The Maryland and Federal Rules Differ in Significant Ways
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May 28, 2026
Published by Michael Berman at May 28, 2026
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“Federal Rule of Civil Procedure 26(d)(1) does not allow discovery from any source prior to a Rule 26 conference. However, the district court has discretion to order expedited discovery.” McIntyre v. Little Miami School Dist., 2026 WL 1284127 (S.D. Oh. May 11, 2026). Mr. McIntyre sued the School District defendants seeking to […]
April 15, 2026
Published by Michael Berman at April 15, 2026
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In Aerosonic LLC v. Joby Aero, Inc., 2026 WL 900154 (M.D. Fla. Par. 2, 2026), Aerosonic inadvertently produced work product to Joby. Aerosonic permitted deponents to testify about the material. It then asserted work product protection under Fed.R.Civ.P. 26(b)(3), non-waiver under Fed.R.Evid. 502, and a “clawback,” presumably under Fed.R.Civ.P. 26(b)(5)(B). The court […]
April 2, 2026
Published by Michael Berman at April 2, 2026
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Maryland courts, like others, are increasingly being faced with artificial intelligence. E.g., Artificial Intelligence in Maryland Courts (Aug. 24, 2025); “Ex-Pikesville High principal impersonated in racist AI case settles lawsuit” (Nov. 1, 2025). The Administrative Office of the Courts is conducting a pilot program. Maryland’s Artificial Intelligence Evidence Clinic Pilot Program (Mar. […]
March 16, 2026
Published by Michael Berman at March 16, 2026
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Maryland’s Standing Committee on Rules of Practice and Procedure will hold an open meeting on March 20, 2026. In part, the agenda includes a proposed artificial intelligence rule. Md. Rule 1-311 is the analog of Fed.R.Civ.P.26(g). As currently drafted, Rule 1-311 states that the signature of an attorney on a pleading or […]
January 17, 2026
Published by Michael Berman at January 17, 2026
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A hallucinated citation issue was addressed in Boyd v. Lee, 2026 WL 111263 (Appl. Ct. Md. Jan. 14, 2026)(unreported). Hallucinated case citations are “old news.” To paraphrase, “[I]t is no longer amateur hour.” (Feb. 12, 2021)(citation omitted). Maryland has not been immune. Maryland Fake Citation Case – Court Issues a Warning – […]
November 13, 2025
Published by Michael Berman at November 13, 2025
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Defining the scope of discovery is fundamental. Certain language has changed three times. First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The intent was to make it clear […]
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 […]
April 19, 2025
Published by Michael Berman at April 19, 2025
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Thompson v. HUD, 199 F.R.D. 168 (D. Md. 2001)(“Thompson I”), was a class action by Baltimore public housing residents. Thompson I explained the 2000 change in the scope of discovery that remains in force, with some changes, today.[1] Thompson I dealt in part with the December 2000 amendment to Fed.R.Civ.P. 26 which […]
February 25, 2025
Published by Michael Berman at February 25, 2025
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A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts
In Canales v. OPW Fueling Components LLC, 2025 WL 553623, at *3 (E.D. N. Cal. Feb. 19, 2025), the court wrote: Throughout his responses, Canales objects to OPW’s requests on the ground that they are not reasonably calculated to lead to the discovery of admissible evidence. OPW correctly notes that while this […]
January 2, 2025
Published by Michael Berman at January 2, 2025
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Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), addressed the question of whether every document “hit” by a search term must be produced. In Spivey, Plaintiff Spivey and American Petroleum Institute (“API”) agreed to search terms to be used by the producing non-party, API. After […]
December 19, 2024
Published by Michael Berman at December 19, 2024
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In Walker v. AIU Ins. Co., 2024 WL 4607473 (D. Ariz. Oct. 29, 2024), Plaintiff Walker served a subpoena duces tecum on non-party JBHH, which had represented defendant AIU in workers’ compensation proceedings involving Mr. Walker. The subpoena requested a complete copy of the file in Mr. Walker’s case. JBHH moved to […]
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 […]
June 1, 2024
Published by Michael Berman at June 1, 2024
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When the Appellate Court of Maryland issued its unreported opinion in St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Apl. Ct. Md., Mar. 21, 2022), it addressed a novel issue and I wrote that: “In my view, the only error was that the appellate court did not publish its […]
March 4, 2024
Published by Michael Berman at March 4, 2024
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Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.” The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016). Likely that is due to […]
December 10, 2023
Published by Michael Berman at December 10, 2023
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In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the defendant. At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a […]
November 28, 2023
Published by Michael Berman at November 28, 2023
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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b). The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 15, 2023
Published by Michael Berman at November 15, 2023
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Maryland’s Standing Committee on Rules of Practice and Procedure (“Rules Committee”) has published an agenda that includes consideration of amendments to Maryland Rule 5-702 (testimony by experts). Two recent developments are the genesis of the proposal. “First, the Federal Rules Committee has recently made changes to Rule 702, the federal equivalent to […]
November 3, 2023
Published by Michael Berman at November 3, 2023
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The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts. Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
August 14, 2023
Published by Michael Berman at August 14, 2023
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On May 11, 2023,the federal Advisory Committee on Civil Rules (the “Advisory Committee”) sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”). The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and […]
June 6, 2023
Published by Michael Berman at June 6, 2023
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The federal Committee on Rules of Practice and Procedure (the “Standing Committee”) has posted pending amendments to the federal appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules. The Standing Committee explained that: “An amendment to a federal rule generally takes about three years.” Rules are promulgated under the Rules […]
May 24, 2023
Published by Michael Berman at May 24, 2023
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The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules. This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 13, 2023
Published by Michael Berman at May 13, 2023
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My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
May 6, 2023
Published by Michael Berman at May 6, 2023
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The Supreme Court of Maryland has approved a proposal to eliminate judicial disappearing ink. However, Maryland has not followed the approach of the Federal Rules of Appellate Procedure. Those differences may present an unresolved issue if an unreported federal decision is cited to a Maryland State court. Until now, Maryland Rule 1-104 […]
April 9, 2023
Published by Michael Berman at April 9, 2023
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A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction. This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction. The history of, and […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
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 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 […]
February 4, 2023
Published by Michael Berman at February 4, 2023
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The January 30, 2023, 214th Report of the Standing Committee on Rules and Practice proposes an important update of Rule 1-104 regarding unreported opinions. It deletes the provision that, with very limited exceptions, prohibits their citation as precedential or persuasive in any court. If the proposal is approved by the Supreme Court […]
December 23, 2022
Published by Michael Berman at December 23, 2022
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Fed.R.Civ.P. 26(g) has been called the “stop and think” rule. The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….” The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting […]
December 15, 2022
Published by Michael Berman at December 15, 2022
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It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section. After an introduction by T.J. Keilty, I provided an overview of what constitutes social media. The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
November 8, 2022
Published by Michael Berman at November 8, 2022
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UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
August 4, 2022
Published by Michael Berman at August 4, 2022
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The Maryland Standing Committee on Rules of Practice and Procedure has issued its 211th Report and proposed rules changes. One of the most significant proposals is to modify Rule 2-402 to follow the 2010 amendments to Fed.R.Civ.P. 26 regarding expert discovery. The Committee explained: In 2010, the Federal Rule was amended to […]
July 16, 2022
Published by Michael Berman at July 16, 2022
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In Markel Ins. Co. v. Sumpter, 2022 WL 2703832 (D. Md. July 11, 2022)(Hazel, J.), the Court denied a request for discovery to oppose a motion for summary judgment. Markel Insurance defended an alleged auto tort under a reservation of rights. It then filed this action against both drivers for a declaration […]
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 3, 2022
Published by Michael Berman at April 3, 2022
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In several recent blogs, I have highlighted many of the differences between the Federal Rules of Civil Procedure and the Maryland Rules. Those blogs are listed in Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties. The Maryland Rules regarding the scope of discovery and proportionality limits contain significant differences […]
April 2, 2022
Published by Michael Berman at April 2, 2022
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I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure. See Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and M. Berman & A. Shelton, “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
March 31, 2022
Published by Michael Berman at March 31, 2022
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Although the ABA’s “technological competence” standard is a good “first step,” it could be improved. Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball. Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 28, 2022
Published by Michael Berman at March 28, 2022
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Unlike the Federal Rules of Civil Procedure, the Maryland Rules do not generally mandate a conference of the parties. However, Rule 2-504.1(a)(4) provides a mechanism for a party to request that a State court order a “meet and confer.” The federal rule has a convoluted history. Rule 26(f) – – the conference […]
March 24, 2022
Published by Michael Berman at March 24, 2022
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After the December 2015 amendments to the Federal Rules of Civil Procedure, I co-authored two publications noting some of the differences between the new Federal Rules and the Maryland Rules. M. Berman & A. Shelton, “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June 17, 2016); M. Berman, et al., […]
February 6, 2022
Published by Michael Berman at February 6, 2022
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The Maryland Court of Appeals recently considered a proposed amendment of the voluntary dismissal rule. 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 […]
March 14, 2021
Published by Michael Berman at March 14, 2021
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In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice. The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction […]
January 11, 2021
Published by Michael Berman at January 11, 2021
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Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 24, 2011
Published by Michael Berman at May 24, 2011
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As of October 1, 2011, Maryland will permit custodians of public records to scrub unprivileged metadata from those records, apparently at the requestor’s cost, before producing those records under the State analog to the Freedom of Information Act. The statute, SB 74, Chapter 536 of the 2011 Laws of Maryland, amends the […]