Josh Gilliland

The “Friendly” Jurors & Stored Communication Act

March 3, 2011 Josh Gilliland Jury Blogging, Jury Disqualification, Jury Selection, Stored Communications Act

It is surprising this has not happened earlier: Two jurors meet and “friend” each other on Facebook during a criminal trial in California State Court. The Criminal Defendant is found guilty. Juror Number Five later informed the Criminal Defense Attorney the Juror Number One (hereinafter the Plaintiff) made comments about[…]

A Civil Procedure Car Crash

February 24, 2011 Josh Gilliland Back-up Tape, Civil Procedure, e-Discovery, Electronically Stored Information, Email, ESI, Initial Disclosures

A short Civil Procedure Overview: 1) A protective order must correspond to a discovery request; and 2) A motion to compel needs to have an underlying request. In an auto-recall case, the Plaintiff had produced 1.79 million pages of documents in discovery, plus an additional 84,000 pages of documents from[…]

Fashionable Sanctions

February 17, 2011 Josh Gilliland e-Discovery, Electronically Stored Information, Litigation Hold, Spoliation

When sanctions are issued in Chicago on St. Valentine’s Day, you can imagine how the losing party might feel. The Defendants in a sexual and racial discrimination, hostile work environment, harassment and retaliation case did not properly preserve evidence or respond to specific discovery requests. Northington v. H&M Int’l, 2011[…]

Tagging Damages for Violating the CAN-SPAM Act on a Social Networking Site

February 14, 2011 Josh Gilliland Facebook, Privacy

A registered Facebook user allegedly gained unauthorized access to 116,000 Facebook accounts and sent in excess of 7.2 million spam email messages. Facebook, Inc. v. Fisher, 2011 U.S. Dist. LEXIS 9668, at *3 (N.D. Cal. Jan. 26, 2011). These spam emails were designed to “phish” for log-in information from Facebook[…]

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[…]

Espresso, WiFi, & Confidentiality with a Twist of Lemon

February 4, 2011 Josh Gilliland ethics, Privacy

Many attorneys, as with a large contingent of the general public, do not possess much, if any, technological savvy. Although the Committee does not believe that attorneys must develop a mastery of the security features and deficiencies of each technology available, the duties of confidentiality and competence that attorneys owe[…]

I, Hearsay: Computer Generated Reports as Testimony

February 2, 2011 Josh Gilliland Admissibility, Hearsay

Is a computer generated printout a statement according to the hearsay rules? California law says “no.” People v. Nazary, 2010 Cal. App. LEXIS 2207 (Cal. App. 4th Dist. Dec. 31, 2010) People v. Nazary is an appeal from an embezzlement conviction. Part of the evidence offered against the Defendant included[…]

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[…]

Discovery in a Flash (Drive)

January 26, 2011 Josh Gilliland Document Review, e-Discovery, Electronically Stored Information, ESI, Imaging Hard Drives

Flash drives were the center of a discovery dispute in a trade secret dispute between high-speed printer service providers. OcÉ N. Am. v. McS Servs., 2011 U.S. Dist. LEXIS 5403 (D. Md. Jan. 20, 2011). The Plaintiff sought a forensic image of the flash drives, because the devices contained their software alleged[…]

Putting 4 Terabytes of Discovery on Ice

January 18, 2011 Josh Gilliland Electronically Stored Information, ESI, Meet & Confer, Search Terms

Sometimes, it takes a Court order to cool the fiery passions of litigation. In a RICO action in the packaged ice industry, the Defendant sought to chill the cost of searching 4 Terabytes of data. McNulty v. Reddy Ice Holdings, Inc., 2011 U.S. Dist. LEXIS 3173, 6-7 ( E.D. Mich.[…]