Josh Gilliland

PFIC 2011 Recap

November 14, 2011 Josh Gilliland e-Discovery

The Fourth Paraben Forensic Innovation Conference was November 5-9 in Park City, Utah. This is by far one of my favorite conferences of the year, because of the excellent content of the presentations and the extreme creativity of the Paraben Team. Plus, any conference that provides homemade sugar-free cookies as[…]

Failing to Show Undue Burden in Cost Shifting for Native File Production

November 11, 2011 Josh Gilliland e-Discovery, Electronically Stored Information, Native File, Undue Burden

In Sundown Energy, L.P. v. Haller, the Defendant (Requesting Party) brought a motion to compel the Producing Party to produce electronically stored information in native file format. The Defendant had specified “native format” as the form of production in their request for production. Sundown Energy, L.P. v. Haller, 2011 U.S.[…]

Broken Hearted Early Discovery

November 4, 2011 Josh Gilliland e-Discovery, Early Discovery, Electronically Stored Information, ESI, Stored Communications Act

In a case involving alienation of affection, the Plaintiff sought early discovery on third party electronic communication service providers. Dockery v. Horvath, 2011 U.S. Dist. LEXIS 124997, 2-3 (S.D. Miss. Oct. 27, 2011). The case was in procedural limbo, because the Defendants were in New York state, had not filed[…]

When a Party Requests Native Files….

October 28, 2011 Josh Gilliland e-Discovery, Form of Production, Undue Burden

A Defendant/Producing Party resisted production of email in native file after making general objections to the production format. Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 124473, 20-21 (D. Kan. Oct. 27, 2011). The Producing Party claimed that producing the email messages printed as paper was “sufficient” for the[…]

Producing Excel Spreadsheets as Tiffs

October 19, 2011 Josh Gilliland e-Discovery, Form of Production, Native File, Reasonably Useable Form

A Plaintiff produced Excel spreadsheets in TIFF format. As one could expect, the Defendant brought a motion to compel in native file format faster than you can sort a column in ascending order. Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2011 U.S. Dist. LEXIS 117922 (N.D. Cal. Oct. 12,[…]

Clicking “Deny” on Transferring Venue Based on an Online Forum Selection Clause

October 13, 2011 Josh Gilliland Forum Selection, Privacy

The Defendant in Dunstan v. Comscore, Inc., was a company that offered “free” screen savers and games that monitor a user’s Internet usage, which is then sold for marketing research or analysis of online behavior. After being sued for purportedly improperly obtaining personal information in violation of the Stored Communication[…]

Denying Expedited Discovery

October 6, 2011 Josh Gilliland Early Discovery

A Plaintiff in a BitTorrent filing sharing copyright case sought early discovery to identify 96 Doe Defendants. The Plaintiff moved to subpoena the Doe Defendants’ internet service providers (“ISPs”) to identify each person associated with the IP address. AF Holdings LLC v. Doe, 2011 U.S. Dist. LEXIS 109816, 2-3 (N.D.[…]

Imaging Personal Hard Drives Before Any Claims are Filed

September 30, 2011 Josh Gilliland e-Discovery, Forensic Image, Imaging Hard Drives

A Defendant brought a motion to forensically image the Plaintiff’s “personal computing devices” before a cross complaint had been filed. The motion was denied. Han v. Futurewei Techs., Inc., 2011 U.S. Dist. LEXIS 104538 (S.D. Cal. Sept. 15, 2011). The case was originally filed in California state court and removed[…]

Dueling Definitions of “Interception” in Wiretap Violations

September 22, 2011 Josh Gilliland Privacy, Stored Communications Act

A Plaintiff sued her former employer alleging violations of the Federal Wiretap Act, the Indiana Wiretap Act and the Stored Communication Act. The facts at issue involved the Plaintiff’s email and banking passwords being recorded by keylogger software on a company computer, allowing the Defendants to access the Plaintiffs email[…]