Professional Publications

Co-author, “Has Indexing Technogy Made Zubulake Less Relevant?” ABA Litigation News.

Author, “The Sedona Conference Cooperation Proclamation,” ABA Litigation News.

Co-author, “Discovery About Discovery: Does The Attorney-Client Privilege Protect All Attorney-Client Communications Relating To The Preservation Of Potentially Relevant Material?,” 37 U. Balt. L. Rev. 381 (2008).

This article addresses whether litigation hold letters and attorney-client communications to implement the litigation hold are confidential and privileged when there is a prima facie showing of breach of the duty to preserve electronically stored information, or spoliation. The article was recently referenced in Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. 2009). The article is reprinted with the permission of the University of Baltimore Law Review.

Author, “Discovery Lapse Could Result in Loss of Privilege,” ABA Litigation News (Fall 2008).

What happens when a litigant discovers, before the opponent does, that it has breached the duty to preserve? What is a solid damage control strategy? This article examines a case in which a litigant, which had imposed extraordinary litigation hold measures, was held to have waived the protection of the attorney work product doctrine, except as to the most sensitive opinion work product, in a case where the ESI would have been 137 miles high. The article is reprinted with the permission of the American Bar Association.

Co-author, “Proportionality In The Post-Hoc Analysis Of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 413 (2008).

This article discusses limits on the scope of, and costs imposed by, the duty to preserve during the “free for all” period that exists prior to the commencement of litigation. The authors suggest application of cost-benefit balancing principles, such as Fed.R.Civ.P. 26(b)(2)(C) by analogy. The authors provide guidance on how to apply the abstract concept of proportionality to real-world disputes. The article is reprinted with the permission of the University of Baltimore Law Review.

Author, “When Does a Litigation Hold End?,” Digital Discovery and e-Evidence (Bureau of National Affairs (Oct. 2009).

Much has been written about when a litigation hold begins. Much less has been written about when it ends, and the conflict between a litigation hold and the duty not to retain certain information. This short article describes the literature and governing principles. The article is reprinted with the permission of the Bureau of National Affairs.

Author, “General Adverse Inference Instruction For Intentional Breach Of Duty To Preserve— Goodman v. Praxair Services, Inc., Digital Discovery and e-Evidence (Bureau of National Affairs, July 2009).

While much has been written about the substantive aspects of spoliation, much less has been written about procedural requirements of presenting a spoliation motion. This short article describes a recent case and provides practical tips. The article is reprinted with the permission of the Bureau of National Affairs.

Author, “Tips to Avoid Mistakes with ESI Vendors,” ABA Technology for the Litigator (Summer 2009).

How do you go about hiring a consultant a/k/a “vendor,” to perform the forensic tasks of imaging workstations, actively capturing servers, preparing a chain of custody, and providing testimony to support the entire process in order to show that it is defensible? The article is reprinted with the permission of the American Bar Association.

Author, “Give Peace a Chance: Lawyers Are Ethically Required to Cooperate in Discovery,” ABA Litigation News (Winter 2009).

ESI presents new challenges to litigators and litigants. It is voluminous, fragile, and persistent. Unlike paper, it contains hidden information, such as metadata and formulas. If new tools are employed and deployed, ESI presents new opportunities. This article explores The Sedona Conference “Cooperation Proclamation” as applied in Mancia v. Mayflower Textile Servs. Co. The article is reprinted with the permission of the American Bar Association.

Co-author, “Maryland’s Discovery Protocol,” LexisNexis Discovery Services (2007).

This booklet, with a forward by the Honorable Paul W. Grimm and Mr. Berman, publishes the suggested Maryland ESI Discovery Protocol of the United States District Court for the District of Maryland. Mr. Berman served on the drafting committee and is currently serving on a committee to revise and update the Protocol. The booklet is reprinted with the permission of Applied Discovery, Inc., a division of LexisNexis.

Author, “Low Cost Litigation Technology,” Maryland Bar Journal (Nov./Dec. 2000).

If the widespread use of computers has led to an information explosion that presents problems for modern litigants and litigators, it is a problem created by computers. Computers, therefore, may provide a solution. This article reflects Mr. Berman’s long-standing interest in the use of computers and software to automate litigation and reduce costs. The article is reprinted with the permission of the Maryland State Bar Association.

Author, “Electronically Stored Information,” The MSBA Litigator (2007).

This article was published in the Litigation Section Council newsletter of the Maryland State Bar Association and contains an overview of ESI issues. The article is reprinted with the permission of the Maryland State Bar Association Litigation Section Council.

Co-author, “ESI Protocol,” The MSBA Litigator (2007).

This article was published in the Litigation Section Council newsletter of the Maryland State Bar Association and contains an overview of the Maryland ESI Protocol. The article is reprinted with the permission of the Maryland State Bar Association Litigation Section Council.

Co-author, “The Use of Sanctions in Federal Court,” Maryland Bar Journal (Nov./Dec.1988).

This article addresses the use of sanctions in federal court.

Co-author, “Construction Trust Fund Act May Dramatically Impact Industry,” Maryland Builder (Sept./Oct. 1988).

This article addresses a Maryland statute impacting construction projects.

Co-author, “Maryland’s U.S. Courts Need Detention Center,” Baltimore Sun, June 6, 2001, p.19A.

This op-ed article addresses the need for a federal detention center in Maryland.

Co-author, “Termination of Extraordinary Medical Treatment,” Maryland Law Forum (April 1984).

This article discusses the right to refuse extraordinary medical treatment in connection with end-of-life decisions.

Co-author, “Civil Trial Procedures in Maryland,” National Business Institute, 1992.

This booklet was used for instruction in a continuing legal education seminar.

Co-author, “Effective Motion Practice in Maryland,” National Business Institute, 1998.

This booklet was used for instruction in a continuing legal education seminar.

Author, “Interstate Compact for Adult Offender Supervision,” The Back Bench (Oct. 2002).

This article addresses an interstate compact, the alleged violation of which resulted in the State of Maryland being sued in a Colorado state court. Mr. Berman handled the lawsuit.

Author, “Religious Holidays, Public Schools,” Maryland Bar Journal (May/June 1995).

This article addresses the long-standing dispute over religion in public schools.

Author, “Unsealing Adoption Records,” Maryland Bar Journal (Sept./Oct. 1989).

This article explores the situation where an adult who was adopted as a child seeks a court order to unseal adoption records.

Portrait of Michael Berman

ESI-Mediation

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