Spoliation
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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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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May 06, 2013
By Doug Austin
In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.
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May 03, 2013
By Doug Austin
Let’s recap. So far, in our discussion of free utilities for collection of data for eDiscovery, we’ve discussed the pitfalls of using drag and drop, the benefits of Robocopy (illustrating with the same example copy) and the benefits (and pitfalls) of Richcopy for targeted collection. But, are there any free tools that will enable you to perform a bit-by-bit forensic image copy that includes deleted files and slack space data? Yes, there is.
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April 26, 2013
By Doug Austin
If you want to be able to perform a forensically sound targeted collection, but would prefer a GUI based tool for performing the copy (instead of a command-line tool like Robocopy), then perhaps you should consider Richcopy. RichCopy is a free computer utility program developed by Ken Tamaru of Microsoft to copy file directories. It has some advantages, but also some pitfalls, to consider as a targeted copy and collection tool.
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April 22, 2013
By Doug Austin
As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year. The United States Courts' Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.
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April 19, 2013
By Doug Austin
Yesterday, we discussed the benefits of Robocopy, how to access it via the command line prompt (if you have Windows Vista or later) and how to get it (if you don’t). Today, we’re going to perform an example copy and take a look at the results.
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April 18, 2013
By Doug Austin
Last week, we discussed the pitfalls of using drag and drop for collecting files for eDiscovery and illustrated an example using a blog post that I wrote about a month ago in a Word document for the post Five Common Myths About Predictive Coding. If you followed the steps along with one of your own files, you noticed that the resulting file appeared to have been modified before it was created, which reflects spoliation of the metadata during the copy process. I mentioned that there are better, more forensically sound, free methods for collecting data. One such method is Robocopy.
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April 16, 2013
By Doug Austin
In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.
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April 12, 2013
By Doug Austin
Sounds like a trick question, doesn’t it? The answer is yes. And, collecting files in a forensically unsound manner can be a drag…and drop.
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April 09, 2013
By Doug Austin
Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.
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April 02, 2013
By Doug Austin
In Christou v. Beatport, LLC, Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost. However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.
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March 21, 2013
By Doug Austin
Thirty months ago yesterday, eDiscovery Daily was launched. It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day. 635 posts later, a lot has happened in the industry that we’ve covered. And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet. Twice a year, we like to take a look back at some of the important stories and topics during that time. So, here are just a few of the posts over the last six months you may have missed. Enjoy!
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March 18, 2013
By Doug Austin
In EEOC v. JP Morgan Chase Bank, District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.
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March 15, 2013
By Doug Austin
In Apple Inc. v. Samsung Elecs. Co., District Judge Lucy Koh reduced the amount of the previous jury award against Samsung in its ongoing intellectual property case from nearly $1.05 billion to over $598 million, due to ordering a new trial on damages for several Samsung products that amounted to over $450 million being stricken from the jury’s award.
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March 14, 2013
By Doug Austin
As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation. Apparently, they were less than cooperative in complying with that order.
In EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.
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February 21, 2013
By Doug Austin
Today’s thought leader is Laura Zubulake. Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. Last year, Laura published a book titled Zubulake's e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog and she speaks professionally about eDiscovery topics and her experiences related to the case.
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February 08, 2013
By Doug Austin
In Peerless Indus., Inc. v. Crimson AV, LLC, Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.
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January 18, 2013
By Doug Austin
As we noted the past three days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI). Today, let’s take a look back at cases related to sanctions and spoliation.
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January 17, 2013
By Doug Austin
As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review. Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).
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January 02, 2013
By Doug Austin
In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.
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December 11, 2012
By Doug Austin
According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”. Let’s take a closer look at the numbers and look at some cases in each category.
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