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August 10, 2026
Published by Michael Berman at August 10, 2026
Categories
The United States District Court for the District of Maryland has issued Standing Order 2026-03 titled “In Re: Use of Generative Artificial Intelligence in Court Filings.” Paragraph 1 states that, under Fed.R.Civ.P. 11, when an attorney or unrepresented party signs a pleading, written motion, or other paper, they are certifying that the […]
August 8, 2026
Published by Michael Berman at August 8, 2026
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This is my second post on Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026). Plaintiff in a copyright infringement action moved to compel discovery under Fed.R.Civ.P. 37. The court wrote that: Under Rule 37(a)(1), a “motion to compel ‘must include a certification that the movant has in good faith […]
August 7, 2026
Published by Michael Berman at August 7, 2026
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In a recent case, the Defendants moved to dismiss a copyright infringement claim. Plaintiff issued discovery; Defendants answered; and, Plaintiff moved to compel. One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.” Sadeghpour v. Nakamoto, 2026 […]
July 30, 2026
Published by Michael Berman at July 30, 2026
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A condominium, Trailsedge Owners Association, Inc., sued the developer, Blue Moon, and others alleging design and construction defects. It requested $10 million in damages. The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s […]
July 29, 2026
Published by Michael Berman at July 29, 2026
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“Courts confronted with lawyers involved in advising spoliation of evidence have concluded [that] such attorney-client communications are not shielded by the privilege due to the crime-fraud doctrine.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2026 WL 1632746 (N.D. Cal. Jun. 5, 2026). The court explained: “The specific crime-fraud at […]
July 28, 2026
Published by Michael Berman at July 28, 2026
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A putative class of subscribers to LinkedIn’s premium services sued and alleged monopolization or attempted monopolization of the social networking market. Crowder v. LinkedIn Corporation, 2026 WL 2076152 (N.D. Cal. Jul. 17, 2026). They sought depositions in excess of those provided for by the Federal Rules of Civil Procedure based on documents […]
July 27, 2026
Published by Michael Berman at July 27, 2026
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In continuing use of protective orders limiting an opponent’s use of discovery materials in the opponent’s AI system, a consent order was entered by consent in a criminal case as follows: Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials. a. “AI tool” means any automated system that uses statistical […]
July 26, 2026
Published by Michael Berman at July 26, 2026
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The following is a stipulated search methodology in an ESI Protocol from James v. Cerebras Systems Inc., 2026 WL 1962840 (N.D. Cal. Lul. 7, 2026): The Parties agree that each Responding Party is best situated to determine the most appropriate method or methods for that Responding Party to search, collect, cull, and […]
July 25, 2026
Published by Michael Berman at July 25, 2026
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The court in Wilson Aerospace LLC v. The Boeing Company, Inc., 2026 WL 2069870 (W.D. Wash. Jul. 17, 2026), held that an ESI Protocol is permissible tool; however, it does not override the discovery rules. Here, defendant did not search a relevant custodian’s documents because he was not listed as an ESI […]
July 24, 2026
Published by Michael Berman at July 24, 2026
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In Sussman Sales Co., Inc. v. VWR International, LLC, 2026 WL 2056582 (S.D.N.Y. Jul. 15, 2026), the court made two holdings that I question. Clearly the court is privy to information I do not have and may have explained its reasoning in greater depth elsewhere. For example, the opinion opens by stating: […]
July 23, 2026
Published by Michael Berman at July 23, 2026
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Mr. Gruendel took a collection of documents from his former employer, defendant Figure AI, Inc. The court ordered them returned and, “Mr. Gruendel and his counsel must destroy and must not retain any of the Figure documents, and must cause the vendor to destroy the vendor’s copy of the Figure documents….” Figure […]
July 21, 2026
Published by Michael Berman at July 21, 2026
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Popovchak v. UnitedHealth Group, Inc., 2026 WL 2078593 (S.D.N.Y. Jul. 17, 2026), contains a number of interesting privilege log rulings, among many other decisions. A few examples follow. “Plaintiffs identify entries on United’s privilege log where no attorney is listed…. The motion to compel on this ground is DENIED. Courts have recognized […]
July 21, 2026
Published by Michael Berman at July 21, 2026
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Use of A.I. is the express focus of proposed changes to the Maryland Rules. Proposed Comment [3] to Rule 19-303.3 and Proposed Comment [7] to Rule 19-301.1 expressly mention AI. The latter refers back to Rule 19-305.3. This post is based on the Minutes of the June 25, 2026, Open Meeting of […]
July 20, 2026
Published by Michael Berman at July 20, 2026
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In a recent action in the Middle District of Florida, the parties’ submitted a Joint Motion for Stipulated Protective Order and a Joint Motion for Stipulated Order Regarding Discovery of Electronically Stored Information. “The Motions respectively seek entry of a Stipulated Protective Order (‘Protective Order’), … and a Stipulated Order Re: Discovery […]
July 19, 2026
Published by Michael Berman at July 19, 2026
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Defendant Anthropic PBC filed an “administrative motion to consider whether its materials submitted in connection with the Parties’ joint submission regarding Anthropic’s preservation of prompt-output records” should be sealed. The unopposed motion was granted. Concord Music Grp., Inc. v. Anthropic PBC, 2026 WL 2065922 (N.D. Cal. Jul. 16, 2026). The court wrote: […]
July 18, 2026
Published by Michael Berman at July 18, 2026
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David Weisenfeld has published “Judges blast lawyers for citing hallucinated cases, but ethics pros say rule changes not needed (ABA Journal Jul. 15, 2026). He wrote that “many lawyers who prosecute and defend [professional] conduct cases say no changes are needed.” The article continues: “What we have in place is sufficient. They’re […]
July 17, 2026
Published by Michael Berman at July 17, 2026
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It was a pleasure and an honor to assist the Hon. Lynne Battaglia (ret.) in a presentation to the Judicial College of Maryland with Craig Ball, Maura Grossman, and Alicia Shelton titled “AI & Other Digital Evidence: A Demonstrative Workshop for Judges.” The program covered authentication issues regarding acknowledged and unacknowledged GenAI […]
July 14, 2026
Published by Michael Berman at July 14, 2026
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“A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. […]
July 13, 2026
Published by Michael Berman at July 13, 2026
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Plaintiffs sued over their employer’s pandemic-era policy on masks, testing, and vaccination, claiming a valid religious exemption. The court wrote: The claims in this case are remarkably weak, at least as pleaded. We are more candid than usual in this assessment because the plaintiffs’ counsel Anthony F. Sabatini has not been candid […]
July 10, 2026
Published by Michael Berman at July 10, 2026
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It is clear that Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024)(citing cases). The recent decision in Lalwani v. Trustees of Indiana University, 2026 WL 1847881 (Jun. 26, 2026), involved three emails in which, an employee, plaintiff Mr. Lalwani, had communicated with his […]
July 9, 2026
Published by Michael Berman at July 9, 2026
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Protective orders addressing the use of A.I. to review materials produced to an opponent in discovery are becoming routine. The stipulated protective order in RMME LLC v. Majestic Steel USA, Inc., 2026 WL 1831063, at *7 (D. Nev. Jun. 24, 2026), covered that topic and added a provision regarding other uses of […]
July 5, 2026
Published by Michael Berman at July 5, 2026
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Tara S. Emory and Maura R. Grossman have authored “GenAI Prompts in eDiscovery: Protected Work Product or Not?,” which will be published in Columbia Sci. and Tech. L. Rev., Vol. 28, No. 1 (forthcoming Dec. 2026). This excellent and comprehensive paper addresses whether draft and final prompts written by attorneys to instruct […]
July 1, 2026
Published by Michael Berman at July 1, 2026
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Generally, “it has become nearly impossible–even for computer scientists–to tell authentic from fake content.” M. Grossman and P. Grimm, “Judicial Approaches to Acknowledged and Unacknowledged AI-Generated Evidence,” 26 Colum. Sci. & Tech. L. Rev. 110 (2025). But not always. Justice Potter Stewart famously wrote in an obscenity case: “I shall not today attempt further […]
June 30, 2026
Published by Michael Berman at June 30, 2026
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The stipulated protective order in Waterford Township Gen. Employees Retirement System v. Monolithic Power Systems, Inc., 2026 WL 1858112 (W.D. Wash. Jun. 29, 2026), addressed the protection of A.I. used by a party’s expert. It stated: Neither side must preserve or disclose, including in expert deposition testimony, the following documents or materials:… […]
June 26, 2026
Published by Michael Berman at June 26, 2026
In a breach of contract claim against the City of Salisbury and its Mayor, the Plaintiff sought an order compelling the City to produce certain ESI and metadata. 1 Fitzwater Street, LLC v. Taylor, 2026 WL 1830959 (D. Md. Jun. 25, 2026)(Coulson, J.). The Court ordered production in native form with metadata, […]
June 25, 2026
Published by Michael Berman at June 25, 2026
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In a recent decision, a court wrote: “Watson also has filed a motion to vacate the judgment for fraud upon the court, in which he contends that the District Court’s opinion is tainted by artificial intelligence and is ‘technically nonexistent.’” Watson v. Reese, 2026 WL 1818662, at n. 1 (3rd Cir. Jun. […]
June 23, 2026
Published by Michael Berman at June 23, 2026
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A dispute over search terms led to a decision on keywords for searching Microsoft Teams. Kim v. Cushman & Wakefield U.S., Inc., 2026 WL 1353455 (C.D. Cal. Apr. 24, 2026). The court held that search terms that may be appropriate for email may not be sufficient for shorter, less formal communications on […]
June 20, 2026
Published by Michael Berman at June 20, 2026
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No. Withers v. City of Aberdeen, 2026 WL 1653484 (N.D. Miss. Jun. 8, 2026). In Withers, “the Court entered an Order to Show Cause … directing all counsel of record in this case to show cause as to why the Court should not impose sanctions against them pursuant to Rule 11 of […]
June 20, 2026
Published by Michael Berman at June 20, 2026
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Alison L. MacDonald sued her employers alleging discrimination on various grounds. The parties negotiated a partial resolution of disputes, but: “Defendants conditioned their supplemental response as to several of the requests on the parties agreeing to custodians of Electronically Stored Information (‘ESI’) and a set of search terms that Defendants would run […]
June 19, 2026
Published by Michael Berman at June 19, 2026
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The Artificial Intelligence Incident Database reports harms or near harms from A.I. The database states: “Like similar databases in aviation and computer security, the AI Incident Database aims to learn from experience so we can prevent or mitigate bad outcomes.” For example, Incident 74: Detroit Police Wrongfully Arrested Black Man Due To […]
June 19, 2026
Published by Michael Berman at June 19, 2026
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There is nothing new about courts asking a litigant to prepare an order, the litigant submitting an order that contained hallucinated authorities, and the court then signing the order. Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases (Mar. 11, 2026). In a recent decision, the Court of Appeals of […]
June 17, 2026
Published by Michael Berman at June 17, 2026
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An attorney who copied and pasted non-existent case law from a pro se memorandum was sanctioned. “Father cites three cases that do not exist as cited….” Additionally, actual cases were cited for propositions that did not exist in the real case. One was “overstated.” Ajakaiye v. Oladipupo, 2026 WL 1733336 (Appl. Ct. […]
June 16, 2026
Published by Michael Berman at June 16, 2026
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A spoliation motion that alleged failure to preserve text messages was denied because summary judgment was granted in favor of the movant. Flynn v. Kone, Inc., 2026 WL 1707560, at *12 (D. Md. Jun. 12, 2026)(Hurson, J.). Mr. Flynn sued his employer, Kone, Inc., alleging discrimination and retaliation in violation of the […]
June 7, 2026
Published by Michael Berman at June 7, 2026
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The explanation of a litigant’s duties in responding to written discovery, as laid out in Williamson v. First Horizon Bank, 2026 WL 1492594 (E.D. La. May 28, 2026), does not break new ground. However, it is clear and succinct. A refresher never hurts.[1] It is important to “do it right.” Age-old Habit […]
June 6, 2026
Published by Michael Berman at June 6, 2026
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In Jang v. Clear Sky Fin., LLC, 2026 WL 1101722 (Appl. Ct. Md. Apr. 23, 2026)(unreported),[1] plaintiff sued for alleged fraudulent conveyances made using via a “shell game.” The Appellate Court of Maryland affirmed the trial court’s imposition of sanctions where the defendant avoided discovery by means of a “shell game” of […]
June 4, 2026
Published by Michael Berman at June 4, 2026
The Northern District of California has a “Model Stipulated Protective Order (for standard litigation)” and a “Stipulated Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and Trade Secrets (Feb. 2022).” I suggest that the latter was applied too stringently in Litton v. Roblox Corporation, 2026 WL 1483493 (May 27, 2026). […]
June 3, 2026
Published by Michael Berman at June 3, 2026
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“This is not a Professional Ethics issue spotter. These are the facts of Quinn Emanuel’s conduct in the instant litigation, as investigated by the appointed Special Master. The Special Master reviewed internal firm communications and took testimony from the involved attorneys under oath. His thorough investigation revealed not the misstatement or inadvertence […]
June 2, 2026
Published by Michael Berman at June 2, 2026
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Adams v. Anderson, 2026 WL 1501021 (Ct. Apls. Ky. May 29, 2026)(unpublished), was an unsuccessful appeal from a holding of criminal contempt with a sentence of 45 days incarceration. It arose out of a divorce action. Ms. Adams and Mr. Anderson were parents of two minors. The family law court held a […]
June 1, 2026
Published by Michael Berman at June 1, 2026
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The court in Alex v. City of Ann Arbor, 2026 WL 1383768 (E.D. Mich. Mary 18, 2026), rejected plaintiffs’ assertion that they had asked for documents in native form and also rejected their assertion that production of responsive “junk” was improper. The City of Ann Arbor had denied employees’ requested religious exemptions […]
May 31, 2026
Published by Michael Berman at May 31, 2026
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Courts do not lightly issue preservation orders. A request for a preservation order was denied in In Re Zeta Global Data Privacy Litigation, 2026 WL 1283618 (S.D.N.Y. May 11, 2026). Frequently, movants apply an incorrect preliminary injunction standard: A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied […]
May 30, 2026
Published by Michael Berman at May 30, 2026
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In an earlier blog, I wrote that an example of an ineffective use of artificial intelligence was provided in Camarillo Hospitality LLC v. G6 Hospitality LLC, 2026 WL 1113871 (E.D. Cal. Apr. 24, 2026)(“Camarillo I”). See Otter.ai “Transcript” Was Excluded From Consideration (Apr. 25, 2026). The court refused to consider a transcript […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued a business that managed apartment complexes, alleging employment discrimination. The court wrote that the parties had been “embroiled” in a discovery dispute over GEM’s responses. The EEOC diligently pursued discovery. After a “provisional” discovery order was entered, EEOC’s subsequent motion to compel was substantially granted. EEOC v. GEM Management, […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued Mia Aesthetics Clinic on behalf of Kiera Webb, alleging disability discrimination. The court issued three discovery decisions. One important holding is that a party cannot blindly rely on its document destruction policy as a defense to a motion for spoliation sanctions. Simply stated, that is no longer a “safe […]
May 28, 2026
Published by Michael Berman at May 28, 2026
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“Federal Rule of Civil Procedure 26(d)(1) does not allow discovery from any source prior to a Rule 26 conference. However, the district court has discretion to order expedited discovery.” McIntyre v. Little Miami School Dist., 2026 WL 1284127 (S.D. Oh. May 11, 2026). Mr. McIntyre sued the School District defendants seeking to […]
May 26, 2026
Published by Michael Berman at May 26, 2026
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A recent protective order entered by consent stated: The Receiving Party shall not load, import, submit, or otherwise transfer Discovery Material (defined as any documents produced in this matter) to any Large Language Model (“LLM”) or Artificial Intelligence (“AI”) platform without agreement of the parties. Should the Receiving Party want to load, […]
May 23, 2026
Published by Michael Berman at May 23, 2026
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In its entirety, Ali-Bey v. Szabad, 2026 WL 1431196 (E.D. Ark. May 21, 2026), states: Szabad’s lawyer’s declaration… is appreciated. Apology accepted. The inaccurate citations are withdrawn. As promised, counsel must complete three hours of continuing legal education on the ethical use of artificial intelligence within ninety days of this Order. He must […]
May 22, 2026
Published by Michael Berman at May 22, 2026
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There have been some novel lawsuits arising out of artificial intelligence. See Microsoft Sued for Alleged Torts Arising From CoPilot Output (May 6, 2026). Nippon Life Ins. Co. of America v. OpenAI Foundation, et al., No. 1:26-cv-02448 (N.D. Ill.), poses the question of Does OpenAI Provide Legal Assistance? (Mar. 11, 2026). Nippon contends […]
May 22, 2026
Published by Michael Berman at May 22, 2026
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In Davis v. Marion Co. Superior Court Juvenile Detention Ctr., 2026 WL 1408448 (S.D. Ind. May 20, 2026), the court took a novel view of artificial intelligence. The all-too-common issue presented in Davis was whether the court should “personally sanction Plaintiff’s counsel, …, for including two non-existent legal citations in a brief […]
May 21, 2026
Published by Michael Berman at May 21, 2026
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In Stanisaveljevic v. The Standard Fire Ins. Co., 2026 WL 1129515 (D. Col. Apr. 27, 2026), defendants filed a motion for reconsideration arising out of a discovery dispute. It was denied. Standard Fire based its motion on alleged “new evidence.” The court determined that the evidence was not new. In fact, it […]
May 16, 2026
Published by Michael Berman at May 16, 2026
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In a fictitious quotations case, sometimes called “hallucinations,” an appellate court referred to attorneys’ advertisements: These mistakes and fictitious quotations bear the hallmarks of the misuse of generative artificial intelligence…. The website of XXXX Law Firm, P.C., where [plaintiff’s] attorneys both practice, boasts of the firm’s extensive incorporation of artificial intelligence into […]
May 13, 2026
Published by Michael Berman at May 13, 2026
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Fed.R.Civ.P. 37(b)(2)(A) authorizes sanctions for failure to comply with a court order. In Mirae Asset Securities Co., Ltd. v. Ryze Renewables Holdings, LLC, 2026 WL 1298156 (D. Nev. May 12, 2026), defendants sought sanctions under that Rule. One issue was whether a party moving for sanctions under that Rule is required to […]
May 12, 2026
Published by Michael Berman at May 12, 2026
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Kelly v. City of Cochran, GA, 2026 WL 125990 (M.D. Ga. May 7, 2026), is generally, but not completely, a run-of-the-mine request to proceed in forma pauperis under 28 U.S.C. §1915. After finding that the plaintiff lacked sufficient financial resources, the court looked to see whether the Complaint was frivolous. The court […]
May 11, 2026
Published by Michael Berman at May 11, 2026
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In Pfeffer v. Bank of America Corp., 2026 WL 1235426, at n. 2 (W.D. N. Car. May 5, 2026), the court wrote: A party uses privilege as a shield when it refuses to disclose attorney-client communications and uses privilege as a sword when it affirmatively relies on those same communications to support […]
May 10, 2026
Published by Michael Berman at May 10, 2026
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I recently posted a blog about cell phone imaging, discussing Madrigal v. Live Nation Entertainment, Inc., 2026 WL 1196245 (C.D. Cal. Apr. 24, 2026). See Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part (May 7, 2026). In Rubesne Resources LLC v. ACE Property and Cas. Ins. Co,. […]
May 9, 2026
Published by Michael Berman at May 9, 2026
Judicial decisions involving “hallucinated” citations provided by GenAI are more common than mosquitoes in a swamp. A recent decision addresses supervisory obligations and looked at “institutional culture” of the law firm: Lawyers owe a duty of candor to the Court, a duty that cannot be met without reading and understanding the legal […]
May 8, 2026
Published by Michael Berman at May 8, 2026
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Not a day goes by without at least one judicial decision addressing misuse of artificial intelligence in litigation, such as hallucinations or fabricated quotations. See, e.g., D. Belson, “Avalanche” of likely AI-generated filings decried by MD judge in pro se case (Apr. 28, 2026); District of Maryland “Hallucination” Decision (May 5, 2026). […]
May 7, 2026
Published by Michael Berman at May 7, 2026
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Plaintiff, Michelle Madrigal, filed a putative class action against Live Nation Entertainment, Inc. (“Ticketmaster”), alleging deceptive practices, such as offering deceptively low prices and then adding alleged hidden and exorbitant junk fees at the end of the transaction. Defendants deny the allegations. Madrigal v. Live Nation Entertainment, Inc., 2026 WL 1196245 (C.D. […]
May 6, 2026
Published by Michael Berman at May 6, 2026
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In a pro se action, plaintiff “filed a Complaint against Microsoft Corporation (Microsoft), asserting numerous tort claims and alleging that Microsoft’s ‘artificial intelligence system known as Microsoft Copilot’ falsely describes Haugland as ‘a criminal involved in fraud, financial misconduct, violent activity, and drug-related offenses.’” Haugland v. Microsoft Corp., 2026 WL 1209532 (D. […]
May 5, 2026
Published by Michael Berman at May 5, 2026
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Aziz v. U.S., 2026 WL 1132884 (D. Md. Apr. 27, 2026)(Abelson, J.), is of note only because it is in the District of Maryland, where I practice. Plaintiffs “filed an unusually high number of motions in a short amount of time.” The latest flurry worsens a pattern of repeated filings: the Court’s […]
May 5, 2026
Published by Michael Berman at May 5, 2026
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In Medal v. Amazon.Com Services, LLC, 2026 WL 1179763, at *1 (W.D. Wash. Apr. 30, 2026), the parties submitted a dispute over a protective order and ESI Protocol. Three issues addressed by the court were: 1) whether a Fed.R.Evid. 502(d) order could be entered without consent; 2) whether a “clawback” order could […]
May 4, 2026
Published by Michael Berman at May 4, 2026
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“Hit Reports,” also called “search term reports” or “keyword reports,” are commonly accepted. However, United Farm Workers v. Noem, 2026 WL 1045469 (E.D. Cal. Apr. 17, 2026), stated an exception for facially overbroad search terms. The starting point was the court’s observation that: “Although it is abundantly clear from the parties’ filings […]
May 3, 2026
Published by Michael Berman at May 3, 2026
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“[S]o that the clear does not become cloudy, we state the obvious: Using generative artificial intelligence to generate legal briefs and then simply cite-checking them bears no resemblance to the competent practice of law….When lawyers trade reflection for automation, they surrender the very quality that makes their words worthy of belief. Although […]
May 2, 2026
Published by Michael Berman at May 2, 2026
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In Jones v. Delta Air Lines, Inc., 2026 WL 1091186 (E.D. Mich. Apr. 22, 2026), the court addressed the pro se deponent’s use of artificial intelligence during a deposition. It prohibited her use of ChatGPT to answer questions and held that her use of ChatGPT was not protected by the attorney-client privilege. […]
April 29, 2026
Published by Michael Berman at April 29, 2026
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When a litigant seeks “a bridge too far,” it often fails. Baker v. State, 2026 WL 1113401 (App. Ct. Md. Apr. 24, 2026), so held in a criminal context. Mr. Baker sought drastic discovery sanctions. He did not seek less drastic ones. He got nothing.[1] The case arose out of a shooting […]
April 28, 2026
Published by Michael Berman at April 28, 2026
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In Elite Semiconductor, Inc. v. Anchor Semiconductor, Inc., 2026 WL 1097741 (N.D. Cal. Apr. 22, 2026),the court addressed the scope of a senior attorney’s duty to check a privilege log prepared by a senior associate. Plaintiff, Elite, was found to be liable for Defendants’ attorney’s fees in a trade secret lawsuit. Defendants […]
April 27, 2026
Published by Michael Berman at April 27, 2026
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As the title indicates, In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, 2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026), is complex litigation. One significant issue was an order limiting the use of artificial intelligence to analyze protected materials produced by an opponent in discovery. I have suggested […]
April 26, 2026
Published by Michael Berman at April 26, 2026
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In a recent case, the defendants opposed certain discovery. The court wrote: “Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that [t]he parties should not simultaneously be in production while still negotiating their ESI protocols.’ That is an argument for the parties to […]
April 25, 2026
Published by Michael Berman at April 25, 2026
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An example of an ineffective use of artificial intelligence was provided in Camarillo Hospitality LLC v. G6 Hospitality LLC, 2026 WL 1113871 (E.D. Cal. Apr. 24, 2026). Defendant logged on to a virtual meeting using free Microsoft Teams software. Unknown to both parties, that triggered a recording by Otter.ai. Both counsel were […]
April 23, 2026
Published by Michael Berman at April 23, 2026
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Plaintiffs in a Fair Labor Standards Act collective action sought broad discovery from seven apex executives of defendant Perdue Foods. Tripp v. Perdue Foods LLC, 2026 WL 1021135 (D. Md. Apr. 15, 2026)(Coulson, J.). The parties were diametrically opposed: “Plaintiff seeks an order compelling the production of certain ESI from Perdue, and […]
April 20, 2026
Published by Michael Berman at April 20, 2026
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Orders limiting the use of artificial intelligence to analyze information produced by an opposing party are becoming routine. For example, a court recently entered the following stipulated provision: Persons receiving Confidential information under this Stipulated Protective Order shall not upload, input, or otherwise provide any documents, data, or information produced in this […]
April 18, 2026
Published by Michael Berman at April 18, 2026
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A recent article by Daniel Wu states Facial recognition error led to woman jailed six months in MD (Apr. 16, 2026). “It’s very obvious it’s you,” an officer in Montgomery County said to Williams, who was handcuffed to a table in the police department. Williams had several prior convictions for writing bad […]
April 17, 2026
Published by Michael Berman at April 17, 2026
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“Artificial intelligence can be a useful discovery tool. However, as discussed below, AI is not a substitute for attorneys and litigants exercising independent judgment and oversight in the discovery process. Relatedly, the Court once again reminds counsel of their obligation to meaningfully meet and confer with one another before seeking the Court’s […]
April 15, 2026
Published by Michael Berman at April 15, 2026
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In Aerosonic LLC v. Joby Aero, Inc., 2026 WL 900154 (M.D. Fla. Par. 2, 2026), Aerosonic inadvertently produced work product to Joby. Aerosonic permitted deponents to testify about the material. It then asserted work product protection under Fed.R.Civ.P. 26(b)(3), non-waiver under Fed.R.Evid. 502, and a “clawback,” presumably under Fed.R.Civ.P. 26(b)(5)(B). The court […]
April 14, 2026
Published by Michael Berman at April 14, 2026
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Marris Hoffee and Michael D. Berman Do lawyers have an obligation not only to verify their own citations, but also to catch their opponents “hallucinated” authorities? A recent Seventh Circuit decision suggests that the answer may be edging toward yes. Cut and paste briefing has always carried risks, but Dec v. Mullin, […]
April 12, 2026
Published by Michael Berman at April 12, 2026
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Decisions involving the use of “hallucinated” or fictitious case citations are blooming like flowers in spring. Show cause orders, reprimands, admonishments, or sanctions often follow an allegation that an opponent relied on nonexistent “authority.” But allegations of misuse of artificial intelligence should not be lightly made. Vigorous advocacy is markedly different: In […]
April 11, 2026
Published by Michael Berman at April 11, 2026
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This post is a follow up to “Hallucinations” by West’s CoCounsel? (Apr. 7, 2026). In U.S. v. Farris, __ F. 4th __, 2026 WL 915082, at *1 (6th Cir. Apr. 3, 2026)(per curiam), the court found errors in a brief prepared using Westlaw’s CoCounsel. It appears that the tool was used after August 2025. Id. […]
April 10, 2026
Published by Michael Berman at April 10, 2026
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“The instant motion represents the latest skirmish in a long-running conflict between the Parties regarding the scope, nature, and volume of Plaintiff’s discovery. The Court will not recite each episode of unpleasantness herein. Now before the Court is a motion for a protective order, in which Defendant seeks the Court’s intervention in […]
April 7, 2026
Published by Michael Berman at April 7, 2026
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“Hallucinations” are “old news.”[1] However, U.S. v. Farris, __ F. 4th __, 2026 WL 915082 (6th Cir. Apr. 3, 2026), involved a major A.I. program. The court wrote: Upon our initial review of the case, we began to suspect that Howe’s briefs were generated, at least in part, by artificial-intelligence software. The […]
April 6, 2026
Published by Michael Berman at April 6, 2026
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The EEOC sued Cemex Construction Materials Florida, LLC, on behalf of a trainee. It alleged that “Defendant unlawfully refused to accommodate Ms. Textor’s religious practice, by forbidding her to wear a skirt at work, and by subsequently terminating her.” The court’s order in EEOC v. Cemex Construction Materials Florida, LLC, 2026 WL […]
April 5, 2026
Published by Michael Berman at April 5, 2026
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Sabrina Rose-Smith and Elizabeth Tucci, raised an interesting issue in Deepfake Executives, Created Via Depositions, Pose Grave Threat (Bloomberg Law Mar. 24, 2026). They point out that video deposition are provide “high-quality source material for increasingly accessible generative AI systems.” The article points to the value of these depositions because they “offer […]
April 4, 2026
Published by Michael Berman at April 4, 2026
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“The topical worry that artificial intelligence will lure attorneys with the false siren song of easy shortcuts to legal authority is part of a much larger concern that attorneys will fail to cite their sources properly and—either intentionally or unintentionally—mislead the Court.” Quandel Constr. Grp., Inc. v. Hunt Constr. Grp., Inc., 2026 […]
April 3, 2026
Published by Michael Berman at April 3, 2026
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In Kafeel v. Apple, Inc., 2026 WL 892016 (N.D. Cal. Apr. 1, 2026), the court denied a request for a preservation order. The decision, properly, in my opinion, does not apply the preliminary injunction standard to a motion for a preservation order. Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent […]
April 2, 2026
Published by Michael Berman at April 2, 2026
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Maryland courts, like others, are increasingly being faced with artificial intelligence. E.g., Artificial Intelligence in Maryland Courts (Aug. 24, 2025); “Ex-Pikesville High principal impersonated in racist AI case settles lawsuit” (Nov. 1, 2025). The Administrative Office of the Courts is conducting a pilot program. Maryland’s Artificial Intelligence Evidence Clinic Pilot Program (Mar. […]
March 31, 2026
Published by Michael Berman at March 31, 2026
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Application to Pro Se Litigant and Beyond? “AI is forcing litigants and courts to confront difficult questions about how and to what extent longstanding protections will apply when parties use AI to assist them in the litigation process. In particular, courts are beginning to wrestle with practical questions surrounding confidentiality, work product, […]
March 30, 2026
Published by Michael Berman at March 30, 2026
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Harris v. Washington County, 2026 WL 813917 (D. Ut. Mar. 24, 2026), addresses a gap in the Federal Rules of Civil Procedure. The rules are silent on when a motion for sanctions must be filed. However, in Harris: “Because the Motion is untimely, it is denied.” Where there is a lack of […]
March 28, 2026
Published by Michael Berman at March 28, 2026
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In Gouveia v. Meridian Financial Investments, LLC, 2026 WL 816497 (D.Ct.Apl.Fla. Mar. 25, 2026)(not published), the court wrote: There once was a litigant pro se, Who let an AI lead the way. It briefed every claim, Cited cases—by name, That vanished by morning’s next day. The court cited “Limerick on Pro Se […]
March 26, 2026
Published by Michael Berman at March 26, 2026
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In a putative class action brought by plaintiffs who live within a three-mile radius of a chemical facility, the court addressed restrictions on the use of open artificial intelligence tools to review any of the materials produced by an opponent in discovery, even if they are not confidential. Jeffries v. Harcros Chemicals, […]
March 26, 2026
Published by Michael Berman at March 26, 2026
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I have suggested that litigation hold notices should not be treated as privileged. See Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025); The Honorable Paul W. Grimm (ret.), M. Berman, et al., Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation […]
March 25, 2026
Published by Michael Berman at March 25, 2026
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Marris Hoffee and Michael Berman Sometimes, sophisticated analysis is needed to detect a misuse of A.I. Sometimes, it isn’t. In Dillard v. CBS Studios, Inc., 2026 WL 790882 (C.D. Cal. Mar. 16, 2026), the plaintiff brought a copyright infringement action that quickly unraveled under scrutiny. The court noted: “Plaintiff’s submissions in this […]
March 24, 2026
Published by Michael Berman at March 24, 2026
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There is nothing new about “hallucinations” from GenAI. A recent decision explains and applies what now appears to be settled law under Fed.R.Civ.P. 11. Brownfield v. Cherokee Co. School Dist., 2026 WL 777230 (E.D. Ok. Mar. 19, 2026). A recent appellate decision applying Fed.R.App.P. 38 and common-law inherent authority is Whiting v. […]
March 23, 2026
Published by Michael Berman at March 23, 2026
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In Burnley v. Valentin, 2026 WL 767145 (E.D. Va. Mar. 18, 2026), the proponent of an audio recording survived a challenge that it was a deepfake. Burnley involved two motions to enforce settlement agreements. Mr. Burnley had made harassment claims against his neighbors and the police. The settlement agreements were memorialized in […]
March 21, 2026
Published by Michael Berman at March 21, 2026
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Ms. Jennifer L. Hernandez sued Michael Kusper, alleging that Mr. Kusper sexually harassed her in violation of the Federal Fair Housing Act. She alleged that defendant Alex DiBiaso, the landlord, was vicariously liable. The allegations were disputed and the court wrote that: “As a result of these disputes, the content of the […]
March 20, 2026
Published by Michael Berman at March 20, 2026
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Yesterday, I posted an Example of a Proper Use of GenAI. Today’s post is the flip side—an improper use of Generative Artificial Intelligence. In this case, the meaning of the term “groomer” was at issue. GenAI is not a dictionary: Indeed, the State of Illinois criminalizes the act of “grooming” as a […]
March 19, 2026
Published by Michael Berman at March 19, 2026
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Much has been written about improper uses of GenAI, such as deepfakes and hallucinations. Edwards v. Grubbs, __ Fed.4th __, 2026 WL 706637 (11th Cir. Mar. 13, 2026), demonstrates a proper use of GenAI. Edwards was a consolidated appeal from a single use-of-force incident in Atlanta. “On that fateful day, City of […]
March 18, 2026
Published by Michael Berman at March 18, 2026
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An Illinois court held that a child’s best interest is always paramount in a termination of parental rights case and takes precedence over a sanction for reliance on hallucinated cases. Prior Maryland precedent recognizes that parental rights “sink to insignificance” before a child’s best interests. Child’s Best Interest Trumps Sanction for Possibly […]
March 17, 2026
Published by Michael Berman at March 17, 2026
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The EEOC sued “Atlantic Properties” and “DFI” for alleged failure to provide reasonable accommodations under the Americans with Disabilities Act, in an employment context. “The EEOC seeks reimbursement of attorneys’ fees and expenses related to three discovery motions: its First Motion to Compel…, a Motion to Enforce the Court’s April 11, 2025 […]
March 16, 2026
Published by Michael Berman at March 16, 2026
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Maryland’s Standing Committee on Rules of Practice and Procedure will hold an open meeting on March 20, 2026. In part, the agenda includes a proposed artificial intelligence rule. Md. Rule 1-311 is the analog of Fed.R.Civ.P.26(g). As currently drafted, Rule 1-311 states that the signature of an attorney on a pleading or […]
March 15, 2026
Published by Michael Berman at March 15, 2026
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A child’s best interest is always paramount in a termination of parental rights case. In In re A.R. and N.R., Minors v. Sarah B., 2026 Ill. App. (2d) 250299-U (Appl. Ct. Ill. 2nd Dist. Mar. 10, 2026), the court wrote: Further, respondent cites a case, In re K.B., 2019 IL App (3d) […]
March 14, 2026
Published by Michael Berman at March 14, 2026
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In Lucas v. Scharf, 2026 WL 642917 (W.D. N. Car. Feb. 25, 2026), the court quoted its standing order on artificial intelligence: The Court’s Standing Order states: [b]riefs and memoranda prepared using [AI] platforms ( e.g. ChatGPT) have increased the Court’s concern regarding the reliability and accuracy of filings. In particular, the […]
March 13, 2026
Published by Michael Berman at March 13, 2026
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Hallucination decisions are “old news.” Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2026). Courts and litigants alike have erred. Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases (Mar. 11, 2026). The primary reason to discuss In re: Nwaubani, 2026 WL 687194 (4th […]
March 12, 2026
Published by Michael Berman at March 12, 2026
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The law firm of Batta Fulkerson, LLP, sued Bulldog Law, PC, over use of its registered mark, “Bulldog Attorneys.” Batta Fulkerson, LLP v. Bulldog Law, PC, 2026 WL 622294 (S.D. Cal. Mar. 4, 2026). The court wrote that: “Batta Fulkerson alleges Bulldog Law’s ‘unauthorized use of marks substantially similar to plaintiff’s trademarks […]
March 11, 2026
Published by Michael Berman at March 11, 2026
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In Nippon Life Ins. Co. of America v. OpenAI Foundation, et al., No. 1:26-cv-02448 (N.D. Ill. Mar 4, 2026), the plaintiff alleges that: “As a product of OPENAI, ChatGPT engages in the practice of law by providing users with legal analysis, legal advice, legal research, and produces drafted legal documents.” It alleges […]
March 11, 2026
Published by Michael Berman at March 11, 2026
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A recent decision begins as follows: Joan Pablo Torres Campos (Torres) appeals from a family court order denying his request for shared custody and visitation of a dog. He contends the court committed error by citing and relying on fictitious case authorities in its order. We agree the court so erred, but […]
March 10, 2026
Published by Michael Berman at March 10, 2026
A broad discovery order was entered in Estate of Lokken v. United Health Grp., Inc., 2026 WL 658883 (D. Minn. Mar. 9, 2026). Lokken is a putative class action “alleging that UnitedHealth Group, Inc., and naviHealth, Inc., used an artificial intelligence program called nH Predict to deny medical care coverage in violation […]
March 10, 2026
Published by Michael Berman at March 10, 2026
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I previously reported that Bill to Create A.I. Evidence Clinic Pilot Program Was Vetoed in MD (Sep. 15, 2025). That bill has now become law and is codified in Md. Code Ann., Courts & Judicial Proceedings Article §13-101.2. It states in full: 13-101.2. Artificial Intelligence Evidence Clinic Pilot Program Effective: January 15, […]
March 9, 2026
Published by Michael Berman at March 9, 2026
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Two federal rules were amended, effective December 1, 2025.[1] They encourage the use of Fed.R.Evid. 502 non-waiver orders and re-emphasize the flexibility of negotiated privilege logs under Fed.R.Civ.P 26(b)(5)(A). Fed.R.Civ.P. 16 Rule 16 addresses pretrial conferences, scheduling, and management. Subsection (b) covers “Scheduling and Management.” Subsection (b)(3) addresses the contents of a […]
March 8, 2026
Published by Michael Berman at March 8, 2026
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California enacted an “Artificial Intelligence Training Data Transparency” statute. Cal. Civ. Code §3111. It “requires developers of ‘a generative artificial intelligence system or service’ that is ‘publicly available to Californians for use’ to ‘post on the developer’s internet website documentation regarding the data used by the developer to train the generative artificial […]
March 7, 2026
Published by Michael Berman at March 7, 2026
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Craig Ball’s “Forensic Tells: The Litigator’s Guide to Detecting Deepfakes and Authenticating Digital Evidence” (2026) is fantastic. Deep_Fake_Evidence_2026.pdf He posits a “fundamental principle”—“ask for the original,” writing that doing so is the “single most important discovery strategy for authenticating digital evidence….” He then suggests asking for both application and file system metadata and […]
March 6, 2026
Published by Michael Berman at March 6, 2026
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Evaluating deepfakes, the National Center for State Courts asked: “Is anything ever truly new again?” “Evidentiary Issues Raised by Artificial Intelligence: A Policy Paper” (Apr. 2025). In answering its own question—“What can courts do?”–the Center suggests the following questions that a court can pose to a proffering party to help determine whether […]
March 5, 2026
Published by Michael Berman at March 5, 2026
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Disagreement is not an impasse. “The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Plata v. Lands’ End, Inc., […]
March 4, 2026
Published by Michael Berman at March 4, 2026
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On September 7, 2020, trees fell on a transmission line operated by Bonneville Power Administration (“BPA”). A fire resulted. It joined another fire and caused widespread destruction. A lawsuit also resulted, with a spoliation motion. Sanctions were granted for spoliation of physical evidence and ESI. The applicable legal standard differed based on […]
March 3, 2026
Published by Michael Berman at March 3, 2026
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Jennifer Ellis, JD, LLC, has posted a very interesting blog, Two Courts, Two Answers: When Does Using AI Waive Privilege? – JLE (Feb. 21, 2026). She compares the holding in U.S. v. Heppner, __ F. Supp. 3d __, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026)(Rakoff J.), with Warner v. Gilbarco, Inc., 2026 […]
March 2, 2026
Published by Michael Berman at March 2, 2026
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U.S. v. Heppner, __ F. Supp. 3d __, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026)(Rakoff J.), has exploded[1] across the blogsphere with its important, novel, and fact-based holding that a client’s artificial intelligence research: 1) was not at the direction of counsel; 2) used a non-confidential A.I. program that did not provide […]
February 27, 2026
Published by Michael Berman at February 27, 2026
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What happens when improper boilerplate objections meet improper discovery requests? Generally, boilerplate objections are deemed to constitute a waiver of objections. However, a court held that it would be inequitable to find waiver “ because so many of Plaintiffs’ requests are sufficiently premature, overly broad, unduly burdensome, and/or disproportionate given Arch’s third-party […]
February 26, 2026
Published by Michael Berman at February 26, 2026
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Wilson Aerospace sued Boeing Company alleging misappropriation of trade secrets. Plaintiff failed to follow the terms of the ESI Protocol, losing any protection it may have afforded. Additionally, Plaintiff produced folders marked “Lawsuit” and “Lawsuit Research,” and also failed “to exclude documents warning of attorney-client privilege on the first page, dozens of […]
February 25, 2026
Published by Michael Berman at February 25, 2026
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A “duty to preserve” can be imposed by common-law, statutes, regulations, procedural rules, ethical obligations, or by criminal law. When it comes to electronically stored information in civil litigation, the common-law duty is usually foremost.[1] In Cash v. Laurence County, South Carolina, 2026 WL 278825 (D.S.C. Feb. 3, 2026), at least some […]
February 24, 2026
Published by Michael Berman at February 24, 2026
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The time when a video of key events must be produced in discovery is often contentious. Requestors generally contend it must be produced, like other discovery, before their deposition. Producers often contend that the video is impeachment evidence that need not be produced until after the Requestor is deposed. That tension was […]
February 23, 2026
Published by Michael Berman at February 23, 2026
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A non-party did not request authorization to use artificial intelligence to respond to a subpoena until it asked the court to reconsider a prior discovery order. The court wrote: “This proposal comes too late and is far too generic to suffice.” Mi Familia Vota v. Fontes, 344 F.R.D. 496, 529 (D. Ariz. […]
February 20, 2026
Published by Michael Berman at February 20, 2026
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An attorney’s selection and arrangement of non-privileged documents, contained in a larger universe, in anticipation of litigation, is work product. Aliev v. Trans Union, LLC, 2026 WL 202549 (E.D. Va. Jan. 26, 2026), citing In Re Allen, 106 F.3d 582 (4th Cir. 1997). However, in Aliev, Trans Union failed to demonstrate facts […]
February 19, 2026
Published by Michael Berman at February 19, 2026
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A recent decision clarified the relationship between a requesting and a preserving entity and ordered “discovery on discovery” a/k/a satellite discovery or culpability discovery. The court wrote: “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” “Rule 37 requires the party from whom the information is sought to […]
February 18, 2026
Published by Michael Berman at February 18, 2026
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In L.S. v. Bolduan, 2026 WL 95689 (W.D. Wash. Feb. 12, 2026), under the “legal right test,” defense counsel–who obtained information from their institutional client in a State court case–did not have possession, custody, or control of that information in a federal case, brought by the same plaintiff, against only the entities’ […]
February 17, 2026
Published by Michael Berman at February 17, 2026
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A motion to hold that defendant waived all asserted privileges due to failure to timely log them was denied. While the court confirmed a continuing duty to supplement initial disclosures, it refused to impose a “rolling” duty. Plaintiffs sued their insurer, alleging unfair claims settlement practices arising out of property damage to […]
February 14, 2026
Published by Michael Berman at February 14, 2026
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The duty to preserve is triggered when a potential litigant reasonably anticipates litigation. More than a mere dispute is required, and the test is objective. What about third parties? “Generally, the duty to preserve extends to documents or tangible things … by or to individuals likely to have discoverable information that the […]
February 13, 2026
Published by Michael Berman at February 13, 2026
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The EEOC filed suit against three entities alleging employment discrimination. Defendants moved for sanctions, alleging spoliation of a voicemail message allegedly from defendants to plaintiff. The existence of the message was substantively important. If it existed, plaintiff failed to continue the mandatory resolution process. If it did not, defendants failed to do […]
February 12, 2026
Published by Michael Berman at February 12, 2026
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In AI Docs Sent By Exec To Attys Not Privileged, Judge Says – Law360 (Feb. 10, 2026), Pete Brush reported a bench ruling holding that “a Texas financial services executive accused of a $150 million fraud cannot claim privilege over documents that he prepared using an artificial intelligence service and sent to […]
January 30, 2026
Published by Michael Berman at January 30, 2026
The Sedona Conference’s Cooperation Proclamation has long and properly suggested that cooperation and transparency are important methodologies. Sedona carefully explains the reasons. However, there are also other practical considerations that support cooperation, negotiation, and mediation of disputes. Specifically, courts have stated that a litigant may be “right,” but “find itself on the […]
January 25, 2026
Published by Michael Berman at January 25, 2026
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Plaintiff KISS sought discovery of certain otherwise-privileged communications made by defendant Ardell to Ms. Theresa Cooper, an executive vice president at Ardell. Initially, Ms. Cooper was designated as a fact witness. Later, she was designated as a “non-reporting expert” pursuant to Fed.R.Civ.P. 26(a)(2)(c). The court explained that “Ardell’s Expert Disclosures state that […]
January 24, 2026
Published by Michael Berman at January 24, 2026
In Yotta Technologies Inc. v. Evolve Bank & Trust, 2026 WL 172502 (N.D. Cal. Jan. 22, 2026), the court addressed hyperlinked documents, or “modern attachments.” I have called this the “Humpty Dumpty” issue. “The Humpty Dumpty issue – – the question of re-linking pointers and targets – – is very important….” More […]
January 23, 2026
Published by Michael Berman at January 23, 2026
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Lively v. Wayfarer Studios LLC, 2026 WL 145483 (S.D.N.Y. Jan. 20, 2026), is the latest in a long line of discovery and other decisions in this matter. The court wrote: “Before the Court are various requests for sealing and unsealing filed by both parties and non-parties regarding materials submitted in connection with” […]
January 21, 2026
Published by Michael Berman at January 21, 2026
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In Cassels Brock & Blackwell LLP v. Veroblue Farms USA, Inc., 2026 WL 66893 (N.D. Iowa Jan. 8, 2026), the court addressed the theory supporting the principle that an inadequate privilege log may defeat a claim of privilege. The case was before a U.S. Magistrate Judge on review of the decisions of […]
January 20, 2026
Published by Michael Berman at January 20, 2026
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“Privilege logs can be admissible evidence.” Carefirst of Maryland, v. Johnson & Johnson, 2026 WL 114415, at *3 (E.D. Va. Jan. 14, 2026)(citations omitted). I have written about related topics in: Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025); Privilege Log Helps Defeat Summary […]
January 18, 2026
Published by Michael Berman at January 18, 2026
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In Choudhury v. NYC Health and Hospitals Corp., 2026 WL 124376 (S.D.N.Y. Jan. 16, 2026), defendant prevailed because it supported its argument with metrics. The court held that the facts presented demonstrated that requested ESI was not reasonably accessible because of undue burden or cost. Ms. Choudhury asked the court to approve […]
January 17, 2026
Published by Michael Berman at January 17, 2026
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A hallucinated citation issue was addressed in Boyd v. Lee, 2026 WL 111263 (Appl. Ct. Md. Jan. 14, 2026)(unreported). Hallucinated case citations are “old news.” To paraphrase, “[I]t is no longer amateur hour.” (Feb. 12, 2021)(citation omitted). Maryland has not been immune. Maryland Fake Citation Case – Court Issues a Warning – […]
January 16, 2026
Published by Michael Berman at January 16, 2026
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Craig Ball’s “The Leery Lawyer’s Guide to AI and LLMs in Trial Practice” (2026), is available for free from his blog, 2026 Guide to AI and LLMs in Trial Practice | Ball in your Court. Craig is a national resource. A list of his contributions to this field would fill a book. […]
January 15, 2026
Published by Michael Berman at January 15, 2026
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John Tredennick and William Webber published “Generative AI for Smart Discovery Professionals” (Merlin Search Technologies, Inc. 4th ed. 2025), available at no cost from Generative AI For Smart Discovery Professionals – Merlin Search Technologies (hereafter “Tredennick”). I had previously read John C. Tredennick, et al., TAR for Smart People – Google Books […]
January 13, 2026
Published by Michael Berman at January 13, 2026
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Jim Sullivan’s “The Book on AI Doc Review” (eDiscovery AI 2024), is available in hardcover on Amazon for $6.75 or free at The Book on AI Doc Review. The thesis of the book is that “computers are capable of reviewing and classifying document better than humans. And that’s a big deal in […]
January 12, 2026
Published by Michael Berman at January 12, 2026
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Tom O’Connor’s book, “Artificial Intelligence for the Rest of Us” (Gulf Coast Legal Technology Center & Nextpoint 2025), is available from Amazon for $29.95. The co-authors are Rakesh Madhava, Brett Burney, Elizabeth Guthrie, and David D. Lewis. I reviewed Tom’s prior book, “Ediscovery for the Rest of Us,” in Book Review: Any Ship Can […]
January 9, 2026
Published by Michael Berman at January 9, 2026
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“Plaintiffs’ evidence of printouts of websites is not presented in an admissible form. Evidence must be authentic to be admissible.” Goldstein v. Hindle, 2026 WL 63116 (D. Md. Jan. 8, 2026)(Crawford, J.). Defendant’s website, video and direct-message via social media evidence was also excluded. Cross-motions for summary judgment were pending. The Court […]
January 8, 2026
Published by Michael Berman at January 8, 2026
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Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products. One advantage of using Special Masters like Phil is speed. Phil was appointed by the court on […]
January 7, 2026
Published by Michael Berman at January 7, 2026
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This blog addresses two of the issues resolved in Toyota Motor Sales, U.S.A., Inc. v. Allen Interchange LLC, 2025 WL 3485862 (D. Minn. Dec. 4, 2025). Toyota moved to compel Allen to produce certain discovery. First, Toyota requested the “Jim Folder.” Allen initially danced — unsuccessfully — around a response, arguing that […]
January 4, 2026
Published by Michael Berman at January 4, 2026
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In its verified discovery responses, Defendant PHH identified two people as “key actors” in connection with the loan at issue. Further: “At a hearing before this Court on this very point – the level of authority of these employees – PHH stood by its responses, a point which the Court confirms from […]
January 3, 2026
Published by Michael Berman at January 3, 2026
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An assertion that an opponent failed to fully answer discovery propounded on it will not justify refusing to timely respond to the opponent’s discovery. In a recent decision, the court explained that the plaintiff unsuccessfully sought to prevent his own deposition, writing: Plaintiff asserts that his deposition was noticed prior to him […]
January 2, 2026
Published by Michael Berman at January 2, 2026
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Prof. Ira P. Robbins, published an important article, Against an AI Privilege – Harvard Journal of Law & Technology (Nov. 7, 2025). Prof. Robbins poses the question of whether communications with artificial intelligence systems “deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal privileges.” He argues […]
January 1, 2026
Published by Michael Berman at January 1, 2026
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Flynn-Murphy v. Jaguar Land Rover of N. Amer., LLC, 2025 WL 3771284 (D.N.J. Dec. 31, 2025)(unpublished), was before the court on Class Counsel’s Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Class Representative Service Awards. Plaintiffs asserted defective turbochargers in Defendants’ vehicles and that they cause expensive damage. After […]
December 29, 2025
Published by Michael Berman at December 29, 2025
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In Powell-Hatcher v. Wal-Mart Stores East, LP, 2025 WL 3722385 (E.D. Mich. Dec. 23, 2025), the court stated several general principles governing requests to produce documents and objections to those requests. The decision was issued in the context of a motion to compel. First, parties must address the relevance of each request […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In USA Today, Anthony Robledo reports that Dr Phil bankruptcy case filing has accusations of deleting texts (USA Today Oct. 29, 31, 2025), citing Variety and The Hollywood Reporter It is reported that: 1) the Bankruptcy Judge found that text messages had been improperly deleted; and, 2) the finding has been, and is, disputed […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In Allen v. Amazon, 2025 WL 3719889 (N.D. Tex. Dec. 23, 2025), the court applied a discretionary exception to the “meet and confer” requirement. It also declined to impose sanctions for violation of a Local Rule mandating disclosure of the use of artificial intelligence. EXCEPTION TO “MEET AND CONFER” REQUIREMENT In yesterday’s […]
December 27, 2025
Published by Michael Berman at December 27, 2025
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Plaintiff filed an ex parte motion seeking an order requiring defendants to produce documents without redactions. The motion was denied without prejudice for failure to meet and confer, and failure to follow ordinary discovery procedures. Additionally, Plaintiff and Plaintiff’s counsel were ordered “to show cause as to why they should not be […]
December 24, 2025
Published by Michael Berman at December 24, 2025
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Motions to compel were both “unripe” and “untimely” in Mindtickle, Inc. v. Studio Enterprise, LLC, 2025 WL 3691969 (C.D. Cal. Nov. 27, 2025). The court also described an inadequate Rule 26(f) “discovery plan.” Additionally, bilateral agreements could not modify the scheduling order. Mindtickle’s timing theory was deemed “upside down.” Mindtickle echoes Golat […]
December 23, 2025
Published by Michael Berman at December 23, 2025
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Andersen v. Stability AI Ltd., 2025 WL 3564202 (N.D. Cal. Dec. 12, 2025), involved interpretation of an ESI Protocol. The protocol was called a “Stipulated ESI Order.” It stated: “A Requesting Party may request up to twelve custodians per Producing Party….” “The parties may jointly agree to modify these limits without the […]
December 22, 2025
Published by Michael Berman at December 22, 2025
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Disputes over the scope of discovery into A.I. – – for example, whether prompts are discoverable – – has led to a lot of debate. The issue was raised but not answered in Adams v. Best Western International, Inc., 2025WL 3560163 (D. Neb. Dec. 11, 2025). On the issue of discovery related […]
December 21, 2025
Published by Michael Berman at December 21, 2025
I posted 237 blogs this year to date. Many are on EDRM or JD Supra. Some that may be worth reading are: An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues Artificial Intelligence in Maryland Courts “Just When […]
December 20, 2025
Published by Michael Berman at December 20, 2025
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Marris Hoffee and Michael Berman As remote and hybrid work models have become the norm, the line between personal and professional digital life has blurred almost beyond recognition. Employees routinely use company-issued laptops and cell phones for personal activities, while employers increasingly rely on those same devices to investigate misconduct, prosecute or […]
December 16, 2025
Published by Michael Berman at December 16, 2025
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A recent decision involved whether voluntary disclosure of work product to the FBI as part of a cooperative effort to investigate an alleged crime was a waiver of work product protection. The court in this case held that it was not. L.M. v. Carnival Corp., 2025 WL 3515503 (S.D. Fl. Dec. 8, […]
December 9, 2025
Published by Michael Berman at December 9, 2025
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The answer is “Popcorned Planet, Inc., moves to quash a subpoena for documents served by Blake Lively, who responds in opposition.” Popcorned Planet, Inc. v. Lively, 2025 WL 3458601 (M.D. Fl. Dec. 2, 2025). The court wrote that: “This matter relates to Lively v. Wayfarer Studios, LLC, et al., Case No. 1:24-cv-10049-LJL, […]
December 5, 2025
Published by Michael Berman at December 5, 2025
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The decision in Legault v. Costco Wholesale Corporation, 2025 WL 3252653 (E.D. Ark. Nov. 21, 2025), is succinct in its discussion of the production of native files. The court wrote: “Legault’s motion to compel Costco to provide him with native files and metadata is denied because Costco states the files are security […]
December 4, 2025
Published by Michael Berman at December 4, 2025
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A recent decision stated several important principles applying to insurance companies in coverage actions: “A substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured; therefore, such investigations are presumed to be part of the normal […]
December 3, 2025
Published by Michael Berman at December 3, 2025
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Ms. Blake Lively moved for an order confirming that her requests for admission (“RFA’s”) were deemed admitted due to the Wayfarer Parties’ alleged failure to timely respond to them. Lively v. Wayfarer Studios LLC, 2025 WL 3442593 (S.D.N.Y. Dec. 1, 2025). While the court held that the Wayfarer Parties’ responses were insufficient, […]
December 2, 2025
Published by Michael Berman at December 2, 2025
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The court in Carter v. Uzglobal LLC, 2025 WL 3443521 (D. N. Mex. Dec. 1, 2025), succinctly summarized a number of important discovery issues, writing: “A. Rule 26(b)’s Scope of Discovery. Discoverable material includes ‘any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs […]
December 1, 2025
Published by Michael Berman at December 1, 2025
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A recent decision states: “Subsequently, the parties filed a Joint Status Report, a transcript of their meet and confer session, and a letter update, which ultimately apprised the Court that the parties were unable to resolve their dispute.” Lifestyle Realty, LLC v. Kirn, 2025 WL 2719984, at *2 (D. Md. Sept. 23, […]
November 30, 2025
Published by Michael Berman at November 30, 2025
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A Scheduling Order is, after all, an Order. Violating it has consequences. Estate of Taylor v. Spring, 2025 WL 3294714 (Appl. Ct. Md. Nov. 26, 2025)(unreported).[1] This is an application of the Cinderella principle: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost […]
November 29, 2025
Published by Michael Berman at November 29, 2025
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The purpose of an ESI Protocol “is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Leon v. American Honda Motor Co. Inc., 2025 WL 3255005, […]
November 28, 2025
Published by Michael Berman at November 28, 2025
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The scope of the right to seal portions of motions for spoliation sanctions was carefully explained in Lively v. Wayfarer Studios, LLC, 2025 WL 3295147 (S.D.N.Y. Nov. 26, 2025). The lawsuit involving Ms. Lively, Mr. Baldoni, and others has received substantial attention. How Much Attention Does a Big Case Deserve? (Nov. 22, […]
November 25, 2025
Published by Michael Berman at November 25, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 3227789 (S.D.N.Y. Nov. 19, 2025), addressed privilege logs. First, the court ordered categorical privilege log. That was challenged and the parties asserting privilege offered a document-by-document log. That was challenged and a supplemental privilege log was ordered. Ms. Lively requested production of documents the Wayfarer […]
November 24, 2025
Published by Michael Berman at November 24, 2025
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I have suggested that an “ESI Protocol” is not a “Discovery Plan.” “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024). The difference is more than semantics. A “discovery plan” is mandated by the Federal Rules of Civil Procedure. No Rule mentions an “ESI Protocol.” While it may be imprudent to do so, […]
November 22, 2025
Published by Michael Berman at November 22, 2025
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Ms. Blake Lively’s lawsuit against the “Wayfarer Defendants,” including Mr. Justin Baldoni, presents very serious, complex, and novel, discovery and substantive issues. In the court’s words: “This case stems from Lively’s claims of sexual harassment that she was allegedly subjected to during production of the Film [It Ends With Us], and from […]
November 21, 2025
Published by Michael Berman at November 21, 2025
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This blog on Lively v. Wayfarer Studios, LLC, 2025 WL 3206490 (S.D.N.Y. Nov. 17, 2025), is my ninth on this and related litigation. The opening sentence is: Plaintiff Blake Lively (“Lively”) moves to sanction Defendant Jamey Heath (“Heath”) for failing to produce all video footage related to the “birth video” that the […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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The movie Jaws famously contained the line “Just when you thought it was safe to go back in the water…” Law360 reports Attys Beware: Generative AI Can Also Hallucinate Metadata – Law360 in a November 4th article by Daniel Garrie, Jennifer Deutsch, and Morgan Ward Doran. The article states: When AI generates […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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Efforts to redact material as irrelevant are generally rejected. Relevance Redactions Prohibited – Again (May 17, 2024); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025). The court in Hughes v. Apple, Inc., 2025 WL 3141836 (N.D. Cal. Nov. 10, 2025), permitted plaintiffs’ “restrained” redactions in connection […]
November 18, 2025
Published by Michael Berman at November 18, 2025
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Where a producing party argued, ten months after discovery was propounded, that a motion to compel was “unnecessary” because it had agreed to produce the information at some unspecified time, the court held that the offer was meaningless. Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, […]
November 17, 2025
Published by Michael Berman at November 17, 2025
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The Baltimore Sun reports that “Police use AI to draft reports in at least one Maryland county.” The November 17th article by Josh Davis and Luke Parker states that the Wicomico County Sheriff’s office is using artificial intelligence to boost efficiency. This AI service, known as Draft One, links to body cameras. […]
November 17, 2025
Published by Michael Berman at November 17, 2025
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“Netskope requested production of certain emails sent or received by John Whittle, a Fortinet executive who has held both business and legal counsel roles.” Netskope, Inc. v. Fortinet, Inc., 2025 WL 3190693 (N.D. Cal. Nov. 14, 2025). Fortinet contended that its internal emails were either irrelevant or “privileged as attorney-client communications or […]
November 14, 2025
Published by Michael Berman at November 14, 2025
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In a dispute over search term counter-designations, the Special Master found that the ESI Protocol did not establish a milestone date, so none existed. Glaxosmithkline Biologicals SA v. Pfizer, Inc., 2025 WL 3098080 (D. Del. Nov. 6, 2025). Plaintiff GSK alleged infringement of eight patents. The District of Delaware has a “Default […]
November 13, 2025
Published by Michael Berman at November 13, 2025
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Defining the scope of discovery is fundamental. Certain language has changed three times. First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The intent was to make it clear […]
November 8, 2025
Published by Michael Berman at November 8, 2025
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Plaintiffs alleged that defendants improperly delayed market entry of their generic medication. Defendants filed a motion to dismiss and sought to stay all discovery until after that motion was resolved. They contended that plaintiffs waited 10 years to file suit and were barred by limitations. The motion to stay discovery was denied: […]
November 7, 2025
Published by Michael Berman at November 7, 2025
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In U.S. v. Jones, 2025 WL 3013283 (D. Kans. Oct. 28, 2025), the court rejected both an argument that waiver of privilege was narrow, and an argument that it was broad, applying Fed.R.Evid. 502. The court described and rejected what it called a “newfangled theory” of waiver. That theory was that numerous […]
November 5, 2025
Published by Michael Berman at November 5, 2025
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MuniCap, Inc. v. Wilson, 2025 WL 3003968 (D. Md. Oct. 24, 2025)(Austin, J.), is the latest decision in the long simmering dispute over document correlation under Fed.R.Civ.P. 32. The dispute centers on whether Subsection E(i) or E(ii) governs production of ESI. THE RULE 34(b)(2)(E)(i) & (2) DISPUTE Subsection E(i) states that: “A […]
November 4, 2025
Published by Michael Berman at November 4, 2025
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A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit. Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, […]
November 3, 2025
Published by Michael Berman at November 3, 2025
“[T]he Court’s March 18, 2025 Fed. R. Civ. P. 26(c) protective order … is hereby modified to reflect that any documents marked confidential shall not be uploaded onto any AI platform.” Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025)(emphasis in original). Apparently, the concern was that, if confidential […]
November 2, 2025
Published by Michael Berman at November 2, 2025
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Fake citation or “hallucination” cases have become common. See, e.g., Doug Austin, What’s Causing These AI Hallucinations and How to Fix It (Oct. 13, 2025)(reporting 772 cases in academic literature); Doug Austin, AI Hallucination Cases: A Compiled List (Jun. 9, 2025); Damien Charlotin, AI Hallucination Cases Database – Damien Charlotin (listing 507 […]
November 1, 2025
Published by Michael Berman at November 1, 2025
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Dylan Segelbaum and Kristen Griffith report that Ex-Pikesville principal settles with BCPS [Baltimore County Public Schools] after racist AI impersonation – The Baltimore Banner (Oct. 31, 2025). The article states: “A settlement has been reached in a lawsuit that the former principal of Pikesville High School filed against Baltimore County Public Schools […]
October 28, 2025
Published by Michael Berman at October 28, 2025
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The Federal Rules of Civil Procedure do not state when a motion to compel must be filed. This silence has generated a number of discovery disputes. When Must a Motion to Compel Be Filed? (Aug. 26, 2024); When Must a Motion to Compel Be Filed? – Part 2; (Sep. 6, 2024); Half-Baked […]
October 21, 2025
Published by Michael Berman at October 21, 2025
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Where a company official used company email for privileged communications and sold the server holding those communications, he waived the attorney-client privilege. Jim Daws Trucking, LLC v. Daws, Inc., 2025 WL 27111278 (D. Neb. Sep. 23, 2025). The Jim Daws court denied defendants’ “Motion for Protective Order and Destruction of Privileged Documents […]
October 15, 2025
Published by Michael Berman at October 15, 2025
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In its “Order Granting Motion to Compel Disclosure Regarding Preservation Efforts,” a court recently wrote: “For all of the foregoing reasons, plaintiffs motion to compel disclosures regarding Amazon’s preservation[] efforts … is GRANTED. Amazon shall, within fourteen days of the date of this Order, produce the litigation hold notices sent regarding this […]
October 14, 2025
Published by Michael Berman at October 14, 2025
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After in camera review of 46 documents, the court in Burge v. Teva Pharmaceuticals Industries, Ltd., 2025 WL 2846688 (D. Kans. Oct. 7, 2025), defined and applied the crime-fraud exception to the attorney-client privilege and required production of previously-redacted information. Under the crime-fraud exception, communications with counsel in furtherance of a crime […]
October 13, 2025
Published by Michael Berman at October 13, 2025
In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections. The court ordered mutual disclosure of search methodology and ruled that it was […]
October 11, 2025
Published by Michael Berman at October 11, 2025
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Sanctions were imposed on plaintiff for breach of the duty to preserve certain communications in Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025)(Rubin, J.). The Court held that it would instruct the jury: You are instructed that Plaintiff had a duty to preserve all relevant […]
October 5, 2025
Published by Michael Berman at October 5, 2025
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Deamonte Spencer was convicted of murder and handgun charges. Among the evidentiary errors alleged on appeal was a challenge to authentication of printouts of profiles of Instagram pages. The Appellate Court of Maryland rejected the challenges and affirmed. Spencer v. State, 2025 WL 2741459 (Apl. Ct. Md. Sep. 26, 2025)(unreported). A local […]
October 3, 2025
Published by Michael Berman at October 3, 2025
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Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 29, 2025)(Austin, J.), covers a lot of ground. This blog addresses only two of the covered issues: (1) when is a motion for protective order untimely; and, (2) when is the requirement to meet and confer before filing such a motion waived as […]
October 2, 2025
Published by Michael Berman at October 2, 2025
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“Although Plaintiff has not established each element of spoliation, the Court is troubled by Defendant’s conduct.” Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025)(Quereshi, J.).[1] The Court reserved on the issue of narrower-than-requested sanctions, which will be the focus of this blog. THE SLIP AND […]
October 1, 2025
Published by Michael Berman at October 1, 2025
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Geofence warrants are a hotly-disputed topic. See Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision (Aug. 4, 2025). The Petition for Certiorari states: “This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to […]
September 30, 2025
Published by Michael Berman at September 30, 2025
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A “Joint Motion for Entry of Order Adopting Stipulation Regarding Production of Electronically Stored Information and Paper Documents” asked the court to enter an Order adopting the parties’ “Stipulation Regarding Production of Electronically Stored Information and Paper Documents” (“ESI Stipulation”). The Joint Motion was denied. Husidic v. FR8 Solutions, Inc., 2025 WL […]
September 29, 2025
Published by Michael Berman at September 29, 2025
In In Re Tecfidera Antitrust Litigation, 2025 WL 2734539 (N.D. Ill. Sep. 25, 2025), the court wrote: “The parties’ cross motions for entry of their version of the ESI protocol noted that the parties agreed on all issues except for one relating to email threading, which Defendant seeks to include but Plaintiffs […]
September 29, 2025
Published by Michael Berman at September 29, 2025
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A motion for sanctions was denied in an alleged misappropriation of trade secrets action by a former employer against departed employees. Lifestyle Realty, LLC v. Kirn, et al., 2025 WL 2719984 (D. Md. Sep. 23, 2025)(Simms, J.). Lifestyle Realty (“DKG”) is a real estate brokerage firm. It sued four individual defendants and […]
September 27, 2025
Published by Michael Berman at September 27, 2025
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The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward. The recipient of a preservation demand is not obligated to respond. The Court wrote: Finally, Mr. Jones also alleges that sanctions are in order because he has “serious spoliation concerns.”… His […]
September 25, 2025
Published by Michael Berman at September 25, 2025
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Rossbach v. Montefiore became famous because a defense forensic expert proved that an emoji, which was allegedly displayed on plaintiff’s cell phone with a harassing text message, could not have been displayed on plaintiff’s iPhone 5. The expert opined that the operating system for that phone did not support the emoji allegedly […]
September 24, 2025
Published by Michael Berman at September 24, 2025
A recent decision demonstrates the importance of following the Rules and the duty to cooperate, after a “quick peek” proved that an opponent’s discovery responses were incomplete. The Court wrote: “Defendants’ responses to Plaintiffs’ interrogatories and requests for production of documents are vague and confusing. The Federal Rules of Civil Procedure and […]
September 20, 2025
Published by Michael Berman at September 20, 2025
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A motion to compel an ESI Protocol was denied in Khan v. Port Washington Hospitality LLC, 2025 WL 2664020 (E.D.N.Y. Sep. 17, 2025). Khan is a collective action case under the FLSA. The court denied conditional certification but permitted related discovery. Defendant PWH operated restaurants. Plaintiff, Ms. Khan, alleged that they were […]
September 18, 2025
Published by Michael Berman at September 18, 2025
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Not on these facts. Lively v. Wayfarer Studios LLC, 2025 WL 2606904 (S.D.N.Y. Sep. 9, 2025). This decision is the latest in a long string of discovery decisions in the sexual harassment lawsuit of Ms. Blake Lively against a series of parties denominated as the “Wayfarer Defendants.” The claim arises out of […]
September 16, 2025
Published by Michael Berman at September 16, 2025
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A challenge to a redacted metadata privilege log was partly successful. Jeffries Funding LLC v. Dasagroup Holdings Corp., 2025 WL 2611922 (N.D. Ca. Sep. 10, 2025). For a description of “metadata privilege logs” see How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform – E-Discovery LLC (Aug. […]
September 15, 2025
Published by Michael Berman at September 15, 2025
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Senate Bill 655 was vetoed by the Governor. It was titled “ Artificial Intelligence Evidence Clinic Pilot Program – Establishment.” It would have established a pilot program in the Administrative Office of the Courts to develop a grant program designed “to provide expertise in the artificial intelligence” to the Maryland trial courts […]
September 12, 2025
Published by Michael Berman at September 12, 2025
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Several years ago, I wrote about Maryland’s Special Rule for Discovery Sanctions in Child Custody Cases (Aug. 6, 2022), discussing Kadish v. Kadish, 254 Md. App. 467 (2022), where the Court was faced with egregious discovery violations in a child custody case. The Court held that in a custody case, the best […]
September 11, 2025
Published by Michael Berman at September 11, 2025
In Golat v. Wisconsin State Court System, 2025 WL 2466697 (W.D. Wis. Aug. 27, 2025)(“Golat II”), the court wrote that omitting a relevant email that was contained in an email chain violated counsel’s duty of candor to the court. This blog is an update of Half-Baked Motion to Compel Was Not Prompt, […]
September 10, 2025
Published by Michael Berman at September 10, 2025
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Much of the litigation over geofencing has been under the Fourth Amendment in criminal cases, and there has been a lot of it. See, e.g., Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC (Aug. 5, 2025); Alvarez v. State, 2025 WL 2346165, at *4 (Tex. App. […]
September 8, 2025
Published by Michael Berman at September 8, 2025
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Li v. Merck & Co., Inc., 2025 WL 2162949 (N.D. Cal. Jul. 30, 2025), is the latest in a series of discovery holdings in that lawsuit. I described some of the prior holdings in Li. v. Merck Addresses: Trigger; Spoliation Discovery; and, Document Unitization (Feb. 26, 2025); Court Reviews Document Unitization Dispute […]
September 6, 2025
Published by Michael Berman at September 6, 2025
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In Lively v. The Skyline Agency LLC, 2025 WL 2532796 (S.D.N.Y. Sep. 3, 2025), the court wrote that Ms. Lively subpoenaed a Signal Chat in connection with Lively v. Wayfarer Studios LLC, No. 24-cv-10049 (S.D.N.Y. filed Dec. 31, 2024) (the “Lively Action”). Id. at *1. Skyline and Ms. Kalantari withheld certain information. […]
September 5, 2025
Published by Michael Berman at September 5, 2025
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Yesterday, I posted a blog titled “Discovery on Discovery” Permitted. “Discovery on Discovery” was denied in Lively v. Wayfarer Studios LLC, 2025 WL 2496307 (S.D.N.Y. Aug. 29, 2025). Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if […]
September 4, 2025
Published by Michael Berman at September 4, 2025
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“Discovery on Discovery,” sometimes called “satellite discovery,” “discovery about discovery,” or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025). Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Plaintiff sought a Rule 30(b)(6) deposition; however, Defendants refused. Plaintiff moved to […]
September 3, 2025
Published by Michael Berman at September 3, 2025
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In an important decision, the Ninth Circuit applied California law and held that “the People,” i.e., State Attorneys General, are generally not deemed to have possession, custody, or control of State agency documents, when they are prosecuting an enforcement action. In Re: People of the State of California v. U.S. District Court […]
September 2, 2025
Published by Michael Berman at September 2, 2025
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There is a problem when the court writes that it “reminds the Parties … that they are engaged in civil litigation, and the Court urges all involved to conduct themselves accordingly.” Pendleton v. Revature LLC, 2025 WL 2493090, at *5 (W.D. Wash. Aug. 11, 2025)(emphasis in original; citation and quotation omitted). It […]
September 1, 2025
Published by Michael Berman at September 1, 2025
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“Keyword warrants” are search warrants “which force search engines to provide personal information on anyone who may have inputted certain terms….” C. Edano, “Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants,” 97 Wash.L.Rev. 977, 978 (2022): In October 2020, the Denver Police Department hit a wall. The Department was investigating […]
August 24, 2025
Published by Michael Berman at August 24, 2025
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“Just as the telegraph gave way to the telephone, the stagecoach gave way to the automobile, and the typewriter gave way to the word processor, so too will courtroom chalkboards, easels and blow-up placard charts give way to computer-generated exhibits.” Galves, 13 Harv. J. L. & Tech. at 300. In fact, some […]
August 22, 2025
Published by Michael Berman at August 22, 2025
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Golat v. Wisconsin State Court System, 2025 WL 2390556 (W.D. Wisc. Aug. 18, 2025), involved a motion to compel that was not prompt, not ripe, and not complete. The court wrote: Parties must allow a reasonable amount of time for the other side to address alleged discovery deficiencies. Waiting until the last […]
August 21, 2025
Published by Michael Berman at August 21, 2025
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In EEOC v. Mia Aesthetics Clinic, ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. Aug. 18, 2025)(“Mia Aesthetics II”), Mia Aesthetics, in my words, tried to “rewrite” a court order. That unsuccessful effort led to appointment of a third-party ESI vendor at defendants’ cost. In a prior decision, the court had ordered defendants to […]
August 15, 2025
Published by Michael Berman at August 15, 2025
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The standard for reopening completed depositions to address after-produced documents was explained in In re Sandisk SSDs Litigation, 2025 WL 2304805 (N.D. Cal. Aug. 11, 2025). The court stated that: “Plaintiffs move to reopen fact discovery to reopen three depositions of Defendants’ employees in light of Defendants’ belated production of documents that […]
August 14, 2025
Published by Michael Berman at August 14, 2025
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I recently published a blog on Johnson v. State, 2025 WL 2237582, at *1 (Appl. Ct. Md. Aug. 6, 2025)(unreported), titled Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence (Aug. 1, 2025). In that decision, the Court reversed a criminal conviction […]
August 14, 2025
Published by Michael Berman at August 14, 2025
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Plaintiff’s offensive motion for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2076080, at *1 (S.D.N.Y. July 23, 2025)(“Oakley II”), was no match for defendants’ earlier request for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2061665, at *1 (S.D.N.Y. July 23, 2025)(“Oakley I”). In Oakley I, defendants (“MSG”) made […]
August 13, 2025
Published by Michael Berman at August 13, 2025
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In Schmitz v. Verdad Asset Management, Inc., 2025 WL 2306291 (D. Md. Aug. 11, 2025)(Xinis, J.), Count V of plaintiff’s complaint alleged spoliation of a website. It failed, and defendant’s motion to dismiss was granted. The parties entered into a joint venture to launch a hedge fund. After ballooning to $50 million […]
August 12, 2025
Published by Michael Berman at August 12, 2025
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The failure to submit a sufficient affidavit of representation doomed an assertion of the joint representation or common interest privilege in Fond Du Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 2251920 (D. Minn. Aug. 7, 2025). The Band of Chippewa (the “Band”) sued the Forest Service and others over […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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“After a one-day trial in the Circuit Court for Montgomery County, a jury found Craig Donnell Johnson guilty of robbery. Before trial, Mr. Johnson had filed a motion to dismiss the case, arguing that the State had withheld the fact that it had used facial recognition technology (‘FRT’) to identify him as […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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Phased discovery is, in my experience, a potentially valuable, but rarely used, cost-saving technique. See Use of Phased Discovery to Achieve Proportionality (Jul. 15, 2022). In appropriate situations, phased discovery can be a useful way to avoid a discovery dispute by “kicking the can down the road.” Fed.R.Civ.P. 26(f)(3) requires that a […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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A party that fails to timely provide a privilege log does so at its peril. In J.T. v. City and County of San Francisco, 2025 WL 2213208 (N.D. Cal. Aug. 4, 2025), plaintiffs[1] sued over a mass arrest. Defendants asserted the qualified, official information privilege, but failed to provide a privilege log […]
August 10, 2025
Published by Michael Berman at August 10, 2025
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“Here, the Court issues its sanction based on its inherent authority as Plaintiff’s conduct was not in violation of a discovery order under Rule 37.” Jimenez v. Hyatt Corp., 2025 WL 2196105 (E.D. Cal. Aug. 1, 2025). FACTS Ms. Jimenez, Plaintiff, who is blind, filed suit challenging accessibility of Defendant Hyatt’s website. […]
August 9, 2025
Published by Michael Berman at August 9, 2025
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Attorney-expert communications and documents were discoverable under the principle of subject matter waiver of work product and privileged information in Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025). FACTS An advocacy group and 94 individuals brought this environmental action against a […]
August 8, 2025
Published by Michael Berman at August 8, 2025
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A four-factor test to answer the question of “when can opposing counsel be deposed?” was set out in Safo v. Singh, 2025 WL 2123613 (S.D.N.Y. Jul. 29, 2025), citing In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d. Cir. 2003)(Sotomayer, J.). The four factors are: (1) the need to […]
August 7, 2025
Published by Michael Berman at August 7, 2025
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The federal court in Delaware has a “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings LLC, 2025 WL 2146099 (D. Del. Jul. 29, 2025). It applied that standard to a request to preserve information in Random Access Memory (“RAM”). Belvac sought preservation […]
August 6, 2025
Published by Michael Berman at August 6, 2025
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In this alleged wrongful termination and retaliation case, a “whistleblower” complaint was dismissed and monetary sanctions were also imposed. Pable v. Chicago Transit Authority, __ F. 4th __, 2025 WL 2102202 (7th Cir. Jul. 28, 2025). The appellate court affirmed sanctions against both an attorney and client under three provisions: Fed.R.Civ.P. 37(e)(1 […]
August 5, 2025
Published by Michael Berman at August 5, 2025
While disfavored, relevant and proportional “discovery on discovery” is permitted “where there is evidence of a specific deficiency in the production.” Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 2187115 (M.D. Tenn. Jul. 25, 2025). Revance moved to compel Allergan “to more fully respond to discovery related to former Allergan and former […]
August 4, 2025
Published by Michael Berman at August 4, 2025
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Okello Chatrie was convicted of armed robbery based on evidence derived from a geofence warrant. See Chatrie v. U.S., 2025 WL 2173706 (appellant’s certiorari petition). He asserts: This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations […]
August 3, 2025
Published by Michael Berman at August 3, 2025
Plaintiff’s motion to compel production of defendants’ organizational chart was granted in a putative class action for alleged unpaid overtime. Castillo v. Albert Einstein College of Medicine, Inc., 2025 WL 1789827 (S.D.N.Y. Jun. 30, 2025). The court wrote that: Plaintiff moves to compel responses to its Requests for Production (“RFPs”) Nos. 11–12 […]
August 1, 2025
Published by Michael Berman at August 1, 2025
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In a family law decision that may impact all time-delimited offers, the Maryland Supreme Court held that the offeror had conditioned acceptance by a date certain, and acceptance came too late. Pattison v. Pattison, __ Md. __, 2025 WL 2057986 (Jul. 23, 2025). The Court wrote: “The issue here is whether a […]
July 31, 2025
Published by Michael Berman at July 31, 2025
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Payne v. Geer, 2025 WL 2061651 (D. Neb. Jul. 23, 2025), involved allegations of malicious prosecution. The court cited a local rule that prohibits use of definitions in interrogatories without leave of court. Plaintiff Payne moved to compel discovery from Defendant Herman. In pertinent part, Herman objected to the definitions in Payne’s […]
July 30, 2025
Published by Michael Berman at July 30, 2025
In Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”), after several rulings adverse to Genesh, the court appointed a Special Master to facilitate the plaintiff EEOC’s discovery from the defendant, Genesh, Inc. THE UNDERLYING CLAIMS “Genesh III” describes the nature of the case: “On […]
July 29, 2025
Published by Michael Berman at July 29, 2025
The long simmering “document correlation” dispute was addressed in Sievert Elec. Svc. and Sales Co. v. Storako, 2025 WL 2084229 (N.D. Ill. Jul. 24, 2025). The court followed the majority rule. While there is a clear split of authority, I respectfully disagree with Sievert and suggest that there is a better mousetrap. […]
July 26, 2025
Published by Michael Berman at July 26, 2025
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“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted). Here, the […]
July 25, 2025
Published by Michael Berman at July 25, 2025
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The order in Bouie v. Alzayadi, 2025 WL 2042261 (E.D. Mich. Jul. 21, 2025)(Stafford, J.), clearly sets out a series of rules governing discovery disputes. At a status conference, each party asserted that the other had not adequately responded to discovery requests. Judge Stafford wrote: “The Court’s efforts to resolve the disputes […]
July 24, 2025
Published by Michael Berman at July 24, 2025
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A motion for a forensic examination was granted in PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025). On movant’s third try, the court found that the opponent was trying to “gaslight” the court and it granted the motion. While the producing party’s failures were epic, the thoughtful discussion […]
July 23, 2025
Published by Michael Berman at July 23, 2025
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In a case where the plaintiff seeks $24,000,000 in damages, the court stated: “Today we write the next chapter in this litigation, a case which threatens to become an epic of dysfunctional discovery…. The parties have long been embroiled in contentious discovery disputes.” Everlast Roofing, Inc. v. Wilson, 2025 WL 1959345 (M.D. […]
July 20, 2025
Published by Michael Berman at July 20, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1999355 (S.D.N.Y. Jul. 17, 2025), involves a lot of money. It has also generated a cottage industry of discovery decisions. Westlaw lists 13 decisions (not all on discovery) since February 2025. For blogs on some of them, please see “It Ends With Us” (Apr. 8, […]
July 16, 2025
Published by Michael Berman at July 16, 2025
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“[W]hile I find defendants negligently failed to preserve video footage, I find they are not guilty of spoliation because such footage is not responsive to plaintiff’s discovery requests or relevant.” Hobson v. [Correctional Officer] Harper, 2025 WL 1905594 (D. Nev. Jul. 9, 2025). Plaintiff’s civil rights claims arose out of alleged destruction […]
July 15, 2025
Published by Michael Berman at July 15, 2025
A motion for spoliation sanctions was held to be “premature,” and the motion was denied without prejudice, in Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347, at *15 (M.D.N.C. May 28, 2025), report and recommendation adopted, 2025 WL 1755911 (M.D.N.C. June 25, 2025). The Federal Rules of Civil Procedure (and […]
July 11, 2025
Published by Michael Berman at July 11, 2025
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Marris Hoffee and Michael D. Berman In Hall v. Baltimore Police Dept., 2025 WL 1548560 (D. Md. May 30, 2025)(Austin, J.), the Court considered whether materials created many years after the underlying incident were protected under the work-product doctrine. The materials were prepared as part of legal representation of the plaintiff. They […]
July 4, 2025
Published by Michael Berman at July 4, 2025
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In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2025 WL 1393216 (N.D. Cal. May 14, 2025), the court resolved discovery disputes over a corporate designee deposition under Fed.R.Civ.P. 30(b)(6). The court: Narrowed a request for “discovery on discovery”; Ordered that, with limitations, Uber’s deponent must bring an Uber laptop to […]
July 3, 2025
Published by Michael Berman at July 3, 2025
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In two related decisions, plaintiff’s motions for sanctions for spoliation of a cell phone and for destruction of drug testing swabs, were denied. Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403350 (D. Md. May 15, 2025)(Coulson, J.)( “Cooper I”); Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403334 (D. […]
July 2, 2025
Published by Michael Berman at July 2, 2025
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The entire opinion in Metro Light and Power LLC v. Furnlite, 2025 WL 1805793 (S.D.N.Y. Jul. 1, 2025), states: Defendants oppose the non-party subpoenas on undue burden and relevance grounds. But a “party lacks standing to challenge subpoenas issued to non-parties on the grounds of relevancy or undue burden.” Universitas Educ., LLC […]
July 1, 2025
Published by Michael Berman at July 1, 2025
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A motion to compel the designation of an “apex” non-party document custodian was granted in In Re Mosaic LLM Litigation, 2025 WL 176001 (N.D. Cal. Jun. 26, 2025). The limiting “apex doctrine” generally does not apply to document custodians. Id. However, the stringent “apex doctrine” applied in this instance, due to the […]
June 30, 2025
Published by Michael Berman at June 30, 2025
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In The Loan Source Inc. v. Newity LLC, 2025 WL 1755230 (D. Del. Jun. 25, 2025), plaintiffs’ request for production number 19 sought documents “sufficient to show Defendants’ efforts to settle a lawsuit….” Their motion to compel was granted over relevance and other objections. The court wrote: “Thus, Defendants must produce documents […]
June 28, 2025
Published by Michael Berman at June 28, 2025
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In Matter of City of Hagerstown, __ Md. App. __, 2025 WL 1540660 (May 30, 2025), the defendant City claimed unfair surprise when plaintiff sought to introduce at trial photographs that the City had taken, but which plaintiff had not disclosed in discovery. The Court affirmed the holding that the asserted prejudice […]
June 25, 2025
Published by Michael Berman at June 25, 2025
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In HET MCPS, LLC v. AutoFlex, Inc., 2025 WL 1615459 (D. Md. June 6, 2025), plaintiffs alleged that defendants interfered with plaintiffs’ contract and customer relationships. In this opinion, the Court addressed, among others, plaintiffs’ motion for forensic imaging. “Plaintiffs contend that Defendants have failed to comply with their discovery obligations and […]
June 24, 2025
Published by Michael Berman at June 24, 2025
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In Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025), defendant’s privilege log helped partially defeat defendant’s summary judgment motion. Plaintiff sued alleging wrongful termination. Defendant asserted that termination was first considered on June 26 or 27. However, its privilege log contained entries showing earlier privileged communications relating […]
June 19, 2025
Published by Michael Berman at June 19, 2025
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In Gilbane Bldg. Co. v. School Bd. of Broward County, 2025 WL 1615553 (S.D. Fl. Jun 6, 2025), plaintiff moved to compel a “compliant” privilege log. The court decided six issues. The court wrote: “I agree that Defendant must serve an amended privilege log with additional information (as described below), though not […]
June 18, 2025
Published by Michael Berman at June 18, 2025
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Fed.R.Civ.P. 26(g) is called the “stop and think” rule. In Grullon v. Lewis, 2025 WL 1693425 (S.D.N.Y. Jun. 17, 2025), the court found a violation of that rule. The court held that: To satisfy the requirements of Rule 26(g)(1) and comply with counsel’s ethical obligations as an officer of the Court, counsel […]
June 17, 2025
Published by Michael Berman at June 17, 2025
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In Heym v. APG Housing, LLC, 2025 WL 1661414 (D. Md. June 11, 2025)(Coulson, J.), the Court applied its Principles for the Discovery of Electronically Stored Information in Civil Cases (“ESI Principles”) to order that a discovering party narrow its request for metadata. THE DISTRICT OF MARYLAND’S “ESI PRINCIPLES” The development of […]
June 16, 2025
Published by Michael Berman at June 16, 2025
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Marris Hoffee and Michael Berman In Moore v. Wash. Metro. Area Transit Auth., 2025 WL 1374125 (D. Md. May 30, 2025), the District of Maryland applied a three-part test for imposing spoliation sanctions. Ms. Moore alleged that she was injured when the wheelchair lift of a MetroAccess van suddenly jolted, causing her […]
June 16, 2025
Published by Michael Berman at June 16, 2025
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It was great to hear that my friend, Phil Favro, recently opened his own law firm—Favro Law PLLC—where he offers a wide array of services, including as a Special Master, counselor on ESI and discovery issues, as well as mediation and expert witness services. Phil combines all of the attributes of someone […]
June 12, 2025
Published by Michael Berman at June 12, 2025
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How Secret Service agents caught a child sex abuser distributing CSAM – The Washington Post (Jun.11, 2025), by Yudhijit Bhattacharjee is a fascinating and disturbing description of the use of electronically stored information, by dedicated law enforcement officers, to find, apprehend, and bring to justice a person who distributed child sex abuse […]
June 10, 2025
Published by Michael Berman at June 10, 2025
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In EEOC v. Mia Aesthetics Clinic ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. May 30, 2025), the EEOC prevailed on several discovery disputes. It prevailed because its attorneys did their homework and supported their litigation position with facts. The EEOC sued Mia Aesthetics on behalf of Kiera Webb, alleging disability discrimination. The agency […]
June 6, 2025
Published by Michael Berman at June 6, 2025
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In Riffle v. Excellent Auto Glass LLC, 2025 WL 1519164 (D. Ariz. May 28, 2025), Mr. Riffle filed a putative Telephone Consumer Protection Act class action against Excellent Auto Glass (“EAG”). EAG did not respond, and Mr. Riffle was granted leave to conduct discovery in support of a planned motion for default […]
May 31, 2025
Published by Michael Berman at May 31, 2025
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In Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025), the court wrote: “The City’s objection that it did not understand the request as phrased is disingenuous at best and frankly appears more likely to be intentionally obstructionist.” After a fire in Richmond, Indiana, plaintiffs sued, among […]
May 30, 2025
Published by Michael Berman at May 30, 2025
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In Wenzler v. U.S. Coast Guard, 2025 WL 1445805 (Mar. 20, 2025), Wenzler alleged that he had been disenrolled from the voluntary U.S. Coast Guard Auxiliary based on his speech on social media. Wenzler unsuccessfully asserted protected speech, retaliation, and spoliation, among other things, after two government cell phones were reset. Wenzler’s […]
May 24, 2025
Published by Michael Berman at May 24, 2025
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Marris Hoffee and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374124 (C.D. Cal. May 12, 2025), presents an unremarkable holding arising from remarkable facts. Plaintiffs brought tort claims, including fraud, against Defendants and later filed a motion for discovery sanctions. Under the court’s local rules, such motions require a […]
May 23, 2025
Published by Michael Berman at May 23, 2025
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Marris Hoffee[1] and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374125 (C.D. Cal. May 12, 2025), addresses the relationship between ESI Protocols and production of text message strings. The Milne court denied a motion to compel further responses to requests for production. The court recited the general principles governing […]
May 22, 2025
Published by Michael Berman at May 22, 2025
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In NJ Court Rules Police Geofence Warrants Are Constitutional (Bloomberg Law May 20, 2025), Alex Ebert reported that a New Jersey intermediate appellate court upheld a geofence warrant, within specified limits. Discussing those limits, Mr. Ebert wrote: That framework allows for a big funnel at the beginning of the process, and only […]
May 19, 2025
Published by Michael Berman at May 19, 2025
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In Cooper v. Baltimore Gas & Electric Co., 2025 WL 1416943 (D. Md. May16, 2025)(Coulson, J.), the Court did justice and partially rescued a party that overreached by moving for sanctions under Rule 37(e)(2) while not making an alternative, “belts and suspenders” request under Rule 37(e)(1). Defendants moved for “game ending” sanctions […]
May 18, 2025
Published by Michael Berman at May 18, 2025
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In Adams-Devonish v. KEHE Distributors, 2025 WL 1413282 (D. Md. May 15, 2025)(Aslan, J.), a pro se plaintiff sued for alleged discrimination. Plaintiff’s “renewed” motion for sanctions was denied for several reasons. First, the Court declined to entertain a repetitive motion. It wrote: The Court has ordered production of the redacted materials, […]
May 17, 2025
Published by Michael Berman at May 17, 2025
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In Hall v. Warren, 2025 WL 1392294 (W.D.N.Y. May 14, 2025), the parties attempted to develop an ESI Protocol. When they were unable to do so, they submitted competing suggestions, and, the United States Magistrate Judge then “issued a Protocol and Order Governing Discovery (the ‘ESI Order’) establishing such a protocol.” The […]
May 16, 2025
Published by Michael Berman at May 16, 2025
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In Lacey v. State Farm General Ins. Co., 2025 WL 1363069 (C.D. Cal. May 5, 2025), plaintiff submitted a filing with erroneous AI-generated citations. The Special Master pointed out some of them. The plaintiff resubmitted a corrected filing; however, that second submittal still contained erroneous citations. Two strikes and you’re out. The […]
May 15, 2025
Published by Michael Berman at May 15, 2025
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In MyPillow CEO Can’t Delay Defamation Trial Over Atty AI Errors – Law360 (May 14, 2025), Dorothy Atkins wrote that the Judge “denied MyPillow CEO Mike Lindell’s request to continue a defamation jury trial set for early June, finding her threat of discipline and media attention over mistakes stemming from defense counsel’s […]
May 14, 2025
Published by Michael Berman at May 14, 2025
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We the Protestors, Inc. v. Sinyangwe, 348 F.R.D. 175 (S.D.N.Y. Dec. 18, 2024), makes several important points about the relationship between ESI Protocols and redaction of produced documents. The decision begins: Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the […]
May 12, 2025
Published by Michael Berman at May 12, 2025
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In Skeans v. Atlantic Marine Corps Communities, LLC, 2025 WL 1298299 (D.S.C. May 5, 2025), the privilege logging term of the parties’ ESI Protocol did not determine when privilege logs for non-ESI material had to be provided. In short, the ESI Protocol applied only to ESI. “The present suit arises from Defendants’ […]
May 11, 2025
Published by Michael Berman at May 11, 2025
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The date on which the duty to preserve is triggered is foundational to application of the spoliation doctrine.[1] It was addressed in Valmarc Corp. v. Nike, Inc., 2024 WL 5112441 (D. Or. 12/31/2024). Defendants, Nike and Converse, filed a motion requesting a determination that plaintiff Valmarc d/b/a “Vi3” had spoliated evidence. Vi3’s […]
May 7, 2025
Published by Michael Berman at May 7, 2025
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In U.S. v. Chatrie, __ Fed. 4th __, 2025 WL 1242063 (4th Cir. Apr. 30, 2025)(en banc), the Court issued a per curiam affirmance of the District Court’s geofence decision. Fourteen judges joined in that decision. There were eight concurring opinions and one dissent. [1] Chief Judge Diaz wrote a concurring opinion. […]
April 23, 2025
Published by Michael Berman at April 23, 2025
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In Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025)(Xinis, J.), plaintiffs notified the Court of “seemingly intractable discovery disputes….” The case is before the District Court after the United States Supreme Court’s ruling in Noem v. Abrego Garcia, 604 U.S. –––– (2025). The District Court expedited […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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Sports Rehab Consulting LLC v. Vail Clinic, Inc., 2025 WL 1144559 (D. Col. Apr. 18, 2025), has a “tortuous procedural history….” The case turned on allegations of a monopoly over physical therapy services. Both sides objected to a report and recommendation of a special master. In the portion of the decision pertinent […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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In U.S. EEOC v. Aspire Regional Partners, Inc., 2025 WL 1115300 (S.D. Oh. Apr. 15, 2025), the court ordered discovery of litigation hold notices. In my opinion, and while I agree with the result, the legal issues governing the discovery of litigation hold notices and implementation need clarity and national uniformity. In […]
April 21, 2025
Published by Michael Berman at April 21, 2025
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There are countless decisions, law review articles, books, and guides written on search, search design, search methodology, search tools, and search metrics. See, e.g., EDRM Search Guide; The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery The following are a few exemplar decisions that […]
April 20, 2025
Published by Michael Berman at April 20, 2025
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Doug Austin’s blog, Informal Discovery Dispute as to TAR Implementation Resolved by Court (Apr. 17, 2025), provides an excellent description of a recent TAR protocol case. In re Insulin Pricing Litigation, 2025 WL 1112837 (D.N.J. Apr. 11, 2025).
April 20, 2025
Published by Michael Berman at April 20, 2025
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Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), was an early decision on cooperation, boilerplate objections, waiver by failure to object properly, and a court-ordered meet-and-confer. The case was a collective action under the Fair Labor Standards Act and Maryland wage and overtime law. The Court outlined a […]
April 19, 2025
Published by Michael Berman at April 19, 2025
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Thompson v. HUD, 199 F.R.D. 168 (D. Md. 2001)(“Thompson I”), was a class action by Baltimore public housing residents. Thompson I explained the 2000 change in the scope of discovery that remains in force, with some changes, today.[1] Thompson I dealt in part with the December 2000 amendment to Fed.R.Civ.P. 26 which […]
April 18, 2025
Published by Michael Berman at April 18, 2025
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In Jayne H. Lee, Inc. v. Flagstaff Industries Corp., 173 F.R.D. 651 (D. Md. 1997), plaintiff’s counsel “was dissatisfied with the response by the defendant to the interrogatories and requests for production of documents which the plaintiff had filed….” What happened next was a mistake. Plaintiff, “without ever seeking to file a […]
April 17, 2025
Published by Michael Berman at April 17, 2025
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Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35 (D. Md. 2000), was an employment dispute. Plaintiff filed a motion to compel discovery responses. The Court directed defendant to spend 40 hours searching for responsive information. If the plaintiff wanted more, it could get more; provided that it paid the actual cost […]
April 16, 2025
Published by Michael Berman at April 16, 2025
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Burge v. Teva Pharmaceutical Industries, Ltd., 2025 WL 1100047 (D. Kans. Apr. 15, 2025), is an exceedingly complex case. Based on the terms of an ESI Protocol, the court granted, in part, and denied, in part, a motion to compel plaintiff to designate additional custodians in Phase I discovery. It applied a […]
April 16, 2025
Published by Michael Berman at April 16, 2025
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My blogs generally focus on new cases. However, sometimes it is helpful to look backwards. A “golden oldie” is “something once popular or valued that has retained its appeal or for which interest has been reawakened….” Definition & Meaning | Dictionary.com. The term refers to something that is still important, even though […]
April 15, 2025
Published by Michael Berman at April 15, 2025
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In Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025), the court ruled in favor of a discovering party and ordered reproduction of previously-produced documents under the terms of an ESI Protocol. The court also addressed what it considered to be a “dump truck” production. Pincus […]
April 14, 2025
Published by Michael Berman at April 14, 2025
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In Hall v. Baltimore Police Dept., 2025 WL 1024069 (D. Md. Mar. 31, 2025)(Austin, J.), the Court entered an order granting in camera review to address disputes regarding plaintiff Hall’s claim of work product protection: The purpose of the in-camera review is to ascertain whether all items are, as Plaintiff contends, opinion […]
April 11, 2025
Published by Michael Berman at April 11, 2025
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Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 984792 (M.D. Tenn. Mar. 17, 2025), involves an alleged theft of trade secrets. The decision underscores the importance of information governance. “Information” is one of a business’s most valuable assets and corporate policies may determine the outcome of litigation. The Special Master recommended denial […]
April 10, 2025
Published by Michael Berman at April 10, 2025
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The Sedona Conference® has posted its “Commentary on Discovery of Collaboration Platforms Data, Public Comment Version” (Apr. 2025). Public comments may be submitted through May 16, 2025. My comment is that the Commentary is excellent and well worth reading. I am not going to try to summarize the comprehensive, 32-page document. Instead, […]
April 9, 2025
Published by Michael Berman at April 9, 2025
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Maryland has permitted use of a geofence warrant. Geofence Search Warrant Held Valid (Jun. 28, 2024). However, there is a split over those warrants between a panel of the U.S. Court of Appeals for the Fourth Circuit, with the case being reconsidered en banc, and the Fifth Circuit. Are Geofence Warrants Permissible? […]
April 8, 2025
Published by Michael Berman at April 8, 2025
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In Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025), the court granted in part and denied in part a motion to quash subpoenas issued to AT&T, Verizon, and T-Mobile (the “Wayfarer Parties”) by Ms. Blake Lively. Contextually, the litigation has been described in popular media. B. Lang, Ruling […]
April 7, 2025
Published by Michael Berman at April 7, 2025
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In Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262 (M.D. Fl. Mar. 7, 2025), plaintiff, Orlando Health, sought to compel BBM to comply with an ESI Protocol and BBM sought to compel Orlando Health to do the same. The court rejected BBM’s argument that a filed ESI Protocol that had […]
April 5, 2025
Published by Michael Berman at April 5, 2025
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An exception to the requirement of a timely privilege log was applied in Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025). In previous blogs, I addressed decisions holding that Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log […]
April 4, 2025
Published by Michael Berman at April 4, 2025
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In Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025)(Austin, J.), the Court set out and applied the principles governing subpoenas and objections to them. The Court explained the dispute: “Mr. Hall alleges that BPD and three former officers—Donald Licato, Frank Barlow, and John Barrick—concealed exculpatory evidence and […]
April 3, 2025
Published by Michael Berman at April 3, 2025
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In Hernandez v. Event Tickets Center, Inc., 2025 WL 958193 (E.D. Ca. Mar. 31, 2025), the court denied defendant’s request to stay discovery pending a ruling on defendant’s motion to dismiss the complaint. Hernandez is a putative class action concerning the secondary ticket marketplace. The stay was presented by plaintiff’s motion to […]
April 2, 2025
Published by Michael Berman at April 2, 2025
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In Andersen v. Stability AI Ltd., 2025 WL 870358 (N.D. Cal. Mar. 19, 2025), the court resolved a dispute over an ESI Protocol. The starting point was a Standing Order that, absent good cause, parties “shall use” one of the court’s model protocols. The Andersen parties used a Model ESI Order as […]
April 1, 2025
Published by Michael Berman at April 1, 2025
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In 777 Partners, LLC v. Leadenhall Capital Partners LLP, 2025 WL 942414 (S.D. Fl. Mar. 28, 2025), the court entered an order denying plaintiff’s motion to compel supplemental document discovery and closing discovery. While other issues were addressed, two are discussed in this blog. First, the court criticized both parties for failing […]
March 27, 2025
Published by Michael Berman at March 27, 2025
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That was one question in Flores v. Guevara, 2025 WL 790795 (N.D. Ill. Mar. 12, 2025). Plaintiff filed a motion to compel in a Monell case involving the City of Chicago. This was one of a series of cases involving Reynaldo Guevara. Guevara was formerly a Chicago police detective. Cruz v. Guevara, […]
March 26, 2025
Published by Michael Berman at March 26, 2025
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In Wilbert v. Pyramid Healthcare, Inc., 2025 WL 873947 (W.D. Pa. Mar. 20, 2025), the court wrote: From the inception of this action, Counsel for the parties could not agree on the scope and methodology for ESI discovery…. Given [1] the breadth and scope of Attorney XXXX’s[1] ESI Requests and [2] the […]
March 13, 2025
Published by Michael Berman at March 13, 2025
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In MJ Enterprise Holdings, Inc. v. Spiffy Franchising, LLC, 2025 WL 775515 (D. Md. Mar. 10, 2025)(Austin, J.), Defendants moved to stay all discovery deadlines pending a resolution of their motion to compel arbitration and for a stay pending arbitration. The motion to stay discovery was granted. Plaintiffs alleged fraud and misrepresentation […]
March 8, 2025
Published by Michael Berman at March 8, 2025
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In Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025), Plaintiff’s claim was for $1,571,754.62. The court essentially held that the ESI Protocol was binding. It wrote: The emails attached to the [Defendant’s] motion to compel show that Defendant notified Plaintiff that […]
March 7, 2025
Published by Michael Berman at March 7, 2025
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In In Re Four Applications For Search Warrants Seeking Information Associated With Particular Cellular Towers A/K/A Tower-Dump Warrants, 2025 WL 603000 (S.D. Miss. Feb. 21, 2025), the court declined to issue “tower-dump” or “tower-extraction” search warrants, writing: Before the Court are four search-warrant applications for location-and-time based cell-tower data, also known as […]
March 6, 2025
Published by Michael Berman at March 6, 2025
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues. […]
March 5, 2025
Published by Michael Berman at March 5, 2025
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In Tremblay v. OpenAI, Inc., 2025 WL 635335 (N.D. Cal. Feb. 27, 2025), plaintiffs, the requesting parties, sought to have input in determining search terms to be used by defendant, the producing party. Based on “the specter of too many future delays and disputes over methodology and search term formulation,” the request […]
March 4, 2025
Published by Michael Berman at March 4, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025), the court wrote: The parties negotiated an ESI Protocol that, in relevant part, required Defendants to collect documents from fifty custodians and produce documents and family members that produced a “hit” on agreed-upon search terms. Pursuant to the […]
March 3, 2025
Published by Michael Berman at March 3, 2025
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Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.), is an employment discrimination case. At its most general level, the holding was that “a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.” At issue was ESI […]
March 2, 2025
Published by Michael Berman at March 2, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025)(Bryan, J.), the District Judge overruled objections to several rulings of the Magistrate Judge. “Rolling discovery” was not permitted: In August 2024, the Magistrate Judge decided that continuous rolling discovery after April or September 2023 would be unduly burdensome […]
March 1, 2025
Published by Michael Berman at March 1, 2025
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The Sedona Conference has published “Navigating AI in the Judiciary: New Guidelines for Judges and Their Chambers,” 26 Sedona Conf. J. 1 (Feb. 2025); see also Navigating AI in the Judiciary: New Guidelines for Judges and Their Chambers – EDRM. The publication illustrates the old military maxim that “any ship can be […]
February 24, 2025
Published by Michael Berman at February 24, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. For prior posts on this case, please see Spoliation Discovery Permitted – E-Discovery LLC. “Document unitization” is the issue […]
February 23, 2025
Published by Michael Berman at February 23, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. The court permitted spoliation interrogatories. For an earlier post on this decision, please see Consulting an Attorney Did Not […]
February 22, 2025
Published by Michael Berman at February 22, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. On the somewhat unique facts presented, the Court held that plaintiff’s consulting an attorney to find out […]
February 21, 2025
Published by Michael Berman at February 21, 2025
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information.[1] In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025 WL 428547 (W.D.N.Y. Feb. 7, 2025), the court held that litigation hold notices were privileged. There may […]
February 20, 2025
Published by Michael Berman at February 20, 2025
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Yesterday, in Akers v. State, __ Md. __, 2025 WL 543463, at *1 (Feb. 19, 2025), the Supreme Court of Maryland wrote: A woman’s right to terminate a pregnancy is one of the most divisive issues in this country. Although abortion is a protected right in Maryland and a common event in […]
February 14, 2025
Published by Michael Berman at February 14, 2025
In Parkin v. Avis Rent a Car System LLC, 2025 WL 484588 (D.N.J. Feb. 13, 2025), defendants waived their right to arbitration by moving to dismiss for failure to state a claim, negotiating an ESI Protocol, and engaging in discovery for 17 months. Plaintiffs rented vehicles from defendants on several occasions. They […]
February 11, 2025
Published by Michael Berman at February 11, 2025
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In Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.), Ms. Cooper sued BG&E and another employer for sexual harassment and discrimination.[1] The Court resolved cross-motions to compel. Both discovery motions were granted in part and denied in part. The decision reflects the fact-specific nature […]
February 8, 2025
Published by Michael Berman at February 8, 2025
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In Sullivan v. Wyatt, 2023 WL 1812733 (Appl. Ct. Md. Feb. 7, 2023)(unreported), the Court affirmed an award of damages to plaintiff (“Rebecca”), daughter of the decedent, due to the exertion of undue influence by the second wife of the decedent (“Joan”). After a five-day trial, the jury awarded Rebecca, the daughter, […]
February 1, 2025
Published by Michael Berman at February 1, 2025
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N. Kelly Hoang Law Firm sued Minh Quant Hoang for $568,000 for allegedly unpaid legal services over roughly five years. N. Kelly Hoang Law Firm v. Hoang, 2023 WL 3150110 (C.D. Cal. Apr. 14, 2023). I. THE DISCOVERY VIOLATION AND COURT ORDER Minh propounded discovery on Kelly. After Kelly failed to […]
January 31, 2025
Published by Michael Berman at January 31, 2025
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In Jennings v. USAA Casualty Insurance Co., 2025 WL267168 (W.D. Wash. Jan. 22, 2025), each side blamed the other for delay. The court wrote: Here, the Court questions whether the parties have acted with sufficient diligence in pursuing discovery. It seems much of the delay each side blames the other for could […]
January 29, 2025
Published by Michael Berman at January 29, 2025
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In CT Install America, LLC v. Boryszewski, 2025 WL 257127 (E.D. Pa. Jan. 21, 2025), the court wrote that: “Neither side distinguishes between waiver of untimely objections to interrogatories and waiver of untimely objections to RFPs, even though important differences exist in both the applicable rules of civil procedure and the case […]
January 28, 2025
Published by Michael Berman at January 28, 2025
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In Rivera v. Costco Wholesale Corporation, 2025 WL 295667 (D. P. R. Jan. 24, 2025), the court imposed sanctions on a pro se litigant who, in the court’s words, “has engaged in unseemly behavior towards counsel as well as improper discovery litigation.” In part, Mr. Rivera filed a motion to “To obtain […]
January 27, 2025
Published by Michael Berman at January 27, 2025
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The decision in Cook v. Meta Platforms, Inc., 2024 WL 251942 (N.D. Cal. Jan. 21, 2025), packs a lot into very few pages. In two instances, where Meta had offered a compromise solution, the court held Meta to that offer. I. PRIVILEGE LOG DISPUTE First, the court resolved a privilege log […]
January 23, 2025
Published by Michael Berman at January 23, 2025
Many thanks to Doug Austin for Responsive Nonprivileged Documents Attached to a Privileged Communication Must Be Produced (Jan. 23, 2025), discussing In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025). The decision is available on Kelly Twigger’s eDiscovery Assistant. Doug’s excellent blog points out […]
January 22, 2025
Published by Michael Berman at January 22, 2025
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While a Maryland State court permitted a geofence warrant, Geofence Search Warrant Held Valid (Jun. 28, 2024), there is a split of authority between the Fourth and Fifth federal circuits. Are Geofence Warrants Permissible? – A Circuit Split (Aug. 12, 2024). On November 1, 2024, the United States Court of Appeals for […]
January 16, 2025
Published by Michael Berman at January 16, 2025
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In Digital Forensics Corporation, LLC v. King Machine, Inc., __ So.3d __, 2025 WL 63935 (Ala. Sup. Ct. Jan. 10, 2025), the issue was whether an electronic discovery services vendor, DFC, could compel its former client to arbitrate a breach of contract claim. The Supreme Court of Alabama held that arbitration was […]
January 15, 2025
Published by Michael Berman at January 15, 2025
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In Zarfati v. Artsana USA, Inc., 2025 WL 50373 (S.D. Fl. Jan. 8, 2025), the court resolved a dispute over an ESI Protocol. Essentially, it adopted the only option provided to it. Plaintiffs sought class certification discovery. They said that they “have attempted to negotiate [with Defendant] an ESI protocol that will […]
January 14, 2025
Published by Michael Berman at January 14, 2025
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In Ex-Prosecutor Disbarred For Fabricating Harassing Texts – Law360 (Jan. 7, 2025), Thy Vo reported on a fabrication of evidence case. The decision, State of Colorado vs. Yujin Choi, No 24PDJ019,is not yet posted on Recent Disciplinary Decisions – Colorado Supreme Court. The Law 360 article reports that the former prosecutor was […]
January 8, 2025
Published by Michael Berman at January 8, 2025
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Red-D-Arc Inc. v AMP 2 LLC, 2025 WL 26648 (M.D. Fl. Jan. 3, 2025), was a breach of contract action. Plaintiff contended that, in response to plaintiff’s interrogatories, “Defendants improperly refer to hundreds of pages of documents, which is non-responsive, evasive, and in violation of Federal Rule of Civil Procedure 33(d).” The […]
January 4, 2025
Published by Michael Berman at January 4, 2025
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In Hall v. Trivest Partners L.P., 2024 WL 514015 (E.D. Mich. Dec. 17, 2024), the court rejected a demand that opposing counsel state under oath that counsel had properly conducted discovery. The court wrote: Lastly, Plaintiffs seek an order compelling Trivest Defendants to attest to having undertaken “proper efforts to ensure that […]
January 3, 2025
Published by Michael Berman at January 3, 2025
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In Sterling Computers Corporation v. International Busn. Machines Corp., 2024 WL 5168014 (D. S. Dak. Dec. 19, 2024), the court addressed: (1) whether the duty to meet and confer before moving to compel extends the time for filing such a motion; and, (2) how to show that an opponent’s production is incomplete. […]
January 2, 2025
Published by Michael Berman at January 2, 2025
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Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), addressed the question of whether every document “hit” by a search term must be produced. In Spivey, Plaintiff Spivey and American Petroleum Institute (“API”) agreed to search terms to be used by the producing non-party, API. After […]
December 28, 2024
Published by Michael Berman at December 28, 2024
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Cooperation and transparency are best practices.[1] In Bonds v. NJ Judiciary Administration of the Court, 2024 WL 5220936 (D.N.J. Dec. 26, 2024), the court explained a prior discovery ruling: The Court also found that Plaintiff’s failure, after nearly two years, to confer with Defense counsel regarding an ESI protocol militated against granting […]
December 19, 2024
Published by Michael Berman at December 19, 2024
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In In re Outpatient Medical Center Employee Antitrust Litigation, 2024 WL 4679083 (N.D. Ill. Nov. 5, 2024), the court explained the application of Subsections (b) and (d) of Fed.R.Evid. 502. The parties proposed a Rule 502(d) order and it was entered on an agreed motion. Id. at *1. Plaintiffs later noted the […]
December 18, 2024
Published by Michael Berman at December 18, 2024
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In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus […]
December 12, 2024
Published by Michael Berman at December 12, 2024
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In UMG Recordings, Inc. v. Uncharted Labs, Inc., 2024 WL 4986962 (S.D.N.Y. Dec. 5, 2024), the parties could not agree to an ESI Protocol. The Court appointed the Hon. James C. Francis (ret.) as a special master to bring the ball across the goal. The UMG court wrote: “The Special Master is […]
December 11, 2024
Published by Michael Berman at December 11, 2024
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In Rouse v. H.B. Fuller Co., 2024 WL 4973028 (D. Minn. Dec. 4, 2024), plaintiff moved to compel production sought in his Request No. 159, which asked for: “All Documents and Communications responsive to or collected by the ESI Protocol from April 1, 2023 to present. (Emphasis added).” The court described the […]
December 9, 2024
Published by Michael Berman at December 9, 2024
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Marris Hoffee[1] and Michael D. Berman In Reddick v. State, __ Md. App __, 2024 WL 4633506 (Apls. Ct. Md. Oct. 31, 2024), the intermediate appellate court addressed an important issue of authentication of surveillance video by a lay witness. That witness was permitted to authenticate a video under the “silent witness” […]
November 29, 2024
Published by Michael Berman at November 29, 2024
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In Doe v. Vanderpool, 2024 WL 4881928 (D. Md. Nov. 25, 2024)(Sullivan, J.), the Court held that the Town of Fairmount Heights breached its preservation duty. Ms. Doe claimed that, after arrest, a Town police officer sexually assaulted her. She sued officers and the Town. Discovery had been conducted for almost a […]
November 27, 2024
Published by Michael Berman at November 27, 2024
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In OL Private Counsel, LLC v. Olson, 2024 WL 4839277 (D. Utah Nov. 20, 2024), the court addressed recovery of expenses by non-parties for responding to a subpoena. Fed.R.Civ.P. 45 (“Subpoena”) states: (b)(1) – Under some circumstances, witness fees and mileage must be paid.[1] (d)(1) – “A party or attorney responsible for […]
November 26, 2024
Published by Michael Berman at November 26, 2024
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In Whitmore v. Kroger Limited Partnership, 2024 WL 4795686 (W.D. Va. Nov. 14, 2024), defendant Kroger’s inadvertent failure to preserve surveillance video footage of the area at the time of the alleged tort was a factor leading to its waiver of fact work production protection. Defendant Kroger moved to quash a subpoena […]
November 25, 2024
Published by Michael Berman at November 25, 2024
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Isaiah Poritz reported in Bloomberg Law that the Youth Social Media Judge Threatens Contempt Against State AGs (Nov. 22, 2024). I described the underlying issue in Possession, Custody, or Control of Responsive Information by States Suing Meta (Sept. 12, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL […]
November 25, 2024
Published by Michael Berman at November 25, 2024
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In Kinnee v. TEI Biosciences Inc., 2024 WL 4860792 (S.D. Cal. Nov. 21, 2024), the court denied the parties’ Joint Motion for Entry of an Order Governing Discovery of Electronically Stored Information. In my words, the Kinnee court denied a joint motion to approve an ESI Protocol because the defendants’ Fed.R.Civ.P. 26(a) […]
November 24, 2024
Published by Michael Berman at November 24, 2024
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In Homeland Ins. Co. of Del. V. Independent Health Ass’n., Inc., 2024 WL 4815127 (W.D.N.Y. Nov. 18, 2024), the court ordered production of litigation hold notices and implementation communications. Homeland Insurance sought a declaratory judgment that it had no duty to defend or indemnify Independent Health Association. A third-party defendant, Ace Insurance, sought […]
November 23, 2024
Published by Michael Berman at November 23, 2024
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In Johnson v. Sullivan, 2024 WL 4821680, at *5 (Apls. Ct. Md. Nov. 19, 2024)(unreported), the Court held that Appellants’ filing of a second amended complaint—which did not add any new claims—could not “resurrect” rights already “extinguished” by a prior sanctions order. This was an action alleging medical malpractice. The medical providers […]
November 22, 2024
Published by Michael Berman at November 22, 2024
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In Luttrell v. DN Solutions America Corporation, 2024 WL 4836017 (E.D. Mo. Nov. 20, 2024), the court stated that Michael Luttrell was killed while operating a Doosan PUMA V400 Vertical Turning Center machine at an Ace Manufacturing facility. His wife sued multiple defendants. A spinning workpiece was ejected from the machine. It […]
November 14, 2024
Published by Michael Berman at November 14, 2024
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Plastics Industry Assoc. v. Bonta, 2024 WL 4699927 (D.D.C. Nov. 6, 2024), held in part that the defendant’s act of serving a “preservation demand” on the plaintiff in the forum district did not confer long-arm jurisdiction over the serving-defendant in that forum. “Preservation notices” are routinely sent to a potential opposing party […]
November 13, 2024
Published by Michael Berman at November 13, 2024
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In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document […]
November 12, 2024
Published by Michael Berman at November 12, 2024
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In Delaware Judges, Law Clerks Cleared to Use Generative AI Tools (Bloomberg Law Oct. 22, 2024) Jennifer Kay reports that “Delaware judges, law clerks, and other court staff using approved generative artificial intelligence tools assume responsibility for the accuracy of any materials produced with the emerging technology, under an interim policy announced […]
November 11, 2024
Published by Michael Berman at November 11, 2024
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In Singleton v. Mazhari, 2024 WL 4644644 (D. Md. Oct. 30, 2024)(Austin, J.), non-party TEDCO’s blanket privilege and work product objections to a subpoena were denied; however, it lived to fight another day because the denial was without prejudice to file supported objections after a “meet and confer.” One core principle set […]
November 7, 2024
Published by Michael Berman at November 7, 2024
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An intermediate Maryland appellate court sustained a geofence warrant. Geofence Search Warrant Held Valid (June 28, 2024). On the federal level, there is a circuit split. The Fourth Circuit permitted one and the Fifth Circuit disagreed with the Fourth. Are Geofence Warrants Permissible? – A Circuit Split (Aug. 12, 2024). Bloomberg reports […]
November 6, 2024
Published by Michael Berman at November 6, 2024
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If I got a nickel for every mistake I made, we’d be talking about this on the balcony of my condo in Aruba, watching the sunset. Alas, I didn’t get the nickels and don’t have the condo. 😊 Rig Consulting, Inc. v. Rogers, 2024 WL 4608354 (W.D. Pa. Oct. 29, 2024), is […]
November 5, 2024
Published by Michael Berman at November 5, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the District Court found a relationship between work product designations and triggering of the common-law duty to preserve. The point at which the duty to preserve has been triggered is central to any subsequent spoliation issue. […]
November 1, 2024
Published by Michael Berman at November 1, 2024
I’ll give the defendant in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4625727 (M.D. Fl. Oct. 30, 2024), credit. It was candid with the court. Despite several extensions of time, the defendant essentially told the court that it had been too busy to respond to discovery. While candor is commendable, […]
October 29, 2024
Published by Michael Berman at October 29, 2024
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In Vita v. New England Baptist Hosp., __ Mass __, __ N.E.3d __, 2024 WL 4558621 (Mass. Oct. 24, 2024), the court held that the Massachusetts wiretap statute does not criminalize interception of web browsing and sale of the intercepted information to third parties. The plaintiff, Kathleen Vita, alleged that she accessed […]
October 28, 2024
Published by Michael Berman at October 28, 2024
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In FG Hemisphere Associates, LLC v. Democratic Rep. of Congo, 2024 WL 4553371 (D. Md. Oct. 23, 2024), plaintiff FGH sought to enforce a judgment against the Democratic Republic of Congo and others. In doing so, FGH propounded discovery. In pertinent part, FGH served 20 subpoenas on third-party financial institutions. The defendants […]
October 22, 2024
Published by Michael Berman at October 22, 2024
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In U.S. v. Novo Nordisk, Inc., 2024 WL 4519962 (W.D. Wash. Oct.17, 2024), the court rejected Washington’s dilatory challenge to Fed.R.Civ.P. 30(b)(6) topics. The Novo court also rejected Washington’s attempt to fight fire with fire. It denied Washington’s “blanket” request to de-designate documents that had been marked as “confidential” by NNI in […]
October 18, 2024
Published by Michael Berman at October 18, 2024
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I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The […]
October 17, 2024
Published by Michael Berman at October 17, 2024
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GLD3, LLC v. Albra, 2024 WL 4471672 (S.D.N.Y. Oct. 11, 2024), involved a request for discovery from a former Town attorney concerning an offer that he allegedly made to plaintiffs. The defendants, a Town and others, denied knowledge of the alleged offer. The court: set out the governing standard for discovery from […]
October 16, 2024
Published by Michael Berman at October 16, 2024
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Kranz & Associates Holdings, LLC v. Lain, 2024 WL 4476655 (N.D. Cal. Oct. 11, 2024), appeared to be a run-of-the-mine trade secrets dispute. When it came to discovery, it wasn’t. Kranz, a former employer, sued Kimberly Lain, a former employee, alleging misuse of confidential information. Ms. Lain also owned Tekvantage, Inc. Her […]
October 15, 2024
Published by Michael Berman at October 15, 2024
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In Trusted Sci. & Tech., Inc. v. Evancich, 262 Md. App. 621, 2024 WL 3490547 (Apl. Ct. Md. July 22, 2024), the Court addressed the type of objections that a subpoenaed non-party may make. That was a novel issue in Maryland. The Court held “that [nonparty] TST had standing to challenge the […]
October 13, 2024
Published by Michael Berman at October 13, 2024
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“These types of disputes tend to make a court wonder, which of the court’s other cases the requesting party feels deserve to be put on the back burner in favor of theirs.” Dale v. Deutsche Telekom AG, 2024 WL 4416761, at *4 (Oct. 4, 2024). The plaintiff moved to compel use of […]
October 12, 2024
Published by Michael Berman at October 12, 2024
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In Williams v. Zaragoza, 2024 WL 4443790 (E.D. Cal. Oct. 8, 2024), a pro se former prisoner sued alleging excessive force and retaliation. The court addressed plaintiff’s motion to compel documents, holding that his requests sought irrelevant data and: “The scope of subparts 1 and 3 will therefore be appropriately narrowed to […]
October 11, 2024
Published by Michael Berman at October 11, 2024
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“A stipulation has all the binding force of a contract.” Waterworks Restoration Baltimore, LLC v. Shine Home Improvements, Inc., 2024 WL 4198164, at *1 (Apls. Ct. Md. Sept. 16, 2024) (unreported) (citation and quotations omitted). Parties stipulate “to save the time of the court, the expense and difficulty of producing witnesses, and […]
October 10, 2024
Published by Michael Berman at October 10, 2024
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The decision in EEOC v. Hooters of America, LLC, __ F. Supp. 3d __, 2024 WL 4362863 (M.D. N. Car. Oct. 1, 2024), opens with the court’s statement that: The parties jointly ask to extend the discovery deadline and continue the trial. They have not acted with due diligence or shown good […]
October 9, 2024
Published by Michael Berman at October 9, 2024
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In Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024), “boilerplate” objections were sustained on the specific facts presented. BOILERPLATE OBJECTIONS HAVE GENERALLY BEEN CONDEMNED Boilerplate objections have generally been condemned. For example, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), […]
October 8, 2024
Published by Michael Berman at October 8, 2024
In a wage-and-hour claim, the Court in Bobb v. FinePoints Priv. Duty Healthcare, LLC, 2024 WL 4355048, at *1 (D. Md. Sept. 30, 2024), was faced with two “momentous” 😊 issues on a motion to compel: Plaintiffs request an order compelling Defendants to make the following categories of production…: Bates-stamped documents of […]
October 7, 2024
Published by Michael Berman at October 7, 2024
Sometimes, timing is everything. In Kadrey v. Meta Platforms, Inc., 2024 WL 4362744 (N.D. Cal. Oct. 1, 2024), it was dispositive. “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Another Cinderella Situation –Motion Denied as Untimely? (May […]
October 6, 2024
Published by Michael Berman at October 6, 2024
Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision. The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are […]
October 5, 2024
Published by Michael Berman at October 5, 2024
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Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024), applied principles enunciated by the Hon. Andrew J. Peck under the supervision of the court-appointed Special Master, Philip Favro. The parties’ dispute centered on search queries. Defendant asserted that plaintiff’s queries were over broad, excessive in number, and resulted […]
October 4, 2024
Published by Michael Berman at October 4, 2024
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A recent post by Tonya Riley, Cassandre Coyer, and Justin Wise discusses FTC’s AI Crackdown Pushes Boundaries of Its Oversight Power (1) (bloomberglaw.com)(Sept. 27, 2024). The article reports that the FTC’s “Operation AI Comply” involves an enforcement action targeted at five companies. The Federal Trade Commission’s actions against companies it said were […]
October 2, 2024
Published by Michael Berman at October 2, 2024
Are “dash cam” videos protected from disclosure as work product? That was one issue posed in Jones v. Burch, 2024 WL 4276109 (M.D. Fl. Sep. 24, 2024). It was presented in an oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce.” Plaintiff sued for personal injuries arising out of a […]
September 27, 2024
Published by Michael Berman at September 27, 2024
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EEOC v. Exxon Mobile Corp., 2024 WL 4249229 (M.D. La. Sept. 11, 2024), was a Title VII action alleging a hostile work environment. One of many discovery disputes involved the scope of protective order. The court explained that: This circuit recognizes three types of protective orders: (1) specific, (2) blanket, and (3) […]
September 26, 2024
Published by Michael Berman at September 26, 2024
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With that headline, Jackson Walker reported that FTC reports surveillance by social media, streaming services (baltimoresun.com)(Sept. 19, 2024). According to the Baltimore Sun, “[r]eport authors called on Congress to pass federal privacy legislation to protect users.” I recently blogged about a similar issue in Data Collection by Cars With Connectivity (Sept. 17, […]
September 24, 2024
Published by Michael Berman at September 24, 2024
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In Deckers Outdoor Corp. v. Last Brand, Inc., 2024 WL 4245407 (N.D. Cal. Sept. 18, 2024), the parties disagreed over when a formal ESI agreement was needed. However, the court held that “entry of some form of ESI order” was appropriate. It directed the parties to meet and confer. They did and: […]
September 23, 2024
Published by Michael Berman at September 23, 2024
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Addison Central School Dist. V. Monsanto Co, Solutia, Inc., 2024 WL 4212351 (D. Vt. Sep. 17, 2024), consists entirely of the publication of an ESI Protocol. The parties stipulated that the following categories of documents need not be produced and “presumptively need not be included on a privilege log….” Communications exclusively between […]
September 22, 2024
Published by Michael Berman at September 22, 2024
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EEOC v. Formel D USA, Inc., 2024 WL 4172527 (E.D. Mich. Sept. 12, 2024), addressed several interesting issues. Among them were: general principles of discovery; the role of counsel in self-collection; discovery on discovery; the date that the litigation hold was triggered; whether reasonable post-trigger steps were taken; curative sanctions under Fed.R.Civ.P. […]
September 18, 2024
Published by Michael Berman at September 18, 2024
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In Faulkenberry v. Austin, 2024 WL 4056761 (D. Md. Sept. 5, 2024)(Coulson, J.), the Court addressed two important discovery issues. Ms. Faulkenberry sued her employer for alleged employment discrimination. First, where the plaintiff designated her therapist as an expert witness on emotional distress damages, her disclosure of privileged attorney-client communications in otherwise […]
September 17, 2024
Published by Michael Berman at September 17, 2024
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Doug Austin wrote an interesting blog, Police May be Coming for Your Tesla as a Potential Crime Witness (ediscoverytoday.com)(Sept. 4, 2024). Doug wrote that: “In Oakland and beyond, police called to crime scenes are increasingly looking for more than shell casings and fingerprints. They’re scanning for Teslas parked nearby, hoping their unique […]
September 16, 2024
Published by Michael Berman at September 16, 2024
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Ho v. Jefferson Financial Credit Union, 2024 WL 4119422 (E.D. La. Sept. 9, 2024), provides a succinct summary of the scope of discovery under the December 2015 amendments to the Federal Rules of Civil Procedure. It – surprisingly – sustained boilerplate objections. The case involved a loan gone south. Scope of Discovery […]
September 14, 2024
Published by Michael Berman at September 14, 2024
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In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote: So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like […]
September 13, 2024
Published by Michael Berman at September 13, 2024
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“Cooperation” has long been a hallmark of resolution of ESI issues. See, e.g., Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation (May 31, 2022). It was an honor to be appointed by the U. S. District Court for the District of Maryland as the “ESI Discovery Supervisor” in […]
September 12, 2024
Published by Michael Berman at September 12, 2024
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The September 6, 2024, decision in In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024), applies the “legal control” standard to Fed.R.Civ.P. 34 discovery requests propounded by defendant Meta Platforms, Inc., seeking documents from non-party State agencies in a lawsuit brought by 35 State plaintiffs.[1] […]
September 10, 2024
Published by Michael Berman at September 10, 2024
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Klock v. Wal-Mart Stores East, LP, 2024 WL 4041536 (D. Md. Sept. 4, 2024), is another in a long line of missing surveillance video decisions. Defendants’ employee – – the store’s asset manager – – testified that “he reviewed video footage after Plaintiff’s fall, but the Store’s video cameras did not capture […]
September 9, 2024
Published by Michael Berman at September 9, 2024
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Thanks to Sidley Austin for publishing a blog on Ravin Crossbows, LLC v. Hunter’s Manufacturing Company, Inc., 2024 WL 3253265 (E.D. Ohio July 1, 2024), August’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP (Aug. 21, 2024) and August’s Notable Cases and Events in E-Discovery – EDRM. In […]
September 6, 2024
Published by Michael Berman at September 6, 2024
A few days ago, I addressed When Must a Motion to Compel Be Filed? (Aug. 26, 2024). The issue was addressed again four days later in Turner v. Apple, Inc., 2024 WL 4008763 (N.D. Ca. Aug. 30, 2024). The Turner court wrote that Turner waited too long to move to compel because […]
September 5, 2024
Published by Michael Berman at September 5, 2024
In Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024), the court denied an unopposed motion to enter a protective order and an unopposed motion to enter an ESI Protocol. The Orlando Health court wrote: “Upon review, the motions fail to establish, by citation to legal […]
September 4, 2024
Published by Michael Berman at September 4, 2024
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Khan v. County of Cook, 2024 WL 3984263 (N.D. Ill. Aug. 29, 2024), rejected “oceanic” discovery requests, while permitting reasonable ones. In Khan, the hospital for the Cook County jail had terminated a dentist, alleging malfeasance. The dentist disputed the allegation, claimed racial bias was the cause, and sued. The court wrote: […]
September 1, 2024
Published by Michael Berman at September 1, 2024
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Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it. A prior blog addressed the admissibility of a “composite” video prepared by the prosecution. This second blog will address the use of a police officer to […]
August 31, 2024
Published by Michael Berman at August 31, 2024
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Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it. An innocent bystander was fatally shot while she was with her husband on a hotel patio in Annapolis. They had come from Texas to drop off […]
August 30, 2024
Published by Michael Berman at August 30, 2024
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Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe […]
August 28, 2024
Published by Michael Berman at August 28, 2024
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An “and/or” privilege log entry was deemed insufficient in Deltondo v. The School Dist. Of Pittsburgh, 2024 WL 3861036 (W.D. Pa. Aug. 19, 2024). The Deltondo court began its memorandum order by stating: “Regrettably, this action is notable for the nature and extent of the parties’ discovery disputes.” After reciting prior disputes […]
August 27, 2024
Published by Michael Berman at August 27, 2024
In Sazerac Co., Inc. v. Republic Nat’l. Distributing Co., LLC, 2024 WL 3905739 (W. D. Ky. Aug. 21, 2024), the court wrote: “Before the Court are a litany of motions to seal exhibits to contemporaneously filed briefing on discovery disputes.” The Sazerac court granted a number of those motions; however, it denied […]
August 26, 2024
Published by Michael Berman at August 26, 2024
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While the Federal Rules of Civil Procedure are detailed and precise, there are gaps. For example, the Rules do not specify when a spoliation motion must be filed. That gap has been filled by common-law. When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); Spoliation Motions Denied as Untimely […]
August 25, 2024
Published by Michael Berman at August 25, 2024
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I blogged about an earlier decision in Fiskars in Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024). There, plaintiff Fiskars’ motion to compel source code was denied as untimely. In a subsequent decision, defendant Woodland’s challenge to Fiskars’ privilege log was defective. Fiskars Finland OY AB v. Woodland Tools, Inc., […]
August 23, 2024
Published by Michael Berman at August 23, 2024
In Authentication is key to direct and cross-examination (thedailyrecord.com) (Aug. 22, 2024), my friend Paul Sandler wrote: “It can be said that direct and cross-examination are the central features of the trial, and essential to examinations are the exhibits sought to be introduced in evidence.” Paul cites to the applicable Maryland Rules […]
August 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 21, 2024
Published by Michael Berman at August 21, 2024
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Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify […]
August 16, 2024
Published by Michael Berman at August 16, 2024
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In the latest iteration of In Re StubHub Refund Litigation, 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024), the court began its decision of discovery issues with: “At the hearing Plaintiffs tried to walk back this [discovery] request and said it was limited to refund data, rather than a wholesale redo of […]
August 16, 2024
Published by Michael Berman at August 16, 2024
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Can a witness authenticate a video if the video contains images that the witness did not see? In Mooney v. State, __ Md. __, 2024 WL 3766058 (Aug. 15, 2024), the Maryland Supreme Court answered in the affirmative. Here, the authenticating witness saw what happened before and after the shooting, as shown […]
August 15, 2024
Published by Michael Berman at August 15, 2024
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In US Dominion, Inc. v. Byrne, 2024 WL 3792654 (D.D.C. Aug. 13, 2024), violations of protective orders led to disqualification of counsel. The court began its decision by stating: “This case arises out of the 2020 U.S. election. Plaintiffs US Dominion Inc., Dominion Voting Systems Inc., and Dominion Voting Systems Corporation (‘Dominion’) […]
August 14, 2024
Published by Michael Berman at August 14, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date. This is the second blog of a four-part blog on Felder, an employment discrimination case. See Felder: Part 1 of 4: […]
August 13, 2024
Published by Michael Berman at August 13, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination. The Court “presided over a discovery dispute hearing related to Plaintiff’s motions to compel interrogatory requests and requests for production of documents, and related to […]
August 12, 2024
Published by Michael Berman at August 12, 2024
The July 2024 “Notice of Proposed Rules Changes” of the Maryland Standing Committee on Rules of Practice and Procedure – – 223rdreport.pdf (mdcourts.gov) – – proposes rules that address the issue of how “digital media” – – a term of art – – is placed in the record, both in open court […]
August 12, 2024
Published by Michael Berman at August 12, 2024
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Geofence warrants are categorically unlawful: “We hold that the use of geofence warrants—at least as described herein—is unconstitutional under the Fourth Amendment. In doing so, we part ways with our esteemed colleagues on the Fourth Circuit.” United States v. Smith, __ F.4th __, 2024 WL 3738050, at *1 (5th Cir. Aug. 9, […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail (abajournal.com)(Aug. 8, 2024), Debra Cassens Weiss reported on an information governance issue: “A federal judge who ruled that Google is a monopolist declined to sanction the search engine for failing to preserve internal chat messages, even […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Kent v. Warner, 2024 WL 3639624 (D. Neb. Jul. 24, 2024), “Plaintiff, Vernie Kent, seeks to compel Defendant, Kade Warner, to produce a surveillance video Defendant’s attorney prepared in conjunction with this litigation.” The response to that motion was that “Defendant contends the surveillance video is covered by the work-product doctrine […]
August 8, 2024
Published by Michael Berman at August 8, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for privilege.” For example, if a client sends a privileged email to counsel seeking legal advice, and attaches […]
August 7, 2024
Published by Michael Berman at August 7, 2024
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Metadata logs can be an acceptable, cost-effective method of privilege logging. For example, please see Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024), and Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024). The primary difference between a “metadata” log […]
August 6, 2024
Published by Michael Berman at August 6, 2024
In Tremblay v. OpenAI, Inc., 2024 WL 3638421 (N.D. Cal. July 31, 2024), the court resolved two disputes over an ESI Protocol, writing: “As to the first category of disagreement, the Parties have found themselves at an impasse as to the proper number of document custodians to be set forth in the […]
August 5, 2024
Published by Michael Berman at August 5, 2024
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Much has been written about the common-law duty to preserve proportionate information that is potentially relevant to reasonably anticipated litigation. Much less has been written about the duty to destroy information. For example, Maryland’s Public Information Act limits the records that governmental entities may retain. It provides that: The State, a political […]
August 3, 2024
Published by Michael Berman at August 3, 2024
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In Troung v. KPC Healthcare, Inc., 2024 WL 3496865 (C.D. Cal. July 17, 2024), the court held that no privilege log was required until scope of discovery objections were resolved. The general rule is that a privilege log is due at the time discovery responses are filed. “Absent consent of the adverse […]
July 23, 2024
Published by Michael Berman at July 23, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….” In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior […]
July 22, 2024
Published by Michael Berman at July 22, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court enforced an ESI Protocol that called for a “metadata-only” privilege log, even though parts of the metadata were redacted by the producing party. The holding ultimately hinged on the text of the ESI Protocol […]
July 9, 2024
Published by Michael Berman at July 9, 2024
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I have come across cases in which a Court’s law clerk conducted an informal conference with parties to resolve a discovery dispute. For example, in Hipschman v. County of San Diego, 2024 WL 3206909 (S.D. Cal. June 26, 2024), counsel “participated in an informal discovery conference with the undersigned’s Judicial Law Clerk […]
July 9, 2024
Published by Michael Berman at July 9, 2024
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The purpose of a privilege log is to provide sufficient information for the recipient of the log to determine whether the withheld information is, at least on its face, privileged. In short: “Trust, but verify.” See, e.g., Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); How […]
July 8, 2024
Published by Michael Berman at July 8, 2024
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I have heard of many privileges, including, for example, the attorney-client privilege, spousal privilege, executive or deliberative process privilege,[1] Fifth Amendment privilege, patient-therapist privilege, clergy person privilege, news media privilege, accountant-client privilege, and others. However, I was unaware of the federal, common-law, qualified, “official information” privilege discussed in Hipschman v. County of […]
July 6, 2024
Published by Michael Berman at July 6, 2024
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In a 2021 blog, I wrote that Requests for “Any and All” Documents Are Obsolete. That blog suggests alternative approaches. Recently, in Nelson v. I.Q. Data International, Inc., 2024 WL 2963790 (E.D. Mich. June 12, 2024), the court wrote: Courts have long condemned omnibus “any and all” document requests. See Cheney v. […]
July 5, 2024
Published by Michael Berman at July 5, 2024
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The Supreme Court of Maryland is considering a challenge to authentication of video evidence using the “pictorial testimony theory.” See Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video (Mar. 1, 2024). The “silent witness theory” was used in Cleveland v. State, 2024 WL 2149996 […]
July 3, 2024
Published by Michael Berman at July 3, 2024
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In Ferko v. Ferko, 2024 WL 3221108 (Apls. Ct. Md. June 28, 2024)(unreported), the intermediate appellate court affirmed a discovery sanction in a divorce action. The action was pending on cross-complaints for limited and absolute divorce. Mrs. Ferko alleged that Mr. Ferko’s discovery responses were inadequate on the issue of marital property. […]
July 2, 2024
Published by Michael Berman at July 2, 2024
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In Documents Withheld Under Deliberative Privilege – No Privilege Log Needed? (May 23, 2024), I discussed the holding of Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024). The Ninth Circuit held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding […]
July 2, 2024
Published by Michael Berman at July 2, 2024
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The decision in Estate of LeRoux v. Montg. County, MD, 2024 WL 1703939 (D. Md. Apr. 19, 2024), states that “[t]here is no binding legal authority on the application of deliberative process privilege in the Fourth Circuit.” Id. at *3. In LeRoux, the Hon. Aimel A. Quereshi provided a comprehensive analysis of […]
July 1, 2024
Published by Michael Berman at July 1, 2024
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Frequently, courts deny motions presenting a discovery dispute due to the failure of the moving party to engage in a good faith, pre-filing “meet and confer.” See, e.g., There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024) (“If two sides are battling over nine separate discovery issues […]
June 29, 2024
Published by Michael Berman at June 29, 2024
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Katherin Haan reported in Is Social Media The New Google? Gen Z Turn To Google 25% Less Than Gen X When Searching – Forbes Advisor (May 31, 2024), that a recent study by Forbes and Talker Research “reveal[ed] that people have changed how they engage with both content and commerce online.” Forbes […]
June 28, 2024
Published by Michael Berman at June 28, 2024
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County police officers were investigating a theft of farm equipment. They applied for a “geofence warrant” to be served on Google: “A geofence warrant authorizes the seizure of location data collected from smartphones of individuals within a particular area over a specified range of time.” United States v. Rhine, 652 F. Supp. […]
June 27, 2024
Published by Michael Berman at June 27, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634 (C.D. Cal. Jun 14, 2024), the assertion of work product protection in a privilege log supported an inference that the subsequent deletion of ESI was done with a culpable state of mind. “Work product” protection begins when material is prepared in anticipation of […]
June 26, 2024
Published by Michael Berman at June 26, 2024
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Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022). Word processing has not been immune from disputes. One court recently criticized a […]
June 25, 2024
Published by Michael Berman at June 25, 2024
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In Wagner v. Norcold, Inc., 2024 WL 2703015, at *3 (E.D. N. Car. May 24, 2024), plaintiffs claimed that defendants’ allegedly defective refrigerator had caused a destructive fire. They asserted that defendants had waived privileges “in the absence of a privilege log….” There were several other discovery disputes and the parties submitted […]
June 24, 2024
Published by Michael Berman at June 24, 2024
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In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a waiver of the privilege. GENERALLY, FAILURE TO TIMELY […]
June 20, 2024
Published by Michael Berman at June 20, 2024
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It is not auspicious when a court writes: “The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2 meet-and-confer sessions for the court’s review. Given the history of this case, […]
June 20, 2024
Published by Michael Berman at June 20, 2024
In U.S. ex rel. Zafirov v. Physician Partners, LLC, 2024 WL 2846007 (M.D. Fla. June 2, 2024), the court held that a categorical privilege log was insufficient, even after an apparent agreement to that logging process. The role of a privilege log is to “trust, but verify.” In other words, “play, but […]
June 6, 2024
Published by Michael Berman at June 6, 2024
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Thanks again to the Maryland State Bar Association for publishing my blog – – Admissibility of Internet Searches About Terminating Pregnancy | Maryland State Bar Association (msba.org) Please also see Thanks to Md. State Bar Association – E-Discovery LLC (ediscoveryllc.com) for other republished blogs.
June 5, 2024
Published by Michael Berman at June 5, 2024
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Most criminal cases are tragic. Moira Akers was found guilty of murder and child abuse arising out of the death of her newborn child. Akers v. State, 2024 WL 338958, at *1 (Apls. Ct. Md. Jan. 30, 2024)(unreported). While there were many issues on appeal, one was whether evidence of her internet […]
June 3, 2024
Published by Michael Berman at June 3, 2024
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In Robins Kaplan Can’t Escape Sanction Over Dropbox Access – Law360 (May 31, 2024), Emily Johnson reported on an appellate decision in the “Dropbox rummaging” sanctions case. A $150,000 sanction against both a law firm and its client was affirmed. Ms. Johnson reported: “The First Department of the New York Appellate Division […]
May 31, 2024
Published by Michael Berman at May 31, 2024
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In Fiskars Finland OY AB v. Woodland Tools Inc., 2024 WL 2504717 (W.D. Wisc. May 24, 2024), plaintiff sued for alleged misappropriation of trade secrets. Defendants counterclaimed. A motion to compel production of source code was denied as untimely. “Like Cinderella, the attorney in this case tripped on the electronic stairs at […]
May 30, 2024
Published by Michael Berman at May 30, 2024
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Many decisions state that the failure to timely provide an adequate privilege log may result in a waiver of the privilege. However, frequently they hold that there is no waiver on the facts presented.[1] In Bautech USA, Inc. v. Resolve Equip., Inc., 2024 WL 1929486 (S.D. Fla. May 2, 2024), untimely privilege […]
May 27, 2024
Published by Michael Berman at May 27, 2024
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Bernard Stanford was convicted of first-degree murder and other crimes. He appealed. Stanford v. State, 2024 WL 2520794 (App. Ct. Md. May 24, 2024)(unreported). Surveillance video showed him shooting a man at a gas station. He asserted self defense. On appeal, Stanford asserted a failure to preclude witness testimony for a discovery […]
May 25, 2024
Published by Michael Berman at May 25, 2024
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In U.S. v. Alliance Park LLC, 2024 WL 2230041 (S.D.Ga. May 15, 2024), in a “recently filed” case, “the Court issues the following Order to provide instructions to the parties regarding their initial discovery obligations and to institute initial case management proceedings.” The court wrote: “During the Rule 26(f) Conference, the parties […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
May 23, 2024
Published by Michael Berman at May 23, 2024
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In Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024), the court held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding documents under the deliberative privilege need not provide a privilege log to a party seeking judicial review of […]
May 20, 2024
Published by Michael Berman at May 20, 2024
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It is generally unwise to use private email accounts for company business. Clark v. Council of Unit Owners of the 100 Harborview Drive Condominium Association, 2024 WL 2155021 (D. Md. May 13, 2024)(Quereshi, J.), provides a good example. The Clark Court did two relevant things: It ordered targeted searches of the private […]
May 17, 2024
Published by Michael Berman at May 17, 2024
Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007, at *6-7 (N.D. Cal. May 14, 2024), is another in a long line of cases prohibiting redaction of purportedly nonresponsive or irrelevant material from responsive documents. I have written several blogs about redactions for relevance or confidentiality: Relevance Redactions Revisited […]
May 13, 2024
Published by Michael Berman at May 13, 2024
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Blogs frequently focus on recent decisions. I came across an older one that is also worth noting. Everyone has seen discovery responses that seek to hide the ball. In Management and Constr. Svcs., LLC v. Sayers Constr., LLC, 2021 WL 981780 (D. Md. Mar. 16, 2021)(Coulson, J.), the Court took a very […]
May 13, 2024
Published by Michael Berman at May 13, 2024
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I previously wrote about the “Dropbox Rummaging” case. Please see “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), and Sanctions Update in Dropbox “Rummaging” Decision (Dec. 1, 2023). In Robins Kaplan File Flub Bad Look For Both Sides, Panel Says – Law360 (May 8, 2024), […]
May 11, 2024
Published by Michael Berman at May 11, 2024
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Sam Skolnik reported that the ABA Issues Opinion on Disclosing to Clients When Using Listservs (bloomberglaw.com)(May 8, 2024). The article states: Without informed client consent, the opinion found, “a lawyer participating in listserv groups should not disclose any information relating to the representation that may be reasonably connected to an identifiable client.” […]
May 10, 2024
Published by Michael Berman at May 10, 2024
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I have posted five blogs – – with links below – – on In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), subsequent opinion, 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024). I did not, and could not, touch on every issue addressed […]
May 9, 2024
Published by Michael Berman at May 9, 2024
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This is the fourth and final follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1808607 (N.D. Cal. […]
May 8, 2024
Published by Michael Berman at May 8, 2024
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This is the third follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, […]
May 7, 2024
Published by Michael Berman at May 7, 2024
This is a follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), […]
May 6, 2024
Published by Michael Berman at May 6, 2024
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Thanks to the Maryland State Bar Association for republishing two recent blogs. Each was previously published at Blog – E-Discovery LLC (ediscoveryllc.com). Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” | Maryland State Bar Association (msba.org) addresses standard and novel approaches to privilege logging. In Authentication of Entire Video […]
May 6, 2024
Published by Michael Berman at May 6, 2024
This is the first of four follow ups to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. […]
April 29, 2024
Published by Michael Berman at April 29, 2024
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In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical presentations by sophisticated experts. I have called “modern attachments,” “pointers,” or the problems associated with hyperlinked target documents, the “Humpty Dumpty Issue.” […]
April 24, 2024
Published by Michael Berman at April 24, 2024
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Generally, when a fact witness changes their sworn testimony, the new version is admissible and the prior version is used to impeach it. In Asokere v. Waldrop, 2024 WL 1651658 (Apls. Ct. Md. Apr. 17, 2024)(unreported), two experts changed their sworn testimony in a Daubert hearing. Their testimony was excluded under Daubert […]
April 19, 2024
Published by Michael Berman at April 19, 2024
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In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”[1] A […]
April 18, 2024
Published by Michael Berman at April 18, 2024
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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
Published by Michael Berman at April 17, 2024
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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
Published by Michael Berman at April 16, 2024
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In 1968, the movie “Dracula Has Risen from the Grave” was released. Like Dracula, despite being long since buried, boilerplate “general objections” keep popping up in what sometimes looks like the children’s game of “Whac a Mole.” It is difficult to understand why the message about boilerplate “general objections” has not gotten […]
April 10, 2024
Published by Michael Berman at April 10, 2024
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That is what makes the recent decision in M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024), interesting. Both of the disputing litigants were ordered to state under oath that they had produced all responsive documents in a decision in which the court granted […]
April 9, 2024
Published by Michael Berman at April 9, 2024
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In Southern Pine Credit Un. v. Southwest Marine & Gen’l. Ins. Co., et al., 2024 WL 1361891 (M.D. Ga. Mar. 29, 2024), the court addressed the amount of detail that must be in a privilege log. Southern Pine brought a breach of contract action after its claim on a dishonesty bond was […]
April 8, 2024
Published by Michael Berman at April 8, 2024
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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
Published by Michael Berman at March 27, 2024
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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
Published by Michael Berman at March 25, 2024
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In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion for protective order that was resolved in the District of Maryland. […]
March 15, 2024
Published by Michael Berman at March 15, 2024
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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
Published by Michael Berman at March 14, 2024
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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
Published by Michael Berman at March 6, 2024
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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
Published by Michael Berman at March 5, 2024
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A motion for spoliation sanctions under Fed.R.Civ.P. 37(e) was denied in Boshea v. Compass Marketing, Inc., 2024 WL 811468 (D. Md. Feb. 27, 2024). The motion was argued and decided during trial. The suit by a former employee against the employer involved discovery of litigation strategy communications sent by the plaintiff to […]
March 4, 2024
Published by Michael Berman at March 4, 2024
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Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.” The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016). Likely that is due to […]
March 2, 2024
Published by Michael Berman at March 2, 2024
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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
Published by Michael Berman at March 1, 2024
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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
Published by Michael Berman at February 29, 2024
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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
Published by Michael Berman at February 25, 2024
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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
Published by Michael Berman at February 21, 2024
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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
Published by Michael Berman at February 6, 2024
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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
Published by Michael Berman at February 2, 2024
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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
Published by Michael Berman at January 29, 2024
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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
Published by Michael Berman at January 27, 2024
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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
Published by Michael Berman at January 26, 2024
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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
Published by Michael Berman at January 23, 2024
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“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
Published by Michael Berman at January 19, 2024
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“Self-collection” is often viewed as prohibited. Abraham Maslow said that: “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” This blog addresses a methodology designed by Ralph Losey, Esq., through which self-collection may be defensible. At bottom, Ralph[1] […]
January 18, 2024
Published by Michael Berman at January 18, 2024
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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
Published by Michael Berman at January 11, 2024
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One of the primary arguments against incorporating an “ESI Protocol” into a court order is that doing so may be the first step down the road to sanctions.[1] A COURT-ORDERED ESI PROTOCOL MAY BE CARVED IN STONE That fear of sanctions may be well-founded. For example, in her excellent 2023 ESI Protocol […]
January 10, 2024
Published by Michael Berman at January 10, 2024
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In Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024)(per curiam), plaintiffs’ slip and fall claim was dismissed with prejudice, and attorneys’ fees were also awarded, due to improper testimonial coaching during a virtual trial. The coaching was accompanied by a misrepresentation to the court. […]
January 5, 2024
Published by Michael Berman at January 5, 2024
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In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4th __ (4th Cir. Jan. 3, 2024). In short, plaintiff filed untimely interrogatories. Defendant responded without objecting that they were untimely. That omission waived the objection. However, defendant […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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“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
Published by Michael Berman at January 2, 2024
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Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!” That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 29, 2023
Published by Michael Berman at December 29, 2023
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I posted 104 items this year. Several that may be worth re-reading are: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II Don’t Be Too Nice When You Send a Preservation Notice Relevance Redactions Revisited […]
December 23, 2023
Published by Michael Berman at December 23, 2023
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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
Published by Michael Berman at December 22, 2023
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Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. The United States District Court for the District of Maryland has established several processes for avoiding discovery disputes and promptly resolving those that may arise. First, the “ESI Principles” provide voluntary suggestions […]
December 18, 2023
Published by Michael Berman at December 18, 2023
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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
Published by Michael Berman at December 16, 2023
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One role of an attorney handling ESI is to function as a translator between computer scientists and forensic experts, on the one hand, and laypersons, such as clients and Judges, on the other. When you look at a “load file” it can be intimidating. Figure 1 is the .dat part of a […]
December 15, 2023
Published by Michael Berman at December 15, 2023
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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
Published by Michael Berman at December 13, 2023
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
Published by Michael Berman at December 13, 2023
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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
Published by Michael Berman at December 10, 2023
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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
Published by Michael Berman at December 5, 2023
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Hannah Albarazi reported that Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends – Law360 (Dec. 1, 2023). The Law 360 article states: The company intentionally destroyed relevant evidence, failed to preserve internal chat evidence, and appears to have widely instructed its employees to label documents “privileged and confidential” when they should […]
December 2, 2023
Published by Michael Berman at December 2, 2023
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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
Published by Michael Berman at December 1, 2023
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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
Published by Michael Berman at December 1, 2023
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In “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), I wrote about the $156,000 sanction imposed for Dropbox “rummaging” in Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 NY Slip Op. 33448(U) (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.). In Law 360, Mr. […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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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
Published by Michael Berman at November 30, 2023
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The Supreme Court of Maryland has amended Maryland Attorneys’ Rule of Professional Conduct 19-304.4(c) (Rule 4.4(c)). Maryland’s new rule prohibits an attorney from seeking privileged information from a third person. If such information is disclosed to the attorney, the amended rule imposes a duty to terminate the conversation and provide notice to […]
November 28, 2023
Published by Michael Berman at November 28, 2023
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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b). The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Maryland’s Standing Committee on Rules of Practice and Procedure (“Rules Committee”) has published an agenda that includes consideration of amendments to Maryland Rule 5-702 (testimony by experts). Two recent developments are the genesis of the proposal. “First, the Federal Rules Committee has recently made changes to Rule 702, the federal equivalent to […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Josh Gilliland’s Bow Tie law blog has often addressed the question of: “What happens when one party argues a producing party should produce all search term hits?” His answer is “no,” production is not required until after review and culling. See How to Avoid Contentious “Hit Report” Problems, and Hit Reports, citing, […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”[1] So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of. One “modern attachment” […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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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
Published by Michael Berman at November 10, 2023
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“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
November 3, 2023
Published by Michael Berman at November 3, 2023
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The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts. Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
November 1, 2023
Published by Michael Berman at November 1, 2023
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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
Published by Michael Berman at October 27, 2023
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Joan Kim has written an excellent summary in Legal Separateness: The Boundaries on Written Discovery | Proskauer – Minding Your Business – JDSupra (Oct. 23, 2023). Her blog accurately states: The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies […]
October 26, 2023
Published by Michael Berman at October 26, 2023
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“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
Published by Michael Berman at October 4, 2023
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“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
Published by Michael Berman at September 27, 2023
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“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1] The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786. Sedona’s website states: Judge Rodriguez […]
September 26, 2023
Published by Michael Berman at September 26, 2023
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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
Published by Michael Berman at September 22, 2023
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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
Published by Michael Berman at September 21, 2023
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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
Published by Michael Berman at September 19, 2023
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While this blog generally deals with civil discovery, “sunshine laws” that require disclosure of public records by government agencies raise many parallel, and many different, concerns. Maryland’s analog to the federal Freedom of Information Act (“FOIA”) is known as the “Public Information Act,” “PIA,” or “MPIA,” and it is codified as Md. […]
September 11, 2023
Published by Michael Berman at September 11, 2023
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This weekend, Alicia L. Shelton, Esq., and I taught the first of a three-module electronic discovery class at the Community College of Baltimore County. While I have been teaching electronic discovery classes at the University of Baltimore School of Law for a decade, this is the first program focused on paralegal training. […]
September 8, 2023
Published by Michael Berman at September 8, 2023
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In CSX Transportation, Inc. v. Spiniello Global, Inc., 2023 WL 5515979 (D. Md. Aug. 25, 2023)(Bredar, C.J.), the Court denied spoliation motions, in part because they were filed too late. The plaintiff owned and operated the coal shipment facility. Defendants included the City of Baltimore and “Spiniello,” a contractor. The dispute centered […]
September 7, 2023
Published by Michael Berman at September 7, 2023
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Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023). The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery […]
August 14, 2023
Published by Michael Berman at August 14, 2023
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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
Published by Michael Berman at August 8, 2023
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I have written several blogs on emojis, such as Emoji Forms a Contract and What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other? In both blogs, I pointed to Prof. Eric Goldman’s writings as an excellent resource and he has done it again in A […]
July 31, 2023
Published by Michael Berman at July 31, 2023
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I always advocate for civility and cooperation in e-discovery.[1] But, it may be prudent to expressly threaten a lawsuit in a preservation notice. It may also be cautious to avoid offering to settle a claim in that notice. If you want to make an offer to settle, a separate demand or settlement […]
July 16, 2023
Published by Michael Berman at July 16, 2023
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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
Published by Michael Berman at July 15, 2023
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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
Published by Michael Berman at July 12, 2023
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In State v. [Defendant], __ 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
Published by Michael Berman at July 8, 2023
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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
Published by Michael Berman at July 5, 2023
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The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022). In that blog, I suggested that negotiation is the best solution. […]
July 4, 2023
Published by Michael Berman at July 4, 2023
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In Jennings v. Frostburg State University, 2023 WL 4205665 (D. Md. June 27, 2033), defendants wiped two cell phones of departing employees after the duty to preserve was triggered. The Court’s duty to preserve analysis – holding that an administrative rebuttal letter triggered the duty to preserve – is important to all […]
June 8, 2023
Published by Michael Berman at June 8, 2023
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UPDATE (Aug. 3, 2023): See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship […]
June 6, 2023
Published by Michael Berman at June 6, 2023
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The federal Committee on Rules of Practice and Procedure (the “Standing Committee”) has posted pending amendments to the federal appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules. The Standing Committee explained that: “An amendment to a federal rule generally takes about three years.” Rules are promulgated under the Rules […]
May 24, 2023
Published by Michael Berman at May 24, 2023
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The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules. This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 23, 2023
Published by Michael Berman at May 23, 2023
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In Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.)(“Fowler I”), the Magistrate Judge wrote that preservation of a cell phone “in place” may be acceptable in some instances, but made clear that it is risky. Plaintiff had not backed up his cell phone. He left it […]
May 13, 2023
Published by Michael Berman at May 13, 2023
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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
Published by Michael Berman at May 9, 2023
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“Before me is Plaintiffs’ Motion for Sanctions…. I will not mince words. I hate motions for sanctions. Based on my experience for roughly 25 years as a lawyer, and now for the past five years as a judge, most such motions are without merit—a mere effort by one side to obtain a […]
May 7, 2023
Published by Michael Berman at May 7, 2023
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The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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In Doe v. Willis, 2023 WL 2918507 (M.D. Fl. Apr. 12, 2023), the plaintiff’s lawyer imposed an oral legal hold, telling her that she should not delete texts, throw away evidence, or post anything on Facebook, and: “That’s about it.” The instructions were not memorialized in a writing. Subsequently, the plaintiff dropped […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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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
Published by Michael Berman at April 25, 2023
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The “modern attachments” decision of Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), generated a lot of buzz when it was issued. At its core, Noom held that hyperlinked files are generally not part of a transmitting email. Said differently, when a party produces an email that contains a […]
April 23, 2023
Published by Michael Berman at April 23, 2023
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Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
April 20, 2023
Published by Michael Berman at April 20, 2023
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Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information. “Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense […]
April 17, 2023
Published by Michael Berman at April 17, 2023
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Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
April 16, 2023
Published by Michael Berman at April 16, 2023
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A recent article, Josephine M. Bahn, Individual Lawyers—Not Firms—Must Pay Discovery Sanctions (americanbar.org)(Jan. 20, 2023), describes a Sixth Circuit decision, NPF Franchising, LLC v. SY Dawgs LLC, No. 21-3516 (June 15, 2022), holding that individual attorneys – not their law firms – were jointly and severally liable for discovery sanctions. The opinion states […]
April 12, 2023
Published by Michael Berman at April 12, 2023
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Cell phones have led to thorny legal issues. For example, in Juror’s Cellphone Not Subject to Search (americanbar.org)(Feb. 21, 2023), Steven B. Chaneles, wrote that, in response to a post-verdict challenge: “A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cellphone….” The […]
April 10, 2023
Published by Michael Berman at April 10, 2023
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Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.), is an important and thoughtful decision demonstrating the peril of preservation in place. In Fowler, the plaintiff left his cell phone in an unlocked car. It was stolen after the duty to preserve had been triggered. It contained […]
April 9, 2023
Published by Michael Berman at April 9, 2023
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A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction. This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction. The history of, and […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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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 22, 2023
Published by Michael Berman at March 22, 2023
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“Counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification, a California appeals court ruled Tuesday in a dispute among cannabis company co-owners.” Joyce E. Cutler, Counsel’s Disqualification Upheld Over Use of Privileged Emails (bloomberglaw.com)(2023), describing Militello v. VFarm 1509, __ Cal.Rptr.3d __, 2023 WL 2579204 […]
March 21, 2023
Published by Michael Berman at March 21, 2023
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Sidley Austin LLP’s excellent blog, March’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP, describes an interesting work product decision. The blog reported that, in Securities and Exchange Commission v. Volkswagen Aktiengesellschaft, et al., 2023 WL 1793870 (N.D. Cal. Feb. 7, 2023), the SEC’s interrogatory to Volkswagen asked […]
March 20, 2023
Published by Michael Berman at March 20, 2023
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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
Published by Michael Berman at March 18, 2023
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Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
March 18, 2023
Published by Michael Berman at March 18, 2023
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Hur v. Lloyd & Williams, LLC, 523 P.3d 861 (Wash. App. Div. 3 2023), presents another in a long list of redaction errors.[1] Two significant errors occurred in the contract dispute action. Defense counsel “inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel […]
March 17, 2023
Published by Michael Berman at March 17, 2023
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“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023)(emphasis added). In this case, the court’s filing deadline was at midnight on April 22nd. The attorney logged on to the […]
March 15, 2023
Published by Michael Berman at March 15, 2023
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In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure. The case involved egregious[1] misconduct that included fraud on the Court, […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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This blog discusses how the Court interpreted the ESI protocol in McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023)(Bredar, J.), McCormick was a consolidated breach of contract action involving multi-million dollar claims. The Court wrote: The ESI Protocol provides, under a subsection titled “No Presumption of […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter. In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporate their […]
March 10, 2023
Published by Michael Berman at March 10, 2023
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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
Published by Michael Berman at March 9, 2023
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Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent. In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of […]
March 7, 2023
Published by Michael Berman at March 7, 2023
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The decision in Attorney Grievance Comm’n. of Md. v. Sloane, __ Md. __ (Mar. 2, 2023), covers many issues. The respondent attorney was suspended from the practice of law in Maryland with the right to apply for reinstatement after six months. Much of the sanction was due to discovery misconduct in a […]
March 7, 2023
Published by Michael Berman at March 7, 2023
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This post is not political. It is about redactions and confidentiality. Erik Wemple wrote Opinion | What is Fox News hiding in the Dominion lawsuit? – The Washington Post (Mar. 6, 2023). He describes documents produced in discovery with heavy redactions and asks what is being hidden. The redactions that he reproduced […]
March 3, 2023
Published by Michael Berman at March 3, 2023
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In 360 Security Partners, LLC v. Hammond, 2023 WL 1869633 (N.D. Tex. Feb. 9, 2023), a defendant tried to justify wiping a company laptop by asserting privacy concerns. The court did not accept that excuse. Instead, it sanctioned the defendant. Defendant Hammond was the former CEO of the plaintiff. Plaintiff terminated Hammond […]
February 22, 2023
Published by Michael Berman at February 22, 2023
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In Nolan v. Secretary of Dept. of Public Safety and Correctional Services, No. 1181 (Appellate Court of Md. Feb. 8, 2023)(unreported),[1] Nolan appealed from denial of a “Motion for Injunction” to preserve certain video evidence. The circuit court denied the motion because it had dismissed the case three months earlier. The Appellate […]
February 7, 2023
Published by Michael Berman at February 7, 2023
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In Relativity’s® 2022 Data Discovery Legal Year in Review e-book (8th ed.), David Horrigan, Esq., highlighted a fascinating case, Martley v. City of Basehor, 2022 WL 1302820 (D. Kan. May 2, 2022)(“Martley I”). Mr. Horrigan described the case as a “clever … use [of] the Federal Rules of Civil Procedure to find […]
January 4, 2023
Published by Michael Berman at January 4, 2023
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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
Published by Michael Berman at December 28, 2022
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Josh Gilliland’s excellent blog To Use Search Terms Before or After Predictive Coding – Bow Tie Law (Dec. 28, 2022), addresses “a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. […]
December 23, 2022
Published by Michael Berman at December 23, 2022
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Fed.R.Civ.P. 26(g) has been called the “stop and think” rule. The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….” The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000). Similarly, Craig Ball has blogged about […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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“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
Published by Michael Berman at December 16, 2022
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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
Published by Michael Berman at December 15, 2022
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It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section. After an introduction by T.J. Keilty, I provided an overview of what constitutes social media. The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
December 14, 2022
Published by Michael Berman at December 14, 2022
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I am pleased to report my selection by Thomsen Reuters for the fifth consecutive year as a Maryland Super Lawyer.
November 22, 2022
Published by Michael Berman at November 22, 2022
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Debra C. Weiss reports More than $2M in sanctions sought against Gibson Dunn and Facebook (abajournal.com)(Nov. 22, 2022): Plaintiffs are seeking more than $2 million in sanctions against Facebook and its lawyers at Gibson, Dunn & Crutcher after a federal judge said they engaged in “dilatory discovery conduct.” Id. In a September […]
November 20, 2022
Published by Michael Berman at November 20, 2022
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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
Published by Michael Berman at November 14, 2022
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The Fourth Amendment to the U.S. Constitution makes a big difference. This is illustrated by two recent Maryland appellate decisions – – one civil, the other criminal – – regarding discovery from cell phones. Cf. Richardson v. State, 481 Md. 423 (2022)(criminal), with St. Francis Academy, et al. v. Gilman School, Inc., […]
November 12, 2022
Published by Michael Berman at November 12, 2022
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If a litigant has actual knowledge that an opponent’s proposed search terms will not “hit” on responsive, proportional ESI, does the litigant have a duty to tell the opponent?[1] In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), the plaintiff, Advanced Magnesium, alleged that defendant Dery conspired […]
November 11, 2022
Published by Michael Berman at November 11, 2022
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In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms. However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context. Alliance said – in my […]
November 9, 2022
Published by Michael Berman at November 9, 2022
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A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email. That is a communication by receiving counsel to sending counsel’s represented client. ABA Formal Opinion 503 states that, when sending counsel […]
November 8, 2022
Published by Michael Berman at November 8, 2022
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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
Published by Michael Berman at October 28, 2022
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In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff served a subpoena […]
October 11, 2022
Published by Michael Berman at October 11, 2022
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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
Published by Michael Berman at September 8, 2022
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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
Published by Michael Berman at September 7, 2022
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In civil discovery, litigants must produce information that is within their “possession, custody, or control,” subject to the applicable scope of discovery. However, federal courts have markedly differing definitions of “possession, custody, or control.” A uniform standard would further the goal of the just, speedy, and inexpensive resolution of many lawsuits. Mike […]
September 3, 2022
Published by Michael Berman at September 3, 2022
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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
Published by Michael Berman at August 29, 2022
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“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
Published by Michael Berman at August 28, 2022
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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
Published by Michael Berman at August 15, 2022
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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
Published by Michael Berman at August 14, 2022
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“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
August 13, 2022
Published by Michael Berman at August 13, 2022
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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
Published by Michael Berman at August 12, 2022
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I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
August 9, 2022
Published by Michael Berman at August 9, 2022
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An interesting post by Phillip Favro, The Hon. Helen Adams, and Leslie Behaunek, Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History – Innovative Driven (id-edd.com) (June 1, 2022), describes tools provided by Instagram and Facebook that users may employ to delete material posted to […]
August 8, 2022
Published by Michael Berman at August 8, 2022
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In Deal Genius, LLC v. O2 Cool, LLC, 2022 WL 874690, at *3 (N.D. Ill. Mar. 24, 2022), the court was faced with two parties that failed to cooperate concerning discovery of ESI, including design of search terms. The court wrote: It should go without saying that months of arguing over five […]
August 7, 2022
Published by Michael Berman at August 7, 2022
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In Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530 (D. Md. Jul. 11, 2022)(Quereshi, J.), the Court addressed a motion to compel discovery in a breach of contract action. The Court held that defendant’s discovery objections were too general; however, on the facts presented, including the manner in which […]
August 6, 2022
Published by Michael Berman at August 6, 2022
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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
Published by Michael Berman at August 5, 2022
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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
Published by Michael Berman at August 4, 2022
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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
Published by Michael Berman at August 4, 2022
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The Maryland Standing Committee on Rules of Practice and Procedure has issued its 211th Report and proposed rules changes. One of the most significant proposals is to modify Rule 2-402 to follow the 2010 amendments to Fed.R.Civ.P. 26 regarding expert discovery. The Committee explained: In 2010, the Federal Rule was amended to […]
August 4, 2022
Published by Michael Berman at August 4, 2022
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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
Published by Michael Berman at July 17, 2022
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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
Published by Michael Berman at July 16, 2022
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In Markel Ins. Co. v. Sumpter, 2022 WL 2703832 (D. Md. July 11, 2022)(Hazel, J.), the Court denied a request for discovery to oppose a motion for summary judgment. Markel Insurance defended an alleged auto tort under a reservation of rights. It then filed this action against both drivers for a declaration […]
July 15, 2022
Published by Michael Berman at July 15, 2022
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In 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
Published by Michael Berman at July 15, 2022
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In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations. The Court addressed a number of discovery issues.[1] The case provides a textbook example of the use of phased discovery to achieve proportionality. Plaintiff had worked for the defendants […]
July 14, 2022
Published by Michael Berman at July 14, 2022
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“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022). Counsel was disqualified as a result. Like many depositions during the pandemic, the Barksdale deposition took place remotely over […]
July 13, 2022
Published by Michael Berman at July 13, 2022
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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
Published by Michael Berman at July 12, 2022
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“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
Published by Michael Berman at July 11, 2022
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The Washington Post recently published an article by Chris Velazco, titled How to securely erase your old hard drives once and for all (July 8, 2022). “There are so many stories about people buying used computers online and recovering data,” said Andrés Arrieta, director of consumer privacy engineering at the Electronic Frontier […]
June 25, 2022
Published by Michael Berman at June 25, 2022
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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
Published by Michael Berman at June 23, 2022
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Two recent articles describe alleged “win-at-all-costs” tactics in defense of wrongful conviction lawsuits in Baltimore and Chicago. They point to, on the one hand, allegations of damages claims for unreasonable amounts by exonerees and, on the other, alleged scorched earth defenses costing millions of dollars and subjecting exonerees to unreasonable indignity. I […]
June 22, 2022
Published by Michael Berman at June 22, 2022
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In Troyce Manassa v. National Collegiate Athletic Association, 2022 WL 2176334 (S.D. Ind. June 16, 2022), a motion to disqualify counsel was denied. Plaintiffs are represented by the law firm of “FeganScott.” They sued the NCAA. “Upon learning that a FeganScott staff attorney moonlighted as a document reviewer for the NCAA in […]
June 21, 2022
Published by Michael Berman at June 21, 2022
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Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021), reemphasizes that a preservation letter needs to be well-drafted and provide details sufficient to put the recipient on notice of the factual nature of the claim. In Nolan, because plaintiff’s preservation demand was purportedly too vague, it may have […]
June 14, 2022
Published by Michael Berman at June 14, 2022
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Josh Gilliland recently posted an excellent blog about an interesting discovery case in Failure to Launch a Protective Order to Stop a 30(b)(6) on Responding to Requests for Production – Bow Tie Law. As Josh explained, the court in that case permitted discovery of the “method and manner used” to identify the documents produced […]
June 14, 2022
Published by Michael Berman at June 14, 2022
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In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations. The Court addressed a number of discovery issues. This blog focuses on one of them – defendants’ assertion that it need not provide discovery because doing so […]
June 13, 2022
Published by Michael Berman at June 13, 2022
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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
Published by Michael Berman at June 13, 2022
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In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos. Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104. That decision was affirmed “as a matter of […]
June 4, 2022
Published by Michael Berman at June 4, 2022
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The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
June 3, 2022
Published by Michael Berman at June 3, 2022
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When it comes to ESI, it has been stated that: “The fuss is about money. Discovery is expensive, and electronic discovery is really expensive.”[1] The award of litigation costs will never be the stuff of cocktail party discussions. However, in many cases, large sums of money are at issue. See, e.g., Ralph […]
June 2, 2022
Published by Michael Berman at June 2, 2022
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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 […]
June 1, 2022
Published by Michael Berman at June 1, 2022
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Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw. In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating: Although cases abound […]
May 31, 2022
Published by Michael Berman at May 31, 2022
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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
Published by Michael Berman at May 30, 2022
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It would be difficult to overstate the significance of The Sedona Conference and the EDRM in shaping the contours of ESI in civil litigation. Kenneth J. Withers is the Deputy Executive Director of The Sedona Conference. In “The Sedona Conference and Its Impact on E-Discovery,” Chap. 35 in M. Berman, et al., eds., […]
May 29, 2022
Published by Michael Berman at May 29, 2022
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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
Published by Michael Berman at May 28, 2022
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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
Published by Michael Berman at May 27, 2022
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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
Published by Michael Berman at May 26, 2022
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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
Published by Michael Berman at May 25, 2022
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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
Published by Michael Berman at May 24, 2022
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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
Published by Michael Berman at May 20, 2022
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The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1] Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
May 18, 2022
Published by Michael Berman at May 18, 2022
“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly. “Getting the steps […]
May 16, 2022
Published by Michael Berman at May 16, 2022
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Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel. The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
May 11, 2022
Published by Michael Berman at May 11, 2022
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It is an honor to be selected as one of America’s Top 100 Civil Defense Litigators. If you would like more information about America’s Top 100 Civil Defense Litigators® or the selection process, please visit the website at www.Top100CivilDefenseLitigators.com
April 29, 2022
Published by Michael Berman at April 29, 2022
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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 28, 2022
Published by Michael Berman at April 28, 2022
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Metadata has been embraced, loved, cursed, and vilified. It has been written about in inconsistent ethics opinions about “mining.” Failure to preserve or produce it has led to the imposition of sanctions in litigation. It has been “scrubbed,”[1] sliced, diced, defined, and classified as application or system metadata and system-generated or user-created.[2] […]
April 27, 2022
Published by Michael Berman at April 27, 2022
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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
Published by Michael Berman at April 21, 2022
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Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022). This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 20, 2022
Published by Michael Berman at April 20, 2022
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In Gunter v. Alutiiq Advanced Security Solutions, LLC, 2022 WL 1139875 (D. Md. Apr. 18, 2022), a pro se plaintiff alleged various employment discrimination claims. After defendant provided forensic testimony, the plaintiff was sanctioned under Rule 41(b), Rule 37(e), Rule 26(g), and the Court’s inherent power, for fabricating and failing to produce […]
April 15, 2022
Published by Michael Berman at April 15, 2022
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“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
Published by Michael Berman at April 10, 2022
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I have written about Misconduct in Remote Trials and Misconduct in Remote Depositions. In the words of Yogi Berra, “it’s deja vue all over again.” Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP. Traci McKee […]
April 9, 2022
Published by Michael Berman at April 9, 2022
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When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance. When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that. Information Governance – […]
April 4, 2022
Published by Michael Berman at April 4, 2022
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Fed.R.Civ.P. 34 authorizes discovery of “any designated documents or electronically stored information….” That Rule is limited to the scope of discovery set out in Rule 26(b)(“matter that is relevant to any party’s claim or defense and proportional ….”); see Md. Rules 2-402 and 2-422. In a prior post, I addressed What is a […]
April 3, 2022
Published by Michael Berman at April 3, 2022
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In several recent blogs, I have highlighted many of the differences between the Federal Rules of Civil Procedure and the Maryland Rules. Those blogs are listed in Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties. The Maryland Rules regarding the scope of discovery and proportionality limits contain significant differences […]
April 2, 2022
Published by Michael Berman at April 2, 2022
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I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure. See Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and M. Berman & A. Shelton, “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
April 1, 2022
Published by Michael Berman at April 1, 2022
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The Sedona Conference has published its “Commentary on Protecting Trade Secrets Throughout The Employment Life Cycle” (March 2022). It is another excellent and authoritative work in its series on trade secret protection. See Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation. The Commentary describes the protection problem as the […]
March 31, 2022
Published by Michael Berman at March 31, 2022
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Although the ABA’s “technological competence” standard is a good “first step,” it could be improved. Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball. Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 29, 2022
Published by Michael Berman at March 29, 2022
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I recently wrote about The Perils of a Misfocused Preservation Letter, discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), and Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands. Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative […]
March 28, 2022
Published by Michael Berman at March 28, 2022
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Unlike the Federal Rules of Civil Procedure, the Maryland Rules do not generally mandate a conference of the parties. However, Rule 2-504.1(a)(4) provides a mechanism for a party to request that a State court order a “meet and confer.” The federal rule has a convoluted history. Rule 26(f) – – the conference […]
March 26, 2022
Published by Michael Berman at March 26, 2022
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Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?, When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable? The flip side of the coin is whether the steps taken by a potential […]
March 24, 2022
Published by Michael Berman at March 24, 2022
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After the December 2015 amendments to the Federal Rules of Civil Procedure, I co-authored two publications noting some of the differences between the new Federal Rules and the Maryland Rules. M. Berman & A. Shelton, “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June 17, 2016); M. Berman, et al., […]
March 24, 2022
Published by Michael Berman at March 24, 2022
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In St. Francis Academy, et al. v. Gilman School, Inc., No. 1390 (Md. Ct. Spl. Apls. Mar. 21, 2022) (unreported), the intermediate appellate court affirmed an order directing forensic imaging and searching of non-parties’ cell phones under a strict protocol to protect the cell phone owners’ privacy. It carefully balanced the discovering […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate. If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]
March 17, 2022
Published by Michael Berman at March 17, 2022
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Earlier this month, the Sedona Conference published its “Commentary on Equitable Remedies in Trade Secret Litigation” (Mar. 2022). The comprehensive Sedona Commentary offers five Principles and 24 Guidelines. Its premise is that: “Obtaining or resisting some form of equitable relief is a key component of many trade secret disputes, both at an […]
March 12, 2022
Published by Michael Berman at March 12, 2022
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Taxation of costs in federal court is governed by 28 U.S.C. §1920. An ABA Litigation Section article, W. Newman, Prevailing Parties Recover Some, Not All, E-discovery Costs (americanbar.org) (ABA Winter 2022), cited a recent decision and noted that “ABA Litigation Section leaders believe this decision reveals that section 1920 is out of […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted: As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages. The Court described the missing texts as “the primary basis of [plaintiff’s] […]
March 8, 2022
Published by Michael Berman at March 8, 2022
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Much has been written about the duty to cooperate. In 1850, Abraham Lincoln wrote: “Persuade your neighbors to compromise whenever you can…. As a peacemaker, the lawyer has a superior opportunity of being a good man [or woman].” [1] No attorney wants a judicial opinion stating that they have wasted the client’s […]
March 7, 2022
Published by Michael Berman at March 7, 2022
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Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing. Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order. Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its […]
March 5, 2022
Published by Michael Berman at March 5, 2022
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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
Published by Michael Berman at February 23, 2022
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Businesses need to carefully consider whether they will permit employees to use business information technology systems for private work. For example, while allowing an employee to use company resources for charitable work may be commendable, it can impose substantial costs if the non-business work leads to litigation. A recent article about a […]
February 17, 2022
Published by Michael Berman at February 17, 2022
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Mike Hamilton’s blog, “Defendant Ordered to Produce 30,000 Slack Messages” (Exterro Feb. 7, 2022), provides an excellent description of Benebone LLC v. Pet Qwerks, Inc., 2021 WL 831025 (C.D. Cal. Feb. 18, 2021). The blog correctly points out that, as to discovery of Slack messages, “proportionality was the key issue.” Benebone is […]
February 13, 2022
Published by Michael Berman at February 13, 2022
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In Arconic Corp., et al, v. Novelis Inc., et al., 2022 WL 409488 (W.D. Pa. Feb. 10, 2022), the Court denied a recusal motion that was based on metadata contained in the Court’s order. Specifically, Arconic moved to recuse the Judge based on “author” and “date created” metadata. Arconic asserted that the metadata showed […]
February 5, 2022
Published by Michael Berman at February 5, 2022
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I recently wrote a blog Ethics: Misconduct in Remote Depositions. The ABA Journal has provided an example of misconduct in a virtual trial. D. Weiss, “Lawyer is suspended for coaching client using chat function during virtual trial” (ABA Journal Feb. 1, 2022). Ms. Weiss reports that: “An Arizona lawyer has consented to a two-month […]
February 4, 2022
Published by Michael Berman at February 4, 2022
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The Washington Post recently reported on the departure of Jeff Zucker as president of CNN. J. Barr, “After Jeff Zucker’s ouster, CNN staffers raise questions about a Chris Cuomo connection” (Wash. Post Feb. 3, 2022). The article asks: “Jeff Zucker’s surprise ouster Wednesday left CNN with a leadership void and an irresistible […]
January 16, 2022
Published by Michael Berman at January 16, 2022
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In Webb v. Giant of Maryland, LLC, __ Md. __, 2021 WL 6016453, at *1 (Dec. 21, 2021), the Court held that it was error to instruct the jury on spoliation on the facts presented. The store where plaintiff was injured had more than 30 cameras in operation and was notified of […]
January 16, 2022
Published by Michael Berman at January 16, 2022
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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
Published by Michael Berman at December 18, 2021
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In its 209th Report, the Standing Committee on Rules of Practice and Procedure proposed a number of rules changes. The proposals were transmitted to the Court of Appeals on December 10, 2021. The comment period will close on January 10, 2022. The date of the Court’s open meeting on the proposed changes […]
December 9, 2021
Published by Michael Berman at December 9, 2021
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In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests. Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
December 8, 2021
Published by Michael Berman at December 8, 2021
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The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version). The Primer is a valuable contribution. It gathers a substantial body of research in an easy-to-read, authoritative resource. It focuses entirely on discovery requests, not responses, and does so in depth. And, it […]
December 2, 2021
Published by Michael Berman at December 2, 2021
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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
Published by Michael Berman at November 30, 2021
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In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9th Cir. Jun. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. The […]
November 29, 2021
Published by Michael Berman at November 29, 2021
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This blog addresses two remote deposition issues: 1) coaching by text messages; and, 2) coaching behind a COVID face mask. “A Florida lawyer has been suspended for 91 days for texting advice to a witness during a phone deposition and then failing to come clean when questioned by the opposing counsel and […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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Sanctions were imposed in DG BF LLC v. Ray, No. 2020-0459 (Del. Ch. Nov. 19, 2021).[1] The court dismissed a fraud and retaliation lawsuit for discovery abuse. Among other issues, plaintiff testified that he did not know what a “litigation hold” was, even though defendants sent a preservation demand to him. It […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
November 27, 2021
Published by Michael Berman at November 27, 2021
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The Hon. Paul W. Grimm recently wrote of the need for more education about discovery. Judge Grimm wrote that law schools share some of the blame for discovery abuses “for not spending sufficient time teaching students about discovery obligations in civil procedure classes.” P. Grimm, “Good Faith in Discovery,” 46 Litigation 23 […]
November 19, 2021
Published by Michael Berman at November 19, 2021
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Information governance and computer usage policies should caution employees not to include embarrassing information in business communications. Once that information is included in an email, if the communication is filed in court, the public likely gets to see it. Callahan v. Un. Network for Organ Sharing, __ F.4th __, 2021 WL 5351863 […]
November 18, 2021
Published by Michael Berman at November 18, 2021
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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
Published by Michael Berman at November 17, 2021
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Categorical privilege logs can save time and money. “The concept of categorical privilege logs in connection with ESI is not new.” M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021). […]
November 13, 2021
Published by Michael Berman at November 13, 2021
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In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine. Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery. […]
October 1, 2021
Published by Michael Berman at October 1, 2021
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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
Published by Michael Berman at September 4, 2021
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In Via Vadis, LLC, et al. v. Amazon.Com, Inc., 2021 WL 3134257 (W.D. Tex. Jul. 23, 2021), a request for sanctions was denied because the spoliating party provided satisfactory secondary evidence. When potentially relevant information goes missing, it is always a good practice to look for secondary evidence to replace it. See […]
August 30, 2021
Published by Michael Berman at August 30, 2021
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Federal Rule of Evidence 502 was passed in 2008 by a unanimous vote in the Senate, overwhelmingly in the House, and signed by President George W. Bush. Anything with that degree of support has to be good and Rule 502 provides substantial and necessary benefits. An excellent publication describes the rule in […]
August 28, 2021
Published by Michael Berman at August 28, 2021
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In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 27, 2021
Published by Michael Berman at August 27, 2021
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In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent. […]
August 19, 2021
Published by Michael Berman at August 19, 2021
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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
Published by Michael Berman at August 18, 2021
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In McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021) (Copperthite, J.), data on Defendant’s former employee’s cell phone was erased after Plaintiffs had sent a preservation letter.[1] Defendant Transdev admitted that it had a duty to preserve the evidence and had control over it when it was […]
August 17, 2021
Published by Michael Berman at August 17, 2021
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Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1] Usually, it was clear where a letter, memo, or contract began and ended. But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
August 12, 2021
Published by Michael Berman at August 12, 2021
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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
Published by Michael Berman at August 11, 2021
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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
Published by Michael Berman at August 11, 2021
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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
Published by Michael Berman at August 10, 2021
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Josh Gilliland’s Bow Tie Law Blog has an excellent discussion of several recent decisions governing document unitization. “Identifying Logical Document Breaks in Discovery Order” (Bowtielaw.com Aug. 8, 2021). Proper document unitization maintains the organizational structure of the original documents. It is logical and facilitates use in litigation support platforms. Improper unitization – […]
August 10, 2021
Published by Michael Berman at August 10, 2021
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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
Published by Michael Berman at August 9, 2021
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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
Published by Michael Berman at August 9, 2021
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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
Published by Michael Berman at August 8, 2021
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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
Published by Michael Berman at August 3, 2021
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In Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), the court addressed self-collection. I have previously written on self-collection in “Unsupervised Self-Collection Predictably Led to Problems,” and in “Self-Identification and Self-Preservation: A Fool for a Client?,” I cited to R. Losey, “Another “Fox Guarding […]
July 28, 2021
Published by Michael Berman at July 28, 2021
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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
Published by Michael Berman at July 27, 2021
Categories
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
Published by Michael Berman at July 23, 2021
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In Hyundai Motor Amer. Corp. v. N. American Automotive Svcs., Inc., et al., 2021 WL 3111191 (S.D. Fl. Jul. 22, 2021), sanctions were imposed against the plaintiff, Hyundai Motor America Corp. (“HMA”). At bottom, HMA failed to follow basic, well-established procedures to implement a litigation hold, and crucial evidence then went missing. […]
July 22, 2021
Published by Michael Berman at July 22, 2021
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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
Published by Michael Berman at July 21, 2021
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In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference […]
July 20, 2021
Published by Michael Berman at July 20, 2021
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There has long been a split of opinion as to the applicability of the “document correlation” provision of Rule 34(E)(i) to the production of ESI.* In April of this year, the Eastern District of Pennsylvania weighed in.** There is, however, a straightforward way to avoid the problem. It involves negotiation, cooperation, and […]
July 19, 2021
Published by Michael Berman at July 19, 2021
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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
Published by Michael Berman at July 18, 2021
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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
Published by Michael Berman at May 14, 2021
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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
Published by Michael Berman at May 13, 2021
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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
Published by Michael Berman at March 26, 2021
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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
Published by Michael Berman at March 25, 2021
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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
Published by Michael Berman at March 24, 2021
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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
Published by Michael Berman at March 16, 2021
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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
Published by Michael Berman at March 16, 2021
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Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.” The site contained attorney advertising and articles concerning class actions and mass torts. Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 14, 2021
Published by Michael Berman at March 14, 2021
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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
Published by Michael Berman at March 12, 2021
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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
Published by Michael Berman at March 7, 2021
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Trade secret litigation invariably involves ESI. Craig Ball has written “What’s in a Name (or Hash Value)?,” discussing the use of hash values and file names in tracking down stolen data. In “The Gang That Couldn’t Spoliate Straight,” I discussed an order that the alleged wrongdoer preserve ESI and the potential issues […]
March 6, 2021
Published by Michael Berman at March 6, 2021
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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
Published by Michael Berman at February 18, 2021
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“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
Published by Michael Berman at February 17, 2021
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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
Published by Michael Berman at February 16, 2021
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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
Published by Michael Berman at February 14, 2021
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Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services. Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video. Among […]
February 14, 2021
Published by Michael Berman at February 14, 2021
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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
Published by Michael Berman at February 13, 2021
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In 2012, the Supreme Court’s Kan Pacific decision narrowed the scope of costs that may be awarded in federal cases. “Taxation of E-Discovery Costs Under 28 U.S.C. §1920(4) after Taniguchi v. Kan Pacific Saipan” (Aug. 14, 2012). In that blog, I suggested: When it comes to electronically stored information (“ESI”), “[t]he fuss […]
February 13, 2021
Published by Michael Berman at February 13, 2021
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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
Published by Michael Berman at February 12, 2021
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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
Published by Michael Berman at February 11, 2021
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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
Published by Michael Berman at February 7, 2021
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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
Published by Michael Berman at February 7, 2021
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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
Published by Michael Berman at February 4, 2021
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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
Published by Michael Berman at January 29, 2021
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After litigation starts, a business faced with unreasonable preservation or discovery demands can resort to the court’s procedural rules to request relief from a judge. However, the duty to preserve potentially responsive information often arises in a “free for all” zone before litigation is commenced. In that situation, there is no umpire […]
January 24, 2021
Published by Michael Berman at January 24, 2021
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A few years ago, the Hon. Paul W. Grimm wrote: “At the end of the day, this is the case of the ‘gang that couldn’t spoliate straight.’” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501 (D. Md. 2010). That description is equally applicable to the conduct that led to a […]
January 17, 2021
Published by Michael Berman at January 17, 2021
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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
Published by Michael Berman at January 16, 2021
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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
Published by Michael Berman at January 13, 2021
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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
Published by Michael Berman at January 11, 2021
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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
Published by Michael Berman at January 9, 2021
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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
Published by Michael Berman at January 8, 2021
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“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
Published by Michael Berman at January 4, 2021
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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
Published by Michael Berman at January 3, 2021
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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
Published by Michael Berman at January 2, 2021
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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
Published by Michael Berman at December 28, 2020
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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
Published by Michael Berman at December 27, 2020
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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
Published by Michael Berman at December 27, 2020
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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
Published by Michael Berman at December 26, 2020
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UPDATE: on August 10, 2021, the Court issued an opinion in Strike3 Holdings, LLC v. John Doe, 2021 WL 3511124 (D. Md. Aug. 10, 2021). ***** In Strike 3 Holdings, LLC v. John Doe, 2020 WL 7640943 (D. Md. Dec. 23, 2020), the Court authorized, but only in a strictly limited way, […]
December 26, 2020
Published by Michael Berman at December 26, 2020
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Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided. Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); […]
December 25, 2020
Published by Michael Berman at December 25, 2020
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In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce an inconsistent email to search parameters that were too narrow. The Court held that […]
December 20, 2020
Published by Michael Berman at December 20, 2020
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“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
Published by Michael Berman at December 11, 2020
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In Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020), the Court again followed a “practical ability” plus notification standard for determining when ESI is within a party’s possession, custody, or control, and what should be done if it is not. Maryland State courts appear to […]
December 1, 2020
Published by Michael Berman at December 1, 2020
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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
Published by Michael Berman at November 28, 2020
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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
Published by Michael Berman at November 27, 2020
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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
Published by Michael Berman at June 8, 2020
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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
Published by Michael Berman at May 12, 2020
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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
Published by Michael Berman at May 12, 2020
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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
Published by Michael Berman at September 17, 2017
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It was very nice to be mentioned by Michael I. Quartararo, Esq., author of “Project Management in Electronic Discovery” (2016) in the eDiscoveryPM blog. See “Correcting the Record: Searching Attachments in Outlook.” Mr. Quartararo’s book explains the application of legal project management principles (“LPM”) to e-discovery projects. He defines “project management” as “the structured application […]
July 25, 2015
Published by Michael Berman at July 25, 2015
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My article, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts” was recently published in the University of Baltimore Law Forum, Vol. 45 (2015). The article discusses Maryland case law addressing the issue, suggests a modern analytical framework, and concludes with a cautionary […]
August 19, 2012
Published by Michael Berman at August 19, 2012
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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
Published by Michael Berman at August 18, 2012
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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
Published by Michael Berman at August 18, 2012
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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
Published by Michael Berman at August 14, 2012
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UPDATED February 13, 2021: “Recovery of ESI Costs: ‘The fuss is about money…. [E]lectronic discovery is really expensive.’” Note: This post was first published in “The Daily Record” on Aug. 12, 2012. The original may be viewed by clicking here. * * * * When it comes to electronically stored information (“ESI”), […]
July 14, 2012
Published by Michael Berman at July 14, 2012
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Bruce Olson and Tom O’Connor, “Electronic Discovery for Small Cases” (ABA 2012), addresses one of the most important topics in the ESI field, proportionality, in an elegant, clear, and concise manner. Its chief virtue is that, instead of listing a parade of horribles and describing multi-million dollar sanctions awards, it provides low-cost […]
August 7, 2011
Published by Michael Berman at August 7, 2011
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A mock Rule 26(f) conference of parties has been posted online through the Technology Committee of the Litigation Section of the Maryland State Bar Association. Although much has been written about Rule 26(f) conferences, see, e.g., Chapter 19 in M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and […]
July 30, 2011
Published by Michael Berman at July 30, 2011
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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
Published by Michael Berman at July 15, 2011
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“The Making of a Surgeon” In 1968, Dr. William A. Nolen wrote “The Making of a Surgeon” (Mid-List Press 1968, 1990): How do you make a surgeon? Not by the preliminaries, the four years of college and four years of medical school that have to be gone through to earn an M.D. […]
June 30, 2011
Published by Michael Berman at June 30, 2011
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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
Published by Michael Berman at May 26, 2011
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“Self-preservation” is the ESI equivalent of “do-it-yourself” home repair. If successful, it can save money. If not, it can lead to bigger problems. Recent decisions arising out of self-preservation disasters have posed the question of whether it is ever a viable technique to preserve and review ESI. A well-known commentator and The […]
May 24, 2011
Published by Michael Berman at May 24, 2011
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As of October 1, 2011, Maryland will permit custodians of public records to scrub unprivileged metadata from those records, apparently at the requestor’s cost, before producing those records under the State analog to the Freedom of Information Act. The statute, SB 74, Chapter 536 of the 2011 Laws of Maryland, amends the […]
May 2, 2011
Published by Michael Berman at May 2, 2011
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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
Published by Michael Berman at May 2, 2011
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
Published by Michael Berman at April 25, 2011
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
Published by Michael Berman at April 10, 2011
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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
Published by Michael Berman at September 11, 2010
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In a law review article, co-authored by Michael Berman, entitled “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U.Balt.L.Rev. 381, 384 (2008), the writers argued that application of the cost-benefit provisions of the Federal Rules of Civil Procedure to pre-litigation preservation decisions would help reduce the current uncertainty regarding the […]