- Filter by
- Categories
- Tags
- Authors
- Show all
- All
- "Slots" Litigation in MD
- Book Reviews
- Commercial Litigation
- District of MD
- ESI
- ESI Protocol a/k/a Discovery Plans
- Important Posts
- News Stories
- Protecting the Judiciary
- Social Media
- Software
- Uncategorized
- All
- Anecdote
- Artificial Intelligence
- Citations
- Computer Usage Policies
- Conference of Parties
- Cooperation
- cost
- Costs
- Data Map
- Discoverability
- Ethics
- Evidence
- Evidence: Authentication
- Experts
- Forensics
- FRCP 26(g)
- Historical Highlights
- information governance
- Inherent power
- Litigation Hold: Proportionality
- Litigation Hold: Scope
- Litigation Hold: Trigger
- MD Public Information Act
- MD Rules v. Federal Rules of Civil Procedure
- Mediation
- Metadata
- Objections
- Privacy
- Privilege
- Rules
- Sanctions
- Search
- Self Preservation
- Slots
- Summary Judgment
- Trade Secrets
- What is a Document?
July 21, 2026
Published by Michael Berman at July 21, 2026
Categories
Use of A.I. is the express focus of proposed changes to the Maryland Rules. Proposed Comment [3] to Rule 19-303.3 and Proposed Comment [7] to Rule 19-301.1 expressly mention AI. The latter refers back to Rule 19-305.3. This post is based on the Minutes of the June 25, 2026, Open Meeting of […]
July 20, 2026
Published by Michael Berman at July 20, 2026
Categories
In a recent action in the Middle District of Florida, the parties’ submitted a Joint Motion for Stipulated Protective Order and a Joint Motion for Stipulated Order Regarding Discovery of Electronically Stored Information. “The Motions respectively seek entry of a Stipulated Protective Order (‘Protective Order’), … and a Stipulated Order Re: Discovery […]
July 18, 2026
Published by Michael Berman at July 18, 2026
Categories
David Weisenfeld has published “Judges blast lawyers for citing hallucinated cases, but ethics pros say rule changes not needed (ABA Journal Jul. 15, 2026). He wrote that “many lawyers who prosecute and defend [professional] conduct cases say no changes are needed.” The article continues: “What we have in place is sufficient. They’re […]
June 26, 2026
Published by Michael Berman at June 26, 2026
In a breach of contract claim against the City of Salisbury and its Mayor, the Plaintiff sought an order compelling the City to produce certain ESI and metadata. 1 Fitzwater Street, LLC v. Taylor, 2026 WL 1830959 (D. Md. Jun. 25, 2026)(Coulson, J.). The Court ordered production in native form with metadata, […]
June 7, 2026
Published by Michael Berman at June 7, 2026
Categories
The explanation of a litigant’s duties in responding to written discovery, as laid out in Williamson v. First Horizon Bank, 2026 WL 1492594 (E.D. La. May 28, 2026), does not break new ground. However, it is clear and succinct. A refresher never hurts.[1] It is important to “do it right.” Age-old Habit […]
June 4, 2026
Published by Michael Berman at June 4, 2026
The Northern District of California has a “Model Stipulated Protective Order (for standard litigation)” and a “Stipulated Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and Trade Secrets (Feb. 2022).” I suggest that the latter was applied too stringently in Litton v. Roblox Corporation, 2026 WL 1483493 (May 27, 2026). […]
June 1, 2026
Published by Michael Berman at June 1, 2026
Categories
The court in Alex v. City of Ann Arbor, 2026 WL 1383768 (E.D. Mich. Mary 18, 2026), rejected plaintiffs’ assertion that they had asked for documents in native form and also rejected their assertion that production of responsive “junk” was improper. The City of Ann Arbor had denied employees’ requested religious exemptions […]
May 31, 2026
Published by Michael Berman at May 31, 2026
Categories
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 […]
May 29, 2026
Published by Michael Berman at May 29, 2026
Categories
The EEOC sued a business that managed apartment complexes, alleging employment discrimination. The court wrote that the parties had been “embroiled” in a discovery dispute over GEM’s responses. The EEOC diligently pursued discovery. After a “provisional” discovery order was entered, EEOC’s subsequent motion to compel was substantially granted. EEOC v. GEM Management, […]
May 26, 2026
Published by Michael Berman at May 26, 2026
Categories
A recent protective order entered by consent stated: The Receiving Party shall not load, import, submit, or otherwise transfer Discovery Material (defined as any documents produced in this matter) to any Large Language Model (“LLM”) or Artificial Intelligence (“AI”) platform without agreement of the parties. Should the Receiving Party want to load, […]
May 21, 2026
Published by Michael Berman at May 21, 2026
Categories
In Stanisaveljevic v. The Standard Fire Ins. Co., 2026 WL 1129515 (D. Col. Apr. 27, 2026), defendants filed a motion for reconsideration arising out of a discovery dispute. It was denied. Standard Fire based its motion on alleged “new evidence.” The court determined that the evidence was not new. In fact, it […]
May 13, 2026
Published by Michael Berman at May 13, 2026
Categories
Fed.R.Civ.P. 37(b)(2)(A) authorizes sanctions for failure to comply with a court order. In Mirae Asset Securities Co., Ltd. v. Ryze Renewables Holdings, LLC, 2026 WL 1298156 (D. Nev. May 12, 2026), defendants sought sanctions under that Rule. One issue was whether a party moving for sanctions under that Rule is required to […]
May 12, 2026
Published by Michael Berman at May 12, 2026
Categories
Kelly v. City of Cochran, GA, 2026 WL 125990 (M.D. Ga. May 7, 2026), is generally, but not completely, a run-of-the-mine request to proceed in forma pauperis under 28 U.S.C. §1915. After finding that the plaintiff lacked sufficient financial resources, the court looked to see whether the Complaint was frivolous. The court […]
May 5, 2026
Published by Michael Berman at May 5, 2026
Categories
In Medal v. Amazon.Com Services, LLC, 2026 WL 1179763, at *1 (W.D. Wash. Apr. 30, 2026), the parties submitted a dispute over a protective order and ESI Protocol. Three issues addressed by the court were: 1) whether a Fed.R.Evid. 502(d) order could be entered without consent; 2) whether a “clawback” order could […]
March 30, 2026
Published by Michael Berman at March 30, 2026
Categories
Harris v. Washington County, 2026 WL 813917 (D. Ut. Mar. 24, 2026), addresses a gap in the Federal Rules of Civil Procedure. The rules are silent on when a motion for sanctions must be filed. However, in Harris: “Because the Motion is untimely, it is denied.” Where there is a lack of […]
March 10, 2026
Published by Michael Berman at March 10, 2026
Categories
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, […]
November 30, 2025
Published by Michael Berman at November 30, 2025
Categories
A Scheduling Order is, after all, an Order. Violating it has consequences. Estate of Taylor v. Spring, 2025 WL 3294714 (Appl. Ct. Md. Nov. 26, 2025)(unreported).[1] This is an application of the Cinderella principle: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost […]
November 29, 2025
Published by Michael Berman at November 29, 2025
Categories
The purpose of an ESI Protocol “is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Leon v. American Honda Motor Co. Inc., 2025 WL 3255005, […]
November 28, 2025
Published by Michael Berman at November 28, 2025
Categories
The scope of the right to seal portions of motions for spoliation sanctions was carefully explained in Lively v. Wayfarer Studios, LLC, 2025 WL 3295147 (S.D.N.Y. Nov. 26, 2025). The lawsuit involving Ms. Lively, Mr. Baldoni, and others has received substantial attention. How Much Attention Does a Big Case Deserve? (Nov. 22, […]
November 18, 2025
Published by Michael Berman at November 18, 2025
Categories
Where a producing party argued, ten months after discovery was propounded, that a motion to compel was “unnecessary” because it had agreed to produce the information at some unspecified time, the court held that the offer was meaningless. Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, […]
November 13, 2025
Published by Michael Berman at November 13, 2025
Categories
Defining the scope of discovery is fundamental. Certain language has changed three times. First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The intent was to make it clear […]
November 8, 2025
Published by Michael Berman at November 8, 2025
Categories
Plaintiffs alleged that defendants improperly delayed market entry of their generic medication. Defendants filed a motion to dismiss and sought to stay all discovery until after that motion was resolved. They contended that plaintiffs waited 10 years to file suit and were barred by limitations. The motion to stay discovery was denied: […]
August 29, 2025
Published by Michael Berman at August 29, 2025
Categories
In Rutherford v. Central Bank of Kansas City, 2025 WL 2432218, at *6-7 (W.D. Wash. Aug. 21, 2025), one of several issues was whether a litigant must produce information that was already in possession of the opponent’s counsel from other litigation. The court held that duplicative production was unnecessary; however, it ordered […]
July 29, 2025
Published by Michael Berman at July 29, 2025
The long simmering “document correlation” dispute was addressed in Sievert Elec. Svc. and Sales Co. v. Storako, 2025 WL 2084229 (N.D. Ill. Jul. 24, 2025). The court followed the majority rule. While there is a clear split of authority, I respectfully disagree with Sievert and suggest that there is a better mousetrap. […]
July 25, 2025
Published by Michael Berman at July 25, 2025
Categories
The order in Bouie v. Alzayadi, 2025 WL 2042261 (E.D. Mich. Jul. 21, 2025)(Stafford, J.), clearly sets out a series of rules governing discovery disputes. At a status conference, each party asserted that the other had not adequately responded to discovery requests. Judge Stafford wrote: “The Court’s efforts to resolve the disputes […]
March 31, 2025
Published by Michael Berman at March 31, 2025
Categories
That’s what the court wrote in Khal Anshei Tallymawr, Inc. v. Township of Toms River, 2025 WL 934761 (D.N.J. Mar. 27, 2025)(citation omitted). The opinion opens with the following: Over four years into litigation, Defendants have failed to produce complete discovery responses. If the Court were writing on a blank slate to […]
January 2, 2025
Published by Michael Berman at January 2, 2025
Categories
Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), addressed the question of whether every document “hit” by a search term must be produced. In Spivey, Plaintiff Spivey and American Petroleum Institute (“API”) agreed to search terms to be used by the producing non-party, API. After […]
September 6, 2024
Published by Michael Berman at September 6, 2024
A few days ago, I addressed When Must a Motion to Compel Be Filed? (Aug. 26, 2024). The issue was addressed again four days later in Turner v. Apple, Inc., 2024 WL 4008763 (N.D. Ca. Aug. 30, 2024). The Turner court wrote that Turner waited too long to move to compel because […]
August 26, 2024
Published by Michael Berman at August 26, 2024
Categories
While the Federal Rules of Civil Procedure are detailed and precise, there are gaps. For example, the Rules do not specify when a spoliation motion must be filed. That gap has been filled by common-law. When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); Spoliation Motions Denied as Untimely […]
June 1, 2024
Published by Michael Berman at June 1, 2024
Categories
When the Appellate Court of Maryland issued its unreported opinion in St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Apl. Ct. Md., Mar. 21, 2022), it addressed a novel issue and I wrote that: “In my view, the only error was that the appellate court did not publish its […]
May 31, 2024
Published by Michael Berman at May 31, 2024
Categories
In Fiskars Finland OY AB v. Woodland Tools Inc., 2024 WL 2504717 (W.D. Wisc. May 24, 2024), plaintiff sued for alleged misappropriation of trade secrets. Defendants counterclaimed. A motion to compel production of source code was denied as untimely. “Like Cinderella, the attorney in this case tripped on the electronic stairs at […]
January 2, 2024
Published by Michael Berman at January 2, 2024
Categories
“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 […]
December 29, 2023
Published by Michael Berman at December 29, 2023
Categories
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 […]
November 12, 2023
Published by Michael Berman at November 12, 2023
Categories
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 […]
September 8, 2023
Published by Michael Berman at September 8, 2023
Categories
In CSX Transportation, Inc. v. Spiniello Global, Inc., 2023 WL 5515979 (D. Md. Aug. 25, 2023)(Bredar, C.J.), the Court denied spoliation motions, in part because they were filed too late. The plaintiff owned and operated the coal shipment facility. Defendants included the City of Baltimore and “Spiniello,” a contractor. The dispute centered […]
June 6, 2023
Published by Michael Berman at June 6, 2023
Categories
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 10, 2023
Published by Michael Berman at April 10, 2023
Categories
Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.), is an important and thoughtful decision demonstrating the peril of preservation in place. In Fowler, the plaintiff left his cell phone in an unlocked car. It was stolen after the duty to preserve had been triggered. It contained […]
March 15, 2023
Published by Michael Berman at March 15, 2023
Categories
In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure. The case involved egregious[1] misconduct that included fraud on the Court, […]
March 7, 2023
Published by Michael Berman at March 7, 2023
Categories
This post is not political. It is about redactions and confidentiality. Erik Wemple wrote Opinion | What is Fox News hiding in the Dominion lawsuit? – The Washington Post (Mar. 6, 2023). He describes documents produced in discovery with heavy redactions and asks what is being hidden. The redactions that he reproduced […]
August 14, 2022
Published by Michael Berman at August 14, 2022
Categories
“Hit reports” have various names.[1] One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests. Craig Ball has blogged on this issue since 2013. However, his recent blog explains that “the […]
June 1, 2022
Published by Michael Berman at June 1, 2022
Categories
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 […]
March 17, 2022
Published by Michael Berman at March 17, 2022
Categories
Earlier this month, the Sedona Conference published its “Commentary on Equitable Remedies in Trade Secret Litigation” (Mar. 2022). The comprehensive Sedona Commentary offers five Principles and 24 Guidelines. Its premise is that: “Obtaining or resisting some form of equitable relief is a key component of many trade secret disputes, both at an […]
March 12, 2022
Published by Michael Berman at March 12, 2022
Categories
Taxation of costs in federal court is governed by 28 U.S.C. §1920. An ABA Litigation Section article, W. Newman, Prevailing Parties Recover Some, Not All, E-discovery Costs (americanbar.org) (ABA Winter 2022), cited a recent decision and noted that “ABA Litigation Section leaders believe this decision reveals that section 1920 is out of […]
December 18, 2021
Published by Michael Berman at December 18, 2021
Categories
In its 209th Report, the Standing Committee on Rules of Practice and Procedure proposed a number of rules changes. The proposals were transmitted to the Court of Appeals on December 10, 2021. The comment period will close on January 10, 2022. The date of the Court’s open meeting on the proposed changes […]