Sanctions for spoliation. Fed.R.Civ.P. 37(e). Md. Rule 2-433.
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May 24, 2023
Published by Michael Berman at May 24, 2023
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The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules. This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 23, 2023
Published by Michael Berman at May 23, 2023
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In Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.)(“Fowler I”), the Magistrate Judge wrote that preservation of a cell phone “in place” may be acceptable in some instances, but made clear that it is risky. Plaintiff had not backed up his cell phone. He left it […]
May 18, 2023
Published by Michael Berman at May 18, 2023
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Phil Favro and The Sedona Conference have released “Selected eDiscovery and ESI Case Law from 2022-23” (2023). This is a sequel to Phil’s 2021-22 publication. I wrote that the prior book was “an excellent resource in an always-changing field.”[1] As in the prior work, Phil’s new publication runs the gamut of topics […]
May 13, 2023
Published by Michael Berman at May 13, 2023
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My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
May 9, 2023
Published by Michael Berman at May 9, 2023
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“Before me is Plaintiffs’ Motion for Sanctions…. I will not mince words. I hate motions for sanctions. Based on my experience for roughly 25 years as a lawyer, and now for the past five years as a judge, most such motions are without merit—a mere effort by one side to obtain a […]
May 7, 2023
Published by Michael Berman at May 7, 2023
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The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
April 26, 2023
Published by Michael Berman at April 26, 2023
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In Doe v. Willis, 2023 WL 2918507 (M.D. Fl. Apr. 12, 2023), the plaintiff’s lawyer imposed an oral legal hold, telling her that she should not delete texts, throw away evidence, or post anything on Facebook, and: “That’s about it.” The instructions were not memorialized in a writing. Subsequently, the plaintiff dropped […]
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 17, 2023
Published by Michael Berman at April 17, 2023
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Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
April 16, 2023
Published by Michael Berman at April 16, 2023
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A recent article, Josephine M. Bahn, Individual Lawyers—Not Firms—Must Pay Discovery Sanctions (americanbar.org)(Jan. 20, 2023), describes a Sixth Circuit decision, NPF Franchising, LLC v. SY Dawgs LLC, No. 21-3516 (June 15, 2022), holding that individual attorneys – not their law firms – were jointly and severally liable for discovery sanctions. The opinion states […]
April 10, 2023
Published by Michael Berman at April 10, 2023
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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 […]
April 9, 2023
Published by Michael Berman at April 9, 2023
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A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction. This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction. The history of, and […]
April 8, 2023
Published by Michael Berman at April 8, 2023
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In CSAA Affinity Insurance Company v. The Scott Fetzer Company, 2023 WL 2714026 (D. Md. Mar. 30, 2023), a subrogated insurer sued the manufacturer of a sump pump, alleging that the pump was defective and started a house fire. The defendant-manufacturer asserted spoliation, and it moved for sanctions. However, defendant’s motion for […]
April 7, 2023
Published by Michael Berman at April 7, 2023
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Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences. Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
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 […]
April 4, 2023
Published by Michael Berman at April 4, 2023
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Debra C. Weiss, reported that Reed Smith lawyers must hold ‘Please See Me’ signs at courthouse after failing to provide hearing notice (abajournal.com)(Apr. 4, 2023.) The article states that: A Delaware judge has ordered Reed Smith to station two lawyers at the courthouse Tuesday with “Please See Me” signs, after the law firm […]
March 22, 2023
Published by Michael Berman at March 22, 2023
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“Counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification, a California appeals court ruled Tuesday in a dispute among cannabis company co-owners.” Joyce E. Cutler, Counsel’s Disqualification Upheld Over Use of Privileged Emails (bloomberglaw.com)(2023), describing Militello v. VFarm 1509, __ Cal.Rptr.3d __, 2023 WL 2579204 […]
March 17, 2023
Published by Michael Berman at March 17, 2023
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“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023)(emphasis added). In this case, the court’s filing deadline was at midnight on April 22nd. The attorney logged on to the […]
March 16, 2023
Published by Michael Berman at March 16, 2023
It is well worth downloading eDiscovery Assistant’s excellent 2022 eDiscovery Case Law Year in Review | eDiscovery Assistant. The Report provides interesting metrics about eDiscovery, such as the following chart: Id. The Report states that “failure to produce” was the most litigated issue, followed by proportionality and sanctions. Interestingly, “failure to preserve” […]
March 15, 2023
Published by Michael Berman at March 15, 2023
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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 13, 2023
Published by Michael Berman at March 13, 2023
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This blog discusses how the Court interpreted the ESI protocol in McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023)(Bredar, J.), McCormick was a consolidated breach of contract action involving multi-million dollar claims. The Court wrote: The ESI Protocol provides, under a subsection titled “No Presumption of […]
March 13, 2023
Published by Michael Berman at March 13, 2023
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There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter. In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporate their […]
March 9, 2023
Published by Michael Berman at March 9, 2023
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Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent. In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of […]
March 7, 2023
Published by Michael Berman at March 7, 2023
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The decision in Attorney Grievance Comm’n. of Md. v. Sloane, __ Md. __ (Mar. 2, 2023), covers many issues. The respondent attorney was suspended from the practice of law in Maryland with the right to apply for reinstatement after six months. Much of the sanction was due to discovery misconduct in a […]
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 […]
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 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, […]
December 23, 2022
Published by Michael Berman at December 23, 2022
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Fed.R.Civ.P. 26(g) has been called the “stop and think” rule. The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….” The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting […]
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 […]
December 16, 2022
Published by Michael Berman at December 16, 2022
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The Daily Record reported that an Orphans’ Cout judge “quit last week amid disciplinary allegations that he misused ‘the prestige of judicial office’ on his Facebook page by posting a profile photo of himself in his judicial robe and engaging in partisan political discussion, giving legal advice and advertising his private business […]
November 22, 2022
Published by Michael Berman at November 22, 2022
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Debra C. Weiss reports More than $2M in sanctions sought against Gibson Dunn and Facebook (abajournal.com)(Nov. 22, 2022): Plaintiffs are seeking more than $2 million in sanctions against Facebook and its lawyers at Gibson, Dunn & Crutcher after a federal judge said they engaged in “dilatory discovery conduct.” Id. In a September […]
November 20, 2022
Published by Michael Berman at November 20, 2022
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A recent article in the American Bar Association’s Litigation magazine suggested that: Plaintiffs must ensure preservation of everything from the moment the problem is identified…. Even if the plaintiff hasn’t filed a lawsuit yet, consider a written instruction to the soon-to-be defendant to preserve everything…. The best way for the plaintiff to […]
November 8, 2022
Published by Michael Berman at November 8, 2022
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UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
October 28, 2022
Published by Michael Berman at October 28, 2022
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In Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), a contempt motion was made because the State failed to timely perform its agreement that had been incorporated into a Court order. The lawsuit was filed by an inmate against prison medical and supervisory staff. Plaintiff served a subpoena […]
September 26, 2022
Published by Michael Berman at September 26, 2022
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A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.” Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022). According […]
September 8, 2022
Published by Michael Berman at September 8, 2022
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An article by Jef Feeley, Judge Slams Musk for Mishandling Records in Twitter Fight (1) (bloomberglaw.com) (Sept. 7, 2022), states that Delaware Chancery Judge Kathaleen St. Jude McCormick found “glaring deficiencies” in Elon Musk’s production of text messages in discovery. The article states: “Third parties produced text messages with Musk that Musk himself did […]
August 15, 2022
Published by Michael Berman at August 15, 2022
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Several Fourth Circuit, District of Maryland, and Maryland intermediate appellate decisions stand for the proposition that, where a potential litigant is unable to comply with the duty to preserve potentially responsive information, the potential litigant has a duty to notify the anticipated opponent before the information goes missing. For example: I have […]
August 13, 2022
Published by Michael Berman at August 13, 2022
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In re Rainey v. State, __ Md. __, 2022 WL 3269789, at *1 (Md. Aug. 11, 2022), the Court affirmed a jury instruction on destruction or concealment of evidence “based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.” The victim was shot […]
August 7, 2022
Published by Michael Berman at August 7, 2022
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In Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530 (D. Md. Jul. 11, 2022)(Quereshi, J.), the Court addressed a motion to compel discovery in a breach of contract action. The Court held that defendant’s discovery objections were too general; however, on the facts presented, including the manner in which […]
August 6, 2022
Published by Michael Berman at August 6, 2022
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In Kadish v. Kadish, 254 Md. App. 467 (2022), the Court was faced with egregious discovery violations in a child custody case. Stated simply, the child’s mother failed or refused to provide discovery responses several times, failed to appear for depositions on three separate occasions, and also violated a series of escalating […]
August 4, 2022
Published by Michael Berman at August 4, 2022
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Brittany Shammas and Kim Bellware reported that Alex Jones attorneys accidentally gave up his phone’s contents, Sandy Hook lawyers say – The Washington Post (Aug. 3, 2022). The Post reports that: The legal team representing Infowars founder Alex Jones inadvertently sent the contents of his cellphone to a lawyer representing the parents of […]
July 16, 2022
Published by Michael Berman at July 16, 2022
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A $971,715.09 sanction was imposed by The Hon. Susan Van Keulen in Brown v. Google, No. 20-cv-03664-YGR, Dkt. No. 631 (N.D. Ca. July 15, 2022). “The Court has already determined that the appropriate measure of the monetary sanction for Google’s discovery misconduct is the attorneys’ fees and costs incurred in bringing the […]
July 14, 2022
Published by Michael Berman at July 14, 2022
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“An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held.” William H. Newman, Court Sanctions Attorney for Feeding Deponent Answers (americanbar.org) (Apr. 27, 2022). Counsel was disqualified as a result. Like many depositions during the pandemic, the Barksdale deposition took place remotely over […]
July 13, 2022
Published by Michael Berman at July 13, 2022
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In Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022), the Court denied a request for a preservation order that was made in the form of a motion for a temporary restraining order. Plaintiffs sought an order to preserve certain information after expiration of a statutory preservation mandate […]
June 22, 2022
Published by Michael Berman at June 22, 2022
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In Troyce Manassa v. National Collegiate Athletic Association, 2022 WL 2176334 (S.D. Ind. June 16, 2022), a motion to disqualify counsel was denied. Plaintiffs are represented by the law firm of “FeganScott.” They sued the NCAA. “Upon learning that a FeganScott staff attorney moonlighted as a document reviewer for the NCAA in […]
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 13, 2022
Published by Michael Berman at June 13, 2022
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I have been following with interest a case in the Maryland Court of Appeals on whether and when a potential criminal defendant cutting his hair may be viewed as spoliation. See When is a Haircut Spoliation? Certiorari Granted and When is a Haircut Spoliation? The Maryland Daily Record recently reported on oral argument. S. Lash, MD […]
June 2, 2022
Published by Michael Berman at June 2, 2022
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As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006. And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 26, 2022
Published by Michael Berman at May 26, 2022
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Zubulake was not the first e-discovery case to impose sanctions. Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 794 (2010). Mr. Willoughby explains that that distinction belongs to Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. […]
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 […]
April 21, 2022
Published by Michael Berman at April 21, 2022
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Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022). This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 20, 2022
Published by Michael Berman at April 20, 2022
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In Gunter v. Alutiiq Advanced Security Solutions, LLC, 2022 WL 1139875 (D. Md. Apr. 18, 2022), a pro se plaintiff alleged various employment discrimination claims. After defendant provided forensic testimony, the plaintiff was sanctioned under Rule 41(b), Rule 37(e), Rule 26(g), and the Court’s inherent power, for fabricating and failing to produce […]
April 20, 2022
Published by Michael Berman at April 20, 2022
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Doe I v. Exxon Mobile Corp., 2022 WL 1124902 (D.D.C. Apr. 14, 2022), describes the imposition of a Rule 11 sanction for defense counsel impugning the character of plaintiffs’ counsel in a paper filed in court. The court wrote: The Court also ordered defense counsel … [names omitted] …to show cause why […]
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 31, 2022
Published by Michael Berman at March 31, 2022
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Although the ABA’s “technological competence” standard is a good “first step,” it could be improved. Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball. Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
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 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 […]
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] […]
March 8, 2022
Published by Michael Berman at March 8, 2022
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Much has been written about the duty to cooperate. In 1850, Abraham Lincoln wrote: “Persuade your neighbors to compromise whenever you can…. As a peacemaker, the lawyer has a superior opportunity of being a good man [or woman].” [1] No attorney wants a judicial opinion stating that they have wasted the client’s […]
March 7, 2022
Published by Michael Berman at March 7, 2022
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Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing. Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order. Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its […]
March 5, 2022
Published by Michael Berman at March 5, 2022
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The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
January 16, 2022
Published by Michael Berman at January 16, 2022
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In Webb v. Giant of Maryland, LLC, __ Md. __, 2021 WL 6016453, at *1 (Dec. 21, 2021), the Court held that it was error to instruct the jury on spoliation on the facts presented. The store where plaintiff was injured had more than 30 cameras in operation and was notified of […]
January 16, 2022
Published by Michael Berman at January 16, 2022
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On January 11, 2022, the Maryland Court of Appeals granted certiorari in the “haircut spoliation” case that I wrote about in “When is a Haircut Spoliation?” The Court’s website lists the issues on which certiorari was granted: “Issues – Criminal Law – 1) As a matter of first impression, can a suspect’s […]
November 30, 2021
Published by Michael Berman at November 30, 2021
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In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9th Cir. Jun. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. The […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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Sanctions were imposed in DG BF LLC v. Ray, No. 2020-0459 (Del. Ch. Nov. 19, 2021).[1] The court dismissed a fraud and retaliation lawsuit for discovery abuse. Among other issues, plaintiff testified that he did not know what a “litigation hold” was, even though defendants sent a preservation demand to him. It […]
November 28, 2021
Published by Michael Berman at November 28, 2021
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Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
November 27, 2021
Published by Michael Berman at November 27, 2021
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The Hon. Paul W. Grimm recently wrote of the need for more education about discovery. Judge Grimm wrote that law schools share some of the blame for discovery abuses “for not spending sufficient time teaching students about discovery obligations in civil procedure classes.” P. Grimm, “Good Faith in Discovery,” 46 Litigation 23 […]
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. […]
September 4, 2021
Published by Michael Berman at September 4, 2021
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In Via Vadis, LLC, et al. v. Amazon.Com, Inc., 2021 WL 3134257 (W.D. Tex. Jul. 23, 2021), a request for sanctions was denied because the spoliating party provided satisfactory secondary evidence. When potentially relevant information goes missing, it is always a good practice to look for secondary evidence to replace it. See […]
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 18, 2021
Published by Michael Berman at August 18, 2021
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In McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021) (Copperthite, J.), data on Defendant’s former employee’s cell phone was erased after Plaintiffs had sent a preservation letter.[1] Defendant Transdev admitted that it had a duty to preserve the evidence and had control over it when it was […]
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 […]
August 11, 2021
Published by Michael Berman at August 11, 2021
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Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs. I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 11, 2021
Published by Michael Berman at August 11, 2021
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In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.” The Court answered that in the negative. In doing so, it differentiated between the loss or destruction of […]
August 9, 2021
Published by Michael Berman at August 9, 2021
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Much has been written about discoverability of litigation hold notices. See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities). In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote: “This matter is back before the undersigned on […]
July 27, 2021
Published by Michael Berman at July 27, 2021
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Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. Jun. 9, 2021), involved a suit for alleged brake defects. Near the end of discovery, plaintiff moved to compel further searches by Ford. The motion was denied. The Weidman court provided a comprehensive discussion of the December 2015 amendments to the Federal […]
July 23, 2021
Published by Michael Berman at July 23, 2021
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In Hyundai Motor Amer. Corp. v. N. American Automotive Svcs., Inc., et al., 2021 WL 3111191 (S.D. Fl. Jul. 22, 2021), sanctions were imposed against the plaintiff, Hyundai Motor America Corp. (“HMA”). At bottom, HMA failed to follow basic, well-established procedures to implement a litigation hold, and crucial evidence then went missing. […]
July 22, 2021
Published by Michael Berman at July 22, 2021
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In a preservation letter, a potential litigant demands that the opponent preserve specific ESI and documents. The purpose of the letter is to trigger the common-law duty to preserve potentially responsive information. However, if not properly drafted, a preservation letter can have the opposite effect. Malone v. Wicomico County, MD, 2021 WL […]
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 […]
May 14, 2021
Published by Michael Berman at May 14, 2021
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In two recent decisions, the District of Maryland has imposed sanctions for failure to properly investigate a client’s documents. Taken together, Bioiberica Nebraska and Membreno show that the Court expects a reasonable inquiry into information that is within a party’s possession, custody, or practical control. Filings or representations that contradict such information […]
May 13, 2021
Published by Michael Berman at May 13, 2021
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Bloomberg Law reports that a company has allegedly mishandled potentially important emails in a 70,000 person class action. J. Feeley and D. Glovin, “Sanofi Accused of Destroying Emails Tied to Zantac Recall” (Bloomberg May 11, 2021). The potential spoliator’s response is instructive. In the products liability action, plaintiffs allege that the defendant’s […]
March 14, 2021
Published by Michael Berman at March 14, 2021
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In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice. The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction […]
March 6, 2021
Published by Michael Berman at March 6, 2021
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Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), demonstrates the importance of following court disclosure rules and protocols. The value of critical evidence was blunted by a failure to do so. “The practice of law may be poetically likened to sailing a ship. Constitutions, case […]
February 14, 2021
Published by Michael Berman at February 14, 2021
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Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services. Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video. Among […]
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 […]
February 7, 2021
Published by Michael Berman at February 7, 2021
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In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court applied the spoliation doctrine in an employment discrimination case. The plaintiff alleged injury due to a hostile work environment and discrimination based on gender identity and sex. The Court wrote: “Discovery was contentious….” The plaintiff […]
February 7, 2021
Published by Michael Berman at February 7, 2021
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In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court penalized a litigant for her untimely filing of a spoliation motion, even though the motion had merit. While the Court granted the request for sanctions, it denied a request for attorneys’ fees due to the […]
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 24, 2021
Published by Michael Berman at January 24, 2021
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A few years ago, the Hon. Paul W. Grimm wrote: “At the end of the day, this is the case of the ‘gang that couldn’t spoliate straight.’” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501 (D. Md. 2010). That description is equally applicable to the conduct that led to a […]
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 […]
January 3, 2021
Published by Michael Berman at January 3, 2021
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While this blog is focused on ESI, Maryland State courts have been asked to apply the spoliation doctrine in unique contexts. They have addressed whether: Cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md.App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014); Burial is spoliation, Hollingsworth & Vose Co. v. […]
January 2, 2021
Published by Michael Berman at January 2, 2021
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In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.” There, an attorney permitted the client to determine what ESI it would search for and produce. This process ran afoul […]
December 26, 2020
Published by Michael Berman at December 26, 2020
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Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided. Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); […]
December 25, 2020
Published by Michael Berman at December 25, 2020
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In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce an inconsistent email to search parameters that were too narrow. The Court held that […]
December 20, 2020
Published by Michael Berman at December 20, 2020
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“The burden of proof on a motion for spoliation sanctions is unsettled.” Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). Two recent District of Maryland decisions have held that, at least where a relatively harsh sanction is involved, a clear and convincing standard applies: “The burden […]
December 1, 2020
Published by Michael Berman at December 1, 2020
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A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
November 28, 2020
Published by Michael Berman at November 28, 2020
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In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI. However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
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. […]
July 15, 2011
Published by Michael Berman at July 15, 2011
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“The Making of a Surgeon” In 1968, Dr. William A. Nolen wrote “The Making of a Surgeon” (Mid-List Press 1968, 1990): How do you make a surgeon? Not by the preliminaries, the four years of college and four years of medical school that have to be gone through to earn an M.D. […]