Bow Tie Law

The Return of Covad Communications: Forensic Imaging of Databases & Email Servers

June 17, 2009 Josh Gilliland Discovery, e-Discovery, Electronically Stored Information, Email, ESI, Imaging Hard Drives, Request for Production, Search Terms

Magistrate Judge Facciola’s “Christmas Eve” opinion now has a sequel: Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841 (D.D.C. May 27, 2009). This opinion is very detailed covering issues of forensic examinations, email servers and commentary on retention policies. I encourage lawyers to look at this opinion. […]

The Plumbing of a Motion to Compel

June 15, 2009 Josh Gilliland Culling, Deposition, Discovery, Document Review, e-Discovery, Electronically Stored Information, Email, ESI, Litigation Hold, Motion to Compel, Processing, Request for Production

In a product defect case about brass plumbing fittings, the Defendants fought a motion to compel electronically stored information relevant to class certification, because of undue burden and cost. They lost…in large part. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 U.S. Dist. LEXIS 47636, 1 (D. Minn. June[…]

Litigation Holds, Web 2.0 and e-Discovery at the Arkansas Bar Association Meeting

June 15, 2009 Josh Gilliland e-Discovery, Electronically Stored Information, ESI, Litigation Hold

I presented at the Arkansas Bar Association in Hot Springs on June 12, 2009. I have presented nearly 100 CLE seminars, but this was my first state bar association meeting. It was a privilege to travel to Arkansas to discuss Web 2.0 litigation and current trends in discovery. I look forward[…]

Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

June 12, 2009 Josh Gilliland Deposition, Discovery, e-Discovery, Electronically Stored Information, ESI, Form of Production, Motion to Compel, Request for Production, TIFF

Gamesmanship is the harbinger of bad lawyer reputations. Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom. One can imagine how things will go for a party when this is the opening line of an opinion:[…]

Reckless Abandon: Lost Hard Drives and Sanctions

June 10, 2009 Josh Gilliland Discovery, e-Discovery, Electronically Stored Information, Email, ESI, Imaging Hard Drives, Litigation Hold

In complex commercial litigation today, virtually all discovery involves electronic discovery to some extent. It also is well known that absent affirmative steps to preserve it, at least some electronically stored information (“ESI”) is likely to be lost during the course of litigation through routine business practices or otherwise. These[…]

Mutually Assured Destruction: Striking Undisclosed ESI and Late Disclosed Witnesses

June 8, 2009 Josh Gilliland Discovery, Electronically Stored Information, Email, ESI, Initial Disclosures, Late Witness Disclosure

Trial practice is an art of managing your discovery, knowing your calendar deadlines and pulling part your opponent’s case by striking their key exhibits with motions in limine. The following motions from Debose v. Broward Health to exclude two of the Plaintiffs’ witnesses and late disclosed Defense email messages sounds like the[…]

Almost Famous…on a Social Networking Site with a Forum Selection Clause

June 5, 2009 Josh Gilliland Change of Venue, Choice of Law, Contract Law, Forum Selection, Personal Jurisdiction, Social Networking

The ease of creating a MySpace profile (or Twitter) that impersonates a celebrity has to be nerve racking for actors, rock stars, and anyone else who is “famous.” Riggs v. Myspace, Inc., 2009 U.S. Dist. LEXIS 37109 (W.D. Pa. May 5, 2009) is the story of a Plaintiff who created[…]

Discovery is Not a Video Game: There are No Cheat Codes around Discovery Deadlines

June 3, 2009 Josh Gilliland Discovery, e-Discovery, ethics, Request for Production

Hochstein v. Microsoft Corp., involves litigation over the Xbox video game system. The Court issued an Order for discovery to close on October 31, 2008. Hochstein v. Microsoft Corp., 2009 U.S. Dist. LEXIS 44879, 3 (E.D. Mich. May 21, 2009). This obviously required production of any documents or ESI the[…]

Dirty Law: Cleaning Up a Spoliation Mess

June 2, 2009 Josh Gilliland Deposition, e-Discovery, Electronically Stored Information, ESI, Litigation Hold, Spoliation

Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009) is a polychlorinated biphenyls (“PCBs”) clean up case. Unfortunately, the clean up efforts included getting ride of evidence that resulted in sanctions for the Plaintiff, Innis Arden Golf Club.

What Litigation Hold? Failing to Image Hard Drives and Other Discovery Mistakes

May 27, 2009 Josh Gilliland Discovery, e-Discovery, Electronically Stored Information, ESI, Imaging Hard Drives, Litigation Hold, Request for Production, Spoliation

Plunk v. Vill. of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009) is a civil rights case with a summer time trial date against a local government, village officials and the police department. The Plaintiffs took the Defendants to task for failing to image six hard drives[…]