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Category: Duty to Preserve

Determining the Duty to Preserve in Waymo v Uber

February 5, 2018 Josh Gilliland Duty to Preserve, Forensic Image, Spoliation

Judge William Alsup’s Waymo v Uber order is epic Rule 37(e) analysis. The opinion has a substantial amount of detail and legal analysis. There are numerous issues in play and the Court logically addressed them with the precision that Judge Alsup is legendary known for in complex cases. In a[…]

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Threat of Destruction Justifying Third Party Preservation of ESI

February 1, 2017 Josh Gilliland Duty to Preserve

Companies have a strong interest in making sure proprietary information does not go to competitors. Warning signs are employees who email confidential information to their personal accounts and then delete the sent email from their work email account. The following is one such case where third party email providers were ordered[…]

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Looking for Gold in Unpublished California Spoliation Opinions

July 6, 2016 Josh Gilliland Duty to Preserve, Spoliation

Published California eDiscovery cases are as rare as California Condors. However, unpublished California opinions provide a lot of insight in how judges see eDiscovery issues in state court. Flagship Theatres of Palm Desert is a California case regarding spoliation of email messages and the preservation of evidence. Even though it[…]

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Preliminary Injunction to Preserve ESI

June 24, 2016 Josh Gilliland Duty to Preserve, Preliminary Injunction

The Plaintiffs were granted a TRO, and then a clarifying Preliminary Injunction order, for the Defendant to preserve electronically stored information in a case where a former employee went to a competitor with trade secret information. Henry Schein v. Cook (N.D.Cal. June 22, 2016, No. 16-cv-03166-JST) 2016 U.S. Dist. LEXIS[…]

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Courts Can Still Order a Party to Issue a Litigation Hold

May 18, 2016 Josh Gilliland Duty to Preserve, Litigation Hold

Lawyers are eagerly awaiting Courts to start their engines applying the new Federal Rule of Civil Procedure Rule 37(e) for sanctions against a party that failed to preserve ESI. However, the case of Bruner v. Am. Honda Motor Co, is a healthy reminder that Courts will keep ordering parties to enact litigation holds.[…]

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Rule 37(e) Now in Living Color

April 10, 2016 Josh Gilliland Duty to Preserve, Spoliation

We have a new case applying Federal Rule of Civil Procedure Rule 37(e): Living Color Enterprises v New Era Aquaculture. My thanks to attorney Chris Dix from the law firm of Smith, Hulsey, & Busey for sending me this case. Chis joined me for a podcast to discuss the case,[…]

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Don’t Be Late and Ineffective with Litigation Holds

January 7, 2016 Josh Gilliland Duty to Preserve, Litigation Hold, Spoliation

The City of New York, 50 unnamed NYPD officers, and the former NYPD Commissioner are involved in a civil rights lawsuit over allegedly issuing summonses without probable cause, violating the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, if true. The City was found to be grossly[…]

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Don’t Free Fall on the Duty to Preserve

December 31, 2015 Josh Gilliland Duty to Preserve, Litigation Hold

The duty to preserve is a tricky beast. Determining when a party “knew or should have known that litigation was imminent” is often a free fall into analyzing the facts of when a party had notice of a lawsuit. There are times when it is very obvious that a party[…]

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How eDiscovery Experts Can Help Fight the Blues

May 12, 2015 Josh Gilliland Duty to Preserve, e-Discovery, Litigation Hold

Magistrate Judge Jonathon Goodman knows the value of an expert deposition in complex litigation and B.B. King. Everyday I Have the Blues Here is the basic dispute in Procaps S.A. v. Patheon Inc.: The Plaintiff, based in Columbia, did not put a litigation hold in place until ordered by the[…]

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Don’t Argue “Human Error” For Not Searching ESI

October 30, 2014 Josh Gilliland Audio Discovery, Duty to Preserve, Spoliation

It is dangerous for lawyers to argue information was not searched for years because of “human error.” That is right up there with saying, “Your Honor, we goofed. Are we cool?” As we learned from Judge Kevin Fox, no, we are not cool. The case involved claims for wrongful termination and[…]

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Defensible and Proportional Precision Collection

Defensible and Proportional Precision Collection

This new white paper explores how Onna can bring Google expectations for identifying relevant data from multiple sources for the preservation of electronically stored information.

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