Authentication of ESI
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June 6, 2026
Published by Michael Berman at June 6, 2026
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In Jang v. Clear Sky Fin., LLC, 2026 WL 1101722 (Appl. Ct. Md. Apr. 23, 2026)(unreported),[1] plaintiff sued for alleged fraudulent conveyances made using via a “shell game.” The Appellate Court of Maryland affirmed the trial court’s imposition of sanctions where the defendant avoided discovery by means of a “shell game” of […]
June 2, 2026
Published by Michael Berman at June 2, 2026
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Adams v. Anderson, 2026 WL 1501021 (Ct. Apls. Ky. May 29, 2026)(unpublished), was an unsuccessful appeal from a holding of criminal contempt with a sentence of 45 days incarceration. It arose out of a divorce action. Ms. Adams and Mr. Anderson were parents of two minors. The family law court held a […]
April 25, 2026
Published by Michael Berman at April 25, 2026
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An example of an ineffective use of artificial intelligence was provided in Camarillo Hospitality LLC v. G6 Hospitality LLC, 2026 WL 1113871 (E.D. Cal. Apr. 24, 2026). Defendant logged on to a virtual meeting using free Microsoft Teams software. Unknown to both parties, that triggered a recording by Otter.ai. Both counsel were […]
April 3, 2026
Published by Michael Berman at April 3, 2026
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In Kafeel v. Apple, Inc., 2026 WL 892016 (N.D. Cal. Apr. 1, 2026), the court denied a request for a preservation order. The decision, properly, in my opinion, does not apply the preliminary injunction standard to a motion for a preservation order. Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent […]
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 23, 2026
Published by Michael Berman at March 23, 2026
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In Burnley v. Valentin, 2026 WL 767145 (E.D. Va. Mar. 18, 2026), the proponent of an audio recording survived a challenge that it was a deepfake. Burnley involved two motions to enforce settlement agreements. Mr. Burnley had made harassment claims against his neighbors and the police. The settlement agreements were memorialized in […]
March 19, 2026
Published by Michael Berman at March 19, 2026
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Much has been written about improper uses of GenAI, such as deepfakes and hallucinations. Edwards v. Grubbs, __ Fed.4th __, 2026 WL 706637 (11th Cir. Mar. 13, 2026), demonstrates a proper use of GenAI. Edwards was a consolidated appeal from a single use-of-force incident in Atlanta. “On that fateful day, City of […]
March 10, 2026
Published by Michael Berman at March 10, 2026
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I previously reported that Bill to Create A.I. Evidence Clinic Pilot Program Was Vetoed in MD (Sep. 15, 2025). That bill has now become law and is codified in Md. Code Ann., Courts & Judicial Proceedings Article §13-101.2. It states in full: 13-101.2. Artificial Intelligence Evidence Clinic Pilot Program Effective: January 15, […]
March 6, 2026
Published by Michael Berman at March 6, 2026
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Evaluating deepfakes, the National Center for State Courts asked: “Is anything ever truly new again?” “Evidentiary Issues Raised by Artificial Intelligence: A Policy Paper” (Apr. 2025). In answering its own question—“What can courts do?”–the Center suggests the following questions that a court can pose to a proffering party to help determine whether […]
January 9, 2026
Published by Michael Berman at January 9, 2026
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“Plaintiffs’ evidence of printouts of websites is not presented in an admissible form. Evidence must be authentic to be admissible.” Goldstein v. Hindle, 2026 WL 63116 (D. Md. Jan. 8, 2026)(Crawford, J.). Defendant’s website, video and direct-message via social media evidence was also excluded. Cross-motions for summary judgment were pending. The Court […]
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, […]
November 1, 2025
Published by Michael Berman at November 1, 2025
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Dylan Segelbaum and Kristen Griffith report that Ex-Pikesville principal settles with BCPS [Baltimore County Public Schools] after racist AI impersonation – The Baltimore Banner (Oct. 31, 2025). The article states: “A settlement has been reached in a lawsuit that the former principal of Pikesville High School filed against Baltimore County Public Schools […]
October 5, 2025
Published by Michael Berman at October 5, 2025
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Deamonte Spencer was convicted of murder and handgun charges. Among the evidentiary errors alleged on appeal was a challenge to authentication of printouts of profiles of Instagram pages. The Appellate Court of Maryland rejected the challenges and affirmed. Spencer v. State, 2025 WL 2741459 (Apl. Ct. Md. Sep. 26, 2025)(unreported). A local […]
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. […]
December 9, 2024
Published by Michael Berman at December 9, 2024
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Marris Hoffee[1] and Michael D. Berman In Reddick v. State, __ Md. App __, 2024 WL 4633506 (Apls. Ct. Md. Oct. 31, 2024), the intermediate appellate court addressed an important issue of authentication of surveillance video by a lay witness. That witness was permitted to authenticate a video under the “silent witness” […]
August 23, 2024
Published by Michael Berman at August 23, 2024
In Authentication is key to direct and cross-examination (thedailyrecord.com) (Aug. 22, 2024), my friend Paul Sandler wrote: “It can be said that direct and cross-examination are the central features of the trial, and essential to examinations are the exhibits sought to be introduced in evidence.” Paul cites to the applicable Maryland Rules […]
August 16, 2024
Published by Michael Berman at August 16, 2024
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Can a witness authenticate a video if the video contains images that the witness did not see? In Mooney v. State, __ Md. __, 2024 WL 3766058 (Aug. 15, 2024), the Maryland Supreme Court answered in the affirmative. Here, the authenticating witness saw what happened before and after the shooting, as shown […]
July 5, 2024
Published by Michael Berman at July 5, 2024
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The Supreme Court of Maryland is considering a challenge to authentication of video evidence using the “pictorial testimony theory.” See Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video (Mar. 1, 2024). The “silent witness theory” was used in Cleveland v. State, 2024 WL 2149996 […]
March 1, 2024
Published by Michael Berman at March 1, 2024
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Can a witness authenticate a video if the video contains images that the witness did not see? In Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authentication issue. She wrote that: The […]
January 26, 2024
Published by Michael Berman at January 26, 2024
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In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that: “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.” She […]
November 20, 2023
Published by Michael Berman at November 20, 2023
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In No Expert Needed to Introduce Data Pulled From Phone at Trial (bloomberglaw.com) (Oct. 13, 2023), Mr. Peter Hayes reported on United States v. Williams, 83.F4th 994 (5th Cir. Oct. 13, 2023). Mr. Hayes wrote: “A police officer who introduces evidence extracted from a cellphone at trial doesn’t need to be qualified […]
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” […]
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 […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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Authentication is a central issue when it comes to use of ESI in motions or at trial.[1] In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion. Here, defense counsel dotted all of the […]
April 20, 2023
Published by Michael Berman at April 20, 2023
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Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information. “Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense […]
March 18, 2023
Published by Michael Berman at March 18, 2023
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Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
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:
October 11, 2022
Published by Michael Berman at October 11, 2022
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The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement. Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022). The paper reports that the trial judge had […]
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 10, 2022
Published by Michael Berman at August 10, 2022
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In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *1 (D. Md. Oct. 15, 2021), the Court held that defendant had properly authenticated a disputed signature on an arbitration agreement. The signature was authenticated by testimony of a human resources officer as to defendant’s routine business practices. Mr. Mason was employed […]
July 17, 2022
Published by Michael Berman at July 17, 2022
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In State v. Galicia, __ Md. __, 2022 WL 2301437, at *1 (June 27, 2022), the Court of Appeals held that expert testimony was not required to show that a user can disable location tracking on a smartphone. Two teenagers were shot by four men in June 2017. Mr. Galicia was convicted […]
June 25, 2022
Published by Michael Berman at June 25, 2022
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Two people were murdered. It was late at night in an area of known drug deals. There were witnesses, but many had consumed legal or illegal substances and others were inconsistent. There was video, but not of the shooting. The Court called it “incomplete.” An FBI analyst testified to a photogrammetric analysis […]
June 13, 2022
Published by Michael Berman at June 13, 2022
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In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos. Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104. That decision was affirmed “as a matter of […]
June 1, 2022
Published by Michael Berman at June 1, 2022
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Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw. In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating: Although cases abound […]
April 28, 2022
Published by Michael Berman at April 28, 2022
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Metadata has been embraced, loved, cursed, and vilified. It has been written about in inconsistent ethics opinions about “mining.” Failure to preserve or produce it has led to the imposition of sanctions in litigation. It has been “scrubbed,”[1] sliced, diced, defined, and classified as application or system metadata and system-generated or user-created.[2] […]
December 2, 2021
Published by Michael Berman at December 2, 2021
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Sykes v. State, 2021 WL 5366047 (Md. Ct. Spl. Apls. Nov. 18, 2021), and Burks v. State, 2021 WL 1747943 (Md. Ct. Spl. Apls. May 3, 2021), address authentication of text messages in criminal cases. In Sykes, the cell phone was seized from the defendant after he was seen making a call […]
November 13, 2021
Published by Michael Berman at November 13, 2021
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In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine. Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery. […]
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 […]
July 26, 2021
Published by Michael Berman at July 26, 2021
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In Pifer v. Irwin Industrial Tool Co., 2021 WL 3076855 (Md. Ct. Spl. Apls. Jul. 21, 2021) (unreported), the appellate Court addressed a novel authenticity issue. Specifically, the Court addressed the authentication of chalk samples gathered by plaintiff on eBay several decades after the date of manufacture, many of which contained a […]
March 16, 2021
Published by Michael Berman at March 16, 2021
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In Karn v. State, 2021 WL 515388 (Md. Ct. Spl. Apls. Feb. 11, 2021) (unreported), the Court affirmed a holding that the State had laid a proper foundation for admitting surveillance video. The Court applied the Court of Appeals’ decisions in State v. Sample, 468 Md. 560, 588 (2020), and Sublet v. […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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In State v Sample, __ Md. __, 2020 WL 2316709 at *3 (May 11, 2020), the Court of Appeals of Maryland concluded that “that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find […]
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. […]
May 2, 2011
Published by Michael Berman at May 2, 2011
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May 2020 UPDATE: Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media. In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated. Mr. Griffin was charged with shooting another person. […]