Information Governance includes Computer Usage Policies and Records Information Management
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July 10, 2026
Published by Michael Berman at July 10, 2026
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It is clear that Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024)(citing cases). The recent decision in Lalwani v. Trustees of Indiana University, 2026 WL 1847881 (Jun. 26, 2026), involved three emails in which, an employee, plaintiff Mr. Lalwani, had communicated with his […]
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 […]
February 18, 2026
Published by Michael Berman at February 18, 2026
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In L.S. v. Bolduan, 2026 WL 95689 (W.D. Wash. Feb. 12, 2026), under the “legal right test,” defense counsel–who obtained information from their institutional client in a State court case–did not have possession, custody, or control of that information in a federal case, brought by the same plaintiff, against only the entities’ […]
January 24, 2026
Published by Michael Berman at January 24, 2026
In Yotta Technologies Inc. v. Evolve Bank & Trust, 2026 WL 172502 (N.D. Cal. Jan. 22, 2026), the court addressed hyperlinked documents, or “modern attachments.” I have called this the “Humpty Dumpty” issue. “The Humpty Dumpty issue – – the question of re-linking pointers and targets – – is very important….” More […]
January 8, 2026
Published by Michael Berman at January 8, 2026
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Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products. One advantage of using Special Masters like Phil is speed. Phil was appointed by the court on […]
September 3, 2025
Published by Michael Berman at September 3, 2025
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In an important decision, the Ninth Circuit applied California law and held that “the People,” i.e., State Attorneys General, are generally not deemed to have possession, custody, or control of State agency documents, when they are prosecuting an enforcement action. In Re: People of the State of California v. U.S. District Court […]
March 3, 2025
Published by Michael Berman at March 3, 2025
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Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.), is an employment discrimination case. At its most general level, the holding was that “a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.” At issue was ESI […]
January 16, 2025
Published by Michael Berman at January 16, 2025
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In Digital Forensics Corporation, LLC v. King Machine, Inc., __ So.3d __, 2025 WL 63935 (Ala. Sup. Ct. Jan. 10, 2025), the issue was whether an electronic discovery services vendor, DFC, could compel its former client to arbitrate a breach of contract claim. The Supreme Court of Alabama held that arbitration was […]
December 18, 2024
Published by Michael Berman at December 18, 2024
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In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus […]
November 26, 2024
Published by Michael Berman at November 26, 2024
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In Whitmore v. Kroger Limited Partnership, 2024 WL 4795686 (W.D. Va. Nov. 14, 2024), defendant Kroger’s inadvertent failure to preserve surveillance video footage of the area at the time of the alleged tort was a factor leading to its waiver of fact work production protection. Defendant Kroger moved to quash a subpoena […]
November 12, 2024
Published by Michael Berman at November 12, 2024
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In Delaware Judges, Law Clerks Cleared to Use Generative AI Tools (Bloomberg Law Oct. 22, 2024) Jennifer Kay reports that “Delaware judges, law clerks, and other court staff using approved generative artificial intelligence tools assume responsibility for the accuracy of any materials produced with the emerging technology, under an interim policy announced […]
October 29, 2024
Published by Michael Berman at October 29, 2024
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In Vita v. New England Baptist Hosp., __ Mass __, __ N.E.3d __, 2024 WL 4558621 (Mass. Oct. 24, 2024), the court held that the Massachusetts wiretap statute does not criminalize interception of web browsing and sale of the intercepted information to third parties. The plaintiff, Kathleen Vita, alleged that she accessed […]
October 6, 2024
Published by Michael Berman at October 6, 2024
Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision. The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are […]
October 2, 2024
Published by Michael Berman at October 2, 2024
Are “dash cam” videos protected from disclosure as work product? That was one issue posed in Jones v. Burch, 2024 WL 4276109 (M.D. Fl. Sep. 24, 2024). It was presented in an oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce.” Plaintiff sued for personal injuries arising out of a […]
August 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 21, 2024
Published by Michael Berman at August 21, 2024
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Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify […]
June 26, 2024
Published by Michael Berman at June 26, 2024
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Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022). Word processing has not been immune from disputes. One court recently criticized a […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
May 20, 2024
Published by Michael Berman at May 20, 2024
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It is generally unwise to use private email accounts for company business. Clark v. Council of Unit Owners of the 100 Harborview Drive Condominium Association, 2024 WL 2155021 (D. Md. May 13, 2024)(Quereshi, J.), provides a good example. The Clark Court did two relevant things: It ordered targeted searches of the private […]
April 29, 2024
Published by Michael Berman at April 29, 2024
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In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical presentations by sophisticated experts. I have called “modern attachments,” “pointers,” or the problems associated with hyperlinked target documents, the “Humpty Dumpty Issue.” […]
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 […]
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 […]
January 27, 2024
Published by Michael Berman at January 27, 2024
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In a prior blog, And When I Die…. What Happens to My Social Media?, I discussed Maryland’s “Fiduciary Access to Digital Assets Act” (“MFADAA”). The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. […]
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 23, 2024
Published by Michael Berman at January 23, 2024
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“Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.” See J. Ash, Board of Governors adopts ethics guidelines for generative AI use – The Florida Bar (Jan. 23, 2024). Mr. Ash reports that the version is substantially similar […]
December 13, 2023
Published by Michael Berman at December 13, 2023
Modern attachments have garnered a lot of attention. See, e.g., More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”. and T. Thames, Modern attachments and eDiscovery: Navigating the complexities of linked documents (onna.com) Most of that attention has been focused on what I call the “Humpty Dumpty” issue – – when […]
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 […]
November 29, 2023
Published by Michael Berman at November 29, 2023
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Like most other States, Maryland has enacted the “Fiduciary Access to Digital Assets Act.” The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. Code Ann., Est. & Trusts Art., Title 15, Subtitle 6 […]
November 13, 2023
Published by Michael Berman at November 13, 2023
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I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”[1] So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of. One “modern attachment” […]
April 25, 2023
Published by Michael Berman at April 25, 2023
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The “modern attachments” decision of Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), generated a lot of buzz when it was issued. At its core, Noom held that hyperlinked files are generally not part of a transmitting email. Said differently, when a party produces an email that contains a […]
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).
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 […]
November 9, 2022
Published by Michael Berman at November 9, 2022
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A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email. That is a communication by receiving counsel to sending counsel’s represented client. ABA Formal Opinion 503 states that, when sending counsel […]
August 12, 2022
Published by Michael Berman at August 12, 2022
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I have written a series of blogs on What is a Document? (Part III), What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
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 […]
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 22, 2022
Published by Michael Berman at June 22, 2022
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In Troyce Manassa v. National Collegiate Athletic Association, 2022 WL 2176334 (S.D. Ind. June 16, 2022), a motion to disqualify counsel was denied. Plaintiffs are represented by the law firm of “FeganScott.” They sued the NCAA. “Upon learning that a FeganScott staff attorney moonlighted as a document reviewer for the NCAA in […]
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 – […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]
February 23, 2022
Published by Michael Berman at February 23, 2022
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Businesses need to carefully consider whether they will permit employees to use business information technology systems for private work. For example, while allowing an employee to use company resources for charitable work may be commendable, it can impose substantial costs if the non-business work leads to litigation. A recent article about a […]
November 19, 2021
Published by Michael Berman at November 19, 2021
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Information governance and computer usage policies should caution employees not to include embarrassing information in business communications. Once that information is included in an email, if the communication is filed in court, the public likely gets to see it. Callahan v. Un. Network for Organ Sharing, __ F.4th __, 2021 WL 5351863 […]
July 21, 2021
Published by Michael Berman at July 21, 2021
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In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference […]
March 12, 2021
Published by Michael Berman at March 12, 2021
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New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post. If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
January 24, 2021
Published by Michael Berman at January 24, 2021
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A few years ago, the Hon. Paul W. Grimm wrote: “At the end of the day, this is the case of the ‘gang that couldn’t spoliate straight.’” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501 (D. Md. 2010). That description is equally applicable to the conduct that led to a […]
January 4, 2021
Published by Michael Berman at January 4, 2021
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In a May 2011 post, I discussed Computer Usage Policies and the “Reply All” Button. A recent article has expanded on that discussion. Erika Stillabower, “The (Ethical) Risks of ‘Reply All’,” The Washington Lawyer (July/August 2020), 54. Ms. Stillabower describes situations where opposing counsel “cc’s” that attorney’s client on an email. She […]