Mark A Berman

November 01, 2011 | New York Law Journal

In his State E-Discovery column, Ganfer & Shore partner Mark A. Berman discusses how a recent First Department decision confirms that production of electronically stored information is now an expected part of the discovery process and addresses a nonparty's obligation to produce ESI. He notes other recent court decisions have found social media ESI to be particularly relevant with respect to the issue of damages, and have authorized its production.

By Mark A. Berman

11 minute read

October 30, 2012 | New York Law Journal

In his State E-discovery column, Mark A. Berman, a partner at Ganfer & Shore, reviews recent decisions on the preservation of social media ESI, a claim of spoliation after a cloud server company converted certain information into a new formats for production, the proportionality of discovery costs to the amount of damages plaintiffs sought, and more.

By Mark A. Berman

11 minute read

May 01, 2013 | The American Lawyer

More courts are weighing in on sanctions for failing to preserve electronically stored information.

By Mark A. Berman

8 minute read

September 03, 2013 | New York Law Journal

In his State E-discovery column, Mark A. Berman, a partner at Ganfer & Shore, writes: The sanction for an ESI spoliation offense often does not merit that a party's pleading be stricken, although sought in most instances. Rather, recent decisions review in detail the circumstances surrounding digital or electronic spoliation claims, and courts seek to craft a balanced sanction upon reviewing the "prejudice" to both sides, which might be the issuance of an adverse inference charge or a preclusion order. Alternatively, courts may direct further discovery or defer issuing a sanction until a later date.

By Mark A. Berman

11 minute read

March 06, 2012 | Corporate Counsel

The New York Appellate Division, 1st Department, recently issued two decisions that provide critical guidance as to when electronically stored information must be preserved and the legal ramifications of the failure to do so.

By Mark A. Berman

12 minute read

March 03, 2010 | Legaltech News

With the expense of conducting EDD ever present in determining litigation strategy, litigators should be aware of the recent Commercial Division decision in MBIA Ins. Corp. v. Countrywide Home Loans Inc. that denied cost-shifting, says Ganfer & Shore partner Mark A. Berman.

By Mark A. Berman

7 minute read

January 10, 2006 | Law.com

A benefit of having e-mails produced in electronic form is that it permits a litigator to follow the information trail contained in the imbedded header of an e-mail that would otherwise be unavailable from the printed copy of the e-mail. Mark A. Berman and Aaron Zerykier say that determining the identity of the unknown or anonymous person that sent a specific e-mail can be critical in various types of litigation, including defamation and tortious interference cases.

By Mark A. Berman and Aaron Zerykier

9 minute read

September 17, 2007 | Law.com

As Internet communication expands, the types of electronically stored information that can be obtained in discovery increase, ranging from metadata, instant messages and chat room conversations to electronic bulletin board postings. Attorneys Mark A. Berman and Hal N. Beerman examine how courts have addressed the production of such new information forms, and give their best discovery practice, from determining whether an opponent has maintained the relevant media to properly authenticating data in court.

By Mark A. Berman and Hal N. Beerman

15 minute read

September 23, 2009 | Legaltech News

Recent rulings underscore the need to take an active role to preserve electronically stored information. Attorney Mark A. Berman recommends appropriate measures by counsel and client to ensure compliance and avoid sanctions for the destruction of potentially relevant evidence.

By Mark A. Berman

10 minute read

March 02, 2010 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, writes that with the expense of conducting e-discovery ever present in determining litigation strategy, it is imperative that litigators be aware of a recent Commercial Division decision which denied e-discovery "cost shifting."

By Mark A. Berman

7 minute read