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 September 23-29. Here’s what’s happening.
Get specific about metadata production
When negotiating ESI production, parties need to be explicit when they decide what will and won’t be shared, including the listing of metadata that should be provided alongside the documents themselves. It’s dangerous to assume the other side will share your definition of what’s reasonable.
The Sidley Blog writes about the issue in a post about Bah v. Sampson Bladen Oil Company, Inc., an employment discrimination case from North Carolina.
When the two sides submitted a joint Rule 26(f) report, they agreed that most ESI should be produced as TIFF files that “would also include metadata and searchable, extracted text.” (There was an exception for PowerPoint, Excel and audiovisual files, which would be produced in their native formats.)
But the parties didn’t specify exactly what metadata should be produced.
The defendant produced 13,000 pages in TIFF format, plus a handful of other documents. The defense also shared a load file with extracted text from the TIFFs and 13 metadata fields.
The plaintiff said the production was “completely unusable” because it lacked metadata fields such as date and parent-child relationship, making searching “extremely cumbersome and time-consuming.” So when the defense refused, the plaintiff moved to compel production of the other fields.
The judge denied the motion. For starters, because the discovery was text-searchable, it wasn’t completely unusable. It might not have been in the format preferred by the plaintiff, but the joint Rule 26(f) report never spelled out which metadata files should be produced.
And, the magistrate judge wrote, production has to be “reasonably usable” by the requesting party if the documents are in a non-native format, as the TIFF files were here. The ability to search by text fulfills that obligation.
In another case, Moore v. Garnand, the plaintiffs moved to compel production of photographic metadata from an arson investigation so they could assemble a timeline. Kelly Twigger has a new post about the case at the ACEDS Blog. We wrote it about here.
In this case, the plaintiffs succeeded and were able to get the metadata they sought because having time stamp metadata was critical in understanding the order of events that took place. But it would have been easier, and their case might have been in a stronger position, if they had specifically requested this metadata earlier in the process, Twigger writes.
Metadata can be incredibly useful when building a case, so parties should give it the attention it deserves. Ask for precisely what you need, right from the start. You might not get the chance later.
Resolving ESI disputes
Ideally, parties should negotiate an ESI agreement relatively quickly, with little or no judicial intervention. But sometimes, that isn’t possible.
At E-Discovery LLC, Michael Berman writes about a case where multiple orders had to be issued because the two parties struggled to agree on ESI. Parties should be wary about letting a judge set the ESI rules — after all, you might get the short end of the stick — but Berman says, rather than let the process drag on, a judicially imposed resolution might be better.
Having an e-discovery specialist on your side could help you negotiate an ESI protocol — or failing that, help you make your case to the judge when they intervene.
Other recent eDiscovery news and headlines:
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