Meet and Confer with Kelly Twigger

Kelly Twigger
  • 5.0 (8)
  • Business
  • Updated Weekly

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. Jun 24

    Your Protective Order Wasn't Written for ChatGPT

    A Texas judge just gave litigators something they’ve been asking for and something they’ve been dreading: a clear ruling that litigation-related ChatGPT conversations can qualify as work product, paired with a warning flare about protective orders that never anticipated generative AI. We walk through Tate Group Automotive v Legacy Automotive Capital from the Business Court of Texas and explain why the analysis isn’t really about what the AI “did,” but who used the tool, in what role, and for what litigation purpose. We connect Tate to the growing body of AI discovery case law, including the federal decisions that treat AI as a tool rather than an automatic waiver event under Federal Rule 26(b)(3), and the outlier authority that opponents cite when they want to argue waiver. Then we show what changes when you’re in Texas, where Rule 192.5 protects work product prepared “by or for a party.” That single word expands protection and helps explain why Tate comes out the way it does, even though the user is a represented party acting on their own. The most practical part of the ruling isn’t the privilege win. It’s the court-ordered disclosure of what went into ChatGPT: an inventory of discovery materials shared with the tool, identified by Bates number where possible, including documents produced under a protective order. That tees up the uncomfortable question every litigator should raise at the next meet and confer: if you paste confidential discovery into a generative AI platform, did you “disclose” it to someone outside the permitted recipients list, or did you simply use software? We end with concrete next steps for e-discovery teams and trial counsel: audit your active protective orders, negotiate AI-specific language before the fight starts, document tool usage and data sources, and make sure you can account for inputs if a motion to compel lands. If you find this helpful, subscribe, share with a colleague, and leave a review so more lawyers can keep up with how fast AI discovery law is moving. 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

  2. Jun 18

    When Expert AI Prompts Become Evidence

    Your expert uses generative AI to cut millions of documents down to something a human can actually read. Then the other side asks the question everyone has been dancing around: are the AI prompts and outputs discoverable? I walk through Conservation Law Foundation v Shell Oil Company (D. Conn.), where a magistrate judge answers “yes” and frames prompts as expert methodology under Rule 26, not some brand-new category of evidence. The twist: the ruling comes as a text-only minute order on the docket, and it’s currently stayed while the district judge reviews a Rule 72 objection, so the doctrine is moving in real time. We get specific about what was used and why that matters. The expert team worked with GPT-4 models through Microsoft Azure OpenAI Service via the secure Azure API, an enterprise deployment with a very different risk profile than the consumer ChatGPT product. That technical choice intersects with discovery obligations, vendor retention questions, and preservation planning. If you are relying on “we don’t have it” defenses, we also talk about the court’s trust-but-verify approach and how sworn Rule 33 and Rule 34 responses can create Rule 37 exposure if anything later turns up in logs, metadata, or cloud systems. From there, I pull out the practical drafting and strategy lessons: why Rule 29 stipulations must name AI prompts, AI queries, and AI outputs explicitly; why relabeling prompts as “search terms” won’t hold when the technology is generative; and how a prompt produced cold can be a gift to cross-examination unless the expert report explains the full AI methodology. We also connect the through line to Florida’s amended Rule 2.515, which puts citation accuracy and verification squarely on the signer, with sanctions on the table. If you work with testifying experts, eDiscovery, or AI-assisted document review, this is the roadmap you want before the next motion to compel lands. Subscribe, share the episode with your team, and leave a review so more litigators can keep up with how AI discovery doctrine is being built. 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

  3. May 13

    How an Enterprise Migration and an Extended Discovery Stay Created the Perfect Storm for Sanctions

    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.

    42 min

  4. Apr 8

    The Latest Decision on the Use of Generative AI Tools and Confidentiality

    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  Please share this episode with your friends and colleagues. Subscribe to our blog at Minerva26 to follow all of our case of the week updates.  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 1m

  5. Mar 24

    When the Platform Goes Dark: How Failure to Supervise Collection Led to Spoliation Sanctions

    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.

    36 min

  6. Mar 3

    AI on Trial: The First Federal Rulings on Privilege and Generative Tools

    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.

    27 min

  7. Feb 18

    Slam Dunk for the Defense: How Missing Texts Cost an NBA Star His Case

    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 preservedCharles 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 evidenceMSG's counsel effectively used subpoenas to AT&T and other individuals to prove their sanctions motionThe duty to preserve for plaintiffs may arise before filing the complaint, contrary to this court's findingCourts are increasingly considering sanctions against counsel who fail to ensure client preservationMultiple affordable technologies exist that can preserve mobile device data in just hoursLink 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.

    25 min

  8. Jan 30

    Your Client “Saved Everything,” Said No iPhone Ever

    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 defensibleHow courts infer intent when messages disappearWhat litigators should be doing early to reduce mobile ESI riskWhy waiting on sanctions may be encouraging bad behaviorIf 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.

    19 min
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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.

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