Duty to Preserve – Page 4

Conjecture is Not Spoliation

April 12, 2012 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Spoliation

Plaintiffs unsuccessful in a trial involving hostile work environment allegations, argued they were entitled to a new trial, because the trial court did not issue a adverse inference instruction for alleged destroyed ESI. Kullman v. New York, 2012 U.S. Dist. LEXIS 47649, 3-5 (N.D.N.Y Apr. 4, 2012). The Court agreed[…]

How to Get an eDiscovery Evidentiary Hearing

April 6, 2012 Josh Gilliland Discovery, Duty to Preserve, e-Discovery, Electronically Stored Information, ESI, Predictive Coding

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI. Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012). The litigation involved an employment dispute with claims of[…]

A Standard for Undue Burden: Excruciating, But Highly Educational and Useful, Detail

March 9, 2011 Josh Gilliland De-Dupe, Discovery, Duty to Preserve, e-Discovery, Electronically Stored Information, Email, ESI, Imaging Hard Drives, Processing, Reasonably Accessible

Discovery Balancing Acts in a War Zone United States ex rel. McBride v. Halliburton Co., is a qui tam action over alleged fraudulent billing for services provided to the US military in Iraq. The case involved inflated headcounts in Morale, Welfare and Recreation (“MWR”) facilities and fraudulent billing for those costs to[…]

Nothing Says “Bad Faith” Like Throwing a Laptop off a Building

February 8, 2011 Josh Gilliland Duty to Preserve, Electronically Stored Information, Litigation Hold, Spoliation

Is entering a default judgment against a party for destroying a laptop excessive and unduly harsh? Not in Utah. Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, P2 (Utah Ct. App. 2011). Daynight involved a destroyed laptop and what was the appropriate sanction for the destruction of evidence. Certainly[…]

No Triggering Event, No Duty to Preserve

January 31, 2011 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Litigation Hold

In an employment dispute, the Plaintiff claimed the Defendants had a duty to preserve electronically stored information at the beginning of an HR investigation after she sent a letter outlying concerns with her manager. The Plaintiff was ultimately put on a performance review and terminated. Viramontes v. United States Bancorp, 2011[…]

Production of Litigation Hold Letters & Imaging Hard Drives

January 10, 2011 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Email, Imaging Hard Drives

In an action initiated by an insurance company, the Defendant sought various discovery from the Plaintiff. Am. Gen. Life Ins. Co. v. Billard, 2010 U.S. Dist. LEXIS 138570 (N.D. Iowa Dec. 29, 2010). Two issues pertained to the production of litigation hold letters and forensically imaging hard drives. Litigation Hold Letters The[…]

The Merger: Litigation Holds & Search Terms

January 5, 2011 Josh Gilliland Discovery, Duty to Preserve, e-Discovery, Litigation Hold, Spoliation

In an action to rescind a merger agreement, the Plaintiff brought a motion for the Defendant to restore back-up tapes; conduct keyword searches; document results from the keyword searches; and conduct additional searches after conferring on the first keyword search. Escue v. Sequent, Inc., 2010 U.S. Dist. LEXIS The Plaintiff[…]

It’s All About Timing: Good Faith and the Duty to Preserve

August 6, 2010 Josh Gilliland Duty to Preserve, Electronically Stored Information, ESI, Spoliation

Litigants often weld spoliation sanctions for the destruction of evidence like it is a stake to pound in the heart of a vampire. However, the triggering event for the duty to preserve, whether there has been spoliation and the issue of bad faith boils down to one issue: Timing. In[…]