Duty to Preserve – Page 3

Deadliest eDiscovery: When Cameras, Hard Drives & Fishing Boats Collide

August 1, 2011 Josh Gilliland Discovery, eDiscovery, Electronically Stored Information

Two fishing boats voyaged into the ocean of e-Discovery when the Plaintiff learned of digital photos and video of a collision that was not produced in discovery. May v. F/V LORENA MARIE, 2011 U.S. Dist. LEXIS 52695, (D. Alaska May 16, 2011). The discovery dispute surfaced like a carb pot[…]

‘Nuff Said on Imaging a Laptop

July 19, 2011 Josh Gilliland Discovery, e-Discovery, Forensic Image, Targeted Collection

A Plaintiff sought the forensic image of a laptop after the producing party collected the responsive data and placed it on a thumb drive. Magistrate Judge Nuffer denied the motion. Hansen v. Chevron USA, Inc., 2011 U.S. Dist. LEXIS 58488 (D. Utah May 31, 2011). In the course of discovery,[…]

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[…]

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[…]

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[…]

Spoliation! A New Drama at the District Courthouse about a Litigation Hold and Missing Electronically Stored Information

August 24, 2009 Josh Gilliland Electronically Stored Information, Email, ESI, Litigation Hold

The stage is set: There is a triggering event for a lawsuit, a litigation hold is enacted and evidence is preserved. A drama played out not according to the above script with a law firm and client almost ending up on the hook for a botched litigation hold. In Pinstripe, Inc. v. Manpower, Inc., the[…]

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.[…]