Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: eDiscovery Case Law

By : Doug Austin

A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Similar Spoliation Case, Somewhat Different Outcome: eDiscovery Case Law

By : Doug Austin

In Malibu Media, LLC v. Michael Harrison, Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Expanded Sources of ESI Show That Crime Doesn’t Pay: eDiscovery Trends

By : Doug Austin

I love the TV show Forensic Files – it amazes me how many different ways that law enforcement entities have to identify, catch and convict criminals. With that in mind, here are a couple of stories that show how expanded sources of ESI can be used as evidence in criminal cases.

Court Orders Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: eDiscovery Case Law

By : Doug Austin

In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Dispute Over Ownership of Social Media Accounts Lands Former Business Owner in Jail: eDiscovery Trends

By : Doug Austin

I don’t get to cover a story very often that originates from my hometown paper, the Houston Chronicle, but here is an interesting story about a former gun store owner being jailed for refusing to turn over the passwords to the social media accounts that used to be associated with his business.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: eDiscovery Case Law

By : Doug Austin

In Malone v. Kantner Ingredients, Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs' motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

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.

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.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

By : Doug Austin

In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

By : Doug Austin

In In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

Image Isn’t Everything, Court Says, Denying Plaintiff’s Request for Imaging on Defendant’s Hard Drives – eDiscovery Case Law

By : Doug Austin

In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff's motion to compel “full disk imaging of Defendant's hard drives, including Defendant's POS server, secretaries' computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

Twitter Might “Bug” You if You Want to Retrieve Archive Data – eDiscovery Best Practices

By : Doug Austin

Thanks to the Google Alerts that I set up to send me new stories related to eDiscovery, I found an interesting blog post from an attorney that appears to shed light on an archival bug within Twitter that could affect people who may want to retrieve Twitter archival data for eDiscovery purposes.

Simply Deleting a File Doesn’t Mean It’s Gone – eDiscovery Best Practices

By : Doug Austin

When a file is “deleted” (i.e., actually deleted, not just moved to the Recycle Bin), the data for that file isn’t actually removed from the disk (in most cases). So, where does it go? Let's find out.

eDiscovery in Arbitration Has Become Less…Arbitrary – eDiscovery Trends

By : Doug Austin

When you think of eDiscovery, you typically think of it as it relates to litigation – two sides of a case requesting and producing electronically stored information (ESI) as one means of identifying evidence designed to lead to resolution of a lawsuit. But litigation is just one method for dispute resolution. Another method is arbitration. But, do arbitrators really “get” eDiscovery? Let's see.

Court Rules that Joint Stipulation Supports Plaintiff’s Production of Images Instead of Native Files – eDiscovery Case Law

By : Doug Austin

In Melian Labs, Inc. v. Triology LLC, California Magistrate Judge Kandis A. Westmore denied the plaintiff’s motion to compel discovery in native form because the production format had been agreed upon under the parties’ ESI protocol under the Joint Rule 26(f) Report filed by the parties that supported production in “paper, PDF, or TIFF format”.

Twitter Sues for the Right to be More Transparent – Social Tech eDiscovery

By : Doug Austin

Back in July, we took a look at Twitter’s Transparency Report to show government requests for data over the last six months of 2013 (we had previously looked at their very first report here). However, because Twitter is barred by law from disclosing certain details on government surveillance requests, the Transparency Report is not as transparent as Twitter would like. So, on Tuesday, Twitter filed suit against the FBI and the Justice Department, seeking the ability to release more detailed information on government surveillance of Twitter users.

Court Denies Plaintiff’s Fallback Request for Meet and Confer after Quashing its Subpoena – eDiscovery Case Law

By : Doug Austin

In Boston Scientific Corporation v. Lee, California Magistrate Judge Paul S. Grewal found time to preside over a case other than Apple v. Samsung and granted the motion to quash the plaintiff’s subpoena for the defendant’s laptops, refusing the plaintiff’s fallback position to meet and confer and referencing Leave it to Beaver in the process.

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction – eDiscovery Case Law

By : Doug Austin

In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

Transparency Reports for Other Companies – Social Tech eDiscovery

By : Doug Austin

Over the past couple of weeks, we’ve taken a fresh look at Twitter’s Law Enforcement Policies and their latest Transparency Report to show government requests for data, looked at (for the first time) LinkedIn’s Privacy and Law Enforcement Data Request Guidelines and Transparency Report and, yesterday, looked at Facebook’s policies and Government Request Reports. Today, we will look at Transparency Reports for other companies.



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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