Spoliation – Page 4 – Bow Tie Law

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[…]

Establishing Prejudice: Putting the Brakes on Spoliation Motions

November 15, 2010 Josh Gilliland Electronically Stored Information, Spoliation

In a very short opinion, Magistrate Judge Facciola showed a path to putting the brakes on spoliation motions: “Assessing whether sanctions are warranted for the loss of otherwise discoverable information is a function of whether a party has been prejudiced by that loss.” Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist.[…]

When HR Pros Go Bad: Spoliation & Personal Identifiable Information

August 18, 2010 Josh Gilliland Conversion, e-Discovery, Electronically Stored Information, Spoliation

A HR professional emailed to his home computer the personnel files of 68 employees when he feared layoffs were coming. That is only the beginning of a really ugly fact pattern. The data included past and current employee names, social security numbers, date of births, compensation, and addresses. The former employer[…]

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[…]

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,[…]

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[…]

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[…]

The Holding Pattern: Lessons Learned on Litigation Holds

August 12, 2009 Josh Gilliland Litigation Hold, Spoliation

The past three years have seen an increase of cases highlighting litigation holds and the duty to preserve electronically stored information. There is no shortage of cases that hold many “lessons learned” for attorneys and their clients. The Nightmare Litigation Hold Letter The Napster litigation gave us more then copyright[…]

The Missing Link: A Duty to Preservation Imbedded Images & Hyperlinks?

August 7, 2009 Josh Gilliland Duty to Preserve, Electronically Stored Information, ESI, Spoliation

Paleontologists have searched for the missing link, the remains of an transitional life form, showing a state of evolution. Lawyers today continue the quest for missing links, but not for transitional life forms, but inactive hyperlinks to websites. The Plaintiff in Ferron v. Echostar Satellite, LLC, 2009 U.S. Dist. LEXIS 66637 (S.D.[…]

Invasion of Privacy and Spoliation on MySpace

August 3, 2009 Josh Gilliland Defamation, Reasonable Expectation of Privacy, Social Networking, Spoliation

It is true that mass communication is no longer limited to a tiny handful of commercial purveyors and that we live with much greater access to information than the era in which the tort of invasion of privacy developed. A town crier could reach dozens, a handbill hundreds, a newspaper[…]