Duty to Preserve – Page 5

It’s All About Timing: Good Faith and the Duty to Preserve

August 6, 2010 Josh Gilliland Duty to Preserve, Electronically Stored Information, ESI, Spoliation

Litigants often weld spoliation sanctions for the destruction of evidence like it is a stake to pound in the heart of a vampire. However, the triggering event for the duty to preserve, whether there has been spoliation and the issue of bad faith boils down to one issue: Timing. In[…]

Raiders of the Lost Hard Drive

April 23, 2010 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Email, ESI, Litigation Hold

Legend says in 2005, litigation began over cell phone towers and “monopoles.” Discovery was extensive. Summary judgment motions were lost and won. Time had past. And then, what was lost was then found. When You Find the Ark of the e-Discovery Covenant A custodian’s computer was found in September 2008[…]

A Field Day of Litigation Holds

April 2, 2010 Josh Gilliland Duty to Preserve, Litigation Hold

A music festival known as “Field Day” sued a County for the denial to issue a permit for a concert that included First Amendment and business tort causes of action. Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010). The Plaintiffs alleged that[…]

Going Too Far with a Litigation Hold: Do Not Secretly Copy the Adverse Party’s Data

March 29, 2010 Josh Gilliland Duty to Preserve, ethics, Litigation Hold

In a business divorce, the Plaintiffs received a litigation hold notice from the Defendants. The Plaintiffs then secretly copied computer files from the Defendants’ data center in Oakland, California through their virtual private network (VPN) connection to the data center. Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 665 F. Supp.[…]

The Low Speed Chase that Gives Us Admissible Cell Phone Photo after a Warrantless Search

January 12, 2010 Josh Gilliland Criminal Procedure, Discovery, Duty to Preserve, Electronically Stored Information, ESI, Reasonable Expectation of Privacy, Spoliation, Text Messages

A police officer stopped a car driving with a flat tire, cracked windshield and its bright lights on. People v. Gorostiza, 2009 Cal. App. Unpub. Lexis 9494 at *1. The passengers might have been hoping, “There is nothing to see here.” After stopping the car with the Defendant and two passengers,[…]

Discovery Games in Gaming Litigation

December 24, 2009 Josh Gilliland Discovery, Document Review, Duty to Preserve, e-Discovery, Electronically Stored Information, ESI, Litigation Hold, Reasonably Accessible, Request for Production

Discovery games were taking place in a gaming case in Mississippi. The Plaintiffs brought a motion to strike and a motion for sanctions for discovery misconduct in responding to requests for electronically stored information. Maggette v. BL Dev. Corp., 2009 U.S. Dist. LEXIS 116789 (N.D. Miss. Nov. 24, 2009). The[…]

BlackBerry Boo-Boos: How to Get the Judge to Text You Adverse Inference Instructions

November 5, 2009 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Email, ESI, Litigation Hold, Spoliation

Southeastern Mechanical Services, Inc., v Brody, et al., is the story of how wiping the data off your BlackBerry can result with the Court having you drawn and quartered. Not with horses, but with adverse inference instructions. In a trade secret case where Individual Defendants left the Plaintiff’s company and[…]

Proving Up Destroyed ESI is Favorable to Your Position is Hard to Do

October 14, 2009 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Email, ESI, Litigation Hold

In an ADA employment case, the Plaintiff sought spoliation sanctions and an adverse inference instruction for the destruction of electronically stored information (ESI). Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009). The Plaintiff lost. The Discovery Requests The Plaintiff sought the[…]

A Picture is worth a Thousand Words, but Sanctions are Priceless

September 21, 2009 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, ESI, Litigation Hold

The Defendants in Green v. McClendon, 2009 U.S. Dist. LEXIS 71860 (S.D.N.Y. Aug. 13, 2009) attempted to purchase a $4.2 million painting. As the Defendants’ marriage ended in divorce, the Defendants (who never took physical ownership) did not complete their payments. The Plaintiff sought sanctions against both the Defendant and[…]

Lions, Tigers & Bears: Failing to Preserve ESI, Search Terms and Forensically Imaging Computers

September 16, 2009 Josh Gilliland Duty to Preserve, Electronically Stored Information, Litigation Hold, Search Terms, Spoliation

In Treppel v. Biovail Corp., 2008 U.S. Dist. LEXIS 25867 (S.D.N.Y. 2008) the Plaintiff brought an action alleging a smear campaign against him. The Defendants in turn claimed the Plaintiff defamed their CEO and caused their stock to drop in value. No matter what the truth is, these parties are[…]