Josh Gilliland

Fishing Expeditions in Cell Phone & Hard Drive Collection

July 23, 2010 Josh Gilliland Electronically Stored Information, ESI, Imaging Hard Drives

In a wrongful death case, the Plaintiffs sought “any and all” computer hard drives and cell phones from the Defendant within 24 hours of the incident in the lawsuit to the “present.” Holland v. Barfield, 35 So. 3d 953 (Fla. Dist. Ct. App. 5th Dist. 2010). A Grand Fishing Expedition[…]

A Search Term Turkey

July 20, 2010 Josh Gilliland Civil Procedure, Electronically Stored Information, ESI, Litigation Hold, Meet & Confer, Motion to Compel

In a Fair Labor Standards Case against Butterball, the Plaintiffs claimed the Defendants’ ESI production was incomplete. The Defendants in turn claimed that the “burden” of producing the discovery was burdensome, justifying cost shifting. Helmert, et al., v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010). While that[…]

In Requiem for Howard Krosney

July 6, 2010 Josh Gilliland e-Discovery

I am crushed beyond words to hear that Howard Krosney of Epstein Becker & Green passed away after a sudden illness. Howard was a gentleman. I first met him during my time at CT Summation. Howard attended several of my seminars and we became friends. He once came down from[…]

Utilitarian e-Discovery: A Challenge for the Litigation Support Profession

June 30, 2010 Josh Gilliland e-Discovery

I always liked John Stuart Mill’s utilitarian views on justice to provide the greatest happiness for the greatest number of people, within reason. I propose Utilitarian e-Discovery. All the vendors in the litigation support profession produce many fine products and solutions for large scale e-Discovery services. I have a challenge to[…]

One Year Later: A California Metadata Case

June 29, 2010 Josh Gilliland California Electronic Discovery Act, Metadata

June 29, 2010 marks the first anniversary of the California Electronic Discovery Act. It is unlikely there are any decorations at state courthouses celebrating the date. There are many California judges, attorneys and bar associations preparing educational events on e-Discovery. However, there are few cases directly addressing electronically stored information[…]

A Judicial Love Bite: Initial Disclosures Mean Initial Disclosures

June 23, 2010 Josh Gilliland Civil Procedure, e-Discovery, Electronically Stored Information, Email, ESI, Initial Disclosures, Supplemental Disclosures

Every now and then, rules with teeth will leave a love bite. This is one of those cases. The Plaintiffs identified 31 documents in their initial disclosures. However, none of these were produced because of a claimed computer crash. Pinkney v. Am. Med. Response, Inc., 2010 U.S. Dist. LEXIS 56465,[…]

I Have this Favor to Ask of You: Don’t Betray the Family with Third-Party Discovery

June 18, 2010 Josh Gilliland Civil Procedure, e-Discovery, Electronically Stored Information, Facebook, Meet & Confer, MySpace

You should never betray the family…and one such betrayal resulted in trademark litigation over Mafia Wars. Now You are Part of the Family For those not familiar with Mafia Wars (or you spend a lot of time clicking “Ignore”), it is a game on social networking sites such as Facebook. […]

How to Get a Judge to Overcome the Guilt of Ordering the Forensic Examination of a Personal Computer

June 14, 2010 Josh Gilliland e-Discovery, Forensic Image

Judges loath ordering the forensic imaging of personal computers. Here is a case where that was not a problem for the Court. In Genworth Fin. Wealth Mgmt. v. McMullan, the Plaintiffs brought a motion to compel the Defendants to produce their computers for forensic imaging, plus a preservation order and[…]

Ensuring Searchable Production Formats (Or Don’t Tick off the Judge)

June 2, 2010 Josh Gilliland Civil Procedure, e-Discovery, Electronically Stored Information, Meet & Confer, Metadata, Native File

Parties should be very careful when Courts start referring to a party’s views on electronically stored information as “dismissive.” More importantly, if a party boasts that they use a litigation support system on their website, don’t be surprised if the Court discusses that fact with the URL in an opinion. A Discovery Brawl In[…]

A Practice Point in Agreeing to the Form of Production

June 1, 2010 Josh Gilliland e-Discovery, Form of Production

In a products liability case, the Plaintiffs claimed they could not tell if the Defendants produced electronically stored information in the form it was ordinarily maintained. In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 52444 (W.D. Mo. May 26, 2010). Federal Rule of Civil Procedure Rule 34(b)(2)(E) states[…]