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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at [email protected]

Evidence

LitigationWorld Quick Start Guide to Mastering eDiscovery - eDiscovery Best Practices

January 23, 2014

By Doug Austin

Sometimes, it seems like we’re going too fast when trying to explain eDiscovery to attorneys. At least it seems that there are a lot of attorneys that don’t understand the simplest basics. Now, a brand new guide is hoping to help change that. Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology.

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He Sees You When You’re Sleeping -- eDiscovery Trends

December 09, 2013

By Doug Austin

A recent post in the Law Librarians Blog illustrates not only the different ways in which personal data can be captured, but also the continued growth of devices that might contain that data.

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Judge Grimm Shows that Discovery Doesn’t Have to Be…Grim – eDiscovery Best Practices

November 06, 2013

By Doug Austin

On the day this blog debuted, we covered one of the most well-known cases related to discovery abuses (Victor Stanley, Inc. v. Creative Pipe, Inc.), where Maryland District Judge Paul W. Grimm included in his order a provision that the defendant actually be “imprisoned for a period not to exceed two years” if he didn’t pay the plaintiff the attorney's fees and costs to be awarded. Now, Judge Grimm provides a new Discovery Order that sets requirements for attorneys in his court to conduct discovery in a proportional manner.

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eDiscovery Daily is Three Years Old!

September 20, 2013

By Doug Austin

We’ve always been free, now we are three! It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog. We’re past the “terrible twos” and heading towards pre-school. Before you know it, we’ll be ready to take our driver’s test! Here are some posts over the last six months you may have missed.

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Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet – eDiscovery Case Law

September 17, 2013

By Doug Austin

In Logtale, Ltd. v. IKOR, Inc., California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct. The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

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Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data – eDiscovery Case Law

August 27, 2013

By Doug Austin

If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

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Permissive Adverse Inference Instruction Upheld on Appeal – eDiscovery Case Law

August 23, 2013

By Doug Austin

In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

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Default Judgment Sanction Upheld on Appeal – eDiscovery Case Law

August 15, 2013

By Doug Austin

In Stooksbury v. Ross, the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

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Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info – eDiscovery Case Law

August 07, 2013

By Doug Austin

In Salvato v. Miley, a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff's very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

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Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

July 30, 2013

By Doug Austin

In Moore v. Miller, Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

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Appellate Court Denies Sanctions for Routine Deletion of Text Messages – eDiscovery Case Law

July 08, 2013

By Doug Austin

In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

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Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case – eDiscovery Case Law

July 01, 2013

By Doug Austin

In Cottle-Banks v. Cox Commc'ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

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Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion – eDiscovery Case Law

June 18, 2013

By Doug Austin

Remember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.

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Capturing Memory and Obtaining Protected Files with FTK Imager – eDiscovery Best Practices

June 17, 2013

By Doug Austin

Over the past few weeks, we have talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager from AccessData (and obtaining your own free copy), how to create a disk image, how to add evidence items for the purpose of reviewing the contents of those evidence items (such as physical drives or images that you’ve created) and how to export files and create a custom content image of a targeted collection of files with FTK Imager. This week, let’s discuss how to Capture Memory and Obtain Protected Files to collect a user’s account information and possible passwords to other files.

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Export Files and Custom Content Images in FTK Imager – eDiscovery Best Practices

June 04, 2013

By Doug Austin

Over the past few weeks, we have talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager from AccessData (and obtaining your own free copy), how to create a disk image and how to add evidence items with FTK Imager for the purpose of reviewing the contents of evidence items, such as physical drives or images that you’ve created. This week, let’s discuss how to export files and how to create a custom content image of a targeted collection of files.

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Some Additional Perspective on the EDRM Enron Data Set “Controversy” – eDiscovery Trends

May 31, 2013

By Doug Austin

Sharon Nelson wrote a terrific post about the “controversy” regarding the Electronic Discovery Reference Model (EDRM) Enron Data Set in her Ride the Lightning blog (Is the Enron E-Mail Data Set Worth All the Mudslinging?). I wanted to repeat some of her key points here and offer some of my own perspective directly from sitting in on the Data Set team during the EDRM Annual Meeting earlier this month.

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Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law

May 30, 2013

By Doug Austin

If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

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Adding Evidence Items with FTK Imager – eDiscovery Best Practices

May 20, 2013

By Doug Austin

A couple of weeks ago, we talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager, which is a computer forensics software application provided by AccessData, as well as how to download your own free copy. Then, last week, we discussed how to create a disk image. This week, let’s discuss how to add evidence items with FTK Imager for the purpose of reviewing the contents of evidence items, such as physical drives or images that you’ve created.

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Defendant Compelled by Court to Produce Metadata – eDiscovery Case Law

May 17, 2013

By Doug Austin

In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

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Version 1 of the EDRM Enron Data Set NOW AVAILABLE – eDiscovery Trends

May 16, 2013

By Doug Austin

Last week, we reported from the Annual Meeting for the Electronic Discovery Reference Model (EDRM) group and discussed some significant efforts and accomplishments by each of the project teams within EDRM. That included an update from the EDRM Data Set project, where an effort was underway to identify and remove personally-identifiable information (“PII”) data from the EDRM Data Set. Now, version 1 of the Data Set is completed and available for download.

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Plaintiff Granted Access to Defendant’s Database – eDiscovery Case Law

May 14, 2013

By Doug Austin

In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

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How to Create an Image Using FTK Imager – eDiscovery Best Practices

May 13, 2013

By Doug Austin

A few days ago, we talked about the benefits and capabilities of Forensic Toolkit (FTK), which is a computer forensics software application provided by AccessData, as well as how to download your own free copy. Now, let’s discuss how to create a disk image.

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