Josh Gilliland

Proportionality in Restoring Parent-Child Attachments

January 23, 2019 Josh Gilliland Proportionality, Request for Production

Maintaining the parent-child relationship in productions is a long recognized requirement. A Defendant that switched archiving applications learned how tricky preservation can be in a lawsuit when attachments were not included with the parent email in a production. Here is what happened: The Defendant used Mimosa to achieve email prior[…]

If You Can Get ESI from Another Source, then No Sanctions under Rule 37(e)

January 16, 2019 Josh Gilliland Intent to Deprive, Spoliation

Discovery gamesmanship is annoying. A party failing to produce email is obnoxious. Can a party that fails to produce four emails that were available from other sources be grounds for sanctions? In a contract dispute over whether there were grounds to terminate a master service agreement, the Requesting Party sought[…]

Limiting Undue Burden with Wildcard Searches

January 7, 2019 Josh Gilliland eDiscovery, Request for Production, Scope of Discovery, Undue Burden

Records management can be extremely complex. So can the preservation of evidence and responding to discovery requests. In a case involving Fair Credit Report Act claims, Equifax objected to discovery requests for consumer dispute information. The Producing Party claimed that the requested information was not in a “readily accessible format,[…]

Happy 10 Year Anniversary!

December 30, 2018 Josh Gilliland eDiscovery, Electronically Stored Information

Bow Tie Law first went live on December 30, 2008. I want to thank everyone who has been a steadfast reader and friend over the last 10 years. I wanted to share the “origin story” of the blog on its anniversary. I first started wearing bow ties in January 2007.[…]

Organizing a Production Pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E)

December 29, 2018 Josh Gilliland eDiscovery, Electronically Stored Information, Metadata

December 1, 2006 seems like a lifetime ago when the Federal Rules of Civil Procedure first truly incorporated rules for electronically stored information. It was a time before to iPhones, Netflix, or Marvel movies. Fast-forward to the end of 2018 and attorneys are still having challenges with producing electronically stored[…]

Think in Terms of What is Relevant, Not Producing Keyword Hits

December 10, 2018 Josh Gilliland eDiscovery, Proportionality, Request for Production, Search Terms

I have never been a fan of Courts limiting how many search terms parties can use to find responsive ESI with no regard for how searches in review applications work. That is right up there with blaming high litigation costs because lawyers read. Limiting search terms also could limit the[…]

Knowing a Party Used a Personal Email Account Should Not Take X-Ray Vision

November 29, 2018 Josh Gilliland Motion to Compel, Request for Production

Discovery surprises are rarely fun for producing parties. In a case where the parties had an ESI Protocol outlining emails to be searched, the Defendants sought a Court order for the Plaintiffs to search the CEO’s personal Gmail account. The Defendants offered an email exchange they discovered from the CEO[…]

The Codename is “Motion to Compel Review of the Search Hits”

November 20, 2018 Josh Gilliland Request for Production, Search Terms

Search terms are a lot like the game Codenames, where parties find themselves guessing terms of art to discover relevant electronically stored information. In a lawsuit between news-aggregator cell-phone apps, the Plaintiffs learned the Defendants referred to the Plaintiff’s app by the codename “Ajax.” The Defendants admitted there were 5,126[…]

So Sue Me Does Not Trigger the Duty to Preserve in New York State

November 8, 2018 Josh Gilliland Duty to Preserve

Determining the triggering date for the duty to preserve is one of the most litigated disputes in cases over lost electronically stored information. In a partnership dissolution cases, a meeting ended with the alleged remark, “so sue me” in mid-2014. The Defendants brought a motion for sanctions or adverse inference[…]

Requests for Production….of Human Remains?

October 30, 2018 Josh Gilliland Proportionality, Request for Production

Proportionality can appear in any discovery dispute. Plaintiffs who were designated as the Primary Next of Kin (“PNOK”) of Army service members who died in the Philippines during World War II, sought the return of the service member’s remains for burial from where the remains were interned as Unknowns in[…]