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November 14, 2022

Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland

The Fourth Amendment to the U.S. Constitution makes a big difference.  This is illustrated by two recent Maryland appellate decisions – – one civil, the other criminal – – regarding discovery from cell phones.  Cf. Richardson v. State, 481 Md. 423 (2022)(criminal), with St. Francis Academy, et al. v. Gilman School, Inc., […]
November 12, 2022

Is There a Duty to “’Fess Up?” – Part II

If a litigant has actual knowledge that an opponent’s proposed search terms will not “hit” on responsive, proportional ESI, does the litigant have a duty to tell the opponent?[1] In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), the plaintiff, Advanced Magnesium, alleged that defendant Dery conspired […]
November 11, 2022

Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II)

In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms.  However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context.  Alliance said – in my […]
August 14, 2022

Hit Reports

“Hit reports” have various names.[1]  One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests.  Craig Ball has blogged on this issue since 2013.  However, his recent blog explains that “the […]
May 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

The prior blog discussed the historical acceptance of technology assisted review.  However, keyword searching remains an important and useful tool.  Mark Twain wrote: “The reports of my death are greatly exaggerated….”  The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 28, 2022

Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology. In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 16, 2022

Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV)

Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel.  The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that […]
March 24, 2022

Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones

In St. Francis Academy, et al. v. Gilman School, Inc., No. 1390 (Md. Ct. Spl. Apls. Mar. 21, 2022) (unreported), the intermediate appellate court affirmed an order directing forensic imaging and searching of non-parties’ cell phones under a strict protocol to protect the cell phone owners’ privacy.  It carefully balanced the discovering […]
December 9, 2021

“Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses

In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests.  Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
August 17, 2021

What is a “Document?”

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1]  Usually, it was clear where a letter, memo, or contract began and ended.  But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
May 14, 2021

The Duty of Inquiry and Sanctions for Failure to Investigate Client’s Claim

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 […]
March 26, 2021

Negotiating Searches Using “Hit” Reports

Josh Gilliland’s Bow Tie Law blog published a description of search term negotiations using “hit reports” in a recent decision from the Southern District of New York.  J. Gilliland, “Precision Search Terms in Discovery” (Mar. 23, 2021). Josh describes the back-and-forth exchange of information necessary in a cooperative approach to search. For […]
February 14, 2021

Marc Hirschfeld’s Legal Week Presentation

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

“[I]t is no longer amateur hour.”

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

District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case

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 4, 2021

Requests for “Any and All” Documents Are Obsolete

In the ancient year of 2009, Gil Greenman and James Weingarten, of Williams & Connolly LLP, wrote “Beware the Use of Absolute Language Regarding Electronically Stored Information,” 9 Digital Discovery and e-Evidence 11 (BNA Nov. 1, 2009). Their thesis was simple and correct: “All,” “any,” and “every” are dangerous words when describing […]
January 16, 2021

Courts Cannot Order a “Quick Peek” Without Consent

In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent.  In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
December 27, 2020

Searching for Privileged Information

As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 25, 2020

No Sanctions Despite Truncated Search

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 […]
July 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

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. […]