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September 16, 2026
Published by Michael Berman at September 16, 2026
Categories
The following Stipulated Protective Order was entered in Rapacon v. Abbott Laboratories, 2026 WL 2722543 (N.D. Cal. Sep. 15, 2026): USE OF GENERATIVE AI TOOLS “CONFIDENTIAL” Information or Items shall not be submitted to any Open Generative AI tool (e.g., Chat GPT) or any substantially similar tool that is available to the […]
September 15, 2026
Published by Michael Berman at September 15, 2026
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The court in Goldstein v. RTX Corp., 2026 WL 2690139 (D. Del. Sep. 14, 2026), rejected a proposal to use a unilaterally-designed AI tool for a search. The case is a putative collective and class action alleging a “nationwide pattern, practice, and/or policy of discriminating against older workers … in their hiring […]
September 3, 2026
Published by Michael Berman at September 3, 2026
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Phil Favro has posted New Court Case Exemplifies Evidentiary Challenges with Deepfakes (Aug. 13, 2026), discussing both sides of authentication of evidence challenged as a deepfake. Phil uses the majority and dissenting opinions in U.S. v. Belt, 181 F.4th 931 (8th Cir. 2026), as an example. In Belt, in brief summary, a […]
August 28, 2026
Published by Michael Berman at August 28, 2026
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Much has been written about whether use of A.I. waives the attorney-client privilege or work product protection. Tara Emory and Maura Grossman Address Protection of Attorney Prompts in “GenAI TAR” (Jul. 5, 2026); Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney (May 2, 2026); Important A.I. […]
August 27, 2026
Published by Michael Berman at August 27, 2026
Every search must be validated. It is “entirely self-evident” that “ipse dixit pronouncements from lawyers unsupported by an affidavit or other showing that the search methodology was effective for its intended purpose are of little value to a trial judge.” Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 261 (D. […]
August 22, 2026
Published by Michael Berman at August 22, 2026
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Generally, I post blogs about e-discovery. However, together with Alan Rifkin, Stuart Cherry, and Rifkin Weiner Livingston LLC, I have had the honor of representing the President of the County Council of Harford County, Maryland: in the Circuit Court; as appellee in the Appellate Court; and now in successfully opposing a request […]
August 21, 2026
Published by Michael Berman at August 21, 2026
I have been posting about A.I. protective orders since last year. This is the 10th post. A.I. protective orders, in one form or another, are becoming the standard of care. Basically, these orders limit use of artificial intelligence by the recipient of discovery materials. But, they are not always fair. Craig Ball […]
August 20, 2026
Published by Michael Berman at August 20, 2026
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Maryland has promulgated rules expressly governing how “digital media” is entered into the court record when presented in either motions or open court. The rules also govern the record on appeal. DIGITAL MEDIA OFFERED IN OPEN COURT Paper exhibits are the default choice. Maryland Rule 20-106(e)(1) states: “Unless otherwise approved by the […]
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 20, 2026
Published by Michael Berman at July 20, 2026
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A decision involving a so-called “dual-hat expert” arose out of tragedy. “This case arises from a flood that swept through Waverly, Tennessee on August 21, 2021 ’killing at least 20 people, including children.’ … Plaintiffs claim that the flood resulted because Defendant allowed debris to clog one of its culverts, which caused […]
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 […]
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:… […]
May 24, 2026
Published by Michael Berman at May 24, 2026
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Like most, if not all, federal courts, the District of Nevada has a local rule that permits it to consider motions with or without a hearing. However, there is a novel twist in one Judge’s Standing Order: Judge Baldwin encourages litigants to permit more junior members of the litigation team to present […]
May 14, 2026
Published by Michael Berman at May 14, 2026
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In an article by Mr. Ian Round, the Daily Record reported Harford County councilman’s removal upheld by MD Appellate Court (Daily Record, May 11, 2026). I described the decision in Appellate Court of Maryland Decision in Guthrie v. Vincenti (May 6, 2026)(Generally, this blog is about e-discovery. However, I also do “other […]
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 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 […]
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 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 […]
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 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’ […]
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 […]
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 […]
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 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 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 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 […]
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 […]
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 30, 2025
Published by Michael Berman at April 30, 2025
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E-discovery blazed across the litigation sky more than two decades ago. There were several reasons: As a starting point, what is ESI? Forensic expert Craig Ball, Esq., notes that the Federal Rules of Civil Procedure use the term “electronically stored information,” but do not define it. C. Ball, “Electronic Discovery Workbook” (2019), […]
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 […]
March 18, 2025
Published by Michael Berman at March 18, 2025
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CNN reports that Chief Justice Roberts rebukes Trump and GOP rhetoric about impeaching judges | CNN Politics (Mar. 18, 2025). John Fritze wrotethat: Chief Justice John Roberts pushed back on President Donald Trump’s escalating rhetoric against the federal judiciary on Tuesday in a highly unusual statement that appeared to be aimed at […]
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 […]
February 28, 2025
Published by Michael Berman at February 28, 2025
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Rep. Andy Ogles has filed a resolution seeking to impeach Judge Amir Ali “a day after U.S. Supreme Court Chief Justice John Roberts paused the judge’s order requiring the Republican president’s administration to pay foreign aid funds to contractors and grant recipients.” N. Raymond, Republican lawmaker seeks US judge’s impeachment over foreign […]
February 27, 2025
Published by Michael Berman at February 27, 2025
Courtney Buble reports that three members of Congress hosted an “impeachathon.” GOP Reps. Criticize Judges At ‘Impeachathon’ – Law360 (Feb. 26, 2025). The Law360 article states that: Judges for whom they’ve either drafted or are working on drafting articles of impeachment for are: U.S. District Judges John Bates of the District of […]
February 25, 2025
Published by Michael Berman at February 25, 2025
Rep. Andy Ogles announced that he has introduced an article of impeachment against Senior Judge John D. Bates of the United States District Court for the District of Columbia. See Suzanne Monyak, “Republican Moves to Impeach Judge Who Ruled Against Trump Order” (Bloomberg Law Feb. 24, 2025). SUMMARY In my opinion, the […]
February 22, 2025
Published by Michael Berman at February 22, 2025
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Courtney Buble reports that GOP Reps Move To Impeach SDNY Judge, Threaten More – Law360 (Feb. 19, 2025). The article states: “The lawmakers contend that the judges who’ve ruled against Trump have unlawfully stripped him of his right to direct the executive branch.” Maybe the Judges’ rulings are right. Maybe not. But, […]
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 17, 2025
Published by Michael Berman at February 17, 2025
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On February 11, 2025, Duke’s Bolch Judicial Institute published a Letter from Paul W. Grimm Regarding Threats and Attacks on Judges. Judge Grimm reported that a federal judge who issued a TRO to stop external access to Treasury Department databases “has quickly become a target of unfair, unwarranted threats and attacks lobbed […]
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. […]
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 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 10, 2024
Published by Michael Berman at August 10, 2024
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It was great to read MSBA Leads the Way in Advocating for Judicial and Attorney Security | Maryland State Bar Association (July 30, 2024), written by the MSBA President, Raphael J. Santini. He wrote: “In the wake of Judge Andrew F. Wilkinson’s tragic murder in October 2023, the Maryland State Bar Association […]
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. […]
February 16, 2024
Published by Michael Berman at February 16, 2024
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Long ago, when my wife, Patricia, and I were looking for a house, we abandoned the term “master bedroom” in favor of “main bedroom.” Bloomberg Law reports that: The American Bar Association is asking the federal judiciary to follow states’ lead and stop using the term “court-appointed master,” citing accuracy and negative […]
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 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 […]
September 28, 2023
Published by Michael Berman at September 28, 2023
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In In re Expungement Petition of Franics A., 2023 WL 5948060 (Appellate Ct. of MD Sept. 13, 2023)(unreported), the intermediate appellate court resolved a novel discovery issue. The Appellate Court affirmed a decision that good cause had been shown to open, review, and disclose information contained in Francis A’s expunged criminal records. […]
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 […]
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 […]
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 […]
February 4, 2023
Published by Michael Berman at February 4, 2023
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The January 30, 2023, 214th Report of the Standing Committee on Rules and Practice proposes an important update of Rule 1-104 regarding unreported opinions. It deletes the provision that, with very limited exceptions, prohibits their citation as precedential or persuasive in any court. If the proposal is approved by the Supreme Court […]
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 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 […]
February 6, 2022
Published by Michael Berman at February 6, 2022
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The Maryland Court of Appeals recently considered a proposed amendment of the voluntary dismissal rule. In rejecting the proposal, the State’s highest Court quoted my opposition to it and also quoted my suggested language for any needed clarification. The Court’s discussion begins at 1:55:29 of the video recording. Rule 2-506(a) currently permits […]
February 4, 2022
Published by Michael Berman at February 4, 2022
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With the excellent attorneys and staff of Rifkin Weiner Livingston LLC, I was lead counsel in the defense of a redistricting lawsuit in Harford County, MD. The firm press release states: “RWL was pleased to represent the Harford County Council and its members in the above matter. The statement below was just […]
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 […]
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); […]
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 […]