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May 13, 2023
Published by Michael Berman at May 13, 2023
Categories
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
Categories
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
Categories
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
Categories
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
Categories
“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
Categories
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
Categories
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
Categories
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
Categories
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
Categories
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 […]