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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]

Sanctions

Are You Scared Yet? – eDiscovery Horrors!

October 31, 2013

By Doug Austin

Today is Halloween. Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors. So, I have one question: Are you scared yet?

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Leaving Your Hard Drives in a Rental House is Negligent, Court Rules – eDiscovery Best Practices

October 07, 2013

By Doug Austin

In Net-Com Services, Inc. v. Eupen Cable USA, Inc., the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

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Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions – eDiscovery Case Law

October 03, 2013

By Doug Austin

In Anderson v. Sullivan, a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, "scrambling" of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

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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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Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law

September 06, 2013

By Doug Austin

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

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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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I Removed a Virus, Did I Just Violate My Discovery Agreement? – eDiscovery Best Practices

August 08, 2013

By Doug Austin

As we discussed last month, working with electronic files in a review tool is NOT just simply a matter of loading the files and getting started. Electronic files are diverse, they can represent a whole collection of issues to address in order to process them for loading, and processing them effectively requires a sound process. But, what if the evidentiary files you collect from your custodians contain viruses or other malware?

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Spoliation Sanctions Can Apply to Audio Files Too – eDiscovery Case Law

July 24, 2013

By Doug Austin

In Hart v. Dillon Cos., Colorado Magistrate Judge David L. West granted the plaintiff's Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

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Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer – eDiscovery Case Law

July 22, 2013

By Doug Austin

On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

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Want to Make eDiscovery Proportional? Tie it to the Amount at Stake – eDiscovery Trends

July 16, 2013

By Doug Austin

Apparently, the effect of the proposed amendments to the discovery provisions of the Federal Rules of Civil Procedure approved for public comment may not be limited to just Federal courts. They also could have a significant effect on New York's state courts as well.

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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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Spoliation of Data Can Get You Sent Up the River – eDiscovery Case Law

June 27, 2013

By Doug Austin

Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

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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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Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction – eDiscovery Case Law

June 14, 2013

By Doug Austin

In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

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Changes to Federal eDiscovery Rules Are One Step Closer – eDiscovery Trends

June 10, 2013

By Doug Austin

In April, we referenced Henry Kelston’s report in Law Technology News that 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. Now, the amendments are one step closer to enactment as they have been approved for public comment.

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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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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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