Metadata

Does Forwarding Emails To An Opposing Party Qualify As A Sufficient Method of Transfer for Discovery Purposes?

The employee in this case was not an inexperienced layperson, but rather a seasoned and accomplished trial attorney. Yet even with her wealth of knowledge regarding discovery, she was nearly cited for contempt of court as a result of her unfamiliarity with electronic discovery obligations. When obligated to turn over emails to your opposing party during discovery, it is not enough to simply forward the email. Courts require the emails to be in their native form, which means containing the crucial metadata contained within the original email. In Sexton v. Lecavalier, the plaintiff, Byron Sexton, subpoenaed all documents in the defendant’s possession regarding several business entities. The subpoena provided that if these documents were in electronic form, the copies produced must be in their “native” format. In response to the subpoena, the defense attorney produced numerous documents including eleven emails that had been forwarded to her from her client’s Gmail account. The defense attorney claimed that she could not access the emails in their original format and even had an IT expert testify that the emails could not be accessed in their native format because the infrastructure for the email is controlled by Google, who does not allow its users to copy emails in native format. The issue in this case is that the emails were located in the “cloud,” and thus stored with a third party. However, even though a third party held the emails, the plaintiff argues that there are two ways to preserve the crucial metadata. (1) Emails can be downloaded to an email client such as Microsoft Outlook and then saved onto a computer in the format used by the client; and (2) Gmail emails that have been displayed in their “original” format by clicking “show original” and then saved as a PDF. The court held that even though the plaintiff currently lacked access to the files in their native format, this fact does not absolve counsel of her discovery obligations. A growing number of attorneys and courts are realizing the evidentiary value to metadata and as this trend continues, it is becoming crucial for parties to preserve all relevant electronic data. There is currently electronic discovery software in existence, which makes preservation of data a whole lot easier (http://www.ediscovery.com/solutions/collect/ is merely one example of such software). The presiding judge went on to scold both parties for even bringing this discovery disagreement in front of the court. The judge stated that the parties should have resolved this matter outside of court and that the defendant could have provided the emails in a correct format with minimal cost. However, the judge believed that the defense attorney had a good faith belief that the emails could not be provided in their native format and refused to hold her in contempt. It seems that ignorance was the defense attorney’s saving grace. Any practitioners reading this will not have the luxury of such a defense. In order to avoid charges of contempt being levied against you in the future, it would be wise to invest in electronic discovery software. At the very least, you should download Microsoft Outlook and save all of your emails in a format that preserves metadata such as .eml or .msg. As less paper copies of documents are being utilized, and as electronic storage is becoming more prevalent, native documents are going to become an issue increasingly seen by courts. Additionally, resolve any such discovery issues with your opponent. No judge wants his or her time wasted with similar motions compelling discovery. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

Think Plaintiffs Have All the Leverage? Not If They Spoliate.

Individual plaintiffs often exert settlement leverage against corporate defendants because, irrespective of the merits of the suit, the prospective costs of litigation coerce early settlement.  Therefore, an individual plaintiff often has nothing to lose.  Even if a plaintiff’s suit is meritless, often times the worst case scenario faced is dismissal of the suit.  Additionally, where a case is taken on a contingent fee basis, an individual plaintiff is merely left where they started.  However, Taylor v. Mitre Corp. shows that in some circumstances an individual plaintiff can in fact find himself or herself in a worse position than prior to litigation. In Taylor, the plaintiff of the same name filed suit against his former employer, The Mitre Corporation, alleging violations of the Family Medical Leave Act and Americans with Disabilities Act.  However, it was Taylor that was soon on the defensive.  First, Taylor was accused of spoliating evidence when he smashed a work computer with a sledge hammer.  It is not clear what sanctions resulted from this conduct; however, the court did not remain quiet following Taylor's later response to the Magistrate Judge's ordering Taylor to produce his laptop for inspection.  Upon issuance of the order, Taylor promptly ran specialized programs—Evidence Eliminator and CCleaner—on his computer for the clear purpose of deleting relevant data and information. Upon learning of Taylor's second act of spoliation, the court sanctioned Taylor by dismissing his suit.  A severe sanction, of course, but it is arguable whether dismissal alone serves as an effective deterrent to future spoliation of evidence.  After all, if a plaintiff has extensively spoliated evidence, it is likely that a plaintiff’s case was not meritorious in the first place.  Additionally, dismissing a non-meritorious suit will merely leave the plaintiff where he started and leave the defendant out a bundle of unnecessary litigation costs. Accordingly, the court not only dismissed Taylor's suit but also found him responsible for Mitre's reasonable fees and costs associated with the motion for sanctions—$202,399.66 in total.   The court arrived at this total by applying the lodestar methodology and was not swayed by Taylor's claim of financial hardship.  It is believable that an individual plaintiff will be hard-pressed to pay such costs; however, the court reasoned that reducing an award of fees and costs is appropriate where the full sanction will have a chilling effect on the filing of future, potentially meritorious, claims.  The court found that imposing sanctions for bad-faith spoliation would not have such a chilling effect, and therefore refused to reduce the award in favor of Mitre. So what's the moral of the story?  In many cases a plaintiff will have little to lose and the nuisance value of their suit places them in strong settlement position.  But conduct by the plaintiff in bad-faith can quickly shift this leverage. Adam L. Peterson is a graduate of Seton Hall University School of Law (Class of 2014).  Adam was a member of the Seton Hall Law Review and, prior to law school, Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.  

Have You Demonstrated Prejudice For Your Spoliation Sanctions? The Tenth Circuit Requires It

Defendant Rain Link, Inc. received notice that the plaintiff was accusing the company for violating the Americans with Disabilities Act and the Kansas Act Against Discrimination by its receving a letter written by the Kansas Human Rights Commission dated June 10, 2009.  Rain Link acknowledged that it anticipated litigation and, therefore, had a duty to preserve evidence concerning the plaintiff’s allegations.  Although, it is clear from the record that Rain Link did not properly preserve documents, and in some cases, destroyed documents, U.S. Magistrate Judge K. Gary Sebelius found that the plaintiff did not demonstrate prejudice or bad faith on the part of the defendant to allow for plaintiff’s spoliation sanctions or adverse jury instruction.  The District Court judge adopted the report. Plaintiff sought five spoliation sanctions and all, but one, were dismissed with prejudice.  The admission of evidence related to the defendant’s spoliation of evidence was left to the judge presiding over the trial to decide when given the documents placed into evidence.  The plaintiff relied on a 2007 Kansas case, In re Krause, which was prior to the Tenth Circuit’s adoption of a showing of prejudice.  Spoliation sanctions are proper in the Tenth Circuit when: (1) a party had a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.  This differs from New York and the Zubulake case, which allows for a presumption of prejudice given destruction of documents concerning the litigation.  The U.S. Magistrate Judge Sebelius found that not only did the plaintiff not show prejudice concerning defendant’s destruction of documents, but also that the plaintiff’s examples of destruction showed negligence due to defendant’s routine practices as opposed to intentional deprivation of evidence to the plaintiff. Concerning an email that occurred subsequent to plaintiff’s notice of litigation between itself and Meritrust Credit Union, Rain Link failed to preserve the email in native-format and its attachments and instead produced the document in hardcopy without attachments to the opposing counsel.  The magistrate judge found that the plaintiff did not demonstrate a prejudice as to how the evidence was relevant to his claims.  The plaintiff also requested Rain Link’s drafts of corporate meeting minutes.  However, since Rain Link’s outside counsel notified the court that it was company policy to change the minute drafts after meetings and immediately file them electronically in addition to counsel’s advising clients (including Rain Link) to discard drafts of meeting minutes in order to avoid billing issues, the court found that there was no prejudice and little relevance in requiring the metadata of minute drafts. A more difficult issue arose from a May 6, 2009, telephone conversation between plaintiff’s counsel and defendant’s counsel as described in the defense’s memorandum of law.  Defense counsel’s memorandum asserted that plaintiff abandoned his job while the plaintiff argued that he was terminated by Rain Link.  The defense presented their memorandum in PDF format and explained that due to a computer crash in October 2009, the native format version was lost.  The magistrate judge acknowledged that the plaintiff’s arguments concerning the actual date of creation of the memorandum was relevant to the case and the plaintiff’s argument ultimately hinged on defense counsel’s veracity.  The plaintiff did not demonstrate that defense counsel would misrepresent evidence to the court.  Evidence concerning work in progress data was found to be insufficient and left for the presiding judge to determine if there was prejudice to the plaintiff. Due to the plaintiff’s lack of showing prejudice in the spoliation of documents, the court did not complete a full analysis of bad faith.  However, since the record demonstrated more negligence than intentional wrongdoing, an adverse jury instruction would not be appropriate.

Court Hesitant to Impose Discovery Sanctions Despite Defendant’s Delay and Non-Compliance With Court Order

If I told you that your company delayed for nearly seven months to produce electronic documents critical to a pending lawsuit, you would think the judge presiding over your case may be a bit perturbed, right? What if I also told you

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Cop Out? Government Can’t Withhold Metadata of a Police Report When it Relates to the Prior Conduct of an Arresting Officer in a Criminal Case

Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose http://www.eifel-plus-immobilien.com/star/viagra-generic.html it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First http://pyramidautomation.com/fadr/non-prescription-cialis.html and always angled manufactured true.

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Be Concrete! Court Requires Specificity for eDiscovery in Ford’s Contaminated Concrete Case

Be careful what you ask for…or don’t ask for! Electronic discovery may be something of a new phenomenon when it comes to the discovery of information in preparation of litigation but one idea has always remained constant: discovery requests should always be specific. That’s what Edgewood learned in Ford Motor Company v. Edgewood Properties Inc., a case that arose from a contract in which Ford agreed to provide concrete to Edgewood in return for Edgewood hauling it off the demolition site where a Ford assembly plant in Edison, New Jersey was being demolished. Besides the discovery process, what wasn’t so “smooth” was the concrete, as it later turned out that the concrete was contaminated, thereby bringing about Ford’s claim against Edgewood under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the New Jersey Spill Act for “contribution and indemnification for all costs as provided under the contract.”

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Hauled to Court Over ESI

Imagine requesting data in native format and receiving it in Tagged Image File Format? This is what Edgewood received from Ford Motor Company (“Ford”) instead of the metadata they requested.  The discovery request came as a result of a lawsuit between Ford and Edgewood involving the removal and reuse of contaminated recycled concrete aggregate, which Edgewood procured through the demolition of an automobile assembly plant owned by Ford in Edison, NJ. To remove a portion of the concrete, Ford entered into a contract with Edgewood in which Ford agreed to provide concrete to Edgewood free of charge in exchange for its removal from the site.

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Money for What You Need, Not What You Want

The cost of filing a time-barred suit can be more than just losing the case on the defendant’s motion for summary judgment. In In re Aspartame Antitrust Litigation, the court awarded $510,138.18 in fees to the prevailing party after defendants won a motion for summary judgment because the plaintiff’s claims were time-barred by the statute of limitations. The largest portion of the fees being disputed involved the costs of creating a litigation database, processing and hosting electronic data, conducting keyword and privileged screens on the documents in the database, making documents OCR searchable, extracting metadata, and related activities. A closer examination of the court’s breakdown of the cost is necessary to determine what costs a losing plaintiff can expect to be burdened with.

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Public Records Under FOIA, Please (and Can I Get a Side of Metadata and Cole Slaw With That?)

UPDATE: The court opinion previously filed by Judge Scheindlin involving the case Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency has been withdrawn.  Significantly, the opinion stated that metadata that is maintained by an organization is assumed to be producible under the Freedom Of Information Act, unless the organization is able to prove that the data is not “readily reproducible.”  The opinion also specified guidelines indicating the appropriate amount of metadata that should supplement any collection of digital record. This opinion has since been withdrawn and Judge Scheindlin expressly stated, in so doing, that “it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit” and reasoned that it “was not based on a full and developed record.” Click here for a copy of the order.

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Electronic Shenanigans… Busted!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data.  It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services.  The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

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