Meet and Confer with Kelly Twigger

Kelly Twigger

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. 27 AUG

    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

  2. 5 AUG

    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

  3. 24 JUL

    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

  4. 11 JUL

    COTW: 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

  5. 10 JUL

    Spoliation Sanctions: When Evidence Vanishes

    What does it take for a court to dismiss a case due to spoliation of evidence? The SkyJet v. VSE Aviation decision provides a troubling answer to this persistent question in e-discovery jurisprudence.When temperatures in a twin-engine aircraft skyrocketed during startup, causing severe engine damage, the resulting litigation hinged on critical recorded evidence. The aircraft's cockpit voice recorder (CVR) captured pilot communications during the incident, while the flight data recorder (FDR) tracked performance metrics. With the pilots mysteriously "unavailable" (reportedly in Canada), these recordings represented the only objective record of what transpired.The discovery story that unfolded revealed a deliberate pattern of concealment. SkyJet initially claimed no recordings existed, then suggested they'd never received data from Logic Air (the company that extracted it). Yet emails eventually obtained directly from Logic Air revealed they had provided SkyJet two DVDs containing the recordings, with specific notes about which audio channel was "more interesting from the 30-minute mark."Magistrate Judge Angel Mitchell's analysis pulled no punches, finding SkyJet had engaged in "dishonest and misleading discovery conduct" and acted with "intent to deprive" under Rule 37(e)(2). The court noted SkyJet provided "absolutely no explanation" for what happened to the data after receipt and characterized their litigation position as "baseless."Yet despite this damning assessment, the court declined to dismiss the case. Instead, it issued a permissive adverse inference instruction, precluded pilot testimony, and awarded attorneys' fees. This outcome raises profound questions about whether our discovery rules provide sufficient deterrence against calculated evidence destruction.The case serves as a masterclass in diligent e-discovery advocacy by VSE's counsel, who methodically pursued the missing evidence trail, coordinated with the court, and assembled a compelling spoliation narrative. But it also represents a cautionary tale about the limitations of Rule 37 sanctions in addressing even the most egregious discovery misconduct.How can you better protect your case from similar discovery abuses? Contact us today to discuss effective preservation strategies and approaches to documenting potential spoliation. 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.

    24 min

  6. TRAILER

    Welcome to the Meet and Confer Podcast!

    Ever feel like you're drowning in the ever-changing sea of electronic discovery? You're not alone. Drawing from over 25 years as a litigator and discovery strategist, I'm thrilled to introduce you to the newly rebranded Meet and Confer podcast - your lifeline in navigating the complex waters of ESI strategy. What began as a simple Case of the Week series has evolved into something much more comprehensive. While case law remains the backbone of effective advocacy, the modern legal landscape demands we look beyond precedent alone. Technology advances relentlessly, rules change, processes evolve, and perspectives shift. The Meet and Confer podcast tackles all these dimensions to give you a complete picture of the discovery ecosystem. Don't worry - your favorite Case of the Week segment isn't going anywhere! It continues in partnership with ACEDS, now complemented by exciting new segments like Mobile Minutes (a collaboration between Minerva 26 and ModeOne Technologies). Since the pandemic, mobile device discovery has exploded in importance, creating challenges that demand specialized attention. Whether you're wrestling with preservation issues, fighting for proportionality, or simply trying to understand what data exists where, this podcast aims to make your professional life just a little bit easier. My mission is helping you harness the true power of electronic evidence to achieve the best possible outcomes for your clients. Subscribe now and share with colleagues who could benefit from clearer guidance in the digital discovery maze! 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.

    2 min

  7. 12 MAY

    Hyperlinked Files: The Modern Discovery Challenge

    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

  8. 12 MAY

    Are you Focusing Enough on the Potential Implications of Mobile Devices in eDiscovery?

    Unlock the secrets of mobile device discovery in litigation with our latest episode featuring Kelly Twigger. Explore the crucial decision in Wegman v. US Specialty Sports Association Inc., where Magistrate Judge Robert Norway's ruling highlighted the increasing responsibilities of preserving electronically stored information (ESI) on mobile devices. This episode is your key to understanding the legal intricacies of mobile device usage in the workplace and the necessity for clear data preservation policies. Delve into the challenges organizations face, from user deletions to the limitations of cloud storage solutions like iCloud. Enhance your eDiscovery expertise as we journey through the complexities of mobile device data preservation. Discover the obstacles posed by lost or damaged devices and factory resets, and learn about data recovery techniques that can mitigate these issues. This episode serves as a valuable resource for legal professionals looking to optimize their electronic discovery processes. With insights drawn from significant cases like Hunters v. City of Seattle and NRA Pork, we provide actionable strategies to ensure compliance and improve litigation outcomes. Don't miss this opportunity to refine your litigation strategies in the evolving landscape of eDiscovery. Tune in for practical insights and actionable strategies to stay ahead in the complex landscape of eDiscovery. Wegman v. U.S. Specialty Sports Ass’n, Inc. Read the blog about this case- eDiscovery Assistant Blog eDiscovery Assistant Website Sign up for Kelly's Case of the Week Newsletter here eDiscovery Assistant Free 7 day Trial (no credit card required) 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.

    16 min
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Trailer

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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