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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 jane@litigationbestpractices.com.

Sanctions

Texas Supreme Court Reverses Spoliation Ruling, Remands Case for New Trial - eDiscovery Case Law

July 30, 2014

By Doug Austin

In Brookshire Bros., Ltd. v. Aldridge, the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals' judgment and remanded the case for a new trial.

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Failure to Preserve Cloud-Based Data Results in Severe Sanction for Defendant - eDiscovery Case Law

July 29, 2014

By Doug Austin

In Brown v. Tellermate Holdings, Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns' employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys'-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.

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Court Denies Sanctions for Deletion of "Smoking Gun" Email, Grants Defendants' Motion for Summary Judgment - eDiscovery Case Law

July 21, 2014

By Doug Austin

In the case In re Text Messaging Antitrust Litig., Illinois District Judge Matthew F. Kennelly not only denied the plaintiffs’ request for an adverse inference sanction against the defendants for destroying emails, but also granted the defendants’ motion for summary judgment, as the plaintiffs failed to provide any supporting circumstantial evidence to meet their burden of proof.

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Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for "Patentgate" Disclosure - eDiscovery Case Law

July 07, 2014

By Doug Austin

Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia? Did you think they were going to avoid having to pay for that disclosure? The answer is no.

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Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata - eDiscovery Case Law

June 23, 2014

By Doug Austin

In Raines v. College Now Greater Cleveland, Inc., Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

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Defendants - and Defendants’ Counsel - Sanctioned for Delays in Producing ESI - eDiscovery Case Law

May 27, 2014

By Doug Austin

In Knickerbocker v Corinthian Colleges, Washington District Judge James L. Robart imposed sanctions against the defendants and the defendants’ counsel for their delays in producing Electronically Stored Information (ESI) during discovery, despite the fact that spoliation of evidence was ultimately avoided.

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Plaintiff’s Failure to Communicate with Defendants Causes Complications in Discovery – eDiscovery Case Law

May 19, 2014

By Doug Austin

In Procaps S.A. v. Patheon Inc., the defendants filed a Motion to Compel over search terms for Electronically Stored Information (ESI), after the lead counsel for the plaintiffs repeatedly demonstrated uncooperative behavior by not responding to emails sent by defendants’ counsel, or responding with brief and unclear messages.

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Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested – eDiscovery Case Law

May 08, 2014

By Doug Austin

Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over! As reported last week in The Recorder, a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents. However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

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Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law

April 21, 2014

By Doug Austin

In T&E Investment Group, LLC v. Faulkner, Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

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Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments - eDiscovery Case Law

April 17, 2014

By Doug Austin

In Skepnek v. Roper & Twardowsky, LLC, Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

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Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law

April 14, 2014

By Doug Austin

In Calderon v. Corporacion Puertorrique a de Salud, the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

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Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit - eDiscovery Case Law

April 04, 2014

By Doug Austin

In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

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Clawback Rights Upheld and Plaintiff Sanctioned for Refusal to Comply Concerning Inadvertently Produced Privileged Documents - eDiscovery Case Law

March 25, 2014

By Doug Austin

In RIPL Corp. v. Google Inc., seven discovery-related motions were heard concerning this trademark infringement action. The various motions to seal, compel, enforce, and sanction were filed after the parties had entered into a stipulated protective order. Washington District Judge Ricardo S. Martinez granted in part, denied in part, and deferred in part the various motions.

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Craig Ball of Craig D. Ball, P.C. – eDiscovery Trends, Part 2

March 21, 2014

By Doug Austin

Today’s thought leader is Craig Ball. A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and just ended nine years writing a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court. He currently blogs on those topics at ballinyourcourt.com.

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Craig Ball of Craig D. Ball, P.C. – eDiscovery Trends, Part 1

March 20, 2014

By Doug Austin

Today’s thought leader is Craig Ball. A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and just ended nine years writing a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court. He currently blogs on those topics at ballinyourcourt.com.

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Apple Can’t Mention Inadvertent Disclosure in Samsung Case - eDiscovery Case Law

March 13, 2014

By Doug Austin

Back in January, Quinn Emanuel Urquhart & Sullivan LLP was sanctioned for their inadvertent disclosure in the Apple vs Samsung litigation (commonly referred to as “patentgate”). California Magistrate Judge Paul S. Grewal handed down an order on motions for sanctions against Quinn Emanuel (in essence) requiring the firm to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it”. Many felt that Samsung and Quinn Emanuel got off lightly. Now, Apple can’t even mention the inadvertent disclosure in the upcoming Samsung trial.

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Adam Losey of IT-Lex.org – eDiscovery Trends

March 07, 2014

By Doug Austin

Today’s thought leader is Adam Losey. Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP. Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia's Information and Digital Resource Management Master's Program.

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Bad Faith Violations in Discovery Lead to Sanctions for Defendant – eDiscovery Case Law

February 20, 2014

By Doug Austin

Regarding the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, the defendants’ repeated failure to preserve and produce documents during discovery was found to be in bad faith. The defendants were ordered to produce the documents, or to explain why they couldn’t be produced, and to pay a hefty fine plus the plaintiff’s costs and fees for pursuing discovery motions. The order left room for additional future sanctions, should the bad faith behavior continue.

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Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff - eDiscovery Case Law

February 13, 2014

By Doug Austin

In Brown v. West Corp., the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

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Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence - eDiscovery Case Law

February 10, 2014

By Doug Austin

In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.” Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff's claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.

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Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction – eDiscovery Case Law

January 31, 2014

By Doug Austin

California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

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2013 eDiscovery Year in Review: eDiscovery Case Law, Part 4

January 21, 2014

By Doug Austin

As we noted on Thursday, Friday and yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many). Today, here are the rest of the cases related to sanctions.

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