Josh Gilliland

Excel-ing at eDiscovery (Guest Post on Everlaw)

Many litigation support professionals think Excel files are the bane of discovery. Attorneys with a fixation of wanting a Bates Stamp on electronically stored information demand Excel files be converted from their native application to a static image, causing one Excel file to explode into a 500 page PDF. To[…]

The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

October 21, 2014 Josh Gilliland Document Review, Privilege Review

What happens when a lawyer inadvertently produces an email protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email. Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of[…]

Can You Ask the Court to Order a Party to Follow the Duty to Preserve?

October 16, 2014 Josh Gilliland Duty to Preserve, Litigation Hold

A Pro Se Plaintiff in a prison inmate case requested the Court order the Defendants not to destroy any relevant video surveillance footage from a specific date. The Court declined, because the Defendant was already subject to the duty to preserve. Ross v. Conner, 2014 U.S. Dist. LEXIS 146887, at *17-18. The[…]

The Duty to Preserve on Island Time

October 7, 2014 Josh Gilliland Duty to Preserve, Spoliation

No vacation should end with people becoming Plaintiffs. Sadly, that happened on a trip to Hawaii when someone had a slip and fall in a hotel garage after exiting an elevator. Riley v. Marriott Int’l, Inc., 2014 U.S. Dist. LEXIS 135728 (W.D.N.Y.Sept. 25, 2014). The Defendant hotel maintained both video[…]

18 Missing Email Messages is not like 18 Minutes of Missing Watergate Tape

September 30, 2014 Josh Gilliland Document Review, Search Terms

Rosemary Woods was not involved in this document production. In motion practice over the adequacy of a production, the Plaintiffs were able to show that the Producing Party did not produce 18 email messages that were produced by a third-party. As such, the Plaintiff sought production of search efficiency reports[…]

Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

September 29, 2014 Josh Gilliland Document Review, Duty of Care, e-Discovery, eDiscovery, ethics, Expert Witness

I prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production. Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?[…]

How Apple Successfully Recovered eDiscovery Production Costs

September 25, 2014 Josh Gilliland e-Discovery, eDiscovery, Taxable Costs, Taxation of Costs

Taxation of cost cases involving eDiscovery often end with the prevailing party not recovering any costs. However, in the true spirit of “think different,” Apple was able to recover $238,102.66 in costs for “the amounts associated with electronic preparation and duplication, not the intellectual effort involved in the production, such[…]

Even A Judged Questioned Why Ask for Permission to Use Predictive Coding

September 18, 2014 Josh Gilliland e-Discovery, eDiscovery, Predictive Coding

I do not normally want to high five Federal judges, but Judge Ronald Buch, a Tax Judge in Texas, sure deserved one after his Dynamo Holdings opinion. The discovery dispute can be summed up as a battle over backup tapes that had confidential information. The Requesting Party wanted the tapes; the Producing[…]

Don’t Stipulate to Not Follow the Form of Production Rules

September 11, 2014 Josh Gilliland Form of Production

Here is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014). That is what happened in Melian Labs v. Triology[…]

Nebraska, Where Proportionality is Alive and Well in Discovery

September 2, 2014 Josh Gilliland Predictive Coding, Privacy, Proportionality, Request for Production, Search Terms

One lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit. The[…]