Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of July 17-22. Here’s what’s happening.
The Importance of Following ESI Protocols
It’s important to have clear protocols governing electronically stored information (ESI) during discovery. Just as important is understanding what exactly you’re agreeing to and how the protocol might limit your means of recourse in a critical situation.
Michael D. Lerman provides a good reminder of that in a recent post at the EDRM Blog, where he wrote about a case from Illinois, Linet Americas, Inc. v. Hill-Rom Holdings, Inc.
Both sides agreed to a privilege log that only included metadata, such as email date, subject, sender and recipient. If the basis for privilege wasn’t clear from that information, then the producing party would have to include a privilege description.
But the defendants pointed to descriptions they said were too vague, making it impossible to determine if privilege existed. They wanted a separate description of what a redacted subject line or filename field contained.
Unfortunately for the defendants, the ESI protocol said it was enough to describe the nature of the underlying document or email itself, which the plaintiffs had done in their privilege descriptions. A separate description for a redacted field wasn’t necessary under the protocols.
Plus, the ESI protocol included a process for resolving disputes — one where the defendants could have requested a full Rule 26 privilege log entry, if they had a good-faith belief the communication in question wasn’t privileged.
The defendants never tried to use the process. As a result, the court ended up ruling against them.
Photographic Metadata and Discovery Disclosure
If your discovery includes photographic evidence, don’t forget about the metadata associated with those images. Metadata for images could include things like file name, creation date, author, size in bits and pixels and GPS coordinates or other location information. All of these items could be helpful for sorting, filtering and organizing the images in order to determine how they fit into the investigation.
That’s one of the takeaways from Moore v. Garnand, a case from Arizona. The plaintiffs say their constitutional rights were violated as part of an arson investigation, Doug Austin writes at eDiscovery Today. In the course of two searches, hundreds of photos were taken and later stored in the Tucson Police Department computers — along with metadata that wasn’t part of the original disclosure.
Discovery may have been impacted by law enforcement’s investigatory privilege, but the photos and their metadata apparently should have been part of the original disclosure, a magistrate judge said. The defendants also should have made an unredacted disclosure after the investigatory privilege was abrogated by the court.
The defendants argued that plaintiffs should have known the metadata existed and spoken up earlier. They also questioned whether the metadata was necessary for the plaintiffs’ goal – to determine the course of events during the searches.
Ultimately, the judge agreed with the plaintiffs and compelled the defendants to produce the photos with their metadata, saying it seemed to be both relevant and relatively easy to produce. He rejected the plaintiffs’ motion for sanctions.
Other recent eDiscovery news and headlines:
