Michael Berman on Data Preservation

Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e)

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....more

11/3/2023 / Burden of Proof , Data Preservation , Discovery , Discovery Costs , e-Discovery Professionals , Electronically Stored Information , Evidence , Maryland , Safe Harbors , Sanctions

Spoliation Motions Denied as Untimely – Another Wake-Up Call

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...more

9/7/2023 / Data Collection , Data Management , Data Preservation , Data Retention , Discovery , Document Productions , Document Review , e-Discovery Professionals , Electronically Stored Information , Evidence

Don’t Be Too Nice When You Send a Preservation Notice

I always advocate for civility and cooperation in e-discovery. 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...more

7/31/2023 / Data Collection , Data Preservation , Data Retention , Discovery , Duty to Preserve , e-Discovery Professionals , Electronically Stored Information , Evidence , Information Governance

Bare Allegation of Refusal to Preserve Evidence Does Not State a Claim

In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro sespoliation claim. The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when...more

7/14/2023 / Data Collection , Data Preservation , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence

Relevance Redactions Revisited

The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution –...more

7/6/2023 / Confidential Information , Data Preservation , Discovery , Document Productions , Document Review , e-Discovery Professionals , Electronically Stored Information , Evidence , Public Records

Duty to Preserve Triggered in Administrative Appeal of Employment Decision

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 –...more

6/30/2023 / Data Deletion , Data Preservation , Discovery , Duty to Preserve , e-Discovery Professionals , Electronically Stored Information , Evidence

“Modern Attachments,” ESI Protocols, & Second Chances

The parties in In re StubHub Refund Litigation, 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023), agreed to an ESI protocol that was incorporated into a court order. The protocol called for “modern attachments” to be produced with...more

6/7/2023 / Data Collection , Data Preservation , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Information Governance

ESI 101: Don’t Spoliate Evidence That’s Been Photographed

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...more

5/2/2023 / Data Collection , Data Preservation , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence

Court Holds That Federal Spoliation Rules Are Both Independent and Interrelated in Cell Phone Sanctions Case

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...more

4/25/2023 / Cell Phones , Data Collection , Data Preservation , Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Information Governance

Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)

[EDRM Editor’s Note: This article was first published here on April 17, 2023 and EDRM is grateful to Michael D. Berman, founder and managing director of E-Discovery LLC for permission to republish.] Government Employees...more

4/18/2023 / Data Collection , Data Preservation , Discovery , Duty to Preserve , e-Discovery Professionals , Electronically Stored Information , FRCP 37(e) , Record Preservation

Michael Berman

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