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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

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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2013 eDiscovery Year in Review: eDiscovery Case Law, Part 3

January 20, 2014

By Doug Austin

As we noted on Thursday and Friday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Friday, we looked back at cases related to production format disputes, search disputes and technology assisted review. Today, let’s take a look back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).

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Six eDiscovery Predictions for 2014, Part One - eDiscovery Trends

January 10, 2014

By Doug Austin

It’s that time of year, where people make predictions for the coming year for all sorts of things, including electronic discovery trends for the coming year. Though I have to say, I’ve seen fewer predictions this year than in past years. Nonetheless, I feel compelled to offer some of my own predictions. If they turn out right, you heard it here first!

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Plaintiff Sanctioned After its "Failure to Take the Most Basic Document Preservation Steps" - eDiscovery Case Law

January 02, 2014

By Doug Austin

In SJS Distribution Systems, Inc. v. Sam’s East, Inc., New York Magistrate Judge Robert M. Levy found the plaintiff’s failure to take “the most basic document preservation steps,” including issuing a litigation hold – “even after it discovered the packaging nonconformities and filed this action” – constituted gross negligence. As a result, an adverse inference instruction sanction was issued against the plaintiff and the defendant was awarded its costs and attorney’s fees associated with its motion to compel.

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Company Should Have Preserved Personal eMails, But No Sanctions (Yet) - eDiscovery Case Law

December 23, 2013

By Doug Austin

In Puerto Rico Telephone Co. v. San Juan Cable LLC, Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant's part and the plaintiff's failure to demonstrate prejudice.

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Court Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines - eDiscovery Case Law

December 12, 2013

By Doug Austin

In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

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Samsung Again Owes Apple Almost $1 Billion, Sanction Deadline Nears – eDiscovery Case Law

December 02, 2013

By Doug Austin

The news continues to get worse for Samsung Electronics Co. in its colossal legal battle with Apple Inc. A California federal jury ruled on November 21 that Samsung owes Apple $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products to almost $930 million.

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Duty to Preserve Triggered When Litigation is "Imminent", Not "Reasonably Foreseeable" - eDiscovery Case Law

November 26, 2013

By Doug Austin

In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

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The Ubiquitous Apple Samsung Case and “Patentgate” – eDiscovery Case Law

November 15, 2013

By Doug Austin

When something gets the “gate” suffix added to it, that’s not a good thing. It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

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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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