Author: Michael D. Berman
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Maryland’s Digital Media Rules
Maryland’s rules establish specific procedures for handling digital media in court proceedings, motions, and appeals, including approved storage platforms, record preservation, access, and the treatment of audio, audiovisual, and video exhibits.
Absolute Judicial Immunity Applies Even IF a Judge’s Decision Was “Wholly” Made by AI
Plaintiff, T. Matthew Phillips sued the Hon. Mari D. Parlade, a State-court Judge, asserting that Judge Parlade had used A.I. to decide his case. The federal court dismissed the case based on absolute judicial immunity. ...
My Old Friend, “Conditional Relevance,” May Not Be Dead, But It Is on Life Support
A proposed amendment to Federal Rule of Evidence 104(b) would eliminate the longstanding concept of “conditional relevance,” replacing it with a uniform approach to relevance while retaining the ability to admit evidence subject to later...
How Does an “Attorney’s Eyes Only” Order Apply to an Unrepresented Party?
A New York federal court ordered that Attorney’s Eyes Only material produced in redacted form to an unrepresented defendant must come with a detailed redaction log, so they can meaningfully decide whether to challenge the...
Cite Checking to Find Hallucinated Cases Deemed Insufficient – Part II – Verification and Candor Are Expected
Recent federal decisions emphasize that automated cite checking is not enough when AI touches legal filings. Courts expect attorneys to personally verify authorities, quotations, and cited cases, and to act candidly and promptly when errors...
It May Be an Abuse of Discretion to Grant Summary Judgment for a Defendant Before Deciding a Plaintiff’s Sanctions Motion
Michael D. Berman examines Smith v. Polk Co., where the court addressed two spoliation sanctions motions before granting summary judgment. Applying Shaw v. Foreman, the court recognized that a sanctions motion involving evidence significant to...
Condominium Construction Defect Litigation Leads to Search and Custodian Rulings
Michael D. Berman examines a Vermont federal court’s order requiring a condominium association to disclose its keyword search methodology in detail, while rejecting a developer’s bid to force ESI collection from every current and former...
An Attorney-Client Communication Advising Spoliation is Not Privileged
Michael D. Berman examines a ruling that advice to spoliate evidence is not privileged, though the court found no actual destruction because both pre- and post-advice versions of Meta’s disputed documents survived and were ordered...
“Ten depositions are too few for this case…. But twenty-seven depositions is too many….”
A federal court in a LinkedIn subscriber class action alleging monopolization split the difference between the parties’ deposition requests, holding that being a document custodian isn’t enough on its own to justify a deposition.
Two Debatable Holdings
Michael D. Berman examines a S.D.N.Y. discovery order requiring production of every document that hits an agreed search term, without a responsiveness review, and questions whether the ruling reaches beyond the scope allowed under Rule...
![An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules, by Michael D. Berman, E-Discovery LLC.](https://edrm.net/wp-content/uploads/2026/07/Berman-Blog-An-ESI-Protocol-Does-Not-Necessarily-Supersede-the-Discovery-Rules.png)
An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules
A federal court held that an ESI Protocol implements the Federal Rules rather than replacing them, rejecting a defendant’s argument that it could skip a plainly relevant custodian simply because he wasn’t named in the...
A Deep Dive Into the Pikesville, MD, Racist/Antisemitic Deepfake Audio
A viral deepfake audio recording nearly destroyed a Maryland principal’s career and led to criminal charges, two civil suits, and a Daubert hearing where a forensic audio expert could not confirm AI was used, but...