Sanctions for spoliation. Fed.R.Civ.P. 37(e). Md. Rule 2-433.
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August 11, 2026
Published by Michael Berman at August 11, 2026
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“A lawsuit by an attorney against a state judge who sanctioned him should be dismissed, a federal magistrate judge recommended Friday.” I. Round, MD attorney’s lawsuit against judge should be thrown out, magistrate says – Maryland Daily Record (Aug. 10, 2026). [Attorney Nathan] Charles sued [Judge Louis] Leibowitz last October after the […]
August 10, 2026
Published by Michael Berman at August 10, 2026
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The United States District Court for the District of Maryland has issued Standing Order 2026-03 titled “In Re: Use of Generative Artificial Intelligence in Court Filings.” Paragraph 1 states that, under Fed.R.Civ.P. 11, when an attorney or unrepresented party signs a pleading, written motion, or other paper, they are certifying that the […]
August 8, 2026
Published by Michael Berman at August 8, 2026
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This is my second post on Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026). Plaintiff in a copyright infringement action moved to compel discovery under Fed.R.Civ.P. 37. The court wrote that: Under Rule 37(a)(1), a “motion to compel ‘must include a certification that the movant has in good faith […]
July 29, 2026
Published by Michael Berman at July 29, 2026
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“Courts confronted with lawyers involved in advising spoliation of evidence have concluded [that] such attorney-client communications are not shielded by the privilege due to the crime-fraud doctrine.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2026 WL 1632746 (N.D. Cal. Jun. 5, 2026). The court explained: “The specific crime-fraud at […]
July 23, 2026
Published by Michael Berman at July 23, 2026
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Mr. Gruendel took a collection of documents from his former employer, defendant Figure AI, Inc. The court ordered them returned and, “Mr. Gruendel and his counsel must destroy and must not retain any of the Figure documents, and must cause the vendor to destroy the vendor’s copy of the Figure documents….” Figure […]
July 14, 2026
Published by Michael Berman at July 14, 2026
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“A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. […]
July 13, 2026
Published by Michael Berman at July 13, 2026
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Plaintiffs sued over their employer’s pandemic-era policy on masks, testing, and vaccination, claiming a valid religious exemption. The court wrote: The claims in this case are remarkably weak, at least as pleaded. We are more candid than usual in this assessment because the plaintiffs’ counsel Anthony F. Sabatini has not been candid […]
June 25, 2026
Published by Michael Berman at June 25, 2026
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In a recent decision, a court wrote: “Watson also has filed a motion to vacate the judgment for fraud upon the court, in which he contends that the District Court’s opinion is tainted by artificial intelligence and is ‘technically nonexistent.’” Watson v. Reese, 2026 WL 1818662, at n. 1 (3rd Cir. Jun. […]
June 20, 2026
Published by Michael Berman at June 20, 2026
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No. Withers v. City of Aberdeen, 2026 WL 1653484 (N.D. Miss. Jun. 8, 2026). In Withers, “the Court entered an Order to Show Cause … directing all counsel of record in this case to show cause as to why the Court should not impose sanctions against them pursuant to Rule 11 of […]
June 19, 2026
Published by Michael Berman at June 19, 2026
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There is nothing new about courts asking a litigant to prepare an order, the litigant submitting an order that contained hallucinated authorities, and the court then signing the order. Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases (Mar. 11, 2026). In a recent decision, the Court of Appeals of […]
June 17, 2026
Published by Michael Berman at June 17, 2026
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An attorney who copied and pasted non-existent case law from a pro se memorandum was sanctioned. “Father cites three cases that do not exist as cited….” Additionally, actual cases were cited for propositions that did not exist in the real case. One was “overstated.” Ajakaiye v. Oladipupo, 2026 WL 1733336 (Appl. Ct. […]
June 16, 2026
Published by Michael Berman at June 16, 2026
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A spoliation motion that alleged failure to preserve text messages was denied because summary judgment was granted in favor of the movant. Flynn v. Kone, Inc., 2026 WL 1707560, at *12 (D. Md. Jun. 12, 2026)(Hurson, J.). Mr. Flynn sued his employer, Kone, Inc., alleging discrimination and retaliation in violation of the […]
June 3, 2026
Published by Michael Berman at June 3, 2026
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“This is not a Professional Ethics issue spotter. These are the facts of Quinn Emanuel’s conduct in the instant litigation, as investigated by the appointed Special Master. The Special Master reviewed internal firm communications and took testimony from the involved attorneys under oath. His thorough investigation revealed not the misstatement or inadvertence […]
June 2, 2026
Published by Michael Berman at June 2, 2026
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Adams v. Anderson, 2026 WL 1501021 (Ct. Apls. Ky. May 29, 2026)(unpublished), was an unsuccessful appeal from a holding of criminal contempt with a sentence of 45 days incarceration. It arose out of a divorce action. Ms. Adams and Mr. Anderson were parents of two minors. The family law court held a […]
May 30, 2026
Published by Michael Berman at May 30, 2026
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In an earlier blog, I wrote that an example of an ineffective use of artificial intelligence was provided in Camarillo Hospitality LLC v. G6 Hospitality LLC, 2026 WL 1113871 (E.D. Cal. Apr. 24, 2026)(“Camarillo I”). See Otter.ai “Transcript” Was Excluded From Consideration (Apr. 25, 2026). The court refused to consider a transcript […]
May 29, 2026
Published by Michael Berman at May 29, 2026
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The EEOC sued Mia Aesthetics Clinic on behalf of Kiera Webb, alleging disability discrimination. The court issued three discovery decisions. One important holding is that a party cannot blindly rely on its document destruction policy as a defense to a motion for spoliation sanctions. Simply stated, that is no longer a “safe […]
May 22, 2026
Published by Michael Berman at May 22, 2026
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In Davis v. Marion Co. Superior Court Juvenile Detention Ctr., 2026 WL 1408448 (S.D. Ind. May 20, 2026), the court took a novel view of artificial intelligence. The all-too-common issue presented in Davis was whether the court should “personally sanction Plaintiff’s counsel, …, for including two non-existent legal citations in a brief […]
May 17, 2026
Published by Michael Berman at May 17, 2026
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A recent decision addresses assertion of a Fifth Amendment privilege to refuse to answer questions in a deposition in a civil case. A pro se plaintiff sued a management company asserting discrimination and retaliation. After discovery rulings by a U.S. Magistrate Judge, plaintiff objected and asserted error. Not only did the court […]
May 16, 2026
Published by Michael Berman at May 16, 2026
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In a fictitious quotations case, sometimes called “hallucinations,” an appellate court referred to attorneys’ advertisements: These mistakes and fictitious quotations bear the hallmarks of the misuse of generative artificial intelligence…. The website of XXXX Law Firm, P.C., where [plaintiff’s] attorneys both practice, boasts of the firm’s extensive incorporation of artificial intelligence into […]
May 15, 2026
Published by Michael Berman at May 15, 2026
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It does not bode well for a litigant when an appellate court cites as precedent that it is sanctionable to refer to opposing counsel as “babe” or a “bimbo.” But that is the reference made in Ginexi v. Liberty Mountain Race Team, Inc., 2026 WL 1242829 (Appl. Ct. Md. May 6, 2026)(unreported).[1] […]
May 13, 2026
Published by Michael Berman at May 13, 2026
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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 9, 2026
Published by Michael Berman at May 9, 2026
Judicial decisions involving “hallucinated” citations provided by GenAI are more common than mosquitoes in a swamp. A recent decision addresses supervisory obligations and looked at “institutional culture” of the law firm: Lawyers owe a duty of candor to the Court, a duty that cannot be met without reading and understanding the legal […]
May 5, 2026
Published by Michael Berman at May 5, 2026
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Aziz v. U.S., 2026 WL 1132884 (D. Md. Apr. 27, 2026)(Abelson, J.), is of note only because it is in the District of Maryland, where I practice. Plaintiffs “filed an unusually high number of motions in a short amount of time.” The latest flurry worsens a pattern of repeated filings: the Court’s […]
May 3, 2026
Published by Michael Berman at May 3, 2026
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“[S]o that the clear does not become cloudy, we state the obvious: Using generative artificial intelligence to generate legal briefs and then simply cite-checking them bears no resemblance to the competent practice of law….When lawyers trade reflection for automation, they surrender the very quality that makes their words worthy of belief. Although […]
April 29, 2026
Published by Michael Berman at April 29, 2026
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When a litigant seeks “a bridge too far,” it often fails. Baker v. State, 2026 WL 1113401 (App. Ct. Md. Apr. 24, 2026), so held in a criminal context. Mr. Baker sought drastic discovery sanctions. He did not seek less drastic ones. He got nothing.[1] The case arose out of a shooting […]
April 17, 2026
Published by Michael Berman at April 17, 2026
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“Artificial intelligence can be a useful discovery tool. However, as discussed below, AI is not a substitute for attorneys and litigants exercising independent judgment and oversight in the discovery process. Relatedly, the Court once again reminds counsel of their obligation to meaningfully meet and confer with one another before seeking the Court’s […]
April 14, 2026
Published by Michael Berman at April 14, 2026
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Marris Hoffee and Michael D. Berman Do lawyers have an obligation not only to verify their own citations, but also to catch their opponents “hallucinated” authorities? A recent Seventh Circuit decision suggests that the answer may be edging toward yes. Cut and paste briefing has always carried risks, but Dec v. Mullin, […]
April 12, 2026
Published by Michael Berman at April 12, 2026
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Decisions involving the use of “hallucinated” or fictitious case citations are blooming like flowers in spring. Show cause orders, reprimands, admonishments, or sanctions often follow an allegation that an opponent relied on nonexistent “authority.” But allegations of misuse of artificial intelligence should not be lightly made. Vigorous advocacy is markedly different: In […]
April 4, 2026
Published by Michael Berman at April 4, 2026
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“The topical worry that artificial intelligence will lure attorneys with the false siren song of easy shortcuts to legal authority is part of a much larger concern that attorneys will fail to cite their sources properly and—either intentionally or unintentionally—mislead the Court.” Quandel Constr. Grp., Inc. v. Hunt Constr. Grp., Inc., 2026 […]
March 30, 2026
Published by Michael Berman at March 30, 2026
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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 29, 2026
Published by Michael Berman at March 29, 2026
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Four Factors for Imposing Discovery Sanctions Under Md. Rule 2-433; No Exception for Pro Se Litigant
In Smith v. Morris, 2026 WL 809126 (Appl. Ct. Md. Mar. 24, 2026)(unreported; per curiam),[1] the Court set out the four factors used to apply discovery sanctions under Maryland Rule 2-433. The sanctioned party was proceeding pro se. Plaintiff, Ms. Smith, sued her aunt, Ms. Morris, alleging torts in connection with a […]
March 26, 2026
Published by Michael Berman at March 26, 2026
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I have suggested that litigation hold notices should not be treated as privileged. See Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025); The Honorable Paul W. Grimm (ret.), M. Berman, et al., Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation […]
March 24, 2026
Published by Michael Berman at March 24, 2026
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There is nothing new about “hallucinations” from GenAI. A recent decision explains and applies what now appears to be settled law under Fed.R.Civ.P. 11. Brownfield v. Cherokee Co. School Dist., 2026 WL 777230 (E.D. Ok. Mar. 19, 2026). A recent appellate decision applying Fed.R.App.P. 38 and common-law inherent authority is Whiting v. […]
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 18, 2026
Published by Michael Berman at March 18, 2026
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An Illinois court held that a child’s best interest is always paramount in a termination of parental rights case and takes precedence over a sanction for reliance on hallucinated cases. Prior Maryland precedent recognizes that parental rights “sink to insignificance” before a child’s best interests. Child’s Best Interest Trumps Sanction for Possibly […]
March 17, 2026
Published by Michael Berman at March 17, 2026
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The EEOC sued “Atlantic Properties” and “DFI” for alleged failure to provide reasonable accommodations under the Americans with Disabilities Act, in an employment context. “The EEOC seeks reimbursement of attorneys’ fees and expenses related to three discovery motions: its First Motion to Compel…, a Motion to Enforce the Court’s April 11, 2025 […]
March 17, 2026
Published by Michael Berman at March 17, 2026
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The most recent decision in Ms. Blake Lively’s lawsuit against Wayfarer Studios, Mr. Justin Baldoni and others, is Lively v. Wayfarer Studios LLC, 2026 WL 709988 (S.D.N.Y. Mar. 13, 2026). The court wrote: Plaintiff Blake Lively moves, pursuant to New York Professional Conduct Rule 3.6 and Federal Rule of Civil Procedure 16(f), […]
March 15, 2026
Published by Michael Berman at March 15, 2026
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A child’s best interest is always paramount in a termination of parental rights case. In In re A.R. and N.R., Minors v. Sarah B., 2026 Ill. App. (2d) 250299-U (Appl. Ct. Ill. 2nd Dist. Mar. 10, 2026), the court wrote: Further, respondent cites a case, In re K.B., 2019 IL App (3d) […]
March 13, 2026
Published by Michael Berman at March 13, 2026
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Hallucination decisions are “old news.” Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2026). Courts and litigants alike have erred. Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases (Mar. 11, 2026). The primary reason to discuss In re: Nwaubani, 2026 WL 687194 (4th […]
March 12, 2026
Published by Michael Berman at March 12, 2026
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The law firm of Batta Fulkerson, LLP, sued Bulldog Law, PC, over use of its registered mark, “Bulldog Attorneys.” Batta Fulkerson, LLP v. Bulldog Law, PC, 2026 WL 622294 (S.D. Cal. Mar. 4, 2026). The court wrote that: “Batta Fulkerson alleges Bulldog Law’s ‘unauthorized use of marks substantially similar to plaintiff’s trademarks […]
March 11, 2026
Published by Michael Berman at March 11, 2026
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A recent decision begins as follows: Joan Pablo Torres Campos (Torres) appeals from a family court order denying his request for shared custody and visitation of a dog. He contends the court committed error by citing and relying on fictitious case authorities in its order. We agree the court so erred, but […]
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 22, 2026
Published by Michael Berman at February 22, 2026
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Plaintiffs filed a Maryland Rule 1-341 motion for sanctions and an order to docket foreclosure on Defendant’s real property. Later, they filed a motion for voluntary dismissal. The motion was granted and the case dismissed without prejudice. However, the court “never entered an order specifically addressing the motion for sanctions.” Plaintiffs then […]
February 19, 2026
Published by Michael Berman at February 19, 2026
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A recent decision clarified the relationship between a requesting and a preserving entity and ordered “discovery on discovery” a/k/a satellite discovery or culpability discovery. The court wrote: “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” “Rule 37 requires the party from whom the information is sought to […]
February 13, 2026
Published by Michael Berman at February 13, 2026
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The EEOC filed suit against three entities alleging employment discrimination. Defendants moved for sanctions, alleging spoliation of a voicemail message allegedly from defendants to plaintiff. The existence of the message was substantively important. If it existed, plaintiff failed to continue the mandatory resolution process. If it did not, defendants failed to do […]
January 17, 2026
Published by Michael Berman at January 17, 2026
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A hallucinated citation issue was addressed in Boyd v. Lee, 2026 WL 111263 (Appl. Ct. Md. Jan. 14, 2026)(unreported). Hallucinated case citations are “old news.” To paraphrase, “[I]t is no longer amateur hour.” (Feb. 12, 2021)(citation omitted). Maryland has not been immune. Maryland Fake Citation Case – Court Issues a Warning – […]
January 7, 2026
Published by Michael Berman at January 7, 2026
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This blog addresses two of the issues resolved in Toyota Motor Sales, U.S.A., Inc. v. Allen Interchange LLC, 2025 WL 3485862 (D. Minn. Dec. 4, 2025). Toyota moved to compel Allen to produce certain discovery. First, Toyota requested the “Jim Folder.” Allen initially danced — unsuccessfully — around a response, arguing that […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In USA Today, Anthony Robledo reports that Dr Phil bankruptcy case filing has accusations of deleting texts (USA Today Oct. 29, 31, 2025), citing Variety and The Hollywood Reporter It is reported that: 1) the Bankruptcy Judge found that text messages had been improperly deleted; and, 2) the finding has been, and is, disputed […]
December 28, 2025
Published by Michael Berman at December 28, 2025
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In Allen v. Amazon, 2025 WL 3719889 (N.D. Tex. Dec. 23, 2025), the court applied a discretionary exception to the “meet and confer” requirement. It also declined to impose sanctions for violation of a Local Rule mandating disclosure of the use of artificial intelligence. EXCEPTION TO “MEET AND CONFER” REQUIREMENT In yesterday’s […]
December 27, 2025
Published by Michael Berman at December 27, 2025
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Plaintiff filed an ex parte motion seeking an order requiring defendants to produce documents without redactions. The motion was denied without prejudice for failure to meet and confer, and failure to follow ordinary discovery procedures. Additionally, Plaintiff and Plaintiff’s counsel were ordered “to show cause as to why they should not be […]
December 10, 2025
Published by Michael Berman at December 10, 2025
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Plaintiff filed a motion to compel Defendants to respond to requests for production. Defendants asserted that the motion was untimely. The court wrote that: “Defendants’ untimeliness argument is appropriate.” Harris v. Landmark Recovery of Carmel LLC, 2025 WL 3505446 (N.D. Ind. Nov. 12, 2025). The March 18, 2024, Scheduling Order set milestone […]
November 30, 2025
Published by Michael Berman at November 30, 2025
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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 22, 2025
Published by Michael Berman at November 22, 2025
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Ms. Blake Lively’s lawsuit against the “Wayfarer Defendants,” including Mr. Justin Baldoni, presents very serious, complex, and novel, discovery and substantive issues. In the court’s words: “This case stems from Lively’s claims of sexual harassment that she was allegedly subjected to during production of the Film [It Ends With Us], and from […]
November 21, 2025
Published by Michael Berman at November 21, 2025
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This blog on Lively v. Wayfarer Studios, LLC, 2025 WL 3206490 (S.D.N.Y. Nov. 17, 2025), is my ninth on this and related litigation. The opening sentence is: Plaintiff Blake Lively (“Lively”) moves to sanction Defendant Jamey Heath (“Heath”) for failing to produce all video footage related to the “birth video” that the […]
November 18, 2025
Published by Michael Berman at November 18, 2025
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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 4, 2025
Published by Michael Berman at November 4, 2025
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A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit. Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, […]
November 2, 2025
Published by Michael Berman at November 2, 2025
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Fake citation or “hallucination” cases have become common. See, e.g., Doug Austin, What’s Causing These AI Hallucinations and How to Fix It (Oct. 13, 2025)(reporting 772 cases in academic literature); Doug Austin, AI Hallucination Cases: A Compiled List (Jun. 9, 2025); Damien Charlotin, AI Hallucination Cases Database – Damien Charlotin (listing 507 […]
October 28, 2025
Published by Michael Berman at October 28, 2025
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The Federal Rules of Civil Procedure do not state when a motion to compel must be filed. This silence has generated a number of discovery disputes. When Must a Motion to Compel Be Filed? (Aug. 26, 2024); When Must a Motion to Compel Be Filed? – Part 2; (Sep. 6, 2024); Half-Baked […]
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 […]
October 11, 2025
Published by Michael Berman at October 11, 2025
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Sanctions were imposed on plaintiff for breach of the duty to preserve certain communications in Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025)(Rubin, J.). The Court held that it would instruct the jury: You are instructed that Plaintiff had a duty to preserve all relevant […]
October 2, 2025
Published by Michael Berman at October 2, 2025
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“Although Plaintiff has not established each element of spoliation, the Court is troubled by Defendant’s conduct.” Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025)(Quereshi, J.).[1] The Court reserved on the issue of narrower-than-requested sanctions, which will be the focus of this blog. THE SLIP AND […]
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 27, 2025
Published by Michael Berman at September 27, 2025
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The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward. The recipient of a preservation demand is not obligated to respond. The Court wrote: Finally, Mr. Jones also alleges that sanctions are in order because he has “serious spoliation concerns.”… His […]
September 24, 2025
Published by Michael Berman at September 24, 2025
A recent decision demonstrates the importance of following the Rules and the duty to cooperate, after a “quick peek” proved that an opponent’s discovery responses were incomplete. The Court wrote: “Defendants’ responses to Plaintiffs’ interrogatories and requests for production of documents are vague and confusing. The Federal Rules of Civil Procedure and […]
September 16, 2025
Published by Michael Berman at September 16, 2025
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A challenge to a redacted metadata privilege log was partly successful. Jeffries Funding LLC v. Dasagroup Holdings Corp., 2025 WL 2611922 (N.D. Ca. Sep. 10, 2025). For a description of “metadata privilege logs” see How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform – E-Discovery LLC (Aug. […]
September 12, 2025
Published by Michael Berman at September 12, 2025
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Several years ago, I wrote about Maryland’s Special Rule for Discovery Sanctions in Child Custody Cases (Aug. 6, 2022), discussing Kadish v. Kadish, 254 Md. App. 467 (2022), where the Court was faced with egregious discovery violations in a child custody case. The Court held that in a custody case, the best […]
September 11, 2025
Published by Michael Berman at September 11, 2025
In Golat v. Wisconsin State Court System, 2025 WL 2466697 (W.D. Wis. Aug. 27, 2025)(“Golat II”), the court wrote that omitting a relevant email that was contained in an email chain violated counsel’s duty of candor to the court. This blog is an update of Half-Baked Motion to Compel Was Not Prompt, […]
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 […]
September 7, 2025
Published by Michael Berman at September 7, 2025
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“The following factors, originally set forth in Taliaferro v. State, 295 Md. 376, 390–91 (1983), guide a trial court’s decision of whether to impose sanctions for a discovery violation: (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the […]
September 2, 2025
Published by Michael Berman at September 2, 2025
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There is a problem when the court writes that it “reminds the Parties … that they are engaged in civil litigation, and the Court urges all involved to conduct themselves accordingly.” Pendleton v. Revature LLC, 2025 WL 2493090, at *5 (W.D. Wash. Aug. 11, 2025)(emphasis in original; citation and quotation omitted). It […]
August 25, 2025
Published by Michael Berman at August 25, 2025
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A default judgment was entered in Cook v. Superior Assisted Living, LLC, 2025 WL 2306268 (D. Md. Aug. 11, 2025). “Where missed deadlines become the norm rather than the exception, … there comes a time when the court must say that enough is enough.” Id. at *1. Plaintiff sued, alleging failure to […]
August 23, 2025
Published by Michael Berman at August 23, 2025
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Two weeks before trial, the defense disclosed an expert opinion: “Mr. Williams [the plaintiff] presents one issue on appeal: whether the circuit court abused its discretion when it denied his motion to strike [defendant] Transdev’s supplemental expert designation.” Williams v. Transdev Services, Inc., 2025 WL 2416427 (Appl. Ct. Md. Aug. 21, 2025)(unreported).[1] […]
August 22, 2025
Published by Michael Berman at August 22, 2025
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Golat v. Wisconsin State Court System, 2025 WL 2390556 (W.D. Wisc. Aug. 18, 2025), involved a motion to compel that was not prompt, not ripe, and not complete. The court wrote: Parties must allow a reasonable amount of time for the other side to address alleged discovery deficiencies. Waiting until the last […]
August 21, 2025
Published by Michael Berman at August 21, 2025
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In EEOC v. Mia Aesthetics Clinic, ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. Aug. 18, 2025)(“Mia Aesthetics II”), Mia Aesthetics, in my words, tried to “rewrite” a court order. That unsuccessful effort led to appointment of a third-party ESI vendor at defendants’ cost. In a prior decision, the court had ordered defendants to […]
August 16, 2025
Published by Michael Berman at August 16, 2025
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A pro se litigant unsuccessfully argued that (1) as a pro se litigant, she should not have been required to timely comply with all the rules; and, (2) she had requested and received an accommodation under the Americans with Disabilities Act to take “as much time as needed….” Chieffallo v. Morgan Properties […]
August 15, 2025
Published by Michael Berman at August 15, 2025
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The standard for reopening completed depositions to address after-produced documents was explained in In re Sandisk SSDs Litigation, 2025 WL 2304805 (N.D. Cal. Aug. 11, 2025). The court stated that: “Plaintiffs move to reopen fact discovery to reopen three depositions of Defendants’ employees in light of Defendants’ belated production of documents that […]
August 14, 2025
Published by Michael Berman at August 14, 2025
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Plaintiff’s offensive motion for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2076080, at *1 (S.D.N.Y. July 23, 2025)(“Oakley II”), was no match for defendants’ earlier request for sanctions in Oakley v. MSG Networks, Inc., 2025 WL 2061665, at *1 (S.D.N.Y. July 23, 2025)(“Oakley I”). In Oakley I, defendants (“MSG”) made […]
August 13, 2025
Published by Michael Berman at August 13, 2025
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In Schmitz v. Verdad Asset Management, Inc., 2025 WL 2306291 (D. Md. Aug. 11, 2025)(Xinis, J.), Count V of plaintiff’s complaint alleged spoliation of a website. It failed, and defendant’s motion to dismiss was granted. The parties entered into a joint venture to launch a hedge fund. After ballooning to $50 million […]
August 11, 2025
Published by Michael Berman at August 11, 2025
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“The Court agrees that inclusion of the entire deposition transcript served no proper purpose and accordingly grants the motion to strike.” Lively v. Wayfarer Studios LLC, 2025 WL 2298247, at *1 (S.D.N.Y. Aug. 8, 2025). Defendants, the “Wayfarer Parties,” filed a letter asserting that there is no evidence that they participated in […]
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. […]
August 6, 2025
Published by Michael Berman at August 6, 2025
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In this alleged wrongful termination and retaliation case, a “whistleblower” complaint was dismissed and monetary sanctions were also imposed. Pable v. Chicago Transit Authority, __ F. 4th __, 2025 WL 2102202 (7th Cir. Jul. 28, 2025). The appellate court affirmed sanctions against both an attorney and client under three provisions: Fed.R.Civ.P. 37(e)(1 […]
July 26, 2025
Published by Michael Berman at July 26, 2025
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“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted). Here, the […]
July 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 […]
July 15, 2025
Published by Michael Berman at July 15, 2025
A motion for spoliation sanctions was held to be “premature,” and the motion was denied without prejudice, in Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347, at *15 (M.D.N.C. May 28, 2025), report and recommendation adopted, 2025 WL 1755911 (M.D.N.C. June 25, 2025). The Federal Rules of Civil Procedure (and […]
July 14, 2025
Published by Michael Berman at July 14, 2025
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”Applying the clear and convincing standard, Amazon’s withholding of almost 70,000 documents until the eve of, and after, the April 25, 2025 discovery cutoff—including the documents identified above—was tantamount to bad faith.” Federal Trade Comm’n. v. Amazon.Com, Inc., 2025 WL 1907413 (W.D. Wash. Jul. 10, 2025). The FTC filed a “Motion for […]
July 3, 2025
Published by Michael Berman at July 3, 2025
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In two related decisions, plaintiff’s motions for sanctions for spoliation of a cell phone and for destruction of drug testing swabs, were denied. Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403350 (D. Md. May 15, 2025)(Coulson, J.)( “Cooper I”); Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403334 (D. […]
June 28, 2025
Published by Michael Berman at June 28, 2025
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In Matter of City of Hagerstown, __ Md. App. __, 2025 WL 1540660 (May 30, 2025), the defendant City claimed unfair surprise when plaintiff sought to introduce at trial photographs that the City had taken, but which plaintiff had not disclosed in discovery. The Court affirmed the holding that the asserted prejudice […]
June 16, 2025
Published by Michael Berman at June 16, 2025
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Marris Hoffee and Michael Berman In Moore v. Wash. Metro. Area Transit Auth., 2025 WL 1374125 (D. Md. May 30, 2025), the District of Maryland applied a three-part test for imposing spoliation sanctions. Ms. Moore alleged that she was injured when the wheelchair lift of a MetroAccess van suddenly jolted, causing her […]
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 27, 2025
Published by Michael Berman at May 27, 2025
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While the facts were somewhat unique and egregious, in Little v. Hyde, 2025 WL 79685 (Appl. Ct. Md. Jan. 13, 2025)(unreported),[1] sanctions were imposed for failure to comply with discovery milestones in a scheduling order. Mr. Little sued Ms. Hyde and others for an auto tort. However, he failed to comply with […]
May 23, 2025
Published by Michael Berman at May 23, 2025
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Marris Hoffee[1] and Michael Berman Milne v. ProAll Int’l. Mfg., Inc., 2025 WL 1374125 (C.D. Cal. May 12, 2025), addresses the relationship between ESI Protocols and production of text message strings. The Milne court denied a motion to compel further responses to requests for production. The court recited the general principles governing […]
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 18, 2025
Published by Michael Berman at May 18, 2025
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In Adams-Devonish v. KEHE Distributors, 2025 WL 1413282 (D. Md. May 15, 2025)(Aslan, J.), a pro se plaintiff sued for alleged discrimination. Plaintiff’s “renewed” motion for sanctions was denied for several reasons. First, the Court declined to entertain a repetitive motion. It wrote: The Court has ordered production of the redacted materials, […]
April 15, 2025
Published by Michael Berman at April 15, 2025
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In Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025), the court ruled in favor of a discovering party and ordered reproduction of previously-produced documents under the terms of an ESI Protocol. The court also addressed what it considered to be a “dump truck” production. Pincus […]
April 8, 2025
Published by Michael Berman at April 8, 2025
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In Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025), the court granted in part and denied in part a motion to quash subpoenas issued to AT&T, Verizon, and T-Mobile (the “Wayfarer Parties”) by Ms. Blake Lively. Contextually, the litigation has been described in popular media. B. Lang, Ruling […]
April 6, 2025
Published by Michael Berman at April 6, 2025
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In Harrison v. The Johns Hopkins Hospital, et al., 2025 WL 999617 (Appl. Ct. Md. Apr. 3, 2025) (per curiam), the intermediate appellate court affirmed a dismissal with prejudice in consolidated cases due to discovery violations. Defendants’ motion to compel discovery was granted on March 28, 2024. Plaintiff was ordered to appear […]
March 31, 2025
Published by Michael Berman at March 31, 2025
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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 […]
March 8, 2025
Published by Michael Berman at March 8, 2025
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In Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025), Plaintiff’s claim was for $1,571,754.62. The court essentially held that the ESI Protocol was binding. It wrote: The emails attached to the [Defendant’s] motion to compel show that Defendant notified Plaintiff that […]
March 3, 2025
Published by Michael Berman at March 3, 2025
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Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.), is an employment discrimination case. At its most general level, the holding was that “a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.” At issue was ESI […]
February 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 23, 2025
Published by Michael Berman at February 23, 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 this lawsuit by a terminated employee against her former employer. The court permitted spoliation interrogatories. For an earlier post on this decision, please see Consulting an Attorney Did Not […]
February 15, 2025
Published by Michael Berman at February 15, 2025
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Farace v. Cross, 2025 WL 484543 (Appl. Ct. Md. Feb. 13, 2025)(unreported), arose out of a tragedy – – the death of both parents of a two-year-old child in an auto accident. Both sets of grandparents then sought custody. In this unreported decision, the Court addressed a novel[1] Maryland issue where out-of-State […]
February 8, 2025
Published by Michael Berman at February 8, 2025
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In Sullivan v. Wyatt, 2023 WL 1812733 (Appl. Ct. Md. Feb. 7, 2023)(unreported), the Court affirmed an award of damages to plaintiff (“Rebecca”), daughter of the decedent, due to the exertion of undue influence by the second wife of the decedent (“Joan”). After a five-day trial, the jury awarded Rebecca, the daughter, […]
February 1, 2025
Published by Michael Berman at February 1, 2025
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N. Kelly Hoang Law Firm sued Minh Quant Hoang for $568,000 for allegedly unpaid legal services over roughly five years. N. Kelly Hoang Law Firm v. Hoang, 2023 WL 3150110 (C.D. Cal. Apr. 14, 2023). I. THE DISCOVERY VIOLATION AND COURT ORDER Minh propounded discovery on Kelly. After Kelly failed to […]
January 14, 2025
Published by Michael Berman at January 14, 2025
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In Ex-Prosecutor Disbarred For Fabricating Harassing Texts – Law360 (Jan. 7, 2025), Thy Vo reported on a fabrication of evidence case. The decision, State of Colorado vs. Yujin Choi, No 24PDJ019,is not yet posted on Recent Disciplinary Decisions – Colorado Supreme Court. The Law 360 article reports that the former prosecutor was […]
January 4, 2025
Published by Michael Berman at January 4, 2025
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In Hall v. Trivest Partners L.P., 2024 WL 514015 (E.D. Mich. Dec. 17, 2024), the court rejected a demand that opposing counsel state under oath that counsel had properly conducted discovery. The court wrote: Lastly, Plaintiffs seek an order compelling Trivest Defendants to attest to having undertaken “proper efforts to ensure that […]
January 3, 2025
Published by Michael Berman at January 3, 2025
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In Sterling Computers Corporation v. International Busn. Machines Corp., 2024 WL 5168014 (D. S. Dak. Dec. 19, 2024), the court addressed: (1) whether the duty to meet and confer before moving to compel extends the time for filing such a motion; and, (2) how to show that an opponent’s production is incomplete. […]
December 28, 2024
Published by Michael Berman at December 28, 2024
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Cooperation and transparency are best practices.[1] In Bonds v. NJ Judiciary Administration of the Court, 2024 WL 5220936 (D.N.J. Dec. 26, 2024), the court explained a prior discovery ruling: The Court also found that Plaintiff’s failure, after nearly two years, to confer with Defense counsel regarding an ESI protocol militated against granting […]
December 18, 2024
Published by Michael Berman at December 18, 2024
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In Taylor v. Google LLC, 2024 WL 4947270 (N.D. Cal. Dec. 3, 2024), the court held that “plaintiffs have not shown a specific deficiency in Google’s document production or a factual basis to believe that Mr. Boyer’s (or anyone else’s) chat messages contain relevant evidence that was not properly preserved, and thus […]
December 16, 2024
Published by Michael Berman at December 16, 2024
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In Etame v. Nguh, 2024 WL 5102931 (Apl. Ct. Md. Dec. 13, 2024)(unreported), and Benton v. Hartley Hall Nursing & Rehabilitation Ctr., Inc., 2024 WL 4890854 (Apl. Ct. Md. Nov. 26, 2024)(unreported), dismissals for discovery violations were affirmed. ETAME Etame arose out of a trustees sale of real property. During a partition […]
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 27, 2024
Published by Michael Berman at November 27, 2024
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In OL Private Counsel, LLC v. Olson, 2024 WL 4839277 (D. Utah Nov. 20, 2024), the court addressed recovery of expenses by non-parties for responding to a subpoena. Fed.R.Civ.P. 45 (“Subpoena”) states: (b)(1) – Under some circumstances, witness fees and mileage must be paid.[1] (d)(1) – “A party or attorney responsible for […]
November 26, 2024
Published by Michael Berman at November 26, 2024
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In Whitmore v. Kroger Limited Partnership, 2024 WL 4795686 (W.D. Va. Nov. 14, 2024), defendant Kroger’s inadvertent failure to preserve surveillance video footage of the area at the time of the alleged tort was a factor leading to its waiver of fact work production protection. Defendant Kroger moved to quash a subpoena […]
November 25, 2024
Published by Michael Berman at November 25, 2024
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Isaiah Poritz reported in Bloomberg Law that the Youth Social Media Judge Threatens Contempt Against State AGs (Nov. 22, 2024). I described the underlying issue in Possession, Custody, or Control of Responsive Information by States Suing Meta (Sept. 12, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL […]
November 23, 2024
Published by Michael Berman at November 23, 2024
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In Johnson v. Sullivan, 2024 WL 4821680, at *5 (Apls. Ct. Md. Nov. 19, 2024)(unreported), the Court held that Appellants’ filing of a second amended complaint—which did not add any new claims—could not “resurrect” rights already “extinguished” by a prior sanctions order. This was an action alleging medical malpractice. The medical providers […]
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 1, 2024
Published by Michael Berman at November 1, 2024
I’ll give the defendant in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4625727 (M.D. Fl. Oct. 30, 2024), credit. It was candid with the court. Despite several extensions of time, the defendant essentially told the court that it had been too busy to respond to discovery. While candor is commendable, […]
October 18, 2024
Published by Michael Berman at October 18, 2024
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I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The […]
October 16, 2024
Published by Michael Berman at October 16, 2024
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Kranz & Associates Holdings, LLC v. Lain, 2024 WL 4476655 (N.D. Cal. Oct. 11, 2024), appeared to be a run-of-the-mine trade secrets dispute. When it came to discovery, it wasn’t. Kranz, a former employer, sued Kimberly Lain, a former employee, alleging misuse of confidential information. Ms. Lain also owned Tekvantage, Inc. Her […]
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 […]
October 2, 2024
Published by Michael Berman at October 2, 2024
Are “dash cam” videos protected from disclosure as work product? That was one issue posed in Jones v. Burch, 2024 WL 4276109 (M.D. Fl. Sep. 24, 2024). It was presented in an oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce.” Plaintiff sued for personal injuries arising out of a […]
September 24, 2024
Published by Michael Berman at September 24, 2024
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In Deckers Outdoor Corp. v. Last Brand, Inc., 2024 WL 4245407 (N.D. Cal. Sept. 18, 2024), the parties disagreed over when a formal ESI agreement was needed. However, the court held that “entry of some form of ESI order” was appropriate. It directed the parties to meet and confer. They did and: […]
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 14, 2024
Published by Michael Berman at September 14, 2024
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In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote: So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like […]
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 […]
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 30, 2024
Published by Michael Berman at August 30, 2024
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Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues. First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe […]
August 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 26, 2024
Published by Michael Berman at August 26, 2024
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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 […]
August 25, 2024
Published by Michael Berman at August 25, 2024
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I blogged about an earlier decision in Fiskars in Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024). There, plaintiff Fiskars’ motion to compel source code was denied as untimely. In a subsequent decision, defendant Woodland’s challenge to Fiskars’ privilege log was defective. Fiskars Finland OY AB v. Woodland Tools, Inc., […]
August 22, 2024
Published by Michael Berman at August 22, 2024
This is the fourth and final blog on Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.). The prior blog described the Court’s holding that defendant’s overwriting of a security video was not sanctionable because defendant’s information governance policy called for overwriting in 14 days; however, […]
August 21, 2024
Published by Michael Berman at August 21, 2024
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Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify […]
August 15, 2024
Published by Michael Berman at August 15, 2024
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In US Dominion, Inc. v. Byrne, 2024 WL 3792654 (D.D.C. Aug. 13, 2024), violations of protective orders led to disqualification of counsel. The court began its decision by stating: “This case arises out of the 2020 U.S. election. Plaintiffs US Dominion Inc., Dominion Voting Systems Inc., and Dominion Voting Systems Corporation (‘Dominion’) […]
August 14, 2024
Published by Michael Berman at August 14, 2024
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In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), defendant was sanctioned for belatedly canceling depositions that were scheduled at the discovery cutoff date. This is the second blog of a four-part blog on Felder, an employment discrimination case. See Felder: Part 1 of 4: […]
August 9, 2024
Published by Michael Berman at August 9, 2024
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In Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail (abajournal.com)(Aug. 8, 2024), Debra Cassens Weiss reported on an information governance issue: “A federal judge who ruled that Google is a monopolist declined to sanction the search engine for failing to preserve internal chat messages, even […]
July 3, 2024
Published by Michael Berman at July 3, 2024
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In Ferko v. Ferko, 2024 WL 3221108 (Apls. Ct. Md. June 28, 2024)(unreported), the intermediate appellate court affirmed a discovery sanction in a divorce action. The action was pending on cross-complaints for limited and absolute divorce. Mrs. Ferko alleged that Mr. Ferko’s discovery responses were inadequate on the issue of marital property. […]
July 1, 2024
Published by Michael Berman at July 1, 2024
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Frequently, courts deny motions presenting a discovery dispute due to the failure of the moving party to engage in a good faith, pre-filing “meet and confer.” See, e.g., There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024) (“If two sides are battling over nine separate discovery issues […]
June 27, 2024
Published by Michael Berman at June 27, 2024
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In Stuart v. County of Riverside, 2024 WL 3086634 (C.D. Cal. Jun 14, 2024), the assertion of work product protection in a privilege log supported an inference that the subsequent deletion of ESI was done with a culpable state of mind. “Work product” protection begins when material is prepared in anticipation of […]
June 26, 2024
Published by Michael Berman at June 26, 2024
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Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022). Word processing has not been immune from disputes. One court recently criticized a […]
June 25, 2024
Published by Michael Berman at June 25, 2024
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In Wagner v. Norcold, Inc., 2024 WL 2703015, at *3 (E.D. N. Car. May 24, 2024), plaintiffs claimed that defendants’ allegedly defective refrigerator had caused a destructive fire. They asserted that defendants had waived privileges “in the absence of a privilege log….” There were several other discovery disputes and the parties submitted […]
June 3, 2024
Published by Michael Berman at June 3, 2024
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In Robins Kaplan Can’t Escape Sanction Over Dropbox Access – Law360 (May 31, 2024), Emily Johnson reported on an appellate decision in the “Dropbox rummaging” sanctions case. A $150,000 sanction against both a law firm and its client was affirmed. Ms. Johnson reported: “The First Department of the New York Appellate Division […]
May 27, 2024
Published by Michael Berman at May 27, 2024
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Bernard Stanford was convicted of first-degree murder and other crimes. He appealed. Stanford v. State, 2024 WL 2520794 (App. Ct. Md. May 24, 2024)(unreported). Surveillance video showed him shooting a man at a gas station. He asserted self defense. On appeal, Stanford asserted a failure to preclude witness testimony for a discovery […]
May 23, 2024
Published by Michael Berman at May 23, 2024
In In re StubHub Refund Litigation, 2924 WL 2305604 (N.D. Ca. May 20, 2024), the court addressed important issues such as modification of an ESI Order and sanctions in the context of “modern attachments” a/k/a “pointers,” “hyperlinked documents,” or “cloud attachments.” MODIFICATION OF AN ESI PROTOCOL There has been considerable discussion about […]
May 13, 2024
Published by Michael Berman at May 13, 2024
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I previously wrote about the “Dropbox Rummaging” case. Please see “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), and Sanctions Update in Dropbox “Rummaging” Decision (Dec. 1, 2023). In Robins Kaplan File Flub Bad Look For Both Sides, Panel Says – Law360 (May 8, 2024), […]
May 9, 2024
Published by Michael Berman at May 9, 2024
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This is the fourth and final follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1808607 (N.D. Cal. […]
April 24, 2024
Published by Michael Berman at April 24, 2024
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Generally, when a fact witness changes their sworn testimony, the new version is admissible and the prior version is used to impeach it. In Asokere v. Waldrop, 2024 WL 1651658 (Apls. Ct. Md. Apr. 17, 2024)(unreported), two experts changed their sworn testimony in a Daubert hearing. Their testimony was excluded under Daubert […]
April 10, 2024
Published by Michael Berman at April 10, 2024
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That is what makes the recent decision in M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024), interesting. Both of the disputing litigants were ordered to state under oath that they had produced all responsive documents in a decision in which the court granted […]
March 14, 2024
Published by Michael Berman at March 14, 2024
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In Smith v. Wormuth, 2024 WL 1012887 (D. Md. Mar. 8, 2024), the District Court again denied a spoliation motion as untimely. In the immortal words of Yankee Hall of Famer Yogi Bera: “It’s deja vu all over again.” Smith was an employment dispute arising out of a contentious relationship, with an […]
March 6, 2024
Published by Michael Berman at March 6, 2024
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Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024). The case is a textbook example of a plaintiff tanking her own case by deleting relevant texts. Ms. Jones, a former waitress, sued a bar […]
March 5, 2024
Published by Michael Berman at March 5, 2024
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A motion for spoliation sanctions under Fed.R.Civ.P. 37(e) was denied in Boshea v. Compass Marketing, Inc., 2024 WL 811468 (D. Md. Feb. 27, 2024). The motion was argued and decided during trial. The suit by a former employee against the employer involved discovery of litigation strategy communications sent by the plaintiff to […]
February 29, 2024
Published by Michael Berman at February 29, 2024
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In Baltimore County judge chastises prosecutors for evidence missteps in David Linthicum case – Baltimore Sun (Feb. 28, 2024), Cassidy Jensen reported on an alleged discovery failure in a criminal case. The defendant is charged with shooting two police officers. The Circuit Court issued an order “to show why [prosecutors] had wrongly […]
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, […]
February 6, 2024
Published by Michael Berman at February 6, 2024
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In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game […]
January 18, 2024
Published by Michael Berman at January 18, 2024
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In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported),[1] the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant. One important fact was that the defendant had participated in the text messaging and therefore was not surprised […]
January 10, 2024
Published by Michael Berman at January 10, 2024
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In Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024)(per curiam), plaintiffs’ slip and fall claim was dismissed with prejudice, and attorneys’ fees were also awarded, due to improper testimonial coaching during a virtual trial. The coaching was accompanied by a misrepresentation to the court. […]
January 5, 2024
Published by Michael Berman at January 5, 2024
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In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4th __ (4th Cir. Jan. 3, 2024). In short, plaintiff filed untimely interrogatories. Defendant responded without objecting that they were untimely. That omission waived the objection. However, defendant […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs. They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f). After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
January 2, 2024
Published by Michael Berman at January 2, 2024
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Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!” That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023). In a […]
December 29, 2023
Published by Michael Berman at December 29, 2023
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I posted 104 items this year. Several that may be worth re-reading are: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II Don’t Be Too Nice When You Send a Preservation Notice Relevance Redactions Revisited […]
December 22, 2023
Published by Michael Berman at December 22, 2023
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Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. The United States District Court for the District of Maryland has established several processes for avoiding discovery disputes and promptly resolving those that may arise. First, the “ESI Principles” provide voluntary suggestions […]
December 6, 2023
Published by Michael Berman at December 6, 2023
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As we approach the end of the year, it is an appropriate time to review Philip J. Favro, ed., Selected eDiscovery and ESI Case Law from 2023 (The Sedona Conf. 2023). Phil’s publication is an annual event. Book Review: Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″; Sedona Conference “Selected […]
December 5, 2023
Published by Michael Berman at December 5, 2023
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Hannah Albarazi reported that Judge Slams Google’s ‘Deeply Troubling’ Tactics As Trial Ends – Law360 (Dec. 1, 2023). The Law 360 article states: The company intentionally destroyed relevant evidence, failed to preserve internal chat evidence, and appears to have widely instructed its employees to label documents “privileged and confidential” when they should […]
December 1, 2023
Published by Michael Berman at December 1, 2023
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In “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable (Nov. 10, 2023), I wrote about the $156,000 sanction imposed for Dropbox “rummaging” in Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 NY Slip Op. 33448(U) (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.). In Law 360, Mr. […]
November 28, 2023
Published by Michael Berman at November 28, 2023
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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b). The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 21, 2023
Published by Michael Berman at November 21, 2023
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In Duggins v. Haapala, 2023 WL 7627823 (Apls. Ct. Md. Nov. 15, 2023)(unreported), the intermediate appellate Court addressed whether it was spoliation to bury a dead cow that had been involved in an auto accident. By the time suit was filed, two years had passed and the location of the burial spot […]
November 10, 2023
Published by Michael Berman at November 10, 2023
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“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
November 3, 2023
Published by Michael Berman at November 3, 2023
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The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts. Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
November 1, 2023
Published by Michael Berman at November 1, 2023
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In three recent decisions culminating in in Re: International Painters & Allied Trades Industry Pension Fund, 2023 WL 6812297 (D. Md. Oct. 16, 2023)(Coulson, J.)(“International Painters III”), the Court held that: discovery objections were waived because they were not timely raised; and, answers to interrogatories cannot merely refer to other documents. It […]
October 27, 2023
Published by Michael Berman at October 27, 2023
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Joan Kim has written an excellent summary in Legal Separateness: The Boundaries on Written Discovery | Proskauer – Minding Your Business – JDSupra (Oct. 23, 2023). Her blog accurately states: The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies […]
October 4, 2023
Published by Michael Berman at October 4, 2023
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“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan. J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. […]
September 26, 2023
Published by Michael Berman at September 26, 2023
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I wrote briefly about the sanctions request in the Georgia poll workers case against Mr. Rudy Giuliani. Sanctions Sought in “Murky Mess” In a recent update, Zoe Tillman reported in Giuliani Owes $236K and Counting Over Defamation Case Failures (bloomberglaw.com)(Sept. 22, 2023), that: Rudy Giuliani owes more than $236,000 — and may […]
September 8, 2023
Published by Michael Berman at September 8, 2023
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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 […]
September 7, 2023
Published by Michael Berman at September 7, 2023
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Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023). The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery […]
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 15, 2023
Published by Michael Berman at July 15, 2023
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Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023). This high-profile case may present interesting ESI and spoliation issues and it is worth watching. Ms. Tillman reports that plaintiffs are seeking a default judgment. Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half […]
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 […]
June 8, 2023
Published by Michael Berman at June 8, 2023
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UPDATE (Aug. 3, 2023): See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship […]
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. […]