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Michael Berman

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Partner

Email: michael.berman@smitheylaw.com
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Mike is a partner at Smithey Law Group, LLC.  He co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016).

Mike is an Adjunct Professor at the University of Baltimore School of Law where he teaches a three-credit electronic discovery seminar.  He chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland.  He is a past: co-chair of the Federal District Court Committee, Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board.

Mike was a Captain in the U.S. Army, served in Korea with the 2nd Infantry Division, and was awarded the Paratrooper badge, Army Commendation Medal, Armed Forces Expeditionary Medal, Korea Defense Service Medal, National Defense Service Medal, and Expert Infantry Badge.  Mike’s blog can be found at http://www.ediscoveryllc.com/.

Recognition | Awards, Lectures, and Publications

Publications

  • 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)
  • Co-author, “Proportionality in The Post-Hoc Analysis Of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 413 (2008)
  • Author, “Taxation of e-discovery costs,” The Daily Record (Aug. 12, 2012)
  • Author, “High Profile E-Discovery Plaintiff’s Memoir Provides Inside Views of Judicial Process,” Bloomberg BNA Digital Discovery and e-Evidence (Aug. 2, 2012)
  • Co-author, “Maryland’s Discovery Protocol,” LexisNexis Discovery Services (2007)
  • Co-author, “ESI Protocol,” The MSBA Litigator (2007)
  • Author, “When Does a Litigation Hold End?,” Digital Discovery and e-Evidence (Bureau of National Affairs (Oct. 2009)
  • 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)
  • Author, “Tips to Avoid Mistakes with ESI Vendors,” ABA Technology for the Litigator (Summer 2009)
  • Author, “Motions to Compel ESI Denied,” ABA Litigation News (Fall 2009)
  • Author, “Give Peace a Chance: Lawyers Are Ethically Required to Cooperate in Discovery,” ABA Litigation News (Winter 2009)
  • Author, “Discovery Lapse Could Result in Loss of Privilege,” ABA Litigation News (Fall 2008); Author, “Electronically Stored Information,” The MSBA Litigator (2007)
  • Author, “Low Cost Litigation Technology,” Maryland Bar Journal (Nov./Dec. 2000)
  • Co-author, “Referenda in Maryland: The Need for Comprehensive Statutory Reform,” 42 U.Balt.L.Rev. 655 (2013)

Publications

  • Speaker, Social Media, Maryland Judicial College (2018)
  • Moderator and Presenter, ESI Issues (Charles Co. Bar Association 2018)
  • Speaker, “Spoiling for a Fight – Preventing, Spotting and Addressing ESI Destruction” (Md. State Bar Assoc. Annual Meeting 2017)
  • Speaker, Electronic Discovery in Complex Litigation (State Capital Group, Denver, CO 2017)
  • Coach, Georgetown Electronic Discovery Training Academy (2016-17)
  • Speaker, “Social Media,” Md. State Bar Assoc. Young Lawyers Section (2016)
  • Speaker, “Electronically Stored Information – What Lawyers Need to Know,” Md. State Bar Assoc. Family Law Section (2016)
  • Panelist, “Unplugged Will Leave You Cached Out – Defragging Your Law Practice,” Md. State Bar Convention (2016)
  • Speaker, “Recent Amendments to the Federal Rules of Civil Procedure,” Montgomery County Bar Assoc. (2016)
  • Presenter, “Professionalism and ESI,” Maryland Professionalism Center (2014-15)
  • Presenter, “Information Governance,” Major League Baseball Interim Meeting (Orlando, FL, Nov. 2013)
  • Presenter, “Offensive and Defensive Use of ESI,” Montgomery Co. Bar Ass’n (Apr. 2013)
  • Presenter, Judicial Institute of Maryland, “Electronic Evidence” (Mar. 2013)
  • Presenter, Webinar by Law.com and Access Data, “Data Governance and e-Discovery: Flip Sides of the Same Coin” (Jun. 2012)
  • Presenter, “Managing Ethical Landmines in Electronically Stored Information,” (National Disability Rights Network, Training & Advocacy Support Center, Annual Conference, Jun. 2012)
  • Presenter, Stevenson University “Forensic Symposium: eDiscovery – Digital Hide and Seek” (Apr. 2012)
  • Presenter, “The Relevance and Risks of Evidence and E-Discovery for Everyday Practice,” (Albuquerque, N.Mex.,  Dec. 2011)
  • Presenter, Maryland Judicial Institute (Oct. 2011)
  • Presenter, “2011 IQPC eDiscovery for Government,” (International Quality & Productivity Center, Wash., D.C., Jun. 2011)
  • Panelist, State Capital Group ESI Program (Charlotte, NC, 2011)
  • Presenter, The Computer Forensics Show (2011)
  • Presenter, “Creating Privilege Logs for Financial Institution Litigation,” 4th Annual eDiscovery for Financial Services (International Quality & Productivity Center, NY, 2011)
  • Presenter, “ESI For All: Selected Hot Issues for Litigators and Non-Litigators Alike,” National Asian Pacific American Bar Association (NAPABA) Southeast Regional Conference (2011)
  • Panelist, Maryland State Bar Assoc., ESI Presentation (United States Courthouse, 2010)
  • Moderator, Federal Bar Assoc., MD Chapter, “Electronically Stored Information: A to Z,” (United States Courthouse, 2009)
  • Moderator, Maryland State Bar Assoc., Litigation Section Council Regional Meeting Panel Discussion on “ESI and the Maryland Rules” (Nov. 2008)
  • Panelist, E-discovery program at Maryland State Bar Assoc., Annual Meeting (2009)
  • Panelist, “Mastering the Discovery Process for the General Counsel,” (Incisive Media, NY Nov. 2008)
  • Participant, “Best Practices for Complex E-Discovery Matters (LexisNexis Applied Discovery, NY 2008)
  • Participant, University of Baltimore ESI Symposium (2008)
  • Presenter, “Electronic Evidence,” State Court Judicial Institute of Maryland (Annapolis 2009)
  • Presenter, 5th eDiscovery Workshop (International Quality & Productivity Center, Las Vegas 2008)
  • Presenter, ESI Program, State & Local Government Law Institute, MICPEL (2008)
  • Keynote Speaker, CT Summation Best Practices Summit (Washington 2008)
  • Presenter, “The New Ethics of Discovery,” CT Summation Webinar (2008)
  • Presenter, “Rule 26(g) Comes Out of the Shadows,” CT Summation Webinar (2008)
  • Presenter, ESI Seminar, Maryland Disability Law Center (2008)
  • Presenter, “Traps for the Unwary,” New York Office of the Attorney General (2008)
  • Panelist, Transportation Research Board 46th Annual Workshop, part of the National Research Council, operating under the National Academy of Science (2006 and  2008)
  • Panelist, Trial Expert Webinar, (LexisNexis Discovery Services 2007)
  • Panelist, “Discovering Electronic Discovery,” (Baltimore City Law Dept. 2007)

Cases

  • State Center, LLC v. Lexington Charles Ltd. P’shp., 438 Md. 451 (2014)
  • The Town of La Plata v. Faison-Rosewick, LLC, 434 Md. 496 (2013)
  • Canvan v. Md. State Bd. of Elections, 430 Md. 533 (2013)
  • Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC, 429 Md. 176 (2012)
  • AFCO Credit Corp. v. Md. Insurance Admin., 198 Md. App. 218 (2011)
  • Anne Arundel County Taxpayers Association, Inc. v. Anne Arundel County Board of Elections, et al., 415 Md. 433 (2010)
  • Laurel Racing Assoc., Inc. v. Video Lottery Facility Comm’n, 409 Md. 445 (2009)
  • Schade v. Md. State Board of Elections, 401 Md. 1 (2007)
  • Banner v. U.S., 303 F.Supp.2d 1 (D.D.C. 1004), aff’d, 428 F.3d 303 (D.C. Cir. 2005), cert. denied, 547 U.S. 1143 (2006)
  • Md. Green Party v. Md. Bd. of Elections, 377 Md. 127 (2003), subsequent opinion, 165 Md. App. 113 (2005), cert. denied, 390 Md. 501 (2006)
  • Schisler v. State, 394 Md. 519 (2006)
  • Ross v. State Bd. of Elections, 387 Md. 649 (2005)
  • Waterman v. Batton, 294 F.Supp.2d 109 (D. Md. 2003), rev’d, 393 F.2d 471 (4th Cir. 2005).