What triggers a legal hold?
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May 31, 2026
Published by Michael Berman at May 31, 2026
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Courts do not lightly issue preservation orders. A request for a preservation order was denied in In Re Zeta Global Data Privacy Litigation, 2026 WL 1283618 (S.D.N.Y. May 11, 2026). Frequently, movants apply an incorrect preliminary injunction standard: A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied […]
March 21, 2026
Published by Michael Berman at March 21, 2026
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Ms. Jennifer L. Hernandez sued Michael Kusper, alleging that Mr. Kusper sexually harassed her in violation of the Federal Fair Housing Act. She alleged that defendant Alex DiBiaso, the landlord, was vicariously liable. The allegations were disputed and the court wrote that: “As a result of these disputes, the content of the […]
March 4, 2026
Published by Michael Berman at March 4, 2026
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On September 7, 2020, trees fell on a transmission line operated by Bonneville Power Administration (“BPA”). A fire resulted. It joined another fire and caused widespread destruction. A lawsuit also resulted, with a spoliation motion. Sanctions were granted for spoliation of physical evidence and ESI. The applicable legal standard differed based on […]
February 25, 2026
Published by Michael Berman at February 25, 2026
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A “duty to preserve” can be imposed by common-law, statutes, regulations, procedural rules, ethical obligations, or by criminal law. When it comes to electronically stored information in civil litigation, the common-law duty is usually foremost.[1] In Cash v. Laurence County, South Carolina, 2026 WL 278825 (D.S.C. Feb. 3, 2026), at least some […]
February 14, 2026
Published by Michael Berman at February 14, 2026
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The duty to preserve is triggered when a potential litigant reasonably anticipates litigation. More than a mere dispute is required, and the test is objective. What about third parties? “Generally, the duty to preserve extends to documents or tangible things … by or to individuals likely to have discoverable information that the […]
December 4, 2025
Published by Michael Berman at December 4, 2025
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A recent decision stated several important principles applying to insurance companies in coverage actions: “A substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured; therefore, such investigations are presumed to be part of the normal […]
October 15, 2025
Published by Michael Berman at October 15, 2025
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In its “Order Granting Motion to Compel Disclosure Regarding Preservation Efforts,” a court recently wrote: “For all of the foregoing reasons, plaintiffs motion to compel disclosures regarding Amazon’s preservation[] efforts … is GRANTED. Amazon shall, within fourteen days of the date of this Order, produce the litigation hold notices sent regarding this […]
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 8, 2025
Published by Michael Berman at September 8, 2025
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Li v. Merck & Co., Inc., 2025 WL 2162949 (N.D. Cal. Jul. 30, 2025), is the latest in a series of discovery holdings in that lawsuit. I described some of the prior holdings in Li. v. Merck Addresses: Trigger; Spoliation Discovery; and, Document Unitization (Feb. 26, 2025); Court Reviews Document Unitization Dispute […]
August 10, 2025
Published by Michael Berman at August 10, 2025
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“Here, the Court issues its sanction based on its inherent authority as Plaintiff’s conduct was not in violation of a discovery order under Rule 37.” Jimenez v. Hyatt Corp., 2025 WL 2196105 (E.D. Cal. Aug. 1, 2025). FACTS Ms. Jimenez, Plaintiff, who is blind, filed suit challenging accessibility of Defendant Hyatt’s website. […]
July 16, 2025
Published by Michael Berman at July 16, 2025
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“[W]hile I find defendants negligently failed to preserve video footage, I find they are not guilty of spoliation because such footage is not responsive to plaintiff’s discovery requests or relevant.” Hobson v. [Correctional Officer] Harper, 2025 WL 1905594 (D. Nev. Jul. 9, 2025). Plaintiff’s civil rights claims arose out of alleged destruction […]
May 30, 2025
Published by Michael Berman at May 30, 2025
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In Wenzler v. U.S. Coast Guard, 2025 WL 1445805 (Mar. 20, 2025), Wenzler alleged that he had been disenrolled from the voluntary U.S. Coast Guard Auxiliary based on his speech on social media. Wenzler unsuccessfully asserted protected speech, retaliation, and spoliation, among other things, after two government cell phones were reset. Wenzler’s […]
May 19, 2025
Published by Michael Berman at May 19, 2025
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In Cooper v. Baltimore Gas & Electric Co., 2025 WL 1416943 (D. Md. May16, 2025)(Coulson, J.), the Court did justice and partially rescued a party that overreached by moving for sanctions under Rule 37(e)(2) while not making an alternative, “belts and suspenders” request under Rule 37(e)(1). Defendants moved for “game ending” sanctions […]
May 11, 2025
Published by Michael Berman at May 11, 2025
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The date on which the duty to preserve is triggered is foundational to application of the spoliation doctrine.[1] It was addressed in Valmarc Corp. v. Nike, Inc., 2024 WL 5112441 (D. Or. 12/31/2024). Defendants, Nike and Converse, filed a motion requesting a determination that plaintiff Valmarc d/b/a “Vi3” had spoliated evidence. Vi3’s […]
April 16, 2025
Published by Michael Berman at April 16, 2025
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My blogs generally focus on new cases. However, sometimes it is helpful to look backwards. A “golden oldie” is “something once popular or valued that has retained its appeal or for which interest has been reawakened….” Definition & Meaning | Dictionary.com. The term refers to something that is still important, even though […]
February 26, 2025
Published by Michael Berman at February 26, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in a lawsuit by a terminated employee against her former employer. I have written three detailed blogs about the case: Consulting an Attorney Did Not Trigger the Duty to […]
February 22, 2025
Published by Michael Berman at February 22, 2025
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In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. On the somewhat unique facts presented, the Court held that plaintiff’s consulting an attorney to find out […]
November 29, 2024
Published by Michael Berman at November 29, 2024
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In Doe v. Vanderpool, 2024 WL 4881928 (D. Md. Nov. 25, 2024)(Sullivan, J.), the Court held that the Town of Fairmount Heights breached its preservation duty. Ms. Doe claimed that, after arrest, a Town police officer sexually assaulted her. She sued officers and the Town. Discovery had been conducted for almost a […]
November 22, 2024
Published by Michael Berman at November 22, 2024
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In Luttrell v. DN Solutions America Corporation, 2024 WL 4836017 (E.D. Mo. Nov. 20, 2024), the court stated that Michael Luttrell was killed while operating a Doosan PUMA V400 Vertical Turning Center machine at an Ace Manufacturing facility. His wife sued multiple defendants. A spinning workpiece was ejected from the machine. It […]
November 5, 2024
Published by Michael Berman at November 5, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the District Court found a relationship between work product designations and triggering of the common-law duty to preserve. The point at which the duty to preserve has been triggered is central to any subsequent spoliation issue. […]
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 22, 2024
Published by Michael Berman at September 22, 2024
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EEOC v. Formel D USA, Inc., 2024 WL 4172527 (E.D. Mich. Sept. 12, 2024), addressed several interesting issues. Among them were: general principles of discovery; the role of counsel in self-collection; discovery on discovery; the date that the litigation hold was triggered; whether reasonable post-trigger steps were taken; curative sanctions under Fed.R.Civ.P. […]
September 10, 2024
Published by Michael Berman at September 10, 2024
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Klock v. Wal-Mart Stores East, LP, 2024 WL 4041536 (D. Md. Sept. 4, 2024), is another in a long line of missing surveillance video decisions. Defendants’ employee – – the store’s asset manager – – testified that “he reviewed video footage after Plaintiff’s fall, but the Store’s video cameras did not capture […]
August 29, 2024
Published by Michael Berman at August 29, 2024
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Covington v. Union Memorial Hospital, 2024 WL 3784539 (D. Md. Aug. 13, 2024)(Chasanow, J.), presented a factually detailed claim of discrimination with ten counts. The opinion fills 38 pages. This blog addresses only one spoliation issue. Defendants moved to dismiss based on spoliation. Id. at *6. The opinion may not explicitly state […]
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, […]
July 23, 2024
Published by Michael Berman at July 23, 2024
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In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….” In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior […]
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, […]
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 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 […]
July 31, 2023
Published by Michael Berman at July 31, 2023
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I always advocate for civility and cooperation in e-discovery.[1] But, it may be prudent to expressly threaten a lawsuit in a preservation notice. It may also be cautious to avoid offering to settle a claim in that notice. If you want to make an offer to settle, a separate demand or settlement […]
July 16, 2023
Published by Michael Berman at July 16, 2023
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In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro se spoliation claim. The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when the man allegedly assaulted her in a restaurant. The claims against the restaurant were that […]
July 4, 2023
Published by Michael Berman at July 4, 2023
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In Jennings v. Frostburg State University, 2023 WL 4205665 (D. Md. June 27, 2033), defendants wiped two cell phones of departing employees after the duty to preserve was triggered. The Court’s duty to preserve analysis – holding that an administrative rebuttal letter triggered the duty to preserve – is important to all […]
April 28, 2023
Published by Michael Berman at April 28, 2023
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When it comes to electronically stored information, Tom O’Connor is a national treasure. He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant. He has generously shared his […]
April 23, 2023
Published by Michael Berman at April 23, 2023
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Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
April 6, 2023
Published by Michael Berman at April 6, 2023
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Nicassio v. XYZ Law Firm, 2023 WL 2661156 (Apls. Ct. Md. Mar. 28, 2023)(unreported), demonstrates the wisdom of candor when it comes to potential spoliation.[1] It also reinforces the well-established need to periodically remind custodians of their duty to preserve potentially responsive information. Litigation often drags on long after issuance of an […]
February 22, 2023
Published by Michael Berman at February 22, 2023
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In Nolan v. Secretary of Dept. of Public Safety and Correctional Services, No. 1181 (Appellate Court of Md. Feb. 8, 2023)(unreported),[1] Nolan appealed from denial of a “Motion for Injunction” to preserve certain video evidence. The circuit court denied the motion because it had dismissed the case three months earlier. The Appellate […]
December 26, 2022
Published by Michael Berman at December 26, 2022
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In Little v. Pohanka, 2022 WL 17412861 (Appellate Ct. of Md. Dec. 5, 2022), Mr. Little sued Mr. Pohanka for negligent driving. The jury found that Mr. Pohanka was negligent; however, in Maryland, contributory negligence is a complete defense, and the jury determined that Mr. Little was contributorily negligent. As a result, […]
August 5, 2022
Published by Michael Berman at August 5, 2022
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The Washington Post reports that: “The Pentagon erased a potential trove of material related to the Jan. 6, 2021, attack on the Capitol from the phones of senior defense officials in the Trump administration, according to legal filings.” Karoun Demirjian and Jacqueline Alemany, Phones of top Pentagon officials wiped of Jan. 6 […]
July 15, 2022
Published by Michael Berman at July 15, 2022
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In Maria Sacchetti and Carol D. Leonnig, Secret Service erased texts from January 5 and 6, 2021, official says – The Washington Post (July 14, 2022), the Washington Post reports that Joseph V. Cuffari, head of the Department of Homeland Security’s Office of Inspector General, “accused the U.S. Secret Service of erasing texts from […]
June 21, 2022
Published by Michael Berman at June 21, 2022
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Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021), reemphasizes that a preservation letter needs to be well-drafted and provide details sufficient to put the recipient on notice of the factual nature of the claim. In Nolan, because plaintiff’s preservation demand was purportedly too vague, it may have […]
June 4, 2022
Published by Michael Berman at June 4, 2022
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The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
May 25, 2022
Published by Michael Berman at May 25, 2022
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In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution. However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal. Everyone practicing law at that time heard of them. Zubulake was a series of cases. Zubulake v. UBS Warburg, […]
May 20, 2022
Published by Michael Berman at May 20, 2022
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The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1] Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
March 29, 2022
Published by Michael Berman at March 29, 2022
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I recently wrote about The Perils of a Misfocused Preservation Letter, discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), and Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands. Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative […]
March 11, 2022
Published by Michael Berman at March 11, 2022
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In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages. The Court described the missing texts as “the primary basis of [plaintiff’s] […]
February 4, 2022
Published by Michael Berman at February 4, 2022
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The Washington Post recently reported on the departure of Jeff Zucker as president of CNN. J. Barr, “After Jeff Zucker’s ouster, CNN staffers raise questions about a Chris Cuomo connection” (Wash. Post Feb. 3, 2022). The article asks: “Jeff Zucker’s surprise ouster Wednesday left CNN with a leadership void and an irresistible […]
August 19, 2021
Published by Michael Berman at August 19, 2021
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In Six Flags America, L.P. v. Mims, 2021 WL 1627055 (Md. Ct. Spl. Apls. Apr. 27, 2021) (unreported), the appellate court held that it was error to allow plaintiff/appellee’s rebuttal arguments concerning the overwriting of defendant’s surveillance footage of the park entrance taken at the time of the occurrence. The Court pointed […]
August 12, 2021
Published by Michael Berman at August 12, 2021
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Much has been written about what triggers a litigation hold, i.e., reasonable anticipation of litigation.[1] Less has been written about when a litigation hold ends. That became a potential problem for the defendant in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114 (N.D. Cal. Mar. 16, 2021). The question of when a […]
July 21, 2021
Published by Michael Berman at July 21, 2021
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In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference […]
March 24, 2021
Published by Michael Berman at March 24, 2021
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Misappropriation of trade secrets cases are increasingly digital. For example, a former employer may seek discovery of a new employer’s information. As discussed in “The Gang That Couldn’t Spoliate Straight,” forensic analysis is often necessary. Craig Ball’s post, “What’s in a Name (or Hash Value)?” discussed some forensic options. A recent American […]
February 12, 2021
Published by Michael Berman at February 12, 2021
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In a February 11, 2021, post, Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating: As noted by Judge Johnson, “[i]t […]
January 29, 2021
Published by Michael Berman at January 29, 2021
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After litigation starts, a business faced with unreasonable preservation or discovery demands can resort to the court’s procedural rules to request relief from a judge. However, the duty to preserve potentially responsive information often arises in a “free for all” zone before litigation is commenced. In that situation, there is no umpire […]
January 17, 2021
Published by Michael Berman at January 17, 2021
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It may be prudent to document the analysis of the point at which a potential litigant believes that its duty to impose a legal hold, or “litigation hold,” has or has not been triggered. While it may not be dispositive, documentation may be useful in the event of a subsequent allegation of […]
January 13, 2021
Published by Michael Berman at January 13, 2021
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The Baltimore Sun reports that: “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 11, 2021
Published by Michael Berman at January 11, 2021
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Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
January 9, 2021
Published by Michael Berman at January 9, 2021
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An unreported decision of the intermediate appellate court provides an interesting contrast to Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), which is discussed in a prior blog. In Benson v. ALDI, Inc., 2019 WL 5704532 (Md. Ct. Spl. Apls. Nov. 5, 2019), summary judgment was affirmed […]
January 8, 2021
Published by Michael Berman at January 8, 2021
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“I just delete. I delete – delete. Anything there that I don’t want, don’t need anymore, I delete.” Peterson v. Evapco, Inc., 238 Md. App. 1, 21 (2018). That is an invitation to disaster. Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), involved spoliation in the context […]
December 27, 2020
Published by Michael Berman at December 27, 2020
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Two recent decisions of the District of Maryland demonstrate when the duty to preserve is triggered in the context of spoliation motions. Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020) (“MVM“); Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. […]
May 12, 2020
Published by Michael Berman at May 12, 2020
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I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
July 25, 2015
Published by Michael Berman at July 25, 2015
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My article, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts” was recently published in the University of Baltimore Law Forum, Vol. 45 (2015). The article discusses Maryland case law addressing the issue, suggests a modern analytical framework, and concludes with a cautionary […]
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. […]