News Stories

April 10, 2024

Maryland’s Protection of the Judiciary

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

American Bar Association Statement on Threats Against the Judiciary

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

Maryland County Deemed to Have Failed to Provide Open Government Documents

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

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

The use of artificial intelligence in litigation has gotten a lot of criticism for hallucinations.  That is why the article by Dorothy Atkins, Judge Applauds Attys’ ‘Very Awesome’ Use Of Google AI Bot – Law360 (Mar.14, 2024), is so interesting.  Ms. Atkins wrote that: A California federal judge told counsel Thursday it’s […]
March 15, 2024

“Baltimore County improperly withheld some documents sought by former official, judge says”

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

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

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

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

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

Prosecutors Ordered to Show Cause on Alleged Discovery Failure

In Baltimore County judge chastises prosecutors for evidence missteps in David Linthicum case – Baltimore Sun (Feb. 28, 2024), Cassidy Jensen reported on an alleged discovery failure in a criminal case. The defendant is charged with shooting two police officers.  The Circuit Court issued an order “to show why [prosecutors] had wrongly […]
February 23, 2024

Maryland Bills to Protect Judges and Their Children

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

Rusty Texts: Sending Privileged Information to Clients

In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons expert and her lawyer in the ‘Rust’ film shooting case raises questions about whether attorneys should text with clients and serves as […]
February 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 […]
February 2, 2024

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

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

Lawyer Refused to Appear on Camera in Virtual Deposition

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

eDiscovery Channel

It was an honor and pleasure to be interviewed by Rachi Messing and Tom O’Connor on the eDiscovery Channel. The interview is posted on Mike Berman Chats with Rachi and Tom (youtube.com). eDiscovery Channel – YouTube discusses a wide range of topics in the eDiscovery space.  The Channel explains that “Tom interviews […]
January 26, 2024

“Ninth Circuit Creates Panel to Study Artificial Intelligence”

In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that:  “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.”  She […]
January 7, 2024

I Hear Crickets From the American Bar Association About Threats Against Colorado Justices

“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

Hallucinations: “Well, here’s another nice mess you’ve gotten me into!” 

Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!”  That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 29, 2023

My Top Blogs From 2023

I posted 104 items this year.  Several that may be worth re-reading are: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II Don’t Be Too Nice When You Send a Preservation Notice Relevance Redactions Revisited […]
December 23, 2023

Threats Against the Colorado Supreme Court Must Be Called Out

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

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

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

2024 Maryland Superlawyer Selection

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

Proposed A.I. Rule in Eastern District of Michigan

Danielle Ferguson reports in Detroit Federal Courts Propose AI Disclosure Rule – Law360 (Dec. 8, 2023), that: “The Eastern District of Michigan published a proposed rule Friday that would require lawyers to disclose any time they use AI to help them with written filings and verify its citations are real….”  She adds […]
December 7, 2023

Trial Notebooks: Flipping to the Right Spot Instead of Fishing in Folders

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

Sedona Conference’s 2023 Case Law Bibliography by Phil Favro

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

Law 360: “Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends”

Hannah Albarazi reported that Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends – Law360 (Dec. 1, 2023).  The Law 360 article states: The company intentionally destroyed relevant evidence, failed to preserve internal chat evidence, and appears to have widely instructed its employees to label documents “privileged and confidential” when they should […]
December 4, 2023

What is Double Spacing?

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

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

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

Amended Federal Rules Become Effective Today

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

Sanctions Update in Dropbox “Rummaging” Decision

In “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), I wrote about the $156,000 sanction imposed for Dropbox “rummaging” in  Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 NY Slip Op. 33448(U) (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.). In Law 360, Mr. […]
November 16, 2023

ABA Formal Opinion on Misconduct in Virtual Depositions

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

Maryland’s Proposed Rule 5-702

Maryland’s Standing Committee on Rules of Practice and Procedure (“Rules Committee”) has published an agenda that includes consideration of amendments to Maryland Rule 5-702 (testimony by experts). Two recent developments are the genesis of the proposal.  “First, the Federal Rules Committee has recently made changes to Rule 702, the federal equivalent to […]
November 15, 2023

How to Avoid Contentious “Hit Report” Problems – Part III

Josh Gilliland’s Bow Tie law blog has often addressed the question of: “What happens when one party argues a producing party should produce all search term hits?”  His answer is “no,” production is not required until after review and culling.  See How to Avoid Contentious “Hit Report” Problems, and Hit Reports, citing, […]
November 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 […]
October 27, 2023

Possession, Custody, or Control – Part II

Joan Kim has written an excellent summary in Legal Separateness: The Boundaries on Written Discovery | Proskauer – Minding Your Business – JDSupra (Oct. 23, 2023). Her blog  accurately states: The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies […]
October 26, 2023

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

“Florida lawyers might soon be required to get their client’s consent before using artificial intelligence on their legal matters.”  Karen Sloan, “Florida bar weighs whether lawyers using AI need client consent | Reuters (Oct. 16, 2023).  Ms. Sloan’s article reports that “Florida looks to be the first jurisdiction considering a consent rule […]
October 24, 2023

Judge Paul Grimm: The Judiciary is Under Attack.  Lawyers Need to Defend It

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

Additional Monetary Sanctions in Freeman v. Giuliani

I wrote briefly about the sanctions request in the Georgia poll workers case against Mr. Rudy Giuliani. Sanctions Sought in “Murky Mess” In a recent update, Zoe Tillman reported in Giuliani Owes $236K and Counting Over Defamation Case Failures (bloomberglaw.com)(Sept. 22, 2023), that: Rudy Giuliani owes more than $236,000 — and may […]
September 7, 2023

Ethical Contours of Discovery Sanctions and the Duty to Cooperate

Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023).  The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery […]
August 8, 2023

More on Emoji Law From Prof. Eric Goldman

I have written several blogs on emojis, such as Emoji Forms a Contract and What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other? In both blogs, I pointed to Prof. Eric Goldman’s writings as an excellent resource and he has done it again in A […]
August 4, 2023

Privilege and a Rule 30(b)(6) Deposition?

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

Sanctions Sought in “Murky Mess”

Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023).  This high-profile case may present interesting ESI and spoliation issues and it is worth watching. Ms. Tillman reports that plaintiffs are seeking a default judgment.  Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half […]
July 8, 2023

Emoji Forms a Contract

Lots has been written about emojis. See, e.g., What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?  Prof. Eric Goldman, cited in that blog, is one of the leading authorities. In Farmer owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says […]
May 13, 2023

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

My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
April 19, 2023

NBC Program on the Risks of Sharing Your Email Address

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

“Juror’s Cellphone Not Subject to Search”

Cell phones have led to thorny legal issues.  For example, in Juror’s Cellphone Not Subject to Search (americanbar.org)(Feb. 21, 2023), Steven B. Chaneles, wrote that, in response to a post-verdict challenge:  “A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cellphone….” The […]
April 5, 2023

Maryland Bar Journal Article on Attorney-Client Privilege

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

“Lawyers must hold ‘Please See Me’ signs at courthouse after failing to provide hearing notice”

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

Defendant Can’t Insist on an “I Go First” Deposition

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

Discovery of Social Media Permitted Under Protective Protocol in NJ

  In a case where plaintiff asserted severe emotional distress, a New Jersey appellate court wrote that “there is no New Jersey case law detailing the scope of discovery regarding a litigant’s private social media posts.”   Patrick Dorrian, New Jersey Lawyer Suing for Job Bias Must Fork Over Social Media (bloomberglaw.com)(Mar. 17, […]
March 18, 2023

“Here’s what to expect with [proposed] changes to the federal expert witness rule”

Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to  Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
March 17, 2023

Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight

“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.”  Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023)(emphasis added). In this case, the court’s filing deadline was at midnight on April 22nd.  The attorney logged on to the […]
March 16, 2023

eDiscovery Assistant’s 2022 eDiscovery Case Law Year in Review Report

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

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

The Maryland Supreme Court is considering another important ESI case.  Recently, it issued a landmark decision concerning cell phone searches in criminal cases.  Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland The Court is now considering whether consent to search can be withdrawn after a forensic image is made […]
March 7, 2023

Sealing of Documents Filed in Court

This post is not political.  It is about redactions and confidentiality. Erik Wemple wrote Opinion | What is Fox News hiding in the Dominion lawsuit? – The Washington Post (Mar. 6, 2023).  He describes documents produced in discovery with heavy redactions and asks what is being hidden.  The redactions that he reproduced […]
January 13, 2023

Martindale-Hubbell AV Preeminent Rating – 2023

It is an honor to again receive an AV Preeminent rating from Martindale-Hubbell.
January 4, 2023

How to Avoid Contentious “Hit Report” Problems

Josh Gilliland’s blog, Search Term Agreements Do Not Eliminate Relevancy Review – Bow Tie Law (Jan. 2, 2023), addresses: What happens when one party argues a producing party should produce all search term hits? The answer is no. Moreover, wishing to get all hits is a formula for madness. Josh writes that, […]
December 28, 2022

Bowtielaw.com Blog on Search Terms and Predictive Coding

Josh Gilliland’s excellent blog To Use Search Terms Before or After Predictive Coding – Bow Tie Law (Dec. 28, 2022), addresses “a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. […]
December 16, 2022

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

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

Maryland Judge Quits After Facebook Posts

The Daily Record reported that an Orphans’ Cout judge “quit last week amid disciplinary allegations that he misused ‘the prestige of judicial office’ on his Facebook page by posting a profile photo of himself in his judicial robe and engaging in partisan political discussion, giving legal advice and advertising his private business […]
December 14, 2022

Selection for Maryland Super Lawyers 2023

I am pleased to report my selection by Thomsen Reuters for the fifth consecutive year as a Maryland Super Lawyer.
November 22, 2022

$2,000,000 Sanctions Request

Debra C. Weiss reports More than $2M in sanctions sought against Gibson Dunn and Facebook (abajournal.com)(Nov. 22, 2022): Plaintiffs are seeking more than $2 million in sanctions against Facebook and its lawyers at Gibson, Dunn & Crutcher after a federal judge said they engaged in “dilatory discovery conduct.” Id. In a September […]
November 21, 2022

A Juror’s View of Impeachment Using Deposition Testimony

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

Did You Know? – Spoliation, Part X

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

Did You Know? – The Fax Machine, Part IX

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

Did You Know? – The Photocopier, Part VIII

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

Did You Know? – The Mimeograph, Part VII

“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

Did You Know? – The Computer, Part VI

“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

Did You Know? – The Magic Marker and Highlighter, Part V

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

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

The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement.  Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022). The paper reports that the trial judge had […]
October 11, 2022

Did You Know? – The Typewriter, Part IV

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

Did You Know? – The Ballpoint Pen, Part III

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

Did You Know? – The Fountain Pen, Part II

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

Possible Additional Fallout From Alex Jones Cell Phone Disclosure

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

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

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

Trump Aide Navarro Sued by US Over Private Email Account Records

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

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

Brittany Shammas and Kim Bellware reported that Alex Jones attorneys accidentally gave up his phone’s contents, Sandy Hook lawyers say – The Washington Post  (Aug. 3, 2022). The Post reports that: The legal team representing Infowars founder Alex Jones inadvertently sent the contents of his cellphone to a lawyer representing the parents of […]
July 16, 2022

$1 Million Sanction Award Against Google

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

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

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

Remote Deposition Misconduct – Again – With Novel Cure – Again

“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022).  Counsel was disqualified as a result. Like many depositions during the pandemic, the Barksdale deposition took place remotely over […]
July 12, 2022

Directive to Collect Less Evidence

“Prosecutors struggling to pore through mushrooming amounts of electronic data they uncover during corporate crime investigations are beginning to hear counterintuitive advice from the Justice Department: Collect less evidence. The nascent strategy of selectively seizing fewer computers, cell phones, and hard drives coincides with an exponential growth of available e-data. It comes […]
July 11, 2022

How to Properly Erase Hard Drives?

The Washington Post recently published an article by Chris Velazco, titled How to securely erase your old hard drives once and for all (July 8, 2022). “There are so many stories about people buying used computers online and recovering data,” said Andrés Arrieta, director of consumer privacy engineering at the Electronic Frontier […]
June 23, 2022

Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages

Two recent articles describe alleged “win-at-all-costs” tactics in defense of wrongful conviction lawsuits in Baltimore and Chicago.  They point to, on the one hand, allegations of damages claims for unreasonable amounts by exonerees and, on the other, alleged scorched earth defenses costing millions of dollars and subjecting exonerees to unreasonable indignity. I […]
June 13, 2022

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

I have been following with interest a case in the Maryland Court of Appeals on whether and when a potential criminal defendant cutting his hair may be viewed as spoliation.  See When is a Haircut Spoliation? Certiorari Granted and When is a Haircut Spoliation? The Maryland Daily Record recently reported on oral argument. S. Lash,  MD […]
May 20, 2022

Sanctions for Discovery Misconduct

The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1]  Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
May 16, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV)

Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel.  The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
May 11, 2022

Recognized by America’s Top 100 Civil Defense Litigators

It is an honor to be selected as one of America’s Top 100 Civil Defense Litigators. If you would like more information about America’s Top 100 Civil Defense Litigators® or the selection process, please visit the website at www.Top100CivilDefenseLitigators.com
April 29, 2022

Deposition Errata Pages in Maryland

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

Recognized by Super Lawyers for 2022

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 27, 2022

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

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

Attorney’s Duty to Protect Smartphone Data

“An attorney who stores the confidential identity of their clients on a smartphone must not consent to share contact information with an app unless that information won’t be shared with any human, the New York State Bar Association said.” D. McAfee, New York Bar Outlines Attorneys’ Duty to Protect Smartphone Data (bloomberglaw.com) (Apr. 13, […]
April 9, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part III)

When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance.  When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that.  Information Governance – […]
February 5, 2022

Ethics: Misconduct in Remote Trial

I recently wrote a blog Ethics: Misconduct in Remote Depositions. The ABA Journal has provided an example of misconduct in a virtual trial.  D. Weiss, “Lawyer is suspended for coaching client using chat function during virtual trial” (ABA Journal Feb. 1, 2022).  Ms. Weiss reports that: “An Arizona lawyer has consented to a two-month […]
February 4, 2022

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 […]
July 18, 2021

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

Federal prosecutors have been precluded from hiring an ESI vendor to assist with massive e-discovery in criminal cases arising out of the January 6th prosecutions. Deloitte Financial Advisory Services LLP is barred from helping federal prosecutors and other government staff sort and organize the huge volumes of electronic data and other evidence […]
June 8, 2020

The Sedona Conference and Its Impact on E-Discovery

Kenneth J. Withers of the Sedona Conference has posted a chapter from M. Berman, et al., eds., “Electronic Discovery in Maryland Courts” (MSBA 2020), on the Sedona Conference’s web site.  The Sedona Conference has had, and continues to have, a pivotal role in e-discovery.  Sedona papers were cited by the Court of Appeals […]
August 20, 2012

News Report: Update on Mark T. Pappas of Victor Stanley v. Creative Pipe “Fame”

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

“Too Much Evidence” – Criminal Charges Dismissed

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

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

The Maryland Daily Record reports that Mr. Mark T. Pappas, protagonist in the “Victor Stanley case,” was denied bail “because of his ‘long history’ of noncompliance [with Court orders] and ‘lack of candor’ in the [Victor Stanley] litigation.  Ben Mook, “Back from Belize, Pappas denied bail,” The Daily Record, Aug. 15, 2012.  […]
July 20, 2010

State’s top court rules that referendum on Arundel Mills slots is legal

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

“Slots” Referendum Argument in Maryland Court of Appeals

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

Arundel Slots Trial Ends

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

Berman Rebuts Opponent’s Argument

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

Trial Court Argument on Slots Referendum

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 […]