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July 10, 2026
Published by Michael Berman at July 10, 2026
Categories
It is clear that Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024)(citing cases). The recent decision in Lalwani v. Trustees of Indiana University, 2026 WL 1847881 (Jun. 26, 2026), involved three emails in which, an employee, plaintiff Mr. Lalwani, had communicated with his […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued Mia Aesthetics Clinic on behalf of Kiera Webb, alleging disability discrimination. The court issued three discovery decisions. One important holding is that a party cannot blindly rely on its document destruction policy as a defense to a motion for spoliation sanctions. Simply stated, that is no longer a “safe […]
March 11, 2026
Published by Michael Berman at March 11, 2026
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In Nippon Life Ins. Co. of America v. OpenAI Foundation, et al., No. 1:26-cv-02448 (N.D. Ill. Mar 4, 2026), the plaintiff alleges that: “As a product of OPENAI, ChatGPT engages in the practice of law by providing users with legal analysis, legal advice, legal research, and produces drafted legal documents.” It alleges […]
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’ […]
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” […]
December 21, 2025
Published by Michael Berman at December 21, 2025
I posted 237 blogs this year to date. Many are on EDRM or JD Supra. Some that may be worth reading are: An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues Artificial Intelligence in Maryland Courts “Just When […]
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 […]
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 […]
October 21, 2025
Published by Michael Berman at October 21, 2025
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Where a company official used company email for privileged communications and sold the server holding those communications, he waived the attorney-client privilege. Jim Daws Trucking, LLC v. Daws, Inc., 2025 WL 27111278 (D. Neb. Sep. 23, 2025). The Jim Daws court denied defendants’ “Motion for Protective Order and Destruction of Privileged Documents […]
September 29, 2025
Published by Michael Berman at September 29, 2025
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A motion for sanctions was denied in an alleged misappropriation of trade secrets action by a former employer against departed employees. Lifestyle Realty, LLC v. Kirn, et al., 2025 WL 2719984 (D. Md. Sep. 23, 2025)(Simms, J.). Lifestyle Realty (“DKG”) is a real estate brokerage firm. It sued four individual defendants and […]
September 18, 2025
Published by Michael Berman at September 18, 2025
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Not on these facts. Lively v. Wayfarer Studios LLC, 2025 WL 2606904 (S.D.N.Y. Sep. 9, 2025). This decision is the latest in a long string of discovery decisions in the sexual harassment lawsuit of Ms. Blake Lively against a series of parties denominated as the “Wayfarer Defendants.” The claim arises out of […]
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 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 3, 2025
Published by Michael Berman at September 3, 2025
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In an important decision, the Ninth Circuit applied California law and held that “the People,” i.e., State Attorneys General, are generally not deemed to have possession, custody, or control of State agency documents, when they are prosecuting an enforcement action. In Re: People of the State of California v. U.S. District Court […]
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 […]
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 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 […]
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 11, 2025
Published by Michael Berman at April 11, 2025
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Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 984792 (M.D. Tenn. Mar. 17, 2025), involves an alleged theft of trade secrets. The decision underscores the importance of information governance. “Information” is one of a business’s most valuable assets and corporate policies may determine the outcome of litigation. The Special Master recommended denial […]
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 […]
November 14, 2024
Published by Michael Berman at November 14, 2024
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Plastics Industry Assoc. v. Bonta, 2024 WL 4699927 (D.D.C. Nov. 6, 2024), held in part that the defendant’s act of serving a “preservation demand” on the plaintiff in the forum district did not confer long-arm jurisdiction over the serving-defendant in that forum. “Preservation notices” are routinely sent to a potential opposing party […]
October 29, 2024
Published by Michael Berman at October 29, 2024
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In Vita v. New England Baptist Hosp., __ Mass __, __ N.E.3d __, 2024 WL 4558621 (Mass. Oct. 24, 2024), the court held that the Massachusetts wiretap statute does not criminalize interception of web browsing and sale of the intercepted information to third parties. The plaintiff, Kathleen Vita, alleged that she accessed […]
October 6, 2024
Published by Michael Berman at October 6, 2024
Shapiro v. Hyperheal Hyperbarics, Inc., __ Md. App. __, 2024 WL 4379976 (Apl. Ct. Md. Oct. 3, 2024), is a lengthy and complex decision. The Court wrote: “By our count, the parties have brought a total of seven lawsuits against each other, although many of the legal arguments throughout these suits are […]
September 26, 2024
Published by Michael Berman at September 26, 2024
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With that headline, Jackson Walker reported that FTC reports surveillance by social media, streaming services (baltimoresun.com)(Sept. 19, 2024). According to the Baltimore Sun, “[r]eport authors called on Congress to pass federal privacy legislation to protect users.” I recently blogged about a similar issue in Data Collection by Cars With Connectivity (Sept. 17, […]
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 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 21, 2024
Published by Michael Berman at August 21, 2024
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Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail (abajournal.com)(Aug. 8, 2024), Debra Cassens Weiss reported on an information governance issue: “A federal judge who ruled that Google is a monopolist declined to sanction the search engine for failing to preserve internal chat messages, even […]
August 5, 2024
Published by Michael Berman at August 5, 2024
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Much has been written about the common-law duty to preserve proportionate information that is potentially relevant to reasonably anticipated litigation. Much less has been written about the duty to destroy information. For example, Maryland’s Public Information Act limits the records that governmental entities may retain. It provides that: The State, a political […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
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 6, 2024
Published by Michael Berman at May 6, 2024
This is the first of four follow ups 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. […]
January 27, 2024
Published by Michael Berman at January 27, 2024
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In a prior blog, And When I Die…. What Happens to My Social Media?, I discussed Maryland’s “Fiduciary Access to Digital Assets Act” (“MFADAA”). The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. […]
January 23, 2024
Published by Michael Berman at January 23, 2024
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“Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.” See J. Ash, Board of Governors adopts ethics guidelines for generative AI use – The Florida Bar (Jan. 23, 2024). Mr. Ash reports that the version is substantially similar […]
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 […]
March 3, 2023
Published by Michael Berman at March 3, 2023
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In 360 Security Partners, LLC v. Hammond, 2023 WL 1869633 (N.D. Tex. Feb. 9, 2023), a defendant tried to justify wiping a company laptop by asserting privacy concerns. The court did not accept that excuse. Instead, it sanctioned the defendant. Defendant Hammond was the former CEO of the plaintiff. Plaintiff terminated Hammond […]
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 […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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“Zoomers” have their own style of communication. Danielle April, Gen Z’s slang and emojis are confusing older colleagues at work – The Washington Post (Dec. 12-13, 2022). Generation Z, those born between 1997 and 2012, have a “form of messaging” that creates “a quirky challenge for multigenerational workplaces….” Id. For example, Ms. […]
August 29, 2022
Published by Michael Berman at August 29, 2022
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“Legal project management” is receiving increased attention in litigation. See, e.g., Sarah Horstmann and Jill Sonnesyn, A Quick Guide to Legal Project Management in Litigation (americanbar.org) (ABA Aug. 23, 2022)(“Law firms are increasingly relying on Legal Project Management (LPM) to manage litigation matters. LPM takes general project management methodologies and applies them […]
August 28, 2022
Published by Michael Berman at August 28, 2022
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Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors. The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor […]
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 […]
August 4, 2022
Published by Michael Berman at August 4, 2022
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Bloomberg Law reports that: The US Justice Department sued former White House trade adviser Peter Navarro, claiming he’s refused to provide the National Archives with emails retained on a private account he used while working for President Donald Trump. “Mr. Navarro is wrongfully retaining presidential records that are the property of the […]
July 11, 2022
Published by Michael Berman at July 11, 2022
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The Washington Post recently published an article by Chris Velazco, titled How to securely erase your old hard drives once and for all (July 8, 2022). “There are so many stories about people buying used computers online and recovering data,” said Andrés Arrieta, director of consumer privacy engineering at the Electronic Frontier […]
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 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 – […]
March 23, 2022
Published by Michael Berman at March 23, 2022
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Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022). Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company. “None of the […]