Author: Michael D. Berman
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If You’re Going to Coach a Witness and Misrepresent it to the Court, Turn Off the Recorder
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...
The ESI Protocol: Your Word is Your Bond… Or, Is It?
Should court-ordered ESI protocols be set in stone? This article examines cases where strict adherence to protocols led to sanctions but argues some flexibility may be reasonable.
Failure to Object to Untimely Interrogatories Coupled With a Discovery Violation Leads to Reversal
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...
Michael Berman’s Top Blogs of 2023
Michael Berman published 108 blog articles in 2023, including: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II...
Hallucinations: “Well, here’s another nice mess you’ve gotten me into!”
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...
“ESI Protocol” v. “Discovery Plan”
“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...
Procedures to Avoid, and Promptly Resolve, Discovery Disputes in the District of Maryland
The US District Court of Maryland has several procedures to expedite discovery disputes.
How to Read a Load File
Why is a “load file” important in certain productions of documents? A “load file” is actually several files that work together to “load and organize information within e-discovery software so that the documents may be...
Proposed A.I. Rule in Eastern District of Michigan
Danielle Ferguson reports in Detroit Federal Courts Propose AI Disclosure Rule – Law360 (Dec. 8, 2023), that: “The Eastern District of Michigan published a proposed rule Friday that would require lawyers to disclose any time they use...
Text Messages Used to Support Conviction: Prejudice Did Not Outweigh Probative Value
In Francois v. State, 2023 WL 8265659, at *1 (Apl. Ct. Md. Nov. 30, 2023), the defendant was charged with various offenses that included possession of a firearm and ammunition after a disqualifying conviction. On appeal, the...
Secondary Evidence of Missing Video Permitted
At trial, the State played one video of Brooks-Anderson taking bags filled with cash out of a cage and organizing them on a cart, and another of him loading bags from the cart to the...
Trial Notebooks: Flipping to the Right Spot Instead of Fishing in Folders
A trial notebook permits “flipping v. dipping,” i.e., organization of questioning at trial, preparation for legal arguments and voir dire, and, speed in finding exhibits, impeachment materials, and stipulations. J. Loveless, et al.,Trial_notebook.pdf (webbfamilylaw.com)(Aug. 2001). Organization is vital to...