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July 17, 2026
Published by Michael Berman at July 17, 2026
Categories
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 7, 2026
Published by Michael Berman at July 7, 2026
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Mayah Nachman and Maryland Matters report that MD school districts face fall deadline to set AI policies – Maryland Daily Record (Jul. 6, 2026). The article states: The school districts’ assignment comes from the Artificial Intelligence Ready Schools Act, a bill that Gov. Wes Moore signed in May. It required the Maryland State Department of […]
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 […]
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 6, 2026
Published by Michael Berman at May 6, 2026
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Generally, this blog is about e-discovery. However, I also do “other things.” In a reported decision, Maryland’s second highest Court, the Appellate Court of Maryland, affirmed a final judgment in favor the Hon. Patrick Vincenti, President of the County Council of Harford County. Guthrie v. Vincenti, No. 2203, __ Md. App __ […]
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 1, 2026
Published by Michael Berman at April 1, 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 that OpenAI […]
March 27, 2026
Published by Michael Berman at March 27, 2026
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On March 25, 2026, the Wayfarer Parties filed a letter motion, seeking a one week extension and a court conference. Docket No. 1264, Lively v. Wayfarer Studios LLC, et al, No. 1:24-cv-10049 (S.D.N.Y). Defendants allege a discovery violation, among other things. The core allegation in the letter is: Defense counsel should not […]
March 17, 2026
Published by Michael Berman at March 17, 2026
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The most recent decision in Ms. Blake Lively’s lawsuit against Wayfarer Studios, Mr. Justin Baldoni and others, is Lively v. Wayfarer Studios LLC, 2026 WL 709988 (S.D.N.Y. Mar. 13, 2026). The court wrote: Plaintiff Blake Lively moves, pursuant to New York Professional Conduct Rule 3.6 and Federal Rule of Civil Procedure 16(f), […]
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 […]
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” […]
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 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 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, […]
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 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 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 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 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 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 17, 2025
Published by Michael Berman at September 17, 2025
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Today is Constitution Day – September 17, 2025 | U.S. Constitution. Constitution Day commemorates the formation and signing of the U.S. Constitution by thirty-nine brave people on September 17, 1787. Id. By federal statute, 36 U.S.C. §106, “September 17 is designated Constitution Day and Citizenship Day.” “We the People of the United States, […]
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 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 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 20, 2025
Published by Michael Berman at August 20, 2025
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Kaylee was wonderful. A friend. A connector and builder. A supporter. A beautiful person. A shining light. I cannot say it better than: Craig Ball, Ball in your Court | Musings on e-discovery & forensics. (Aug. 19, 2025). “Writing through tears, I am heartbroken to share that Kaylee Walstad has died suddenly […]
August 18, 2025
Published by Michael Berman at August 18, 2025
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I appreciate the Maryland State Bar Association’s publication of my blog post – Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence | Maryland State Bar Association (Aug. 13, 2025). Please see my second blog on Facial Recognition Technology – Maryland’s Facial Recognition Technology Statute […]
August 17, 2025
Published by Michael Berman at August 17, 2025
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The Baltimore Sun reports that the USX-1 Defiant, is a fully autonomous vessel, “which can sail without a crew….” Baltimore Sun (Aug. 17, 2025). The ship is the product of five years of work and: “The premise of the project was to make a naval ship that operates like a Roomba.” Id. […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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“The Court agrees that inclusion of the entire deposition transcript served no proper purpose and accordingly grants the motion to strike.” Lively v. Wayfarer Studios LLC, 2025 WL 2298247, at *1 (S.D.N.Y. Aug. 8, 2025). Defendants, the “Wayfarer Parties,” filed a letter asserting that there is no evidence that they participated in […]
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 2, 2025
Published by Michael Berman at August 2, 2025
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Baltimore City Sheriff Sam Cogan wrote a commentary in the Baltimore Sun, Baltimore sheriff raises alarm on court security underfunding (Aug. 1, 2025). In Baltimore, courthouse security is provided by the sheriff’s office. It is worth listening to the voice of the person charged with protecting the courthouse. The commentary begins: Last […]
July 27, 2025
Published by Michael Berman at July 27, 2025
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Generally – not always – this blog focuses on e-discovery. Today, however, this is a shout out to two programs run by the District Court of Maryland, a State trial court. One common denominator is the Hon. Halee F. Weinstein. THE COURT ART PROGRAM Wesley Case, wrote Arts competition more than scholarships for […]
July 22, 2025
Published by Michael Berman at July 22, 2025
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The Judges and Clerk of the United States District Court for the District of Maryland filed a “Motion to Dismiss & Opposing Plaintiffs’ Motion for Preliminary Injunction” in USA v. Russell, et al., No. 1:25-cv-2029 (D. Md. Jul. 21, 2025). This is a lawsuit against all of the Judges of the District […]
July 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 14, 2025
Published by Michael Berman at July 14, 2025
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Bloomberg Law reports that Meta Files for Appellate Relief to Bar Zuckerberg Deposition (Jul. 11, 2025). Mr. Ufonobong Umanah wrote that “Meta claims Ninth Circuit courts have split over apex doctrine.” He added: The presumption that CEOs get to avoid depositions—formalized under the apex doctrine—may be weakening. But some experts have defended […]
July 9, 2025
Published by Michael Berman at July 9, 2025
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Rep. Randy Fine has filed an article of impeachment against the Hon. Charles Breyer for His Honor’s ruling in Newsom v. Trump, __ F. Supp. 3d __, 2025 WL 1663345 (N.D. Cal. June 12, 2025), stay granted, __ F. 4th __, 2025 WL 1712930 (9th Cir. June 19, 2025). The lawsuit is […]
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 8, 2025
Published by Michael Berman at June 8, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1591282 (S.D.N.Y. June 5, 2025), is another in a series of discovery decisions in the dispute involving Ms. Blake Lively and Mr. Justin Baldoni, among many others. See, e.g., “It Ends With Us” (Apr. 8, 2025); Lively v. Wayfarer Studios LLC, 2025 WL 1397047 (S.D.N.Y. […]
May 6, 2025
Published by Michael Berman at May 6, 2025
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In a Reuters Special Report, five journalists wrote These judges ruled against Trump. Then their families came under attack. | Reuters (May 2, 2025). Former Judges are speaking out. Jacquelin Thomsen, published Ex-Judges See Intimidation in Trump DOJ Arrest of Judge (Bloomberg Law May 5, 2025). She reports that a group of […]
May 5, 2025
Published by Michael Berman at May 5, 2025
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In MyPillow Attys Blame Filing Error After Judge Suspects AI Use – Law360 (Apr. 28, 2025), Andrea Keckley reported that: “Attorneys representing MyPillow CEO Mike Lindell in a defamation lawsuit from a former Dominion Voting Systems Corp. executive have told a Colorado federal judge that a February brief the court suspected of […]
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 […]
April 17, 2025
Published by Michael Berman at April 17, 2025
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“Have you no sense of decency?” This question was posed by Joseph N. Welch, special counsel for the U.S. Army, to “Senator” Joe McCarthy of the House Unamerican Activities Committee (“HUAC”) during a Senate hearing in 1954. For those too young to know, HUAC operated during the “Red Scare.” McCarthy “bullied, lied, […]
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 […]
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 23, 2025
Published by Michael Berman at February 23, 2025
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An article was published yesterday by Wesley Case, titled Elon Musk calls for impeachment of Baltimore judge in DEI case – The Baltimore Banner (Feb. 22, 2025).[1] Mr. Case wrote: After a Baltimore judge blocked President Donald Trump’s executive order to end federal support for diversity, equity and inclusion programs, Elon Musk […]
February 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 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 […]
January 30, 2025
Published by Michael Berman at January 30, 2025
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Kudos to the Maryland State Bar Association for publishing Articles Launching Unfair Personal Attacks Against Maryland Judiciary Must Stop | Maryland State Bar Association. The article supports a Maryland Judge who was criticized in the media in what the MSBA called an “unjustified personal attack against a sitting judge, who, by law, […]
January 24, 2025
Published by Michael Berman at January 24, 2025
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In MD high court honors Alan Wilner for decades of service to Rules Committee (Jan. 23, 2025), Rachel Konieczny wrote that: “The Maryland Supreme Court convened a special session to recognize Judge Alan M. Wilner Thursday, with judges, lawmakers and colleagues of Wilner honoring him for his nearly three decades of service with the […]
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 […]
December 20, 2024
Published by Michael Berman at December 20, 2024
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It is an honor to again be named as a Maryland Super Lawyer.
October 21, 2024
Published by Michael Berman at October 21, 2024
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The Baltimore Daily Record has published an article by Rachel Konieczny, 1 year after the murder of a judge in western MD, what’s changed? (Oct. 18, 2024). The Daily Record article (which is behind a paywall), states that Maryland is working to minimize security threats against Judges. “[T]he Maryland Judiciary is looking […]
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 […]
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 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 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 […]
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 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 […]
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 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 1, 2024
Published by Michael Berman at June 1, 2024
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When the Appellate Court of Maryland issued its unreported opinion in St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Apl. Ct. Md., Mar. 21, 2022), it addressed a novel issue and I wrote that: “In my view, the only error was that the appellate court did not publish its […]
May 24, 2024
Published by Michael Berman at May 24, 2024
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Kudos to Kilpatrick for its post The Legal Competency Missing from Legal Education: Law School Curricula and E-Discovery | Kilpatrick – JDSupra (May 22, 2024). The article states that only a “handful” of law schools offer ESI classes and that is “[b]ased on a review of law school course catalogs for the […]
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 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 […]
April 10, 2024
Published by Michael Berman at April 10, 2024
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I have followed the suggestion of The Hon. Paul W. Grimm (ret.) to speak out about threats against the Judiciary. American Bar Association Statement on Threats Against the Judiciary (Apr. 8, 2024). In doing so, I reported on then-pending legislative proposals in Maryland. Maryland Bills to Protect Judges and Their Children (Feb. […]
April 8, 2024
Published by Michael Berman at April 8, 2024
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Following the lead of the Hon. Paul W. Grimm (ret.), OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023), I wrote that The Judiciary is Under Attack. Lawyers Need to Defend It (Oct. 24, 2023), and Threats Against the Colorado Supreme Court Must Be Called Out (Dec. 23, 2023). […]
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 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 15, 2024
Published by Michael Berman at March 15, 2024
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In Baltimore County improperly withheld some documents sought by former official, judge says – Baltimore Sun (Mar. 13, 2024), Jeff Barker reported on a decision by The Hon. Michael J. Finifter under Maryland’s sunshine law, known as the “Maryland Public Information Act.” The MPIA is Maryland’s analog to the federal Freedom of […]
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 23, 2024
Published by Michael Berman at February 23, 2024
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The Hon. Paul W. Grimm (ret.) has written about the organized Bar’s duty to support the judiciary from unwarranted attacks. OpEd: Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023). I have echoed Judge Grimm’s message. I Hear Crickets From the American Bar Association About Threats Against Colorado Justices – […]
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 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 […]
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 […]
February 1, 2024
Published by Michael Berman at February 1, 2024
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In Client escapes sanction for lawyer’s refusal to appear on camera in Zoom deposition (abajournal.com)(Jan. 25, 2024,), Debra C. Weiss reported on Agnone v. Agnone, 2024 WL 242488 (Cal. App., 2d Dist., Jan. 23, 2024)(unreported). She wrote: The opinion described what happened at the deposition. [Attorney] Katofsky was in the same room […]
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 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 7, 2024
Published by Michael Berman at January 7, 2024
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“To hear crickets” means “silence.”[1] That is what I hear from the American Bar Association regarding the threats to the Justices on the Colorado Supreme Court. The Colorado Supreme Court issued a controversial decision. Anderson v. Griswold, 2023 Co. 63, __ P.3d __, 2023 WL 8770111 (Dec. 19, 2023), cert. granted sub […]
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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The Hon. Paul W. Grimm (ret.) recently wrote an OpEd stating that the Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023). Judge Grimm called for members of the legal profession to defend judges “now, and with a renewed sense of urgency.” NBC reported that Colorado justices face flood of […]
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 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 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 7, 2023
Published by Michael Berman at December 7, 2023
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I have used trial notebooks since my first trial. I use a similar process for depositions and for a Fed.R.Civ.P. 26(f) “meet and confer.” See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference. A recent ABA article provides an excellent guide to preparation of these organizational tools. James W. McElhaney, The Trial […]
December 6, 2023
Published by Michael Berman at December 6, 2023
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As we approach the end of the year, it is an appropriate time to review Philip J. Favro, ed., Selected eDiscovery and ESI Case Law from 2023 (The Sedona Conf. 2023). Phil’s publication is an annual event. Book Review: Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″; Sedona Conference “Selected […]
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 4, 2023
Published by Michael Berman at December 4, 2023
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A federal court had to define double-spacing. It apparently wasn’t happy about it. See Debra C. Weiss, Ruling in double-spacing kerfuffle, federal judge observes lawyers don’t need ‘more words on a page’ (abajournal.com) (Nov. 29, 2023). The dispute reminds me of the very funny You Tube video of a deposition called “What […]
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. […]
November 16, 2023
Published by Michael Berman at November 16, 2023
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My legal ethics professor said that the best thing is to do the right thing for the right reason. The next best thing is to do the right thing for the wrong reason. Surreptitiously feeding your client answers to deposition question in a remote deposition should be avoided because it is wrong. […]
November 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 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 […]
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 24, 2023
Published by Michael Berman at October 24, 2023
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The Hon. Paul W. Grimm, a retired U.S. District Judge, wrote an article, The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (bloomberglaw.com)(Oct. 24, 2023). As Judge Grimm points out, here in Maryland a Circuit Court Judge was murdered in his driveway last week. While no one has been […]
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 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 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 […]
August 4, 2023
Published by Michael Berman at August 4, 2023
Thomas Spahn of McGuireWoods LLP has written an interesting post on the interplay between the attorney-client privilege and a Fed.R.Civ.P. 30(b)(6) deposition of a corporate designee. The Strange Fiction of Rule 30(b)(6) | McGuireWoods LLP – JDSupra (Aug, 3, 2023). The blog highlights Damarr-Faruq v. City of Pleasantville P.D., 2023 U.S. Dist. LEXIS […]
July 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 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 […]
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 […]
April 19, 2023
Published by Michael Berman at April 19, 2023
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NBC’s Today show ran an interesting piece on The risks behind sharing your email address with stores (today.com)(Apr. 19, 2023).
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 5, 2023
Published by Michael Berman at April 5, 2023
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The Maryland State Bar Journal published my article on the Supreme Court’s recent dismissal of an attorney-client privilege case. The first page is reprinted below.
April 4, 2023
Published by Michael Berman at April 4, 2023
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Debra C. Weiss, reported that Reed Smith lawyers must hold ‘Please See Me’ signs at courthouse after failing to provide hearing notice (abajournal.com)(Apr. 4, 2023.) The article states that: A Delaware judge has ordered Reed Smith to station two lawyers at the courthouse Tuesday with “Please See Me” signs, after the law firm […]
March 23, 2023
Published by Michael Berman at March 23, 2023
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A order granting summary judgment was reversed because the plaintiff was unable to take depositions of relevant witnesses: Several claims by a former Newark, N.J., municipal court judge’s alleging disability bias and other abuses fueled her discharge were wrongly dismissed because she didn’t get a chance to collect potentially helpful evidence, a […]
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 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 16, 2023
Published by Michael Berman at March 16, 2023
It is well worth downloading eDiscovery Assistant’s excellent 2022 eDiscovery Case Law Year in Review | eDiscovery Assistant. The Report provides interesting metrics about eDiscovery, such as the following chart: Id. The Report states that “failure to produce” was the most litigated issue, followed by proportionality and sanctions. Interestingly, “failure to preserve” […]
March 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 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 […]
January 13, 2023
Published by Michael Berman at January 13, 2023
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It is an honor to again receive an AV Preeminent rating from Martindale-Hubbell.
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 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 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 21, 2022
Published by Michael Berman at November 21, 2022
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A juror in an insurance coverage case described the impact of impeachment of the plaintiff using inconsistent deposition testimony. Dan Rodricks: Was it a hack or just a ride between friends? A Baltimore jury — with me on it — decides. | COMMENTARY – Baltimore Sun (Nov. 19, 2022). Plaintiffs, a mother […]
October 17, 2022
Published by Michael Berman at October 17, 2022
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The original spoliation case was Armory v. Delamirie, 93 Eng. Rep. 664 (K.B.1722). American courts began addressing spoliation in 1794. M. Berman, et al., Managing Electronically Stored Information and ESI (ABA 2011), at 751 n. 12 (citing Bd. of Justices v. Fennimore, 1 N.J.L., 1794 WL 507 (N.J. 1794). Maryland applied the doctrine in […]
October 16, 2022
Published by Michael Berman at October 16, 2022
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The first fax machine was patented in 1843, several years after the telegraph. Mary Bellis, Alexander Bain and the First Fax (thoughtco.com). Ms. Bellis wrote: Faxing is by definition a method of encoding data, transmitting it over a telephone line or radio broadcast, and receiving a hard copy of the text, line drawings, […]
October 15, 2022
Published by Michael Berman at October 15, 2022
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The mimeograph was replaced by the photocopier: [I]n 1959, Xerox released the “914”—the first easy-to-use photocopier. The culmination of more than 20 years of experimentation, it was a much cleaner, “dry” process. The copier created an electrostatic image of a document on a rotating metal drum, and used it to transfer toner—ink […]
October 14, 2022
Published by Michael Berman at October 14, 2022
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“Thomas Jefferson used a pantograph: As he wrote, a wooden device connected to his pen manipulated another pen in precisely the same movements, creating a mechanical copy.” Clive Thompson, How the Photocopier Changed the Way We Worked—and Played | History| Smithsonian Magazine. The early 20th century saw the a new device[1] and, “[i]n the […]
October 13, 2022
Published by Michael Berman at October 13, 2022
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“In 1946, when the ENIAC computer was dedicated, it weighed over thirty tons.[1] “ENIAC” is the acronym for the Electronic Numeral Integrator and Computer.[2] In the early 1950s, the RAND Corporation built JOHNNIAC, a 2.5- ton computer.[3] In 1966, a team of engineering students re created ENIAC on a single chip.[4] Today, […]
October 12, 2022
Published by Michael Berman at October 12, 2022
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1952 saw the introduction of the “Magic Marker.” The History of Pencils, Markers, Pens, and Erasers (thoughtco.com) Highlighters were introduced in the 1970’s. Id. The fiber tip pen was invented in 1962. And, the “Hi-Liter®” was trademarked in the 1990’s. Id. Gel pens were introduced in 1984. “The gel ink uses pigments […]
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 […]
October 11, 2022
Published by Michael Berman at October 11, 2022
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The typewriter was invented after the Civil War. George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?, 13 Rich. J. L. & Tech. 10 n. 12. “[T]he typewriter is responsible for much of the remarkable progress of the world during the last four decades. . . . […]
October 10, 2022
Published by Michael Berman at October 10, 2022
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Lewis Waterman’s fountain pen, The Fountain Pen, Part II, was not without its shortcomings. Ink smudged. Innovation followed. Laszlo Biro noticed that newspaper ink dried quickly and did not smudge. However, it was too thick for a fountain pen. He patented the ballpoint pen in 1938. “The British government bought the licensing rights to […]
October 9, 2022
Published by Michael Berman at October 9, 2022
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The oldest known fountain pen was designed in 1702. Mary Bellis, Who Invented the Fountain Pen? (thoughtco.com). The fountain pen was patented by a Baltimore shoemaker in the early 1800’s. Id. In 1883, Lewis Waterman went to sign a contract; however, his fountain pen did not work and leaked all over the […]
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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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 16, 2022
Published by Michael Berman at July 16, 2022
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A $971,715.09 sanction was imposed by The Hon. Susan Van Keulen in Brown v. Google, No. 20-cv-03664-YGR, Dkt. No. 631 (N.D. Ca. July 15, 2022). “The Court has already determined that the appropriate measure of the monetary sanction for Google’s discovery misconduct is the attorneys’ fees and costs incurred in bringing the […]
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 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 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 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 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 […]
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 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
An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains: If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. […]
April 28, 2022
Published by Michael Berman at April 28, 2022
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It is an honor to be among the attorneys at Rifkin Weiner Livingston LLC who are Recognized by Super Lawyers for 2022. “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 […]
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 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 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 – […]
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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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 […]
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 […]
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 […]
August 20, 2012
Published by Michael Berman at August 20, 2012
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The August 19 2012, Maryland Daily Record reports that “Fuvista” CEO Mark T. Pappas was conditionally released after two weeks in jail. He reportedly wired $120,000 to pay a portion of the civil sanctions in the Victor Stanley v. Creative Pipe case. The Daily Record reports that The Hon. Marvin J. Garbis […]
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. […]
July 20, 2010
Published by Michael Berman at July 20, 2010
The Baltimore Sun reported on the arguments before the Court of Appeals of Maryland, the State’s highest Court, on the “slots” referendum. “Michael D. Berman, an attorney for the Maryland Jockey Club and the citizens group Citizens Against Slots at the Mall, argued before the court Tuesday morning that the right to […]
July 20, 2010
Published by Michael Berman at July 20, 2010
WBAL TV reported that during oral argument in the State’s highest court, “Michael Berman, an attorney for a group that opposes putting the casino near Arundel Mills Mall, said the framework of the constitutional amendment approved by Maryland voters in 2008 imposed the possibility of local discretion on where a casino could […]
June 3, 2010
Published by Michael Berman at June 3, 2010
The Baltimore Sun reported on the seven-day hearing on the “slots” referendum in the Circuit Court for Anne Arundel County, reporting that: “Michael Berman, an attorney for the community group, said the board [of elections] used ‘evenhanded, reasonable decision-making’ and that further examination of the carefully completed process would ‘disenfranchise voters based on […]
May 25, 2010
Published by Michael Berman at May 25, 2010
When opponents of the referendum petition argued that CASM is a “non-existent entity” created by the jockey club to disguise its involvement in the petition drive, they said: “It [CASM] was a deception to the prospective signers.” Michael Berman, arguing for CASM and others, responded: “I am here representing the non-existent entity […]
April 16, 2010
Published by Michael Berman at April 16, 2010
On April 16, the Annapolis Capital reported that Michael D. Berman argued in favor of a referendum petition and stated that the challenge “seeks to chill and taint the ongoing election campaign,’ said attorney Michael Berman, who represents Citizens Against Slots at The Mall, one of the groups formed to push the petition […]