Meet and Confer with Kelly Twigger

Kelly Twigger
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Meet and Confer is the podcast for litigators, eDiscovery professionals, and anyone who knows that in a world of electronically stored information, discovery strategy isn’t optional—it’s essential. Hosted by attorney and discovery strategist Kelly Twigger, each episode offers clear, practical discussions on how to effectively leverage the power of ESI to craft successful discovery strategies for any type of litigation. Topics include, navigating evolving rules, understanding emerging case law, and making the strategic decisions that shape the outcome of a case. Whether you're a seasoned litigator, brand new associate, in-house counsel, or law student, Meet and Confer helps you think critically, stay prepared, and master your discovery strategy for modern litigation.

  1. DEC 17

    The Ruling Is In: GenAI Prompts Are Core Discoverable ESI

    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.

    31 min

  2. DEC 1

    From “We Can’t” to “Here’s How” — A Practical Discussion on Hyperlinked Files in Discovery

    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.

    1h 4m

  3. NOV 14

    The Modern Discovery Traps that Are Upending Cases

    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.

    29 min

  4. OCT 24

    The "Lesser-Included" Email Debate: What Does Rule 34 Really Require for Production?

    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.

    23 min

  5. AUG 27

    More on Hyperlinked Files and How Your Technology Affects Your Obligations to Produce Them

    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.

    19 min

  6. AUG 5

    The $3 Million Lesson in What Not to Do in Discovery

    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.

    31 min

  7. JUL 24

    Mobile Minutes: Judge Xavier Rodriguez on Possession, Custody, or Control

    The lines between personal and professional communications have forever blurred, leaving attorneys and judges grappling with a fundamental question: When does an employer have "possession, custody, or control" over data stored on an employee's personal mobile device? In this illuminating conversation with U.S. District Judge Xavier Rodriguez, we unpack this critical issue that impacts virtually every modern litigation. Judge Rodriguez brings exceptional perspective to this discussion, having served as a practicing attorney at an AmLaw 100 firm, a justice on the Texas Supreme Court, and now as a federal district judge for over two decades. Drawing on this wealth of experience, he explains the two competing frameworks courts use to determine control – the "legal right" test and the "practical ability" test – while highlighting how neither fully addresses the realities of today's digital workplace. The problem extends far beyond academic legal theory. As business communications increasingly flow through text messages, WhatsApp, and other mobile-only applications, the stakes for preserving and producing this evidence have never been higher. Yet the case law provides inconsistent guidance, with courts often reaching conclusions without clear analysis of the underlying tests. This uncertainty leaves practitioners flying blind when advising clients about their preservation obligations. Most concerning is the rapid evolution of technology compared to the relatively static legal frameworks. Post-COVID work patterns have accelerated the use of personal devices for business purposes, creating a perfect storm where traditional notions of possession and control fall short. As Judge Rodriguez notes, "The rules and interpretation of the rules are not in pace with technology and the way that it's impacting data for purposes of discovery." Whether you're a litigator navigating these issues daily or an organization crafting BYOD policies, this discussion provides crucial insights into how courts are approaching this evolving landscape. Judge Rodriguez offers practical advice for early case assessment and emphasizes the importance of substantive conversations between opposing counsel about mobile data preservation before evidence is lost. Ready to rethink your approach to mobile device discovery? Listen now and join the conversation about how our legal standards must adapt to modern communication realities. Cases Discussed  Allergan, Inc. v. Revance Therapeutics, Inc. Miramontes v. Peraton, Inc. In re Pork Antitrust Litig. Suggestion Box  BBC's You're Dead to Me Podcast  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.

    48 min

  8. JUL 11

    Analyzing a Shocking Court Decision Blocking Slack Discovery

    The digital discovery landscape constantly evolves, creating new challenges for litigators navigating electronically stored information. Judge Godbey's March 2025 decision in Yvonne v. Solera Holdings exposes critical gaps between technology and legal frameworks that every attorney should understand. At the heart of this employment discrimination case lies a precedent-setting ruling about Slack messages that should alarm litigation professionals. The court found that because the defendant lacked an export-capable Slack plan, they had no "possession, custody, or control" over potentially relevant communications. This troubling conclusion effectively rewards companies for maintaining lower-tier communication platforms that shield evidence from discovery obligations. For litigators, this underscores the urgent need to understand client communication systems before disputes arise. The decision offers a masterclass in discovery burden allocation. Judge Godbey meticulously outlines how parties objecting to terms as "vague and ambiguous" must specifically demonstrate that ambiguity—not merely assert it. Similarly, the stark contrast between failed Slack requests and successful Chatter demands illustrates how evidence of relevance dramatically changes outcomes. A former employee's declaration about discriminatory comments provided the necessary foundation for compelling Chatter communications, while the absence of similar evidence doomed the Slack requests. Privacy considerations emerge as another crucial theme, with the court protecting non-party supervisors' performance records despite their potential relevance. Savvy attorneys should anticipate such objections by proactively proposing redactions or protective orders rather than leaving these determinations entirely to judicial discretion. The lesson? Discovery success depends on meeting your burden, understanding technical limitations, and anticipating counterarguments before they arise. When it comes to modern ESI discovery, what you don't know absolutely can hurt your case. 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.

    18 min
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About

Meet and Confer is the podcast for litigators, eDiscovery professionals, and anyone who knows that in a world of electronically stored information, discovery strategy isn’t optional—it’s essential. Hosted by attorney and discovery strategist Kelly Twigger, each episode offers clear, practical discussions on how to effectively leverage the power of ESI to craft successful discovery strategies for any type of litigation. Topics include, navigating evolving rules, understanding emerging case law, and making the strategic decisions that shape the outcome of a case. Whether you're a seasoned litigator, brand new associate, in-house counsel, or law student, Meet and Confer helps you think critically, stay prepared, and master your discovery strategy for modern litigation.

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