Evidence

Evidentiary issues presented by ESI.

February 25, 2024

Criminal Destruction of Records Followed by Deception Leads to Guilty Plea

Several  recent articles discuss when the destruction of records becomes a criminal offense.  U.S. Attorney’s Office, District of Maryland | Maryland Correctional Officer Pleads Guilty to Conspiracy to Obstruct Justice and Destruction of Records Related to Cover-Up of Excessive Force Incident | United States Department of Justice (Feb. 22, 2024); Rachel Konieczny, […]
January 26, 2024

“Ninth Circuit Creates Panel to Study Artificial Intelligence”

In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that:  “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.”  She […]
January 10, 2024

If You’re Going to Coach a Witness and Misrepresent it to the Court, Turn Off the Recorder

In Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024)(per curiam), plaintiffs’ slip and fall claim was dismissed with prejudice, and attorneys’ fees were also awarded, due to improper testimonial coaching during a virtual trial.  The coaching was accompanied by a misrepresentation to the court. […]
January 5, 2024

Failure to Object to Untimely Interrogatories Coupled With a Discovery Violation Leads to Reversal

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

“ESI Protocol” v. “Discovery Plan”

“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 […]
January 2, 2024

Hallucinations: “Well, here’s another nice mess you’ve gotten me into!” 

Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!”  That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 29, 2023

My Top Blogs From 2023

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 13, 2023

Text Messages Used to Support Conviction: Prejudice Did Not Outweigh Probative Value

In Francois v. State, 2023 WL 8265659, at *1 (Apl. Ct. Md. Nov. 30, 2023), the defendant was charged with various offenses that included possession of a firearm and ammunition after a disqualifying conviction.  On appeal, the defendant challenged the lower court’s admission of text messages relating to otherwise lawful trips to […]
December 10, 2023

Secondary Evidence of Missing Video Permitted

In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the defendant. At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a […]
December 7, 2023

Trial Notebooks: Flipping to the Right Spot Instead of Fishing in Folders

I have used trial notebooks since my first trial.  I use a similar process for depositions and for a Fed.R.Civ.P. 26(f) “meet and confer.” See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference. A recent ABA article provides an excellent guide to preparation of these organizational tools.  James W. McElhaney, The Trial […]
December 6, 2023

Sedona Conference’s 2023 Case Law Bibliography by Phil Favro

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

Amended Federal Rules Become Effective Today

The United States Courts reports that: “The following amended and new rules and forms became effective December 1, 2023: Appellate Rules 2, 4, 26, and 45 Bankruptcy Rules 3011, 8003, 9006, and new Rule 9038 Official Bankruptcy Forms 410A and 417A Civil Rules 6, 15, 72, and new Rule 87 Criminal Rules […]
November 28, 2023

Maryland Rules Order Amends Sanctions Rule

On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b).  The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 20, 2023

“No Expert Needed to Introduce Data Pulled From Phone at Trial”

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 17, 2023

When is an Expunged Criminal Case Not Expunged and Discoverable in Civil Litigation?

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 15, 2023

Maryland’s Proposed Rule 5-702

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 13, 2023

More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”

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

Don’t “Game” Answering to Interrogatories – Problem Can Be Avoided Using Court Forms

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 […]
August 8, 2023

More on Emoji Law From Prof. Eric Goldman

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 […]
July 8, 2023

Emoji Forms a Contract

Lots has been written about emojis. See, e.g., What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?  Prof. Eric Goldman, cited in that blog, is one of the leading authorities. In Farmer owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says […]
July 5, 2023

Relevance Redactions Revisited

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

Pending Amendments to the Federal Rules

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 […]
April 20, 2023

Authentication of a Disputed Email and Attachment

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

“Here’s what to expect with [proposed] changes to the federal expert witness rule”

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 […]
March 10, 2023

Can Consent to Search Be Withdrawn After a “Mirror Image” is Made by Law Enforcement?

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 […]
February 4, 2023

Proposal to Eliminate Judicial Disappearing Ink

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 […]
January 22, 2023

Unaswered Requests for Admission Deemed Admitted – Not a Discovery Sanction

In Park v. Axelson, Williamowsky, Bender & Fishman, P.C., No. 1486 (Dec. 29, 2022)(unreported), the Appellate Court of Maryland held that a pro se litigant’s failure to timely respond to requests for admission on critical facts was an admission by operation of law. Park involved a torturous procedural history that will not […]
December 16, 2022

Managing Small Cases – Excellent Sedona Conference Resource

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 […]
November 21, 2022

A Juror’s View of Impeachment Using Deposition Testimony

A juror in an insurance coverage case described the impact of impeachment of the plaintiff using inconsistent deposition testimony.  Dan Rodricks: Was it a hack or just a ride between friends? A Baltimore jury — with me on it — decides. | COMMENTARY – Baltimore Sun (Nov. 19, 2022). Plaintiffs, a mother […]
November 19, 2022

Md. State Bar Association Program on Social Media

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

Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland

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., […]
September 3, 2022

Is the “CSI Effect” Relevant in Civil Jury Trials?

In Banuchi v. City of Homestead, 2022 WL 2065049 (S.D. Fla. June 8, 2022), a civil wrongful death lawsuit, evidence of the “CSI Effect” proffered by defendants was excluded, based on lack of qualification of the sponsoring expert and reliability grounds.  An appeal is pending. “CSI Effect” evidence has been controversial in […]
July 17, 2022

Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone

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 […]
July 16, 2022

Denial of Discovery to Oppose Motion for Summary Judgment

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 […]
June 25, 2022

Admissibility of Photogrammetric Evidence – Trial Court is a “Gatekeeper” But Not an “Armed Guard”

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 […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
April 29, 2022

“Friending” by Undercover Police Officer

Much has been written about “friending,” especially deceptive friending or friending of represented parties, in the civil litigation context. For example, under Philadelphia Bar Association Professional Guidance Committee Opin. 2009-02 (Mar. 2009), an attorney or those supervised by the attorney may not use deceptive conduct to access an unrepresented person’s social media […]
April 4, 2022

What is a Document? (Part III)

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 […]
March 11, 2022

Secondary Evidence as a “Gap Filler”

In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted: As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute […]
October 1, 2021

When is a Haircut Spoliation?

In Rainey v. State, No. 3094, __ Md. App. ___ (Sept. 28, 2021), a defendant in a criminal case spoliated evidence when he got a haircut after the crime, but before his arrest.  Mr. Rainey was charged with murder.  An eyewitness and surveillance video showed that a man with dreadlocks was involved. […]
August 28, 2021

The Rule 12(d) Standard for Conversion of Rule 12(b)(6) Motion to Rule 56 Motion

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 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

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

What is a “Document?”

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

Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104

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 […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

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 […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

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

“Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media

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

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

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

Maryland Murder Conviction Reversed Over MySpace Page

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.  […]