Litigation Hold – Page 3

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[…]

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[…]

The Merger: Litigation Holds & Search Terms

January 5, 2011 Josh Gilliland Discovery, Duty to Preserve, e-Discovery, Litigation Hold, Spoliation

In an action to rescind a merger agreement, the Plaintiff brought a motion for the Defendant to restore back-up tapes; conduct keyword searches; document results from the keyword searches; and conduct additional searches after conferring on the first keyword search. Escue v. Sequent, Inc., 2010 U.S. Dist. LEXIS The Plaintiff[…]

Stamping Out Spoliation

December 13, 2010 Josh Gilliland Electronically Stored Information, ESI, Litigation Hold, Spoliation

Perryman v. Potter is an employment discrimination case involving a postal worker who was not selected for a lateral transfer to a supervisor position. The Defendant brought a motion for summary judgment. The Plaintiff claimed that the Defendant’s destruction of notes from the interview process entitled the Plaintiff to a[…]

Taming Litigation Hold Sanctions

September 13, 2010 Josh Gilliland e-Discovery, Litigation Hold

A Plaintiff brought a motion for the most severe sanctions possible for the Defendants’ alleged failure to issue a litigation hold. Taylor v. AFS Techs., Inc., 2010 U.S. Dist. LEXIS 93664, at *1 (D. Ariz. Aug. 18, 2010). The Court refused to use legal nuclear weapons on the Defendants. […]

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[…]

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.[…]

Bow Tie Law 1st Anniversary

December 30, 2009 Josh Gilliland Blogging, Discovery, e-Discovery, Electronically Stored Information, ESI, Exclusion of Evidence, Litigation Hold

December 30, 2009 marks the first anniversary of “Bow Tie Law.” 2009 was a watershed year of case law, with litigation hold opinions coming up weekly this summer; the mandatory exclusion of ESI for the failure to disclose or supplement discovery; and judges holding attorneys to a higher standard for electronically stored[…]