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 When Witness Observed Only Part of Events Portrayed in Video | Maryland State Bar Association (msba.org), MSBA reprinted my blog on the important case of Mooney v. State, 2023 WL 6783388 (Apls. Ct. Md. Oct. 13, 2023).   Certiorari was granted on February 16, 2024, on the following issue: “Did [the intermediate appellate court] lower the requirements for authentication of video evidence through the ‘pictorial testimony theory’ where a witness is permitted to authenticate video evidence even when the witness did not see the entirety of the events depicted in it?”

Previously, MSBA published:

• Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed. R. Civ. P. 37(e) | Maryland State Bar Association (msba.org)
• ABA Formal Opinion on Misconduct in Virtual Depositions | Maryland State Bar Association (msba.org)
• District of Maryland Sets Guidelines for Cell Phone Preservation in Place | Maryland State Bar Association (msba.org)
• S. Supreme Court Dismisses Case on Attorney-Client Privilege | Maryland State Bar Association (msba.org)
• It is Time to Replace Maryland’s “Safe Harbor” Rule –Whitepapers

The Bar Association also published M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (2020), available at Electronically Stored Information in MD Courts – Hardcopy | Maryland State Bar Association (msba.org).

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 a variety of legal luminaries and includes regular discussions with Rachi Messing. Twice monthly, Tom teams up with Rachi to interview eDiscovery subject matter experts. Tom then takes the off weeks to interview others in the space on his own.”

Interviews have included the Hon. Paul W. Grimm, the Hon. Xavier Rodriguez, the Hon. Andrew Peck,  the Hon. John Facciola, the Hon. Scott Schlegal, Craig Ball, Esq. of Ball in Your Court, Doug Austin, Esq., of eDiscovery Today, Maura Grossman, Esq., Ralph Losey, Esq., Cat Casey of Reveal, Bill Hamilton of UF Levin College of Law, the Gallivan brothers of Digital War Room, the late Browning Marean, and many other great resources too numerous to list.  In fact, 123 videos are posted.

It is well worth subscribing to @eDiscoveryChannel.  For example, while artificial intelligence is now a hot topic, 4 years ago, Tom posted A Discussion by Tom O’Connor regarding the importance of why attorneys should understand AI. (youtube.com).  And, as always,[1] Tom addresses The Small Case Solution (youtube.com)

As the YouTube Channel states: “Tom O’Connor has a knack for bringing out the best in people with his casual style of interviewing. His guests span the entire gamut of legal professionals ranging from software developers to marketing professionals in the eDiscovery space.”

I would like to express my thanks to Tom and Rachi for this wonderful opportunity.

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[1] For a review of Tom’s book, see Book Review:  Any Ship Can Be a Minesweeper – – –  Once.  For a copy, see EDISCOVERY FOR THE REST OF US (gulfltc.org) or Nextpoint, Tom O’Connor Launch eDiscovery Book at Legalweek.

“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. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.“

Phil’s publication is an annual event.  Book Review:  Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″;  Sedona Conference “Selected eDiscovery and ESI Case Law from 2021-22.”

As in the prior works, Phil’s new publication runs the gamut of topics and hits the important ones.  Each case summary is clear and to-the-point.  Summaries are organized by topic, such as cooperation, ESI Protocols, form of production, Fed.R.Evid. 502, “possession, custody, and control,” relevance redactions, sanctions, and many others.

I learn something new every time I read one of Phil’s blogs or publications.

Phil’s writings are posted on his company blog page,  Philip Favro – Innovative Driven.  Phil’s Sedona Conference biography states that he “is a leading expert on issues relating to the discovery of electronically stored information. Phil serves as a court-appointed special master, expert witness, and trusted advisor to law firms and organizations on matters involving electronic discovery and ESI. He is a nationally recognized scholar on electronic discovery, with courts and academic journals citing his articles. Phil also regularly provides training to judges on electronic discovery and ESI….”  Accord Philip Favro | Practical Law The Journal | Reuters.

He is also a very nice person.

It was an honor to be listed as one of several people who contributed.  As always, this is an excellent resource in an always-changing field.

The flip side of the coin is whether the steps taken by a potential litigant to implement a litigation hold notice are discoverable.  The argument for discovery is that transparency is a fundamental principle of e-discovery.  The argument against it is that the implementation steps are taken at the direction of counsel and reveal material that is either privileged or protected by work product.  The better view is that implementation steps are discoverable.

In Vasoli v. Yards Brewing Co., LLC, 2021 WL 5045920 (E.D.Pa. Nov. 1, 2021), the court held that “neither the attorney-client privilege nor the work-product doctrine prohibit the disclosure of factual information, the steps that a party took to search for and produce relevant documents are discoverable.” [emphasis added].  The court’s rationale was interesting:

Since communications between opposing counsel are not privileged and the discovery rules direct opposing counsel to communicate with each other when crafting their discovery procedures, it follows that, when counsel follows these rules and conducts discovery correctly, their methods are not necessarily privileged.  It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions.

There is nothing new about the holding of Vasoli:

It is axiomatic that an opponent may routinely obtain discovery of a client’s actions taken to implement the duty to preserve information. As set forth below, this is no different than the traditional “paper discovery” paradigm of asking a deponent to describe his or her search for responsive paper documents.

It is of no moment that the paper or electronic search was conducted at the direction of counsel. Parties are permitted to inquire into an opponent’s efforts to preserve relevant information through interrogatories and in depositions directed to the opposing client. In the ESI context, this is exemplified by In re eBay Seller Antitrust Litigation.

The Honorable Paul W. Grimm, Michael D. Berman, et. al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413, 425–26 (2008)(“eBay stands for the proposition that the steps taken by a client to implement a litigation hold are discoverable, without any showing of need, loss of ESI, or otherwise.”).

In short: “The steps taken by a client to fulfill the duty to preserve information, even if taken in response to privileged communications, have been held to be discoverable, although related attorney communications have not been routinely discoverable.”  Id. at 415.

The law review article was cited and applied in Am. Soc’y for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 2008 WL 11388433, at *1 (D.D.C. Aug. 5, 2008):  “The parties agree and the authorities support a distinction between asking a witness what data he saved and what specific actions he took to save it and asking the witness what legal advice he received as to those two topics. The former is not privileged, while the latter most often is.”  Accord Casey Auttonberry, Predictive Coding: Taking the Devil Out of the Details, 74 La. L. Rev. 613, 648 n. 85 (2014).

In rejecting the proposal, the State’s highest Court quoted my opposition to it and also quoted my suggested language for any needed clarification.  The Court’s discussion begins at 1:55:29 of the video recording.

Rule 2-506(a) currently permits a dismissal by stipulation.  As I stated in my RWL Letter to Rules Committee, the proposed amendment to subsection (b) would have created an ambiguity and possibly precluded a voluntary dismissal by agreement of the parties.

RWL Letter by Michael Berman to Rules Committee

During the proceeding on the proposed amendment, The Hon. Brynja M. Booth stated that “I think that Mr. Berman’s letter to us sets out similar concerns that I have….”  Judge Booth explained that the proposal would create an ambiguity.  Her Honor stated that the concerns brought to the Standing Committee on Rules of the Court of Appeals could be addressed by the language that I proposed.  Judge Booth stated:  “I actually like the language Mr. Berman put in his letter….”  The Judge then read that language and stated: “I would be comfortable with the language suggested by Mr. Berman….”

The Court then unanimously sent the proposal back to the Rules Committee. The full letter is available at RWL Letter to Rules Committee.

For a prior discussion of the then-proposed Rules amendments, see Notice of Proposed Changes to the Maryland Rules.

The Court’s order is at ro209.pdf (mdcourts.gov).

The article has been cited with approval in The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. Journ. 289, 296 n. 20 (2010), and Victor Stanley, Inc. v. Creative Pipe, Inc., et al., 269 F.R.D. 497 (D.Md. 2010), affirmed in part and modified in part on unrelated grounds, No.MJG-06-2662 (D.Md. Nov. 1, 2010), subsequent opinion, (D.Md. Jan. 24, 2011).  In doing so, the Victor Stanley Court noted that the duty to preserve is “neither absolute, nor intended to cripple organizations.”  The Court cited the article for the proposition that “the scope of preservation should somehow be proportional to the amount in controversy and the costs and burden of preservation.”

The law review article suggests that the “uncertain scope of preservation obligations,” when “coupled with the risk of serious sanctions,” encourages “over-broad pre-litigation preservation efforts” to safeguard ESI that actually need not be preserved.  It concludes by asserting that pre-litigation application by analogy of the cost-benefit safeguards of the Federal Rules will define reasonable limits on the duty to preserve and provide “litigants with practical guidelines in a perilous area where a misstep could have significant ramifications.”