Meet and Confer with Kelly Twigger

A legal hold system that “works” can still wipe out the evidence you need, and you may not realize it until the sanctions motion lands. We unpack a major Rule 37(e) preservation decision from DDC in United States ex rel. Staggers v. Medtronic that every litigator, legal operations leader, and discovery counsel should study, especially if your company is migrating email or sitting under a long discovery stay. 

We walk through the timeline problem that drives the whole outcome: a case served in 2016, discovery stayed for years, and an enterprise-scale Enterprise Vault to Microsoft Exchange migration happening in the background under a two-year retention policy. You’ll hear exactly how “dropped holds” and normal retention can quietly delete older ESI while dashboards still report that mailboxes are migrated. Then we split the analysis the way the court does: system-level migration steps can be reasonable under the Sedona Principles, while custodian-by-custodian legal hold timing can still be unreasonable and costly. 

We also dig into the practical litigation lessons: why deposition testimony is not a substitute for missing ESI, why “replacement” has to be substantially complete, why intent to deprive remains a high bar, and why you must prove prejudice with specific documents rather than generic argument. Finally, we highlight the real financial exposure that too many teams underestimate: multi-bucket fee awards for spoliation investigation, motion practice, and even fees on fees. 

If you’re responsible for eDiscovery, legal holds, retention policy risk, or managing outside counsel, listen through and pressure-test your preservation plan against this checklist. Subscribe to Meet and Confer, share the episode with a colleague, and leave a review with your biggest takeaway.

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 break down Morgan v V2X, the most detailed federal ruling yet on generative AI, work product protection, and what happens when confidential discovery meets mainstream AI tools. We also track how Morgan fits with Heppner and Gilbarco and why the real fight is shifting toward protective orders, platform contracts, and access to justice. 

• why Morgan v V2X becomes a turning point for AI in civil discovery 
• the work product doctrine under FRCP 26(b)(3) and why it applies to pro se litigants 
• when AI use does not equal waiver and why third-party access is not the whole story 
• why prompts can be opinion work product and outputs may be qualified work product 
• the court’s limits on protection and why tool name disclosure is treated differently 
• a court-built framework for AI language in protective orders and why consumer AI often fails it 
• the practical burden of training prohibitions, third-party flow-down terms, deletion rights, and documentation 
• the emerging enterprise AI advantage and the access to justice gap it creates 
• tactical takeaways on over-designation, tailoring discovery requests, and counseling clients on unsupervised AI use 

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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.  

A single analytics export can decide whether your damages story looks like math or guesswork. This week, we take on a spoliation decision out of the Southern District of New York that every litigator handling ESI should read, because the lost evidence is not email or chat logs. It’s Google Analytics website traffic data, the kind your marketing team lives in and your discovery plan might never mention until it’s too late.

We unpack PharmacyChecker.com v. National Association of Boards of Pharmacy and the nightmare scenario behind the sanctions motion: Google’s Universal Analytics gets sunset, an IT employee downloads data without attorney direction, and a 19-month window of granular source-by-source traffic data (Google vs Bing vs others) disappears for good. When a party’s antitrust claims and damages theory depend on proving lost organic search traffic, that missing granularity becomes a hole you can drive expert cross-examination through.

From there, we walk step-by-step through Rule 37(e)(1): duty to preserve, “reasonable steps,” whether the ESI can be replaced, and the prejudice finding that caps what a court can do. Judge Resnick’s prejudice analysis is unusually nuanced, and it directly shapes the remedies: no overbroad preclusion, but required caveats that the missing-period numbers are estimates, permission to tell the jury what happened, a potential jury instruction, and a targeted fee award. Along the way, we pull out practical eDiscovery lessons for SaaS preservation, dynamic databases, and meet and confer clarity when someone promises to “refresh the data.”

Subscribe to the Meet and Confer podcast, share this with a colleague who handles discovery, and leave a review if these case-driven breakdowns help you stay ahead. What’s one third-party platform in your current matters you would preserve today if you knew access could disappear tomorrow?

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.  

Two federal rulings issued the same week just redrew the map for AI, discovery, and privilege. We break down how Warner v. Gilbarco framed ChatGPT as a drafting tool and shielded a pro se litigant’s prompts and outputs, while U.S. v. Heppner denied privilege where a platform’s privacy policy allowed training and disclosure. The contrast is stark and deeply practical: facts, platform settings, and attorney involvement now drive whether AI-generated content is protected or exposed.

We walk through what made the difference in each case—timing under Rule 26, the line between internal thought processes and actual documents, and whether counsel directed the AI work. Then we zoom into the privacy and confidentiality layer: why consumer AI settings can undermine privilege, how enterprise copilots promise stronger safeguards, and where platform policies can make or break your arguments. Along the way, we surface key quotes from the bench, including the “AI is a tool, not a person” framing and the warning that broad waiver theories would gut work product in modern drafting environments.

To help teams act now, we share concrete steps: update custodian interviews to capture AI usage; set retention and logging rules for prompts and outputs; choose enterprise configurations that disable training; and document attorney direction when AI assists with strategy. We also flag the unresolved questions—what counts as ESI, how to handle prompt discovery requests, and what duties vendors have to preserve AI interactions—so you can anticipate challenges before they surface in meet-and-confers.

If you’re advising clients who touch ChatGPT, Claude, Gemini, or Microsoft Copilot, this conversation is your primer on privilege, confidentiality, and eDiscovery in the age of generative AI. Subscribe, share with your team, and leave a review with your take: should AI-assisted drafts be treated like any other protected work product, or is the risk of disclosure too high without new rules?

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 dramatic spoliation of evidence case of former NBA star Charles Oakley shows how failing to preserve text messages can severely damage litigation outcomes. Oakley's misrepresentations about his texting habits and phone upgrades led to substantial sanctions in his case against Madison Square Garden.

• Text messages are primary evidence in most litigation cases and must be preserved
• Charles Oakley's case against MSG was undermined when AT&T records revealed he sent 800+ texts after the incident despite claiming he "doesn't text much"
• The court granted an adverse inference instruction after finding Oakley intentionally failed to preserve evidence
• MSG's counsel effectively used subpoenas to AT&T and other individuals to prove their sanctions motion
• The duty to preserve for plaintiffs may arise before filing the complaint, contrary to this court's finding
• Courts are increasingly considering sanctions against counsel who fail to ensure client preservation
• Multiple affordable technologies exist that can preserve mobile device data in just hours

Link to Oakley decision

Link to ModeOne Technologies for Mobile Device Collection

If you're interested in seeing how Minerva 26 can help you engage in better discovery strategy, please visit us at Minerva26.com.

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.  

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.