Discarding a Relevant Computer Results in Adverse Inference Sanctions, Not Default Judgment: eDiscovery Case Law

By : Doug Austin

In Grady v. Brodersen, Colorado Magistrate Judge Nina Y. Wang granted the plaintiff’s motion for sanctions against the defendant in part for failing to produce a computer that the defendant ultimately acknowledged that he discarded, but denied the plaintiff’s request for a default judgment sanction, opting for the less severe adverse inference instruction sanction.

Sometimes You May Need Turn to 34 Year Old Technology to Get the Job Done: eDiscovery Best Practices

By : Doug Austin

If you’ve worked with computers for over three decades like I have, you remember some of the old ways we used computers to support litigation. Our colleague, Jane Gennarelli, covered some of those in her recent “Throwback Thursdays” series. But, a 34 year old software application can still be useful today.

Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law

By : Doug Austin

In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Free Trojans with Your Document Production: eDiscovery Trends

By : Doug Austin

An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

A New Calculator from EDRM and Other EDRM News: eDiscovery Trends

By : Doug Austin

Over a year ago, we discussed budget calculators available from the Metrics section of the EDRM web site and reviewed the four calculators available at the time. In the past couple of weeks, EDRM added a new calculator. Let’s take a look at that and also other upcoming EDRM events, including a webinar today.

Plaintiff Awarded Sanctions and Reimbursement of Some eDiscovery Costs: eDiscovery Case Law

By : Doug Austin

In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants' evasive and incomplete responses and their failure to produce documents during discovery.

Cyber Liability Insurance Policies are Becoming More Popular for Law Firms: eDiscovery Trends

By : Doug Austin

Last Friday, we discussed a report in The New York Times that discussed the unwillingness of most big US law firms to discuss or even acknowledge data breaches. But, despite the unwillingness to disclose breach information, more and more law firms are apparently purchasing or considering the purchase of cyber liability insurance to protect against potential data breaches.

Has the Law Firm Holding Your Data Ever Suffered a Breach? You May Never Know.: eDiscovery Trends

By : Doug Austin

In February, we discussed a report about data breach trends in 2014 and how those trends compared to data breaches in 2013. That report provided breach trends for several industries, including the healthcare industry, which suffered the most breaches last year (possibly because stolen health records are apparently worth big money). But, according to a recent report, you won’t see any trends for law firms because the legal profession almost never publicly discloses a breach.

Ten Years Later, The Impact of the Zubulake Case is Still Huge: eDiscovery History

By : Doug Austin

It’s hard to believe, but ten years ago this past Monday, the verdict was rendered in the Zubulake v. UBS Warburg LLC case. Let’s take a look back at the case and see what Laura Zubulake is doing today.

Managing Email Signature Logos During Review: eDiscovery Best Practices

By : Doug Austin

Yesterday, we discussed how corporate logo graphic files in email signatures can add complexity when managing those emails in eDiscovery, as these logos, repeated over and over again, can add up to a significant percentage of your collection on a file count basis. Today, we are going to discuss a couple of ways that I have worked with clients to manage those files during the review process.

Email Signature Logos are a Sign That Discovery Will be More Complicated: eDiscovery Best Practices

By : Doug Austin

Many, if not most of us, use some sort of graphic in our email signature at work that represents our corporate logo and many organizations have created a standard email signature for their employees to use when corresponding with others. It’s another subtle way of promoting brand recognition. But, those logos can add complexity when managing those emails in eDiscovery.

Defendant Does Not Take the Fall for Spoliation in Slip and Fall Case: eDiscovery Case Law

By : Doug Austin

In Harrell v. Pathmark et al., Pennsylvania District Judge Gene E. K. Pratter, after a hearing to consider whether to draw an adverse inverse instruction due to the defendant’s possible spoliation of video evidence, determined that “a spoliation inference would not be appropriate here”. Finding that the plaintiff had presented no evidence that the defendant had constructive notice of a dangerous condition resulting in her slip and fall, Judge Pratter also granted the defendant’s motion for summary judgment.

You Should Check the Level of Your Fuzzy When Searching: eDiscovery Best Practices

By : Doug Austin

If the title seems odd, let me clarify. I’m talking about “fuzzy” searching, which is a mechanism by finding alternate words that are close in spelling to the word you're looking for. Fuzzy searching will expand your search recall, but too much “fuzzy” will leave you reviewing a lot of non-responsive hits.

Simply Deleting an Email Doesn’t Mean It’s Gone, Even When It’s Hillary Clinton’s Emails: eDiscovery Trends

By : Doug Austin

Early in the life of this blog, we published a blog post called eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone to try to help our readers understand how disk drives keep track of files and how “deleted” files often can still be recovered. Something tells me that basic forensic concept will become a big issue in the coming weeks and months regarding Hillary Clinton’s deleted emails.

Big Money for Stolen Health Records: eDiscovery Trends

By : Doug Austin

Last month, we discussed how the number of data breaches was up in 2014, but the number of records breached was down. Of course, this year already got off to a rocky start when health insurance provider Anthem announced in early February that it had suffered what appears to be the largest breach ever in the health insurance industry, affecting about 80 million people. It turns out that those hacked health records are worth a lot in the black market.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: eDiscovery Case Law

By : Doug Austin

In Colosi v. Jones Lang LaSalle Americas, Inc., the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Court Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: eDiscovery Case Law

By : Doug Austin

In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., Ohio District Judge Timothy S. Black ruled that the duty to preserve for the defendant (an Australian company with offices and facilities only in Australia) did not begin until the complaint was filed in US courts in December 2011, denying the assertion of the intervenor/counter defendant that the duty to preserve arose in 2002.

What Time Is It? That is an Important Question When it Comes to Your Document Collection: eDiscovery Best Practices

By : Doug Austin

It may not be game time, but the question of what time it really is has a significant effect on how eDiscovery is handled.

Document Reviewers are People Too, Even in Canada, eh?: eDiscovery Trends

By : Doug Austin

A couple of weeks ago, a $384 million class action was filed in Canada against professional services firm Deloitte LLP on behalf of hundreds of lawyers working at a document-review company it acquired last year. Even in Canadian dollars, that’s a lot.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: eDiscovery Case Law

By : Doug Austin

In the case In Re: Lithium Ion Batteries Antitrust Litigation, California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

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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.