Important Posts

February 16, 2024

No More “Masters”?

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

Maryland Rules Order Amends Sanctions Rule

On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b).  The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 3, 2023

Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e)

The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts.  Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
September 28, 2023

Discovery of Expunged Criminal Records in Overlapping Civil Lawsuit

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

Don’t Be Too Nice When You Send a Preservation Notice

I always advocate for civility and cooperation in e-discovery.[1]  But, it may be prudent to expressly threaten a lawsuit in a preservation notice.  It may also be cautious to avoid offering to settle a claim in that notice.  If you want to make an offer to settle, a separate demand or settlement […]
June 8, 2023

“Modern Attachments,” ESI Protocols, & Second Chances

UPDATE (Aug. 3, 2023):  See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship […]
May 24, 2023

The Maryland Rules Committee Has Recommended Several Discovery Amendments

The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules.  This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
February 4, 2023

Proposal to Eliminate Judicial Disappearing Ink

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

Selection for Maryland Super Lawyers 2023

I am pleased to report my selection by Thomsen Reuters for the fifth consecutive year as a Maryland Super Lawyer.
November 9, 2022

New ABA “Reply All” Ethics Opinion

A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email.  That is a communication by receiving counsel to sending counsel’s represented client. ABA Formal Opinion 503 states that, when sending counsel […]
November 8, 2022

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

UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
February 6, 2022

Court of Appeals Follows My Proposal on Voluntary Dismissal Rule

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

Harford County Redistricting Challenge Dismissed

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

What is a “Document?”

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1]  Usually, it was clear where a letter, memo, or contract began and ended.  But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
December 26, 2020

When Should a Spoliation Motion Be Filed and Decided?

Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided.  Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); […]
May 12, 2020

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

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

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

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