protagonist in the “Victor Stanley case,” was denied bail “because of his ‘long history’ of noncompliance [with Court orders] and ‘lack of candor’ in the [Victor Stanley] litigation.  Ben Mook, “Back from Belize, Pappas denied bail,” The Daily Record, Aug. 15, 2012.  […]
August 18, 2012

Book Review: “Zubulake’s e-Discovery: The Untold Story of My Search for Justice,” by Ms. Laura A. Zubulake

Ms. Laura A. Zubulake has published an account of her experiences as the plaintiff in the groundbreaking “Zubulake case.”  The book is entitled Zubulake’s e-Discovery: The Untold Story of My Quest for Justice. According to Shepard’s, the first decision in that string of decisions, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 […]
August 14, 2012

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 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]
July 15, 2011

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. […]
June 30, 2011

Proportionality in Government e-Discovery – June 2011 IQPC Presentation

Government litigants have an enormous impact on civil litigation. Because the United States is the most frequent and successful litigant in the federal courts, the federal government as a litigant plays “a central role in the development of law and policy in the United States courts.” G. Sisk, Litigation with the Federal […]
May 26, 2011

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 […]
May 2, 2011

Maryland Murder Conviction Reversed Over MySpace Page

May 2020 UPDATE:  Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media. In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated. Mr. Griffin was charged with shooting another person.  […]
May 2, 2011

Computer Usage Policies and the “Reply All” Button

Businesses manage their information technology assets through computer usage policies. Tonya L. Johnson recently provided an interesting post on the American Bar Association site.  Noting the potential for error when “reply all” is selected inadvertently, she wrote that the market research firm, Nielsen, had removed that option from employee email systems.  Ms. Johnson […]
April 25, 2011

iPad App for Depositions

Joshua Gilliland, author of the Bow Tie blog and Bow Tie Law blog, and president of Majority Opinion, LLC, was kind enough to provide me with a complimentary copy of  his new iPad App, called The Deponent App.  Deponent marries document assembly principles with a database of stock deposition questions that can be […]
April 10, 2011

Berman is Co-Developer of Law School ESI Seminar

Sensei Enterprises, Inc., president Sharon D. Nelson, reported on a law school ESI seminar, as follows:  “In the spring of 2008, The Honorable Paul W. Grimm and [Mike Berman] developed a three-credit ESI workshop for law school students.  The class was first offered at the University of Baltimore School of Law, and […]
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 […]