Scope of discovery.
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August 7, 2026
Published by Michael Berman at August 7, 2026
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In a recent case, the Defendants moved to dismiss a copyright infringement claim. Plaintiff issued discovery; Defendants answered; and, Plaintiff moved to compel. One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.” Sadeghpour v. Nakamoto, 2026 […]
July 30, 2026
Published by Michael Berman at July 30, 2026
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A condominium, Trailsedge Owners Association, Inc., sued the developer, Blue Moon, and others alleging design and construction defects. It requested $10 million in damages. The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s […]
July 29, 2026
Published by Michael Berman at July 29, 2026
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“Courts confronted with lawyers involved in advising spoliation of evidence have concluded [that] such attorney-client communications are not shielded by the privilege due to the crime-fraud doctrine.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2026 WL 1632746 (N.D. Cal. Jun. 5, 2026). The court explained: “The specific crime-fraud at […]
July 28, 2026
Published by Michael Berman at July 28, 2026
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A putative class of subscribers to LinkedIn’s premium services sued and alleged monopolization or attempted monopolization of the social networking market. Crowder v. LinkedIn Corporation, 2026 WL 2076152 (N.D. Cal. Jul. 17, 2026). They sought depositions in excess of those provided for by the Federal Rules of Civil Procedure based on documents […]
July 25, 2026
Published by Michael Berman at July 25, 2026
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The court in Wilson Aerospace LLC v. The Boeing Company, Inc., 2026 WL 2069870 (W.D. Wash. Jul. 17, 2026), held that an ESI Protocol is permissible tool; however, it does not override the discovery rules. Here, defendant did not search a relevant custodian’s documents because he was not listed as an ESI […]
July 24, 2026
Published by Michael Berman at July 24, 2026
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In Sussman Sales Co., Inc. v. VWR International, LLC, 2026 WL 2056582 (S.D.N.Y. Jul. 15, 2026), the court made two holdings that I question. Clearly the court is privy to information I do not have and may have explained its reasoning in greater depth elsewhere. For example, the opinion opens by stating: […]
July 23, 2026
Published by Michael Berman at July 23, 2026
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Mr. Gruendel took a collection of documents from his former employer, defendant Figure AI, Inc. The court ordered them returned and, “Mr. Gruendel and his counsel must destroy and must not retain any of the Figure documents, and must cause the vendor to destroy the vendor’s copy of the Figure documents….” Figure […]
July 22, 2026
Published by Michael Berman at July 22, 2026
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Plaintiff Tracinda Frank sought to depose EEOC Investigator Ian Steele and obtain his interview notes pertaining to an EEOC charge. Ms. Frank had sued the school district for alleged discrimination. The EEOC was not a party and it successfully moved to quash the subpoena. Frank v. San Francisco Unified School District, 2026 […]
July 5, 2026
Published by Michael Berman at July 5, 2026
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Tara S. Emory and Maura R. Grossman have authored “GenAI Prompts in eDiscovery: Protected Work Product or Not?,” which will be published in Columbia Sci. and Tech. L. Rev., Vol. 28, No. 1 (forthcoming Dec. 2026). This excellent and comprehensive paper addresses whether draft and final prompts written by attorneys to instruct […]
June 30, 2026
Published by Michael Berman at June 30, 2026
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The stipulated protective order in Waterford Township Gen. Employees Retirement System v. Monolithic Power Systems, Inc., 2026 WL 1858112 (W.D. Wash. Jun. 29, 2026), addressed the protection of A.I. used by a party’s expert. It stated: Neither side must preserve or disclose, including in expert deposition testimony, the following documents or materials:… […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued a business that managed apartment complexes, alleging employment discrimination. The court wrote that the parties had been “embroiled” in a discovery dispute over GEM’s responses. The EEOC diligently pursued discovery. After a “provisional” discovery order was entered, EEOC’s subsequent motion to compel was substantially granted. EEOC v. GEM Management, […]
May 10, 2026
Published by Michael Berman at May 10, 2026
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I recently posted a blog about cell phone imaging, discussing Madrigal v. Live Nation Entertainment, Inc., 2026 WL 1196245 (C.D. Cal. Apr. 24, 2026). See Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part (May 7, 2026). In Rubesne Resources LLC v. ACE Property and Cas. Ins. Co,. […]
May 2, 2026
Published by Michael Berman at May 2, 2026
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In Jones v. Delta Air Lines, Inc., 2026 WL 1091186 (E.D. Mich. Apr. 22, 2026), the court addressed the pro se deponent’s use of artificial intelligence during a deposition. It prohibited her use of ChatGPT to answer questions and held that her use of ChatGPT was not protected by the attorney-client privilege. […]
April 30, 2026
Published by Michael Berman at April 30, 2026
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Fed.R.Civ.P. 33(a)(1) states that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” In Banerjee v. Rueger, 2026 WL 1078791 (D. Md. Apr. 21, 2026), Plaintiffs asserted that the following interrogatory contains seven subparts: INTERROGATORY NO. 2[ ]. Please describe in full detail […]
April 27, 2026
Published by Michael Berman at April 27, 2026
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As the title indicates, In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, 2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026), is complex litigation. One significant issue was an order limiting the use of artificial intelligence to analyze protected materials produced by an opponent in discovery. I have suggested […]
April 23, 2026
Published by Michael Berman at April 23, 2026
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Plaintiffs in a Fair Labor Standards Act collective action sought broad discovery from seven apex executives of defendant Perdue Foods. Tripp v. Perdue Foods LLC, 2026 WL 1021135 (D. Md. Apr. 15, 2026)(Coulson, J.). The parties were diametrically opposed: “Plaintiff seeks an order compelling the production of certain ESI from Perdue, and […]
April 5, 2026
Published by Michael Berman at April 5, 2026
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Sabrina Rose-Smith and Elizabeth Tucci, raised an interesting issue in Deepfake Executives, Created Via Depositions, Pose Grave Threat (Bloomberg Law Mar. 24, 2026). They point out that video deposition are provide “high-quality source material for increasingly accessible generative AI systems.” The article points to the value of these depositions because they “offer […]
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 26, 2026
Published by Michael Berman at March 26, 2026
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I have suggested that litigation hold notices should not be treated as privileged. See Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025); The Honorable Paul W. Grimm (ret.), M. Berman, et al., Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation […]
March 10, 2026
Published by Michael Berman at March 10, 2026
A broad discovery order was entered in Estate of Lokken v. United Health Grp., Inc., 2026 WL 658883 (D. Minn. Mar. 9, 2026). Lokken is a putative class action “alleging that UnitedHealth Group, Inc., and naviHealth, Inc., used an artificial intelligence program called nH Predict to deny medical care coverage in violation […]
March 8, 2026
Published by Michael Berman at March 8, 2026
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California enacted an “Artificial Intelligence Training Data Transparency” statute. Cal. Civ. Code §3111. It “requires developers of ‘a generative artificial intelligence system or service’ that is ‘publicly available to Californians for use’ to ‘post on the developer’s internet website documentation regarding the data used by the developer to train the generative artificial […]
February 27, 2026
Published by Michael Berman at February 27, 2026
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What happens when improper boilerplate objections meet improper discovery requests? Generally, boilerplate objections are deemed to constitute a waiver of objections. However, a court held that it would be inequitable to find waiver “ because so many of Plaintiffs’ requests are sufficiently premature, overly broad, unduly burdensome, and/or disproportionate given Arch’s third-party […]
February 24, 2026
Published by Michael Berman at February 24, 2026
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The time when a video of key events must be produced in discovery is often contentious. Requestors generally contend it must be produced, like other discovery, before their deposition. Producers often contend that the video is impeachment evidence that need not be produced until after the Requestor is deposed. That tension was […]
February 20, 2026
Published by Michael Berman at February 20, 2026
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An attorney’s selection and arrangement of non-privileged documents, contained in a larger universe, in anticipation of litigation, is work product. Aliev v. Trans Union, LLC, 2026 WL 202549 (E.D. Va. Jan. 26, 2026), citing In Re Allen, 106 F.3d 582 (4th Cir. 1997). However, in Aliev, Trans Union failed to demonstrate facts […]
February 19, 2026
Published by Michael Berman at February 19, 2026
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A recent decision clarified the relationship between a requesting and a preserving entity and ordered “discovery on discovery” a/k/a satellite discovery or culpability discovery. The court wrote: “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” “Rule 37 requires the party from whom the information is sought to […]
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’ […]
February 14, 2026
Published by Michael Berman at February 14, 2026
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The duty to preserve is triggered when a potential litigant reasonably anticipates litigation. More than a mere dispute is required, and the test is objective. What about third parties? “Generally, the duty to preserve extends to documents or tangible things … by or to individuals likely to have discoverable information that the […]
January 25, 2026
Published by Michael Berman at January 25, 2026
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Plaintiff KISS sought discovery of certain otherwise-privileged communications made by defendant Ardell to Ms. Theresa Cooper, an executive vice president at Ardell. Initially, Ms. Cooper was designated as a fact witness. Later, she was designated as a “non-reporting expert” pursuant to Fed.R.Civ.P. 26(a)(2)(c). The court explained that “Ardell’s Expert Disclosures state that […]
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 23, 2026
Published by Michael Berman at January 23, 2026
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Lively v. Wayfarer Studios LLC, 2026 WL 145483 (S.D.N.Y. Jan. 20, 2026), is the latest in a long line of discovery and other decisions in this matter. The court wrote: “Before the Court are various requests for sealing and unsealing filed by both parties and non-parties regarding materials submitted in connection with” […]
January 21, 2026
Published by Michael Berman at January 21, 2026
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In Cassels Brock & Blackwell LLP v. Veroblue Farms USA, Inc., 2026 WL 66893 (N.D. Iowa Jan. 8, 2026), the court addressed the theory supporting the principle that an inadequate privilege log may defeat a claim of privilege. The case was before a U.S. Magistrate Judge on review of the decisions of […]
January 20, 2026
Published by Michael Berman at January 20, 2026
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“Privilege logs can be admissible evidence.” Carefirst of Maryland, v. Johnson & Johnson, 2026 WL 114415, at *3 (E.D. Va. Jan. 14, 2026)(citations omitted). I have written about related topics in: Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025); Privilege Log Helps Defeat Summary […]
January 18, 2026
Published by Michael Berman at January 18, 2026
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In Choudhury v. NYC Health and Hospitals Corp., 2026 WL 124376 (S.D.N.Y. Jan. 16, 2026), defendant prevailed because it supported its argument with metrics. The court held that the facts presented demonstrated that requested ESI was not reasonably accessible because of undue burden or cost. Ms. Choudhury asked the court to approve […]
January 4, 2026
Published by Michael Berman at January 4, 2026
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In its verified discovery responses, Defendant PHH identified two people as “key actors” in connection with the loan at issue. Further: “At a hearing before this Court on this very point – the level of authority of these employees – PHH stood by its responses, a point which the Court confirms from […]
January 2, 2026
Published by Michael Berman at January 2, 2026
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Prof. Ira P. Robbins, published an important article, Against an AI Privilege – Harvard Journal of Law & Technology (Nov. 7, 2025). Prof. Robbins poses the question of whether communications with artificial intelligence systems “deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal privileges.” He argues […]
December 29, 2025
Published by Michael Berman at December 29, 2025
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In Powell-Hatcher v. Wal-Mart Stores East, LP, 2025 WL 3722385 (E.D. Mich. Dec. 23, 2025), the court stated several general principles governing requests to produce documents and objections to those requests. The decision was issued in the context of a motion to compel. First, parties must address the relevance of each request […]
December 20, 2025
Published by Michael Berman at December 20, 2025
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Marris Hoffee and Michael Berman As remote and hybrid work models have become the norm, the line between personal and professional digital life has blurred almost beyond recognition. Employees routinely use company-issued laptops and cell phones for personal activities, while employers increasingly rely on those same devices to investigate misconduct, prosecute or […]
December 5, 2025
Published by Michael Berman at December 5, 2025
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The decision in Legault v. Costco Wholesale Corporation, 2025 WL 3252653 (E.D. Ark. Nov. 21, 2025), is succinct in its discussion of the production of native files. The court wrote: “Legault’s motion to compel Costco to provide him with native files and metadata is denied because Costco states the files are security […]
December 3, 2025
Published by Michael Berman at December 3, 2025
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Ms. Blake Lively moved for an order confirming that her requests for admission (“RFA’s”) were deemed admitted due to the Wayfarer Parties’ alleged failure to timely respond to them. Lively v. Wayfarer Studios LLC, 2025 WL 3442593 (S.D.N.Y. Dec. 1, 2025). While the court held that the Wayfarer Parties’ responses were insufficient, […]
December 2, 2025
Published by Michael Berman at December 2, 2025
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The court in Carter v. Uzglobal LLC, 2025 WL 3443521 (D. N. Mex. Dec. 1, 2025), succinctly summarized a number of important discovery issues, writing: “A. Rule 26(b)’s Scope of Discovery. Discoverable material includes ‘any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs […]
November 23, 2025
Published by Michael Berman at November 23, 2025
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The plaintiff in Harrison v. Whole Foods Market, Inc., 2025 WL 3089961 (N.D. Cal. Nov. 5, 2025), was pro se. Plaintiff sued for alleged discrimination. Defendant propounded discovery. In part, Plaintiff raised a work product objection and withheld documents. The court wrote that: “Plaintiff is correct that work product protection is not […]
November 21, 2025
Published by Michael Berman at November 21, 2025
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This blog on Lively v. Wayfarer Studios, LLC, 2025 WL 3206490 (S.D.N.Y. Nov. 17, 2025), is my ninth on this and related litigation. The opening sentence is: Plaintiff Blake Lively (“Lively”) moves to sanction Defendant Jamey Heath (“Heath”) for failing to produce all video footage related to the “birth video” that the […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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The movie Jaws famously contained the line “Just when you thought it was safe to go back in the water…” Law360 reports Attys Beware: Generative AI Can Also Hallucinate Metadata – Law360 in a November 4th article by Daniel Garrie, Jennifer Deutsch, and Morgan Ward Doran. The article states: When AI generates […]
November 20, 2025
Published by Michael Berman at November 20, 2025
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Efforts to redact material as irrelevant are generally rejected. Relevance Redactions Prohibited – Again (May 17, 2024); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025). The court in Hughes v. Apple, Inc., 2025 WL 3141836 (N.D. Cal. Nov. 10, 2025), permitted plaintiffs’ “restrained” redactions in connection […]
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 […]
November 8, 2025
Published by Michael Berman at November 8, 2025
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Plaintiffs alleged that defendants improperly delayed market entry of their generic medication. Defendants filed a motion to dismiss and sought to stay all discovery until after that motion was resolved. They contended that plaintiffs waited 10 years to file suit and were barred by limitations. The motion to stay discovery was denied: […]
November 5, 2025
Published by Michael Berman at November 5, 2025
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MuniCap, Inc. v. Wilson, 2025 WL 3003968 (D. Md. Oct. 24, 2025)(Austin, J.), is the latest decision in the long simmering dispute over document correlation under Fed.R.Civ.P. 32. The dispute centers on whether Subsection E(i) or E(ii) governs production of ESI. THE RULE 34(b)(2)(E)(i) & (2) DISPUTE Subsection E(i) states that: “A […]
November 4, 2025
Published by Michael Berman at November 4, 2025
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A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit. Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, […]
October 13, 2025
Published by Michael Berman at October 13, 2025
In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections. The court ordered mutual disclosure of search methodology and ruled that it was […]
October 1, 2025
Published by Michael Berman at October 1, 2025
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Geofence warrants are a hotly-disputed topic. See Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision (Aug. 4, 2025). The Petition for Certiorari states: “This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to […]
September 29, 2025
Published by Michael Berman at September 29, 2025
In In Re Tecfidera Antitrust Litigation, 2025 WL 2734539 (N.D. Ill. Sep. 25, 2025), the court wrote: “The parties’ cross motions for entry of their version of the ESI protocol noted that the parties agreed on all issues except for one relating to email threading, which Defendant seeks to include but Plaintiffs […]
September 28, 2025
Published by Michael Berman at September 28, 2025
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Singleton v. Mazhari, 2025 WL 2736530 (D. Md. Sep. 25, 2025), answered that question in the negative. Maryland’s “Public Information Act” (“MPIA”) is a State analog to the federal Freedom of Information Act (“FOIA”). Like FOIA, the MPIA provides a broad right to inspect public records, subject to enumerated exceptions. Singleton addressed […]
September 6, 2025
Published by Michael Berman at September 6, 2025
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In Lively v. The Skyline Agency LLC, 2025 WL 2532796 (S.D.N.Y. Sep. 3, 2025), the court wrote that Ms. Lively subpoenaed a Signal Chat in connection with Lively v. Wayfarer Studios LLC, No. 24-cv-10049 (S.D.N.Y. filed Dec. 31, 2024) (the “Lively Action”). Id. at *1. Skyline and Ms. Kalantari withheld certain information. […]
September 5, 2025
Published by Michael Berman at September 5, 2025
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Yesterday, I posted a blog titled “Discovery on Discovery” Permitted. “Discovery on Discovery” was denied in Lively v. Wayfarer Studios LLC, 2025 WL 2496307 (S.D.N.Y. Aug. 29, 2025). Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if […]
September 4, 2025
Published by Michael Berman at September 4, 2025
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“Discovery on Discovery,” sometimes called “satellite discovery,” “discovery about discovery,” or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025). Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Plaintiff sought a Rule 30(b)(6) deposition; however, Defendants refused. Plaintiff moved to […]
September 1, 2025
Published by Michael Berman at September 1, 2025
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“Keyword warrants” are search warrants “which force search engines to provide personal information on anyone who may have inputted certain terms….” C. Edano, “Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants,” 97 Wash.L.Rev. 977, 978 (2022): In October 2020, the Denver Police Department hit a wall. The Department was investigating […]
August 29, 2025
Published by Michael Berman at August 29, 2025
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In Rutherford v. Central Bank of Kansas City, 2025 WL 2432218, at *6-7 (W.D. Wash. Aug. 21, 2025), one of several issues was whether a litigant must produce information that was already in possession of the opponent’s counsel from other litigation. The court held that duplicative production was unnecessary; however, it ordered […]
August 15, 2025
Published by Michael Berman at August 15, 2025
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The standard for reopening completed depositions to address after-produced documents was explained in In re Sandisk SSDs Litigation, 2025 WL 2304805 (N.D. Cal. Aug. 11, 2025). The court stated that: “Plaintiffs move to reopen fact discovery to reopen three depositions of Defendants’ employees in light of Defendants’ belated production of documents that […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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Phased discovery is, in my experience, a potentially valuable, but rarely used, cost-saving technique. See Use of Phased Discovery to Achieve Proportionality (Jul. 15, 2022). In appropriate situations, phased discovery can be a useful way to avoid a discovery dispute by “kicking the can down the road.” Fed.R.Civ.P. 26(f)(3) requires that a […]
August 8, 2025
Published by Michael Berman at August 8, 2025
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A four-factor test to answer the question of “when can opposing counsel be deposed?” was set out in Safo v. Singh, 2025 WL 2123613 (S.D.N.Y. Jul. 29, 2025), citing In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d. Cir. 2003)(Sotomayer, J.). The four factors are: (1) the need to […]
August 7, 2025
Published by Michael Berman at August 7, 2025
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The federal court in Delaware has a “Default Standard for Discovery, Including Discovery of Electronically Stored Information.” Belvac Production Machinery, Inc. v. Adonis Acquisition Holdings LLC, 2025 WL 2146099 (D. Del. Jul. 29, 2025). It applied that standard to a request to preserve information in Random Access Memory (“RAM”). Belvac sought preservation […]
August 5, 2025
Published by Michael Berman at August 5, 2025
While disfavored, relevant and proportional “discovery on discovery” is permitted “where there is evidence of a specific deficiency in the production.” Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 2187115 (M.D. Tenn. Jul. 25, 2025). Revance moved to compel Allergan “to more fully respond to discovery related to former Allergan and former […]
August 3, 2025
Published by Michael Berman at August 3, 2025
Plaintiff’s motion to compel production of defendants’ organizational chart was granted in a putative class action for alleged unpaid overtime. Castillo v. Albert Einstein College of Medicine, Inc., 2025 WL 1789827 (S.D.N.Y. Jun. 30, 2025). The court wrote that: Plaintiff moves to compel responses to its Requests for Production (“RFPs”) Nos. 11–12 […]
August 3, 2025
Published by Michael Berman at August 3, 2025
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Untimely privilege objections to a subpoena were waived. However, the dissolved entity no longer had any privilege. Utah Physicians for a Healthy Environment, Inc. v. Diesel Power Gear, LLC, 2025 WL 2144788 (D. Ut. Jul. 29, 2025). In this case, the plaintiff is attempting to collect on a judgment. Presumably, plaintiff is […]
July 31, 2025
Published by Michael Berman at July 31, 2025
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Payne v. Geer, 2025 WL 2061651 (D. Neb. Jul. 23, 2025), involved allegations of malicious prosecution. The court cited a local rule that prohibits use of definitions in interrogatories without leave of court. Plaintiff Payne moved to compel discovery from Defendant Herman. In pertinent part, Herman objected to the definitions in Payne’s […]
July 28, 2025
Published by Michael Berman at July 28, 2025
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Padre v. MVM, Inc., 2025 WL 202303 (S.D. Cal. Jul. 17, 2025), applies the “Touhy” Regulations to a federal subpoena directed to a government contractor. Plaintiffs filed this action on July 23, 2024, on behalf of themselves and a class of similarly situated people, alleging that Defendant violated Plaintiffs’ constitutional rights and […]
July 26, 2025
Published by Michael Berman at July 26, 2025
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“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted). Here, the […]
July 25, 2025
Published by Michael Berman at July 25, 2025
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The order in Bouie v. Alzayadi, 2025 WL 2042261 (E.D. Mich. Jul. 21, 2025)(Stafford, J.), clearly sets out a series of rules governing discovery disputes. At a status conference, each party asserted that the other had not adequately responded to discovery requests. Judge Stafford wrote: “The Court’s efforts to resolve the disputes […]
July 20, 2025
Published by Michael Berman at July 20, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1999355 (S.D.N.Y. Jul. 17, 2025), involves a lot of money. It has also generated a cottage industry of discovery decisions. Westlaw lists 13 decisions (not all on discovery) since February 2025. For blogs on some of them, please see “It Ends With Us” (Apr. 8, […]
July 18, 2025
Published by Michael Berman at July 18, 2025
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A protective order barring post-settlement use by plaintiffs’ counsel of defendant’s discovery responses in other litigation was vacated in Cordero v. Stemilt AG Services, LLC, __ F. 4th__, 2025 WL 1902292 (9th Cir. Jul. 10, 2025). Columbia Legal Services (“Columbia”) is part of a network of attorneys that provide legal services to […]
July 11, 2025
Published by Michael Berman at July 11, 2025
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Marris Hoffee and Michael D. Berman In Hall v. Baltimore Police Dept., 2025 WL 1548560 (D. Md. May 30, 2025)(Austin, J.), the Court considered whether materials created many years after the underlying incident were protected under the work-product doctrine. The materials were prepared as part of legal representation of the plaintiff. They […]
July 6, 2025
Published by Michael Berman at July 6, 2025
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A privilege log had substantive implications in Cáceres v. Sidley Austin LLP, 2025 WL 1826140 (N.D. Ga. Jul. 2, 2025). This is parallel to Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025)(unpublished), where a Privilege Log Helped Defeat Summary Judgment on One Count (Jun. 17, 2025). In […]
July 4, 2025
Published by Michael Berman at July 4, 2025
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In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2025 WL 1393216 (N.D. Cal. May 14, 2025), the court resolved discovery disputes over a corporate designee deposition under Fed.R.Civ.P. 30(b)(6). The court: Narrowed a request for “discovery on discovery”; Ordered that, with limitations, Uber’s deponent must bring an Uber laptop to […]
July 3, 2025
Published by Michael Berman at July 3, 2025
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In two related decisions, plaintiff’s motions for sanctions for spoliation of a cell phone and for destruction of drug testing swabs, were denied. Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403350 (D. Md. May 15, 2025)(Coulson, J.)( “Cooper I”); Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403334 (D. […]
July 1, 2025
Published by Michael Berman at July 1, 2025
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A motion to compel the designation of an “apex” non-party document custodian was granted in In Re Mosaic LLM Litigation, 2025 WL 176001 (N.D. Cal. Jun. 26, 2025). The limiting “apex doctrine” generally does not apply to document custodians. Id. However, the stringent “apex doctrine” applied in this instance, due to the […]
June 30, 2025
Published by Michael Berman at June 30, 2025
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In The Loan Source Inc. v. Newity LLC, 2025 WL 1755230 (D. Del. Jun. 25, 2025), plaintiffs’ request for production number 19 sought documents “sufficient to show Defendants’ efforts to settle a lawsuit….” Their motion to compel was granted over relevance and other objections. The court wrote: “Thus, Defendants must produce documents […]
June 18, 2025
Published by Michael Berman at June 18, 2025
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Fed.R.Civ.P. 26(g) is called the “stop and think” rule. In Grullon v. Lewis, 2025 WL 1693425 (S.D.N.Y. Jun. 17, 2025), the court found a violation of that rule. The court held that: To satisfy the requirements of Rule 26(g)(1) and comply with counsel’s ethical obligations as an officer of the Court, counsel […]
June 17, 2025
Published by Michael Berman at June 17, 2025
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In Heym v. APG Housing, LLC, 2025 WL 1661414 (D. Md. June 11, 2025)(Coulson, J.), the Court applied its Principles for the Discovery of Electronically Stored Information in Civil Cases (“ESI Principles”) to order that a discovering party narrow its request for metadata. THE DISTRICT OF MARYLAND’S “ESI PRINCIPLES” The development of […]
June 12, 2025
Published by Michael Berman at June 12, 2025
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How Secret Service agents caught a child sex abuser distributing CSAM – The Washington Post (Jun.11, 2025), by Yudhijit Bhattacharjee is a fascinating and disturbing description of the use of electronically stored information, by dedicated law enforcement officers, to find, apprehend, and bring to justice a person who distributed child sex abuse […]
June 8, 2025
Published by Michael Berman at June 8, 2025
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Lively v. Wayfarer Studios LLC, 2025 WL 1591282 (S.D.N.Y. June 5, 2025), is another in a series of discovery decisions in the dispute involving Ms. Blake Lively and Mr. Justin Baldoni, among many others. See, e.g., “It Ends With Us” (Apr. 8, 2025); Lively v. Wayfarer Studios LLC, 2025 WL 1397047 (S.D.N.Y. […]
May 31, 2025
Published by Michael Berman at May 31, 2025
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In Craig v. Cornerstone Trading Grp., LLC, 2025 WL 1475428 (S.D. Ind. May 22, 2025), the court wrote: “The City’s objection that it did not understand the request as phrased is disingenuous at best and frankly appears more likely to be intentionally obstructionist.” After a fire in Richmond, Indiana, plaintiffs sued, among […]
May 30, 2025
Published by Michael Berman at May 30, 2025
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In Wenzler v. U.S. Coast Guard, 2025 WL 1445805 (Mar. 20, 2025), Wenzler alleged that he had been disenrolled from the voluntary U.S. Coast Guard Auxiliary based on his speech on social media. Wenzler unsuccessfully asserted protected speech, retaliation, and spoliation, among other things, after two government cell phones were reset. Wenzler’s […]
May 20, 2025
Published by Michael Berman at May 20, 2025
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Mayor & City Council of Baltimore v. Lambert, __ Md. App. __, 2025 WL 1291491 (Appl. Ct. Md. May 5, 2025), addressed the important issue of “apex” depositions in the governmental context. Plaintiffs, a parent and a school-age minor, in a personal injury claim against a school system sought the depositions of […]
May 14, 2025
Published by Michael Berman at May 14, 2025
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We the Protestors, Inc. v. Sinyangwe, 348 F.R.D. 175 (S.D.N.Y. Dec. 18, 2024), makes several important points about the relationship between ESI Protocols and redaction of produced documents. The decision begins: Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the […]
May 7, 2025
Published by Michael Berman at May 7, 2025
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In U.S. v. Chatrie, __ Fed. 4th __, 2025 WL 1242063 (4th Cir. Apr. 30, 2025)(en banc), the Court issued a per curiam affirmance of the District Court’s geofence decision. Fourteen judges joined in that decision. There were eight concurring opinions and one dissent. [1] Chief Judge Diaz wrote a concurring opinion. […]
April 23, 2025
Published by Michael Berman at April 23, 2025
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In Abrego-Garcia v. Noem, __ F.R.D. ___, 2025 WL 1166402 (D. Md. Apr. 22, 2025)(Xinis, J.), plaintiffs notified the Court of “seemingly intractable discovery disputes….” The case is before the District Court after the United States Supreme Court’s ruling in Noem v. Abrego Garcia, 604 U.S. –––– (2025). The District Court expedited […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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Sports Rehab Consulting LLC v. Vail Clinic, Inc., 2025 WL 1144559 (D. Col. Apr. 18, 2025), has a “tortuous procedural history….” The case turned on allegations of a monopoly over physical therapy services. Both sides objected to a report and recommendation of a special master. In the portion of the decision pertinent […]
April 22, 2025
Published by Michael Berman at April 22, 2025
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In U.S. EEOC v. Aspire Regional Partners, Inc., 2025 WL 1115300 (S.D. Oh. Apr. 15, 2025), the court ordered discovery of litigation hold notices. In my opinion, and while I agree with the result, the legal issues governing the discovery of litigation hold notices and implementation need clarity and national uniformity. In […]
April 20, 2025
Published by Michael Berman at April 20, 2025
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Doug Austin’s blog, Informal Discovery Dispute as to TAR Implementation Resolved by Court (Apr. 17, 2025), provides an excellent description of a recent TAR protocol case. In re Insulin Pricing Litigation, 2025 WL 1112837 (D.N.J. Apr. 11, 2025).
April 20, 2025
Published by Michael Berman at April 20, 2025
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Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), was an early decision on cooperation, boilerplate objections, waiver by failure to object properly, and a court-ordered meet-and-confer. The case was a collective action under the Fair Labor Standards Act and Maryland wage and overtime law. The Court outlined a […]
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 […]
April 18, 2025
Published by Michael Berman at April 18, 2025
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In Jayne H. Lee, Inc. v. Flagstaff Industries Corp., 173 F.R.D. 651 (D. Md. 1997), plaintiff’s counsel “was dissatisfied with the response by the defendant to the interrogatories and requests for production of documents which the plaintiff had filed….” What happened next was a mistake. Plaintiff, “without ever seeking to file a […]
April 17, 2025
Published by Michael Berman at April 17, 2025
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Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35 (D. Md. 2000), was an employment dispute. Plaintiff filed a motion to compel discovery responses. The Court directed defendant to spend 40 hours searching for responsive information. If the plaintiff wanted more, it could get more; provided that it paid the actual cost […]
April 16, 2025
Published by Michael Berman at April 16, 2025
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Burge v. Teva Pharmaceutical Industries, Ltd., 2025 WL 1100047 (D. Kans. Apr. 15, 2025), is an exceedingly complex case. Based on the terms of an ESI Protocol, the court granted, in part, and denied, in part, a motion to compel plaintiff to designate additional custodians in Phase I discovery. It applied a […]
April 15, 2025
Published by Michael Berman at April 15, 2025
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In Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025), the court ruled in favor of a discovering party and ordered reproduction of previously-produced documents under the terms of an ESI Protocol. The court also addressed what it considered to be a “dump truck” production. Pincus […]
April 8, 2025
Published by Michael Berman at April 8, 2025
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In Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025), the court granted in part and denied in part a motion to quash subpoenas issued to AT&T, Verizon, and T-Mobile (the “Wayfarer Parties”) by Ms. Blake Lively. Contextually, the litigation has been described in popular media. B. Lang, Ruling […]
April 7, 2025
Published by Michael Berman at April 7, 2025
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In Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262 (M.D. Fl. Mar. 7, 2025), plaintiff, Orlando Health, sought to compel BBM to comply with an ESI Protocol and BBM sought to compel Orlando Health to do the same. The court rejected BBM’s argument that a filed ESI Protocol that had […]
April 4, 2025
Published by Michael Berman at April 4, 2025
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In Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025)(Austin, J.), the Court set out and applied the principles governing subpoenas and objections to them. The Court explained the dispute: “Mr. Hall alleges that BPD and three former officers—Donald Licato, Frank Barlow, and John Barrick—concealed exculpatory evidence and […]
April 3, 2025
Published by Michael Berman at April 3, 2025
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In Hernandez v. Event Tickets Center, Inc., 2025 WL 958193 (E.D. Ca. Mar. 31, 2025), the court denied defendant’s request to stay discovery pending a ruling on defendant’s motion to dismiss the complaint. Hernandez is a putative class action concerning the secondary ticket marketplace. The stay was presented by plaintiff’s motion to […]
March 27, 2025
Published by Michael Berman at March 27, 2025
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That was one question in Flores v. Guevara, 2025 WL 790795 (N.D. Ill. Mar. 12, 2025). Plaintiff filed a motion to compel in a Monell case involving the City of Chicago. This was one of a series of cases involving Reynaldo Guevara. Guevara was formerly a Chicago police detective. Cruz v. Guevara, […]
March 13, 2025
Published by Michael Berman at March 13, 2025
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In MJ Enterprise Holdings, Inc. v. Spiffy Franchising, LLC, 2025 WL 775515 (D. Md. Mar. 10, 2025)(Austin, J.), Defendants moved to stay all discovery deadlines pending a resolution of their motion to compel arbitration and for a stay pending arbitration. The motion to stay discovery was granted. Plaintiffs alleged fraud and misrepresentation […]
March 8, 2025
Published by Michael Berman at March 8, 2025
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In Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025), Plaintiff’s claim was for $1,571,754.62. The court essentially held that the ESI Protocol was binding. It wrote: The emails attached to the [Defendant’s] motion to compel show that Defendant notified Plaintiff that […]
March 6, 2025
Published by Michael Berman at March 6, 2025
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues. […]
March 4, 2025
Published by Michael Berman at March 4, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025), the court wrote: The parties negotiated an ESI Protocol that, in relevant part, required Defendants to collect documents from fifty custodians and produce documents and family members that produced a “hit” on agreed-upon search terms. Pursuant to the […]
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 […]
March 2, 2025
Published by Michael Berman at March 2, 2025
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In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025)(Bryan, J.), the District Judge overruled objections to several rulings of the Magistrate Judge. “Rolling discovery” was not permitted: In August 2024, the Magistrate Judge decided that continuous rolling discovery after April or September 2023 would be unduly burdensome […]
February 26, 2025
Published by Michael Berman at February 26, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in a lawsuit by a terminated employee against her former employer. I have written three detailed blogs about the case: Consulting an Attorney Did Not Trigger the Duty to […]
February 23, 2025
Published by Michael Berman at February 23, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. The court permitted spoliation interrogatories. For an earlier post on this decision, please see Consulting an Attorney Did Not […]
February 21, 2025
Published by Michael Berman at February 21, 2025
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information.[1] In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025 WL 428547 (W.D.N.Y. Feb. 7, 2025), the court held that litigation hold notices were privileged. There may […]
February 11, 2025
Published by Michael Berman at February 11, 2025
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In Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.), Ms. Cooper sued BG&E and another employer for sexual harassment and discrimination.[1] The Court resolved cross-motions to compel. Both discovery motions were granted in part and denied in part. The decision reflects the fact-specific nature […]
February 8, 2025
Published by Michael Berman at February 8, 2025
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In Sullivan v. Wyatt, 2023 WL 1812733 (Appl. Ct. Md. Feb. 7, 2023)(unreported), the Court affirmed an award of damages to plaintiff (“Rebecca”), daughter of the decedent, due to the exertion of undue influence by the second wife of the decedent (“Joan”). After a five-day trial, the jury awarded Rebecca, the daughter, […]
January 27, 2025
Published by Michael Berman at January 27, 2025
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The decision in Cook v. Meta Platforms, Inc., 2024 WL 251942 (N.D. Cal. Jan. 21, 2025), packs a lot into very few pages. In two instances, where Meta had offered a compromise solution, the court held Meta to that offer. I. PRIVILEGE LOG DISPUTE First, the court resolved a privilege log […]
January 22, 2025
Published by Michael Berman at January 22, 2025
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While a Maryland State court permitted a geofence warrant, Geofence Search Warrant Held Valid (Jun. 28, 2024), there is a split of authority between the Fourth and Fifth federal circuits. Are Geofence Warrants Permissible? – A Circuit Split (Aug. 12, 2024). On November 1, 2024, the United States Court of Appeals for […]
January 8, 2025
Published by Michael Berman at January 8, 2025
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Red-D-Arc Inc. v AMP 2 LLC, 2025 WL 26648 (M.D. Fl. Jan. 3, 2025), was a breach of contract action. Plaintiff contended that, in response to plaintiff’s interrogatories, “Defendants improperly refer to hundreds of pages of documents, which is non-responsive, evasive, and in violation of Federal Rule of Civil Procedure 33(d).” The […]
January 7, 2025
Published by Michael Berman at January 7, 2025
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In Howard v. Ashworth, 2024 WL 5264677 (E.D. Wis. Dec. 31, 2024), an inmate sued correctional officers from Waupun Correctional Institution for allegedly intercepting his correspondence based on a retaliatory motive. The court held that a party need not show that litigation was anticipated when the party is actually in litigation. The […]
January 4, 2025
Published by Michael Berman at January 4, 2025
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In Hall v. Trivest Partners L.P., 2024 WL 514015 (E.D. Mich. Dec. 17, 2024), the court rejected a demand that opposing counsel state under oath that counsel had properly conducted discovery. The court wrote: Lastly, Plaintiffs seek an order compelling Trivest Defendants to attest to having undertaken “proper efforts to ensure that […]
January 3, 2025
Published by Michael Berman at January 3, 2025
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In Sterling Computers Corporation v. International Busn. Machines Corp., 2024 WL 5168014 (D. S. Dak. Dec. 19, 2024), the court addressed: (1) whether the duty to meet and confer before moving to compel extends the time for filing such a motion; and, (2) how to show that an opponent’s production is incomplete. […]
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 […]
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 […]
December 17, 2024
Published by Michael Berman at December 17, 2024
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In Jackson v. Tesla, Inc., 2024 WL 5011620 (N.D. Ca. Dec. 6, 2024), the court held that the work of a non-testifying consultant that was provided to a testifying expert was discoverable. The non-testifying consultant reviewed unintended acceleration complaints in a federal (NHTSA) database. The consultant used criteria supplied by plaintiffs’ testifying […]
December 11, 2024
Published by Michael Berman at December 11, 2024
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In Rouse v. H.B. Fuller Co., 2024 WL 4973028 (D. Minn. Dec. 4, 2024), plaintiff moved to compel production sought in his Request No. 159, which asked for: “All Documents and Communications responsive to or collected by the ESI Protocol from April 1, 2023 to present. (Emphasis added).” The court described the […]
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 25, 2024
Published by Michael Berman at November 25, 2024
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Isaiah Poritz reported in Bloomberg Law that the Youth Social Media Judge Threatens Contempt Against State AGs (Nov. 22, 2024). I described the underlying issue in Possession, Custody, or Control of Responsive Information by States Suing Meta (Sept. 12, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL […]
November 24, 2024
Published by Michael Berman at November 24, 2024
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In Homeland Ins. Co. of Del. V. Independent Health Ass’n., Inc., 2024 WL 4815127 (W.D.N.Y. Nov. 18, 2024), the court ordered production of litigation hold notices and implementation communications. Homeland Insurance sought a declaratory judgment that it had no duty to defend or indemnify Independent Health Association. A third-party defendant, Ace Insurance, sought […]
November 13, 2024
Published by Michael Berman at November 13, 2024
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In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document […]
November 6, 2024
Published by Michael Berman at November 6, 2024
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If I got a nickel for every mistake I made, we’d be talking about this on the balcony of my condo in Aruba, watching the sunset. Alas, I didn’t get the nickels and don’t have the condo. 😊 Rig Consulting, Inc. v. Rogers, 2024 WL 4608354 (W.D. Pa. Oct. 29, 2024), is […]
October 28, 2024
Published by Michael Berman at October 28, 2024
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In FG Hemisphere Associates, LLC v. Democratic Rep. of Congo, 2024 WL 4553371 (D. Md. Oct. 23, 2024), plaintiff FGH sought to enforce a judgment against the Democratic Republic of Congo and others. In doing so, FGH propounded discovery. In pertinent part, FGH served 20 subpoenas on third-party financial institutions. The defendants […]
October 18, 2024
Published by Michael Berman at October 18, 2024
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I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The […]
October 17, 2024
Published by Michael Berman at October 17, 2024
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GLD3, LLC v. Albra, 2024 WL 4471672 (S.D.N.Y. Oct. 11, 2024), involved a request for discovery from a former Town attorney concerning an offer that he allegedly made to plaintiffs. The defendants, a Town and others, denied knowledge of the alleged offer. The court: set out the governing standard for discovery from […]
October 16, 2024
Published by Michael Berman at October 16, 2024
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Kranz & Associates Holdings, LLC v. Lain, 2024 WL 4476655 (N.D. Cal. Oct. 11, 2024), appeared to be a run-of-the-mine trade secrets dispute. When it came to discovery, it wasn’t. Kranz, a former employer, sued Kimberly Lain, a former employee, alleging misuse of confidential information. Ms. Lain also owned Tekvantage, Inc. Her […]
October 15, 2024
Published by Michael Berman at October 15, 2024
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In Trusted Sci. & Tech., Inc. v. Evancich, 262 Md. App. 621, 2024 WL 3490547 (Apl. Ct. Md. July 22, 2024), the Court addressed the type of objections that a subpoenaed non-party may make. That was a novel issue in Maryland. The Court held “that [nonparty] TST had standing to challenge the […]
October 13, 2024
Published by Michael Berman at October 13, 2024
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“These types of disputes tend to make a court wonder, which of the court’s other cases the requesting party feels deserve to be put on the back burner in favor of theirs.” Dale v. Deutsche Telekom AG, 2024 WL 4416761, at *4 (Oct. 4, 2024). The plaintiff moved to compel use of […]
October 8, 2024
Published by Michael Berman at October 8, 2024
In a wage-and-hour claim, the Court in Bobb v. FinePoints Priv. Duty Healthcare, LLC, 2024 WL 4355048, at *1 (D. Md. Sept. 30, 2024), was faced with two “momentous” 😊 issues on a motion to compel: Plaintiffs request an order compelling Defendants to make the following categories of production…: Bates-stamped documents of […]
October 7, 2024
Published by Michael Berman at October 7, 2024
Sometimes, timing is everything. In Kadrey v. Meta Platforms, Inc., 2024 WL 4362744 (N.D. Cal. Oct. 1, 2024), it was dispositive. “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Another Cinderella Situation –Motion Denied as Untimely? (May […]
October 5, 2024
Published by Michael Berman at October 5, 2024
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Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024), applied principles enunciated by the Hon. Andrew J. Peck under the supervision of the court-appointed Special Master, Philip Favro. The parties’ dispute centered on search queries. Defendant asserted that plaintiff’s queries were over broad, excessive in number, and resulted […]
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 […]
October 1, 2024
Published by Michael Berman at October 1, 2024
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In Design With Friends, Inc. v. Target Corporation, 2024 WL 433114 (D. Del. Sept. 27, 2024), the court rejected defendant’s effort to discover documents sent by plaintiff to a litigation funder that permitted the lender to evaluate the value of plaintiff’s claims. The Little Engine That Could | Barnes & Noble® (barnesandnoble.com) […]
September 25, 2024
Published by Michael Berman at September 25, 2024
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Bender v. Wiegand Sports GMBH, 2024 WL 4202155 (D. Md. Sep. 16, 2024)(Bredar, J.), grabbed my attention because it involved a claim for personal injuries arising out of the mountain coaster ride at Wisp Resort. That is a ride I have taken my children and grandchildren on many times. One of three […]
September 23, 2024
Published by Michael Berman at September 23, 2024
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Addison Central School Dist. V. Monsanto Co, Solutia, Inc., 2024 WL 4212351 (D. Vt. Sep. 17, 2024), consists entirely of the publication of an ESI Protocol. The parties stipulated that the following categories of documents need not be produced and “presumptively need not be included on a privilege log….” Communications exclusively between […]
September 22, 2024
Published by Michael Berman at September 22, 2024
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EEOC v. Formel D USA, Inc., 2024 WL 4172527 (E.D. Mich. Sept. 12, 2024), addressed several interesting issues. Among them were: general principles of discovery; the role of counsel in self-collection; discovery on discovery; the date that the litigation hold was triggered; whether reasonable post-trigger steps were taken; curative sanctions under Fed.R.Civ.P. […]
September 17, 2024
Published by Michael Berman at September 17, 2024
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Doug Austin wrote an interesting blog, Police May be Coming for Your Tesla as a Potential Crime Witness (ediscoverytoday.com)(Sept. 4, 2024). Doug wrote that: “In Oakland and beyond, police called to crime scenes are increasingly looking for more than shell casings and fingerprints. They’re scanning for Teslas parked nearby, hoping their unique […]
September 16, 2024
Published by Michael Berman at September 16, 2024
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Ho v. Jefferson Financial Credit Union, 2024 WL 4119422 (E.D. La. Sept. 9, 2024), provides a succinct summary of the scope of discovery under the December 2015 amendments to the Federal Rules of Civil Procedure. It – surprisingly – sustained boilerplate objections. The case involved a loan gone south. Scope of Discovery […]
September 12, 2024
Published by Michael Berman at September 12, 2024
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The September 6, 2024, decision in In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024), applies the “legal control” standard to Fed.R.Civ.P. 34 discovery requests propounded by defendant Meta Platforms, Inc., seeking documents from non-party State agencies in a lawsuit brought by 35 State plaintiffs.[1] […]
September 9, 2024
Published by Michael Berman at September 9, 2024
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Thanks to Sidley Austin for publishing a blog on Ravin Crossbows, LLC v. Hunter’s Manufacturing Company, Inc., 2024 WL 3253265 (E.D. Ohio July 1, 2024), August’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP (Aug. 21, 2024) and August’s Notable Cases and Events in E-Discovery – EDRM. In […]
September 4, 2024
Published by Michael Berman at September 4, 2024
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Khan v. County of Cook, 2024 WL 3984263 (N.D. Ill. Aug. 29, 2024), rejected “oceanic” discovery requests, while permitting reasonable ones. In Khan, the hospital for the Cook County jail had terminated a dentist, alleging malfeasance. The dentist disputed the allegation, claimed racial bias was the cause, and sued. The court wrote: […]
August 30, 2024
Published by Michael Berman at August 30, 2024
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Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe […]
August 16, 2024
Published by Michael Berman at August 16, 2024
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In the latest iteration of In Re StubHub Refund Litigation, 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024), the court began its decision of discovery issues with: “At the hearing Plaintiffs tried to walk back this [discovery] request and said it was limited to refund data, rather than a wholesale redo of […]
August 13, 2024
Published by Michael Berman at August 13, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination. The Court “presided over a discovery dispute hearing related to Plaintiff’s motions to compel interrogatory requests and requests for production of documents, and related to […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Kent v. Warner, 2024 WL 3639624 (D. Neb. Jul. 24, 2024), “Plaintiff, Vernie Kent, seeks to compel Defendant, Kade Warner, to produce a surveillance video Defendant’s attorney prepared in conjunction with this litigation.” The response to that motion was that “Defendant contends the surveillance video is covered by the work-product doctrine […]
July 23, 2024
Published by Michael Berman at July 23, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….” In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior […]
July 8, 2024
Published by Michael Berman at July 8, 2024
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I have heard of many privileges, including, for example, the attorney-client privilege, spousal privilege, executive or deliberative process privilege,[1] Fifth Amendment privilege, patient-therapist privilege, clergy person privilege, news media privilege, accountant-client privilege, and others. However, I was unaware of the federal, common-law, qualified, “official information” privilege discussed in Hipschman v. County of […]
July 6, 2024
Published by Michael Berman at July 6, 2024
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In a 2021 blog, I wrote that Requests for “Any and All” Documents Are Obsolete. That blog suggests alternative approaches. Recently, in Nelson v. I.Q. Data International, Inc., 2024 WL 2963790 (E.D. Mich. June 12, 2024), the court wrote: Courts have long condemned omnibus “any and all” document requests. See Cheney v. […]
June 29, 2024
Published by Michael Berman at June 29, 2024
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Katherin Haan reported in Is Social Media The New Google? Gen Z Turn To Google 25% Less Than Gen X When Searching – Forbes Advisor (May 31, 2024), that a recent study by Forbes and Talker Research “reveal[ed] that people have changed how they engage with both content and commerce online.” Forbes […]
June 28, 2024
Published by Michael Berman at June 28, 2024
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County police officers were investigating a theft of farm equipment. They applied for a “geofence warrant” to be served on Google: “A geofence warrant authorizes the seizure of location data collected from smartphones of individuals within a particular area over a specified range of time.” United States v. Rhine, 652 F. Supp. […]
June 5, 2024
Published by Michael Berman at June 5, 2024
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Most criminal cases are tragic. Moira Akers was found guilty of murder and child abuse arising out of the death of her newborn child. Akers v. State, 2024 WL 338958, at *1 (Apls. Ct. Md. Jan. 30, 2024)(unreported). While there were many issues on appeal, one was whether evidence of her internet […]
May 31, 2024
Published by Michael Berman at May 31, 2024
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In Fiskars Finland OY AB v. Woodland Tools Inc., 2024 WL 2504717 (W.D. Wisc. May 24, 2024), plaintiff sued for alleged misappropriation of trade secrets. Defendants counterclaimed. A motion to compel production of source code was denied as untimely. “Like Cinderella, the attorney in this case tripped on the electronic stairs at […]
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 […]
May 17, 2024
Published by Michael Berman at May 17, 2024
Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007, at *6-7 (N.D. Cal. May 14, 2024), is another in a long line of cases prohibiting redaction of purportedly nonresponsive or irrelevant material from responsive documents. I have written several blogs about redactions for relevance or confidentiality: Relevance Redactions Revisited […]
May 13, 2024
Published by Michael Berman at May 13, 2024
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Blogs frequently focus on recent decisions. I came across an older one that is also worth noting. Everyone has seen discovery responses that seek to hide the ball. In Management and Constr. Svcs., LLC v. Sayers Constr., LLC, 2021 WL 981780 (D. Md. Mar. 16, 2021)(Coulson, J.), the Court took a very […]
May 10, 2024
Published by Michael Berman at May 10, 2024
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I have posted five blogs – – with links below – – on In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), subsequent opinion, 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024). I did not, and could not, touch on every issue addressed […]
May 9, 2024
Published by Michael Berman at May 9, 2024
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This is the fourth and final follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1808607 (N.D. Cal. […]
May 8, 2024
Published by Michael Berman at May 8, 2024
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This is the third follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, […]
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.” […]
April 17, 2024
Published by Michael Berman at April 17, 2024
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I am an advocate of data mapping. I also usually attempt to discuss key custodians with opposing counsel. However, in cases with a large number of custodians, I often find that it is difficult to keep track of them, especially in planning for preservation and attending Fed.R.Civ.P. 26(f) conferences. One tool that […]
March 25, 2024
Published by Michael Berman at March 25, 2024
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In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion for protective order that was resolved in the District of Maryland. […]
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 29, 2024
Published by Michael Berman at February 29, 2024
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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 6, 2024
Published by Michael Berman at February 6, 2024
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In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game […]
February 1, 2024
Published by Michael Berman at February 1, 2024
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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 5, 2024
Published by Michael Berman at January 5, 2024
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In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4th __ (4th Cir. Jan. 3, 2024). In short, plaintiff filed untimely interrogatories. Defendant responded without objecting that they were untimely. That omission waived the objection. However, defendant […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
December 29, 2023
Published by Michael Berman at December 29, 2023
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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 22, 2023
Published by Michael Berman at December 22, 2023
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Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. The United States District Court for the District of Maryland has established several processes for avoiding discovery disputes and promptly resolving those that may arise. First, the “ESI Principles” provide voluntary suggestions […]
December 16, 2023
Published by Michael Berman at December 16, 2023
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One role of an attorney handling ESI is to function as a translator between computer scientists and forensic experts, on the one hand, and laypersons, such as clients and Judges, on the other. When you look at a “load file” it can be intimidating. Figure 1 is the .dat part of a […]
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 6, 2023
Published by Michael Berman at December 6, 2023
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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 1, 2023
Published by Michael Berman at December 1, 2023
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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. […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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Lexbe Inc. (“Lexbe”) posted an informative discussion of de-duplication on LinkedIn. A link to Lexbe’s post is pasted at the foot of this blog. Lexbe’s blog explains that there are two types of de-duplication and: “Here are the differences between them: 𝐆𝐥𝐨𝐛𝐚𝐥: Duplicates are identified and suppressed across the entire dataset (i.e., all […]
November 30, 2023
Published by Michael Berman at November 30, 2023
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The Supreme Court of Maryland has amended Maryland Attorneys’ Rule of Professional Conduct 19-304.4(c) (Rule 4.4(c)). Maryland’s new rule prohibits an attorney from seeking privileged information from a third person. If such information is disclosed to the attorney, the amended rule imposes a duty to terminate the conversation and provide notice to […]
November 21, 2023
Published by Michael Berman at November 21, 2023
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In Duggins v. Haapala, 2023 WL 7627823 (Apls. Ct. Md. Nov. 15, 2023)(unreported), the intermediate appellate Court addressed whether it was spoliation to bury a dead cow that had been involved in an auto accident. By the time suit was filed, two years had passed and the location of the burial spot […]
November 17, 2023
Published by Michael Berman at November 17, 2023
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In an unreported decision, In re Francis A., 2023 WL 5948060, at *1 (Apls. Ct. Md. Sept. 13, 2023), Maryland’s intermediate appellate court addressed an issue of first impression, holding that good cause had been shown to discover expunged records in a civil lawsuit: The narrow issue before us in this expedited […]
November 16, 2023
Published by Michael Berman at November 16, 2023
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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
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 15, 2023
Published by Michael Berman at November 15, 2023
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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 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” […]
November 12, 2023
Published by Michael Berman at November 12, 2023
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In Bland v. Emcor Facilities Services Inc., 2023 WL 6937418 (Apls. Ct. Md. Oct. 20, 2023)(unreported), the Appellate Court of Maryland rejected a litigant’s narrow interpretation of two interrogatories and affirmed the imposition of sanctions.[1] Mr. Bland sued Emcor and LMC for negligence after a slip and fall on ice at his […]
November 10, 2023
Published by Michael Berman at November 10, 2023
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“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
November 1, 2023
Published by Michael Berman at November 1, 2023
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In three recent decisions culminating in in Re: International Painters & Allied Trades Industry Pension Fund, 2023 WL 6812297 (D. Md. Oct. 16, 2023)(Coulson, J.)(“International Painters III”), the Court held that: discovery objections were waived because they were not timely raised; and, answers to interrogatories cannot merely refer to other documents. It […]
October 27, 2023
Published by Michael Berman at October 27, 2023
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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 4, 2023
Published by Michael Berman at October 4, 2023
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“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan. J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. […]
September 28, 2023
Published by Michael Berman at September 28, 2023
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In In re Expungement Petition of Franics A., 2023 WL 5948060 (Appellate Ct. of MD Sept. 13, 2023)(unreported), the intermediate appellate court resolved a novel discovery issue. The Appellate Court affirmed a decision that good cause had been shown to open, review, and disclose information contained in Francis A’s expunged criminal records. […]
September 27, 2023
Published by Michael Berman at September 27, 2023
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“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1] The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786. Sedona’s website states: Judge Rodriguez […]
September 22, 2023
Published by Michael Berman at September 22, 2023
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This is Part III of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules. The prior blogs can be found using the PIA “tag,” above. Prior blogs addressed many similarities between the PIA and civil discovery, THE ANTIQUATED PIA EXCEPTION FOR METADATA […]
September 21, 2023
Published by Michael Berman at September 21, 2023
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This is Part II of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules. COOPERATION IN REQUESTS FOR PUBLIC RECORDS The duty to cooperate in civil discovery is well established. Rodriguez v. Clarke, 400 Md. 39, 60 (2007); see also J. Pike […]
September 19, 2023
Published by Michael Berman at September 19, 2023
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While this blog generally deals with civil discovery, “sunshine laws” that require disclosure of public records by government agencies raise many parallel, and many different, concerns. Maryland’s analog to the federal Freedom of Information Act (“FOIA”) is known as the “Public Information Act,” “PIA,” or “MPIA,” and it is codified as Md. […]
September 7, 2023
Published by Michael Berman at September 7, 2023
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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
Published by Michael Berman at August 8, 2023
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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
Published by Michael Berman at August 4, 2023
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 12, 2023
Published by Michael Berman at July 12, 2023
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In State v. [Defendant], __ Md. __, 2023 WL 4393297, at *1 (July 7, 2023), the Supreme Court of Maryland held that a person who had consented to seizure of his laptop, as well as to creation of a mirror image, could withdraw consent to search it before the government examined the […]
July 5, 2023
Published by Michael Berman at July 5, 2023
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The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022). In that blog, I suggested that negotiation is the best solution. […]
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 9, 2023
Published by Michael Berman at May 9, 2023
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“Before me is Plaintiffs’ Motion for Sanctions…. I will not mince words. I hate motions for sanctions. Based on my experience for roughly 25 years as a lawyer, and now for the past five years as a judge, most such motions are without merit—a mere effort by one side to obtain a […]
May 7, 2023
Published by Michael Berman at May 7, 2023
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The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
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 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 23, 2023
Published by Michael Berman at April 23, 2023
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Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
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 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 […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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The United States District Court for the District of Maryland has proposed an amendment so that Discovery Guideline 5 will conform to amendments to Fed.R.Civ.P. 30(b)(6). I chaired a subcommittee of the Federal Court Bench Bar Committee which submitted a proposed amendment to the Court for its consideration. Subcommittee members included Phil […]
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 22, 2023
Published by Michael Berman at March 22, 2023
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“Counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification, a California appeals court ruled Tuesday in a dispute among cannabis company co-owners.” Joyce E. Cutler, Counsel’s Disqualification Upheld Over Use of Privileged Emails (bloomberglaw.com)(2023), describing Militello v. VFarm 1509, __ Cal.Rptr.3d __, 2023 WL 2579204 […]
March 21, 2023
Published by Michael Berman at March 21, 2023
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Sidley Austin LLP’s excellent blog, March’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP, describes an interesting work product decision. The blog reported that, in Securities and Exchange Commission v. Volkswagen Aktiengesellschaft, et al., 2023 WL 1793870 (N.D. Cal. Feb. 7, 2023), the SEC’s interrogatory to Volkswagen asked […]
March 20, 2023
Published by Michael Berman at March 20, 2023
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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 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 15, 2023
Published by Michael Berman at March 15, 2023
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In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure. The case involved egregious[1] misconduct that included fraud on the Court, […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter. In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporate their […]
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 9, 2023
Published by Michael Berman at March 9, 2023
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Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent. In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of […]
February 7, 2023
Published by Michael Berman at February 7, 2023
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In Relativity’s® 2022 Data Discovery Legal Year in Review e-book (8th ed.), David Horrigan, Esq., highlighted a fascinating case, Martley v. City of Basehor, 2022 WL 1302820 (D. Kan. May 2, 2022)(“Martley I”). Mr. Horrigan described the case as a “clever … use [of] the Federal Rules of Civil Procedure to find […]
February 6, 2023
Published by Michael Berman at February 6, 2023
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The Supreme Court’s recent dismissal of In Re Grand Jury, 598 U.S. ___, 143 S.Ct. 543 (2023), leaves the Ninth Circuit’s “primary purpose” analysis of so-called “dual purpose” communications intact as the test for privilege. For a good analysis, see GreenbergTraurig’s blog, quoted in the title bar of this blog, ‘If It Ain’t Broke, […]
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 16, 2022
Published by Michael Berman at December 16, 2022
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The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000). Similarly, Craig Ball has blogged about […]
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 19, 2022
Published by Michael Berman at November 19, 2022
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I will be co-presenting a program for the MSBA Young Lawyers Section, together with the Hon. J. Mark Coulson, Alicia L. Shelton, Esq., Thomas J. Keilty, III, Esq., and Ashley Aranega of X1 Social Discovery. Please see the flier below:
November 14, 2022
Published by Michael Berman at November 14, 2022
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The Fourth Amendment to the U.S. Constitution makes a big difference. This is illustrated by two recent Maryland appellate decisions – – one civil, the other criminal – – regarding discovery from cell phones. Cf. Richardson v. State, 481 Md. 423 (2022)(criminal), with St. Francis Academy, et al. v. Gilman School, Inc., […]
November 12, 2022
Published by Michael Berman at November 12, 2022
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If a litigant has actual knowledge that an opponent’s proposed search terms will not “hit” on responsive, proportional ESI, does the litigant have a duty to tell the opponent?[1] In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), the plaintiff, Advanced Magnesium, alleged that defendant Dery conspired […]
November 11, 2022
Published by Michael Berman at November 11, 2022
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In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms. However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context. Alliance said – in my […]
September 26, 2022
Published by Michael Berman at September 26, 2022
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A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.” Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022). According […]
September 7, 2022
Published by Michael Berman at September 7, 2022
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In civil discovery, litigants must produce information that is within their “possession, custody, or control,” subject to the applicable scope of discovery. However, federal courts have markedly differing definitions of “possession, custody, or control.” A uniform standard would further the goal of the just, speedy, and inexpensive resolution of many lawsuits. Mike […]
August 14, 2022
Published by Michael Berman at August 14, 2022
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“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
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 8, 2022
Published by Michael Berman at August 8, 2022
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In Deal Genius, LLC v. O2 Cool, LLC, 2022 WL 874690, at *3 (N.D. Ill. Mar. 24, 2022), the court was faced with two parties that failed to cooperate concerning discovery of ESI, including design of search terms. The court wrote: It should go without saying that months of arguing over five […]
August 7, 2022
Published by Michael Berman at August 7, 2022
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In Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530 (D. Md. Jul. 11, 2022)(Quereshi, J.), the Court addressed a motion to compel discovery in a breach of contract action. The Court held that defendant’s discovery objections were too general; however, on the facts presented, including the manner in which […]
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 […]
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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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 […]
July 15, 2022
Published by Michael Berman at July 15, 2022
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In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations. The Court addressed a number of discovery issues.[1] The case provides a textbook example of the use of phased discovery to achieve proportionality. Plaintiff had worked for the defendants […]
July 13, 2022
Published by Michael Berman at July 13, 2022
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In Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022), the Court denied a request for a preservation order that was made in the form of a motion for a temporary restraining order. Plaintiffs sought an order to preserve certain information after expiration of a statutory preservation mandate […]
June 14, 2022
Published by Michael Berman at June 14, 2022
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Josh Gilliland recently posted an excellent blog about an interesting discovery case in Failure to Launch a Protective Order to Stop a 30(b)(6) on Responding to Requests for Production – Bow Tie Law. As Josh explained, the court in that case permitted discovery of the “method and manner used” to identify the documents produced […]
June 14, 2022
Published by Michael Berman at June 14, 2022
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In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations. The Court addressed a number of discovery issues. This blog focuses on one of them – defendants’ assertion that it need not provide discovery because doing so […]
June 2, 2022
Published by Michael Berman at June 2, 2022
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As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006. And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 16, 2022
Published by Michael Berman at May 16, 2022
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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 […]
April 29, 2022
Published by Michael Berman at April 29, 2022
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A “Gibbons Law Alert,” B. Basso, Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown – Gibbons Law Alert (Apr. 28, 2022), describes a recent “discovery on discovery” decision. Gibbons describes plaintiff’s discovery request for defendant to “identify all electronic devices ‘used … to transmit documents […]
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 21, 2022
Published by Michael Berman at April 21, 2022
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Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022). This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 10, 2022
Published by Michael Berman at April 10, 2022
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I have written about Misconduct in Remote Trials and Misconduct in Remote Depositions. In the words of Yogi Berra, “it’s deja vue all over again.” Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP. Traci McKee […]
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 – […]
April 4, 2022
Published by Michael Berman at April 4, 2022
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Fed.R.Civ.P. 34 authorizes discovery of “any designated documents or electronically stored information….” That Rule is limited to the scope of discovery set out in Rule 26(b)(“matter that is relevant to any party’s claim or defense and proportional ….”); see Md. Rules 2-402 and 2-422. In a prior post, I addressed What is a […]
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 […]
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 26, 2022
Published by Michael Berman at March 26, 2022
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Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?, When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable? The flip side of the coin is whether the steps taken by a potential […]
March 24, 2022
Published by Michael Berman at March 24, 2022
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In St. Francis Academy, et al. v. Gilman School, Inc., No. 1390 (Md. Ct. Spl. Apls. Mar. 21, 2022) (unreported), the intermediate appellate court affirmed an order directing forensic imaging and searching of non-parties’ cell phones under a strict protocol to protect the cell phone owners’ privacy. It carefully balanced the discovering […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate. If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the […]
March 5, 2022
Published by Michael Berman at March 5, 2022
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The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
December 9, 2021
Published by Michael Berman at December 9, 2021
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In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests. Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
December 8, 2021
Published by Michael Berman at December 8, 2021
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The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version). The Primer is a valuable contribution. It gathers a substantial body of research in an easy-to-read, authoritative resource. It focuses entirely on discovery requests, not responses, and does so in depth. And, it […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
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 […]
November 18, 2021
Published by Michael Berman at November 18, 2021
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In a lawsuit seeking emotional distress damages arising out of events following the January 26, 2020, death of Kobe Bryant and his daughter, the court held that some of his widow’s more recent therapy records were relevant and discoverable. However, the cost of discovery of older records was held to be disproportionate, […]
November 17, 2021
Published by Michael Berman at November 17, 2021
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Categorical privilege logs can save time and money. “The concept of categorical privilege logs in connection with ESI is not new.” M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021). […]
August 28, 2021
Published by Michael Berman at August 28, 2021
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In Vorleamesi v. Esper, 2021 WL 3681163 (D. Md. Aug. 19, 2021) (Grimm, J.), the Court explained and applied the rules governing conversion of a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment when the movant has filed a motion to dismiss or, in the alternative, for […]
August 28, 2021
Published by Michael Berman at August 28, 2021
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In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 27, 2021
Published by Michael Berman at August 27, 2021
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In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent. […]
August 17, 2021
Published by Michael Berman at August 17, 2021
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Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1] Usually, it was clear where a letter, memo, or contract began and ended. But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
August 12, 2021
Published by Michael Berman at August 12, 2021
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Much has been written about what triggers a litigation hold, i.e., reasonable anticipation of litigation.[1] Less has been written about when a litigation hold ends. That became a potential problem for the defendant in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114 (N.D. Cal. Mar. 16, 2021). The question of when a […]
August 11, 2021
Published by Michael Berman at August 11, 2021
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Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs. I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 11, 2021
Published by Michael Berman at August 11, 2021
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In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.” The Court answered that in the negative. In doing so, it differentiated between the loss or destruction of […]
August 10, 2021
Published by Michael Berman at August 10, 2021
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Many social media programs provide their members with a non-forensic download tool. For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions. See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019). However, those tools may not provide the same information that a forensic download collects. In Allen v. PPE […]
August 9, 2021
Published by Michael Berman at August 9, 2021
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Much has been written about discoverability of litigation hold notices. See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities). In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote: “This matter is back before the undersigned on […]
August 9, 2021
Published by Michael Berman at August 9, 2021
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The District of Maryland has drawn a sharp distinction between discovery of social media posts in physical impairment cases, “garden variety” emotional distress cases, and “severe and specific” emotional distress cases. See Blog, “District of Maryland Clarifies Rules Governing Discovery of Social Media.” The scope of discovery of social media in physical […]
August 8, 2021
Published by Michael Berman at August 8, 2021
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In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), and Gaske v. Crabcake Factory Seafood House, LLC, 2021 WL 3188007 (D. Md. Jul. 28, 2021), the Honorable J. Mark Coulson described the principles governing discovery of social media. Both decisions involved employment […]
July 27, 2021
Published by Michael Berman at July 27, 2021
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Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. Jun. 9, 2021), involved a suit for alleged brake defects. Near the end of discovery, plaintiff moved to compel further searches by Ford. The motion was denied. The Weidman court provided a comprehensive discussion of the December 2015 amendments to the Federal […]
July 20, 2021
Published by Michael Berman at July 20, 2021
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There has long been a split of opinion as to the applicability of the “document correlation” provision of Rule 34(E)(i) to the production of ESI.* In April of this year, the Eastern District of Pennsylvania weighed in.** There is, however, a straightforward way to avoid the problem. It involves negotiation, cooperation, and […]
July 19, 2021
Published by Michael Berman at July 19, 2021
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As one of the most popular social media sites, Facebook is the subject of numerous ESI cases. Three recent decisions address deactivation v. deletion, the value of native Facebook files when authentication is disputed, and the search for responsive information. DEACTIVATION OR DELETION? Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D.Ga. […]
March 16, 2021
Published by Michael Berman at March 16, 2021
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Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.” The site contained attorney advertising and articles concerning class actions and mass torts. Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 7, 2021
Published by Michael Berman at March 7, 2021
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Trade secret litigation invariably involves ESI. Craig Ball has written “What’s in a Name (or Hash Value)?,” discussing the use of hash values and file names in tracking down stolen data. In “The Gang That Couldn’t Spoliate Straight,” I discussed an order that the alleged wrongdoer preserve ESI and the potential issues […]
March 6, 2021
Published by Michael Berman at March 6, 2021
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Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), demonstrates the importance of following court disclosure rules and protocols. The value of critical evidence was blunted by a failure to do so. “The practice of law may be poetically likened to sailing a ship. Constitutions, case […]
February 14, 2021
Published by Michael Berman at February 14, 2021
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Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services. Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video. Among […]
February 4, 2021
Published by Michael Berman at February 4, 2021
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In the ancient year of 2009, Gil Greenman and James Weingarten, of Williams & Connolly LLP, wrote “Beware the Use of Absolute Language Regarding Electronically Stored Information,” 9 Digital Discovery and e-Evidence 11 (BNA Nov. 1, 2009). Their thesis was simple and correct: “All,” “any,” and “every” are dangerous words when describing […]
January 13, 2021
Published by Michael Berman at January 13, 2021
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The Baltimore Sun reports that: “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 2, 2021
Published by Michael Berman at January 2, 2021
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In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.” There, an attorney permitted the client to determine what ESI it would search for and produce. This process ran afoul […]
December 26, 2020
Published by Michael Berman at December 26, 2020
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UPDATE: on August 10, 2021, the Court issued an opinion in Strike3 Holdings, LLC v. John Doe, 2021 WL 3511124 (D. Md. Aug. 10, 2021). ***** In Strike 3 Holdings, LLC v. John Doe, 2020 WL 7640943 (D. Md. Dec. 23, 2020), the Court authorized, but only in a strictly limited way, […]
December 1, 2020
Published by Michael Berman at December 1, 2020
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A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
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 […]
July 30, 2011
Published by Michael Berman at July 30, 2011
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The American Bar Association has published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial. The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.), The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]
June 30, 2011
Published by Michael Berman at June 30, 2011
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Government litigants have an enormous impact on civil litigation. Because the United States is the most frequent and successful litigant in the federal courts, the federal government as a litigant plays “a central role in the development of law and policy in the United States courts.” G. Sisk, Litigation with the Federal […]