Evidentiary issues presented by ESI.
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July 20, 2026
Published by Michael Berman at July 20, 2026
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A decision involving a so-called “dual-hat expert” arose out of tragedy. “This case arises from a flood that swept through Waverly, Tennessee on August 21, 2021 ’killing at least 20 people, including children.’ … Plaintiffs claim that the flood resulted because Defendant allowed debris to clog one of its culverts, which caused […]
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 20, 2026
Published by Michael Berman at March 20, 2026
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Yesterday, I posted an Example of a Proper Use of GenAI. Today’s post is the flip side—an improper use of Generative Artificial Intelligence. In this case, the meaning of the term “groomer” was at issue. GenAI is not a dictionary: Indeed, the State of Illinois criminalizes the act of “grooming” as a […]
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, […]
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 […]
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 […]
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 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 10, 2025
Published by Michael Berman at September 10, 2025
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Much of the litigation over geofencing has been under the Fourth Amendment in criminal cases, and there has been a lot of it. See, e.g., Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC (Aug. 5, 2025); Alvarez v. State, 2025 WL 2346165, at *4 (Tex. App. […]
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 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 […]
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 […]
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 […]
April 9, 2025
Published by Michael Berman at April 9, 2025
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Maryland has permitted use of a geofence warrant. Geofence Search Warrant Held Valid (Jun. 28, 2024). However, there is a split over those warrants between a panel of the U.S. Court of Appeals for the Fourth Circuit, with the case being reconsidered en banc, and the Fifth Circuit. Are Geofence Warrants Permissible? […]
March 7, 2025
Published by Michael Berman at March 7, 2025
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In In Re Four Applications For Search Warrants Seeking Information Associated With Particular Cellular Towers A/K/A Tower-Dump Warrants, 2025 WL 603000 (S.D. Miss. Feb. 21, 2025), the court declined to issue “tower-dump” or “tower-extraction” search warrants, writing: Before the Court are four search-warrant applications for location-and-time based cell-tower data, also known as […]
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 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 […]
February 20, 2025
Published by Michael Berman at February 20, 2025
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Yesterday, in Akers v. State, __ Md. __, 2025 WL 543463, at *1 (Feb. 19, 2025), the Supreme Court of Maryland wrote: A woman’s right to terminate a pregnancy is one of the most divisive issues in this country. Although abortion is a protected right in Maryland and a common event in […]
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 […]
January 28, 2025
Published by Michael Berman at January 28, 2025
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In Rivera v. Costco Wholesale Corporation, 2025 WL 295667 (D. P. R. Jan. 24, 2025), the court imposed sanctions on a pro se litigant who, in the court’s words, “has engaged in unseemly behavior towards counsel as well as improper discovery litigation.” In part, Mr. Rivera filed a motion to “To obtain […]
September 1, 2024
Published by Michael Berman at September 1, 2024
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Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it. A prior blog addressed the admissibility of a “composite” video prepared by the prosecution. This second blog will address the use of a police officer to […]
August 31, 2024
Published by Michael Berman at August 31, 2024
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Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it. An innocent bystander was fatally shot while she was with her husband on a hotel patio in Annapolis. They had come from Texas to drop off […]
August 12, 2024
Published by Michael Berman at August 12, 2024
The July 2024 “Notice of Proposed Rules Changes” of the Maryland Standing Committee on Rules of Practice and Procedure – – 223rdreport.pdf (mdcourts.gov) – – proposes rules that address the issue of how “digital media” – – a term of art – – is placed in the record, both in open court […]
August 12, 2024
Published by Michael Berman at August 12, 2024
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Geofence warrants are categorically unlawful: “We hold that the use of geofence warrants—at least as described herein—is unconstitutional under the Fourth Amendment. In doing so, we part ways with our esteemed colleagues on the Fourth Circuit.” United States v. Smith, __ F.4th __, 2024 WL 3738050, at *1 (5th Cir. Aug. 9, […]
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 […]
April 24, 2024
Published by Michael Berman at April 24, 2024
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Generally, when a fact witness changes their sworn testimony, the new version is admissible and the prior version is used to impeach it. In Asokere v. Waldrop, 2024 WL 1651658 (Apls. Ct. Md. Apr. 17, 2024)(unreported), two experts changed their sworn testimony in a Daubert hearing. Their testimony was excluded under Daubert […]
February 25, 2024
Published by Michael Berman at February 25, 2024
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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
Published by Michael Berman at January 26, 2024
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In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that: “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.” She […]
January 10, 2024
Published by Michael Berman at January 10, 2024
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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
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 […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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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
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 13, 2023
Published by Michael Berman at December 13, 2023
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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
Published by Michael Berman at December 10, 2023
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In Brooks-Anderson v. State, 2023 WL 3834829 (Apl. Ct. Md. Jun. 6, 2023)(unreported), defendant had been convicted of theft from Loomis Armored U.S., a cash transport company. The victim was the former-employer of the defendant. At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a […]
December 7, 2023
Published by Michael Berman at December 7, 2023
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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
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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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
Published by Michael Berman at November 28, 2023
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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b). The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 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 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 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 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 […]
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 […]
July 8, 2023
Published by Michael Berman at July 8, 2023
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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
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 […]
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 […]
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 […]
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 […]
January 22, 2023
Published by Michael Berman at January 22, 2023
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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
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 […]
November 21, 2022
Published by Michael Berman at November 21, 2022
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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
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., […]
September 3, 2022
Published by Michael Berman at September 3, 2022
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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
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 […]
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 […]
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 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 […]
May 27, 2022
Published by Michael Berman at May 27, 2022
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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
Published by Michael Berman at April 29, 2022
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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
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 […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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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
Published by Michael Berman at October 1, 2021
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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
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 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 […]
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 […]
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. […]