Telling your client to “preserve their text messages” is not a preservation plan—and a new decision out of the District of Colorado makes that painfully clear.

In this episode of Meet and Confer, Kelly Twigger breaks down Peddada v. Catholic Health Initiatives Colorado, where a magistrate judge found intentional spoliation after key text messages went missing. Even without a forensic smoking gun, the court inferred intent based on circumstantial evidence, third-party comparisons, and common sense.

Kelly walks through what the court did, how Rule 37(e) was applied, and why mobile-device preservation failures create serious credibility and sanctions risk. She also flags a troubling trend: meaningful sanctions being deferred until after summary judgment—raising real questions about whether current remedies actually deter spoliation.

Key takeaways include:

• Why self-directed text preservation is rarely defensible
• How courts infer intent when messages disappear
• What litigators should be doing early to reduce mobile ESI risk
• Why waiting on sanctions may be encouraging bad behavior

If your case involves people, it involves text messages. And if you don’t get in front of that early, you’re building spoliation risk into your case.

Case Links:

ESI Order

Court Issued Second Order

Prompted Third Order

Jones v. Riot Hospitality

UF eDiscovery Conference Registration

Sponsor ModeOne Technologies 

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Your chats are now your records. In this episode of Mobile Minutes sponsored by ModeOne Technologies, we dig into why mobile and off-channel messages—texts, WhatsApp, Signal, Slack, and Teams—have moved from “nice-to-have” discovery to core evidence and a core compliance obligation. With new DOJ and FTC guidance and eye-watering SEC penalties, regulators are no longer hinting; they’re spelling out what credible programs must include and how they’ll evaluate your effort, resources, and results.

Ruth Hauswirth of Cooley joins Kelly Twigger to translate policy into practice. We break down what changed in 2024, how agencies define off-channel communications, and why “messages are documents” is the standard. Then we get tactical: approved channel lists, BYOD and retention controls that survive scrutiny, legal holds that actually reach phones, and supervised mobile collections that avoid the self-collection trap. We also tackle the messy realities—auto-delete defaults, device upgrades, shadow IT, and the speed regulators and courts now expect when preservation triggers.

If you lead litigation, investigations, or compliance, you’ll walk away with a focused playbook: map your chat footprint, upgrade your holds with plain-English steps, run a tabletop for a subpoena or CID, and align legal, IT, HR, and security on a risk-based governance model. For global teams using WhatsApp or WeChat, we discuss harmonizing standards across jurisdictions and when to prohibit tools you cannot preserve. The through-line is simple: content over form, relevance and proportionality, and a documented, defensible program that proves you took this seriously before the knock on the door.

If business lives in chats, compliance must live there too. Subscribe, share this with your legal and IT teams, and leave a review with one question you want us to tackle next.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Everyone’s finally past the first question on hyperlinked documents: yes, they’re discoverable. That debate is over.

The real fight now is sharper—and it’s what makes the Carvana decision a must-read: when does a party have to produce a contemporaneous (point-in-time) version of a hyperlinked document, and what does the requesting party have to show to get that relief? Because in the cloud, the “attachment” is living. If you produce the file as it exists today, you may be producing something that did not exist when the email was sent. And courts are increasingly unwilling to let the timeline get rewritten—whether intentionally or not.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Think your AI prompts disappear when you hit delete? Not when litigation lands. We unpack the OpenAI copyright MDL to show how courts are turning ChatGPT conversation logs into core electronic evidence—preserved, sampled, de-identified, and produced under a protective order. The result is a clear, repeatable playbook for handling AI data at scale without letting privacy swallow relevance.

We walk through the emergency preservation orders that halted deletion across consumer, enterprise, and API logs, then explain why the parties settled on a 20 million chat sample and how de-identification pipelines strip direct identifiers while keeping prompts and outputs analyzable. Along the way, we tackle the big question of relevance: why usage patterns and non-infringing outputs matter for fair use factor four, market harm, and damages, and why a search-term-only approach can’t answer merits questions in a generative AI case.

You’ll hear the strategic pivots that shaped the fight—OpenAI’s attempt to narrow production after de-identifying the full sample, the court’s treatment of privacy as part of burden rather than a veto, and the denial of a stay that kept production on track. Then we distill three takeaways for legal teams: prompts are now squarely within the duty to preserve, the sample you propose will likely bind you later, and privacy is a dial you engineer through sampling, de-identification, and AEO protections.

Whether your organization uses ChatGPT, Copilot, Gemini, Claude, or in-house LLMs, this episode maps the practical steps: identify where logs live, understand tenant controls and exports, plan system-based discovery alongside key custodian evidence, and build credibility with numbers and workflows you can defend. Subscribe, share with your litigation and privacy teams, and leave a review telling us: how are you preparing your AI preserves and productions for 2026?

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

We unpack how hyperlinked files and “modern attachments” change discovery, from Google Vault’s updates to Microsoft’s gaps, and how to defensibly restore parent–child context without breaking authenticity. Arman Gungor shares practical workflows for version selection, preservation, and rapid email fraud detection.

• Why links function as attachments in context
• Current limits of Google Vault and Microsoft Purview
• Restoring families without altering source emails
• Choosing current vs contemporaneous versions
• Handling folder links and recursion at scale
• Preservation gaps across email and cloud storage
• Access, “shared with me,” and control issues
• Sampling approaches to manage burden
• MIME vs PST, signatures, and authenticity checks
• Using FEI to score and triage suspect emails
• Early planning for legal holds and server metadata
• Concrete questions to ask at meet and confer

To see how Minerva26 can become the strategy hub for your discovery decisions, head to Minerva26.com and schedule a strategy session or request a demo.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Kelly Twigger, our Founder and CEO, just marked five years of weekly case analysis. This retrospective highlights what five key rulings from the past five years teach about discovery in practice and where litigators are being tested now.

This week’s episode isn’t a victory lap. It’s a grounded look at how ESI has reshaped litigation, what the decisions actually say, how judges are reasoning, and where counsel are getting tripped up. Below is a narrative recap of the five discussion areas Kelly surfaces, each anchored to a representative ruling. For the complete context, listen to the episode or read the transcript.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

What if the most important part of your email evidence is the message you didn’t receive? We dig into a timely antitrust class action centered on formulary placement for a multiple sclerosis drug and unpack a pivotal ruling on whether parties must produce non-inclusive emails within threads. The debate sounds technical—threading, metadata fields, inclusive versus non-inclusive—but the stakes are practical: searchability, fairness, and how close your evidence is to the way it’s ordinarily maintained.

We walk through the competing proposals: defendants sought to produce only the most inclusive emails with a supplemental metadata field, while plaintiffs pressed for every message and its native metadata to support real-world workflows like custodian-based searches, timeline building, and deposition prep. Judge Young Kim’s analysis becomes a roadmap for litigators: Rule 34 favors production as ordinarily maintained; usability is not satisfied by bolted-on fields; and proportionality demands concrete numbers, not speculative claims about hosting costs and review time. The court ultimately sides with plaintiffs—“barely”—and explains exactly what evidence could have changed the calculus.

Beyond the holding, we turn lessons into tactics. Threading can speed review and harmonize coding decisions, but it doesn’t justify depriving the other side of earlier messages or native metadata. Most platforms allow you to thread for review while still producing each email in a thread as a separate document with full fields intact. If you argue burden, bring data: gigabytes, rates, hours, throughput, and quality impacts tied to the actual collection. If you argue need, show how missing non-inclusive emails break custodian filters, analytics, and privilege accuracy. Antitrust matters may lean toward broader discovery, but the core principle travels: both sides deserve the same usable information.

Subscribe for weekly, practical ESI case breakdowns, share this episode with a colleague who wrangles email evidence, and leave a quick review to help others find the show. Your feedback fuels the next deep dive.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

The digital evidence landscape continues to evolve at breakneck speed, and nowhere is this more apparent than in the ongoing saga of the In re Uber Techs. Passenger Sexual Assault Litigation. Magistrate Judge Lisa Cisneros's March 2025 ruling delivers a groundbreaking perspective on hyperlinked documents in discovery that every legal professional needs to understand.

Judge Cisneros has definitively established that hyperlinked documents function as attachments for discovery purposes when they reflect "a single communication at a specific point in time." This marks a significant departure from rulings by other judges who have found that hyperlinked files are not attachments. The decision underscores a critical reality of modern discovery: your judge's technological understanding can dramatically impact your case outcome.

The ruling carefully navigates the complex technological landscape of Google Mail, Google Apps, and Google Vault that Uber uses for its corporate communications. While acknowledging that Uber cannot produce what technology doesn't allow (contemporaneous versions of hyperlinked documents from Google Vault), the court required production of hyperlinked documents from other platforms like Google Drive and Google Chat. This technology-aware approach balances discovery obligations with practical limitations.

Most provocatively, Judge Cisneros signaled that technological advancement during litigation could create new obligations. If new tools emerge that make previously "impossible" collections possible, parties may need to reproduce information. This forward-looking stance should give pause to any organization developing its discovery strategy—what's technologically infeasible today may become required tomorrow.

For legal teams working with corporate clients, this case serves as a powerful reminder to thoroughly understand your client's communication ecosystem before drafting ESI protocols. Despite having what appeared to be a comprehensive protocol, the parties still encountered gaps regarding hyperlinks in various applications and email threads. The most carefully crafted agreement can't anticipate every scenario in our rapidly evolving digital landscape.

Have you examined how your team handles hyperlinked documents in discovery? Are you preparing clients for the possibility that technological advances might create retroactive obligations? The NRA v. Uber case demonstrates that in modern litigation, staying ahead of digital evidence challenges isn't just good practice—it's essential.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

What happens when discovery misconduct meets a high-stakes cancer detection technology dispute? A $292.5 million verdict, nearly $3 million in discovery sanctions, and potential disciplinary action against attorneys.

The recent Guardant Health v. Natera litigation serves as a reminder of the devastating consequences of discovery misrepresentations and improper ESI management. At its core, this case involved competing technologies designed to detect minimal residual disease in colorectal cancer patients – a critical advancement that helps determine whether patients need to undergo grueling chemotherapy after initial treatment.

What began as false advertising claims spiraled into a discovery nightmare when Natera's expert witness, Dr. Hochster, failed to disclose his communications about a crucial clinical trial. Despite having early access to negative study results regarding Guardant's product, both Dr. Hochster and Natera's counsel repeatedly claimed ignorance when questioned. The truth only emerged when Guardant subpoenaed Rutgers University directly, uncovering dozens of emails showing the expert's knowledge – including communications where he sent the embargoed study results directly to Natera's attorneys months before they claimed ignorance to the court.

The judge's frustration leaps from the page in these decisions, highlighting statements from counsel in bold text and finding they "knowingly and deliberately misled the court." The sanctions were severe: complete exclusion of the clinical trial evidence, nearly $3 million in attorney fees, and appointment of a special master to determine potential disciplinary measures and state bar referrals for the attorneys involved.

For litigators, this case underscores critical e-discovery principles: never allow witnesses to self-collect documents, implement robust systems to track ESI in complex litigation, and above all – be truthful with the court. When mistakes happen, transparency is the only viable path forward.

Want to avoid multimillion-dollar sanctions and professional discipline? Make ESI management a priority in your practice and remember that in the digital age, deception leaves an electronic trail that persistent investigation will almost always uncover.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Unlock the secrets to a winning litigation strategy by mastering the art of preserving ephemeral data. What happens when critical evidence vanishes into thin air? This episode promises to arm you with essential insights from the pivotal case of Two Canoes LLC versus Addian Inc., where the loss of WeChat messages led to significant legal sanctions. Join me, Kelly Twigger, as I dissect the crucial role of early planning and the often-overlooked data sources like mobile devices that can make or break a case. Learn from the pitfalls of neglecting evidence preservation, drawing parallels from the 2020 3M lawsuit over counterfeit N95 masks, and understand the profound implications on litigation tactics and risk management.

Throughout our discussion, I unravel the challenges faced by Addian's CEO, Adam Woolworth, who failed to preserve essential messages, highlighting the ever-important themes of possession, custody, and control of data. We'll also delve into the broader landscape of eDiscovery case law, offering practical tips and insights to enhance your discovery practices. Whether you're a seasoned legal professional or navigating the complexities of eDiscovery for the first time, this episode is packed with valuable guidance to keep you ahead in managing electronically stored information. Subscribe and leave a review to stay informed on this rapidly-evolving field, and join me next week for more cutting-edge insights into the world of electronic discovery. 

Two Canoes LLC v. Addian Inc. (April 30, 2024)
Read the blog about this case- Minerva26 Blog
Minerva26 Website
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Interested in seeing Mode One's technology mentioned in this episode? Visit them at modeone.io.  

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Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.