Petitioner Irwin noticed that a local government agency used a picture of Irwin in an email “news blast.” He claimed the agency used the photo without his permission, and sought modest compensation for the use of the photo. When the agency refused, Irwin sought information about the agency’s collection of digital images under New York’s Freedom of Information Law (“FOIL”).

The request sought “[a]ll computer records that are associated with published [photographs] in all [of the agency's] publications, including [Web site] and e-mail activities, for the years 2005, 2006, and 2007.” The agency produced some photos that were of reduced quality and “bereft” of metadata.

Irwin filed a court action to compel, among other things, the disclosure of the metadata associated with the requested records. The trial court denied Irwin’s petition, and Irwin sought review with the appellate court. On appeal, the court amended the judgment to order the production of the metadata.

The court emphasized that the decision was limited to its facts. But the case is worth reading because of its concise yet thorough explanation of the various types of metadata and their discoverability.

In this case, the court found that the scope of the petitioner’s request included “system metadata,” which are things such as file names and extensions, sizes, creation dates and latest modification dates. The court noted that FOIL’s scope generally includes electronic records. It then compared system metadata to the notes on a file folder describing attributes of the documents stored in that folder. Drawing on these notions, the court found that the agency should disclose system metadata associated with the requested computer files.

The disclosure of metadata appears, at a superficial level, to present a paradox. Some courts, such as the ones in Kentucky Speedway, LLC v. NASCAR, Inc., 2006 U.S. Dist LEXIS 92028 (E.D. Ky.2006) and Michigan First Credit Union v. CUMIS Insurance Society, 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007) have essentially found a presumption that metadata is not subject to disclosure because of the likelihood of its irrelevance.

But a look at emerging technologies such as those underlying the “semantic web” — an aspect of the World Wide Web in which data are encoded so that the various machines on the network can “understand” the data and thereby undertake the more mundane tasks of finding, sharing and combining information – underscore the potential importance of metadata.

Insightful counsel can break this paradox by remaining mindful of the need for metadata based on the claims and defenses raised in the matter. Hopefully the days of blanket requests for metadata, without a principled basis for such requests are over. Just like any other sort of information that pertains to a case, metadata has no inherent relevancy. Instead, the question of whether it should become a part of the record depends on its meaning. Metadata’s discoverability (or amenability to disclosure under freedom of information laws) should depend not on the fact that it is “metadata,” but on how it can serve to explain the scenario underlying the dispute.

Interested readers should also be aware of related opinions from other states. For example, the Arizona Supreme Court has held in (Lake v. City of Phoenix) that metadata is subject to disclosure under the state’s open records statute. Given the burden to governmental agencies tasked with responding to public requests, the issue of metadata’s discoverability is unlikely to disappear soon.

A series of Principles Relating to the Discovery of Electronically Stored Information (“ESI”) were developed and codified in a standing order. These principles are intended to serve as supplemental procedural ediscovery guidelines for the parties in selected cases. Individual district court, magistrate, and bankruptcy judges in the Seventh Circuit have agreed to adopt the principles and implement them in selected cases during Phase I of the program, which runs through May 1, 2010.

Kenneth J. Winters, the Managing Director of the Sedona Conference®, and former Colorado Supreme Court Judge Rebecca Kourlis, the Executive Director of the Institute for Advancement of the American Legal System (“IAALS”) at the University of Denver, assisted in the development and review of these principles.

IAALS is developing questionnaires to assess the efficacy of the principles. The questionnaires will be completed by the judges and lawyers participating in Phase I of the program. The results of the IAALS’ questionnaires will be presented to the Seventh Circuit at its annual meeting in May, 2010. At that time, the program’s ediscovery principles will be reviewed and refined as needed. Phase II of the program is scheduled to proceed from June, 2010 through May, 2011. It is contemplated that in May, 2011, Phase II findings will be presented and the Seventh Circuit’s final ediscovery principles announced.

Among other things, the principles require in the event of a dispute during the meet and confer process, the appointment of an ediscovery liaison who should be prepared to participate in ediscovery dispute resolution. These principles also recognize that that Rule 26(b)(2)(C)’s proportionality principles should be applied when formulating a discovery plan; provide that sanctions can be imposed for the failure to cooperate and participate in good faith in the meet and confer process; identify categories of ESI, which are generally not discoverable in most cases; and provides that if a party intends to request the preservation or production of these categories of ESI, that such a request be discussed at the parties’ initial meet and confer session or as soon thereafter as practicable.

Some of the other noteworthy aspects of the Seventh Circuit’s principles include:

• Acknowledging Fed. R. Civ. P. 1’s forgotten role in ediscovery by providing the purpose of these principles is to assist courts in the administration of the Rule’s requirement of securing “the just, speedy, and inexpensive determination of every action and proceeding.”
• Recognizing that an attorney’s ethical duty of zealous representation is not compromised by conducting discovery in a cooperative manner.
• Specifying that Rule 26(b)(2)(C)’s proportionality standard should be applied when formulating a discovery plan, meaning that requests for production and responses thereto “should be reasonably targeted, clear and as specific as practicable.”
• Noting that ESI disputes will be resolved more efficiently if before the initial conference with opposing counsel, the attorneys for each party review and understand how their client’s data is stored and retrieved in order to determine what issues must be addressed during their initial meet and confer discussions.
• Authorizing a court to require additional discussions prior to the commencement of discovery and/or to impose sanctions where appropriate on any party or counsel that fails to cooperate and participate in good faith in the meet and confer process.
• Requiring in the event of a dispute concerning the preservation or production of ESI, the designation of an ediscovery liaison for the purposes of meeting, conferring, and attending court hearings.
• Providing the ediscovery liaison may be an in-house or outside counsel, a third-party consultant, or an employee of a party.
• Specifying the ediscovery liaison must be prepared to participate in ediscovery dispute resolution; know the parties’ ediscovery efforts; and have access to those who are familiar with the parties’ electronic systems and capabilities in order to explain those systems and answer relevant questions. The ediscovery liaison must also have reasonable access to those who are knowledgeable about technical aspects of ediscovery.
• Providing that vague and overly broad preservation orders should not be sought or entered and noting that the information sought to be preserved through a preservation letter or court order should be reasonable in scope and mindful of Rule 26(b)(2)(C)’s proportionality factors.
• Explaining that if the recipient of a preservation letter chooses to respond, the response should provide useful information regarding the preservation efforts undertaken by the responding party. Examples of useful and specific information for such a response include the information a responding party is willing to preserve, the steps taken in response to any preservation letter, any disagreements with the preservation request, and any further preservation issues that were not raised.
• Mandating that every party and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody, and control.
• Recognizing that discovery concerning another party’s preservation and collection efforts may be appropriate, but noting that if used inadvisably, can cause unnecessary expense, delay, and may unnecessarily implicate work product and attorney-client privilege. Requires that prior to initiating such discovery, the parties are expected to meet and confer concerning its need and the suitability of alternative means for obtaining that information. Acknowledges this requirement does not preclude deponents addressing the merits of the case from answering questions concerning the steps taken to preserve and collect ESI.
• Specifying that certain categories of ESI are considered generally “not discoverable” in most cases and requiring a party that intends to request the preservation of production of those categories of ESI, discuss that discovery request at the parties’ initial meet and confer session, or as soon as practical thereafter.
• Identifying categories of ESI that are generally not discoverable to include: (a) deleted, fragmented, unallocated data, or data found in the slack space of computer hard drives; (b) random access memory (RAM) or other ephemeral data; (c) temporary internet files, history, cache, cookies, and other forms of on-line access data; (d) data in metadata fields that are frequently updated automatically such as last-open dates; (e) backup data that is substantially duplicative of data that is more accessible elsewhere; and (f) other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.
• Requiring in the event of a dispute concerning the scope of a party’s preservation efforts that counsel meet and confer and fully explain their reasons for believing that additional efforts are not reasonable or appropriate.
• Encouraging parties, at their initial Rule 26(f) conference, to discuss ways to eliminate duplicative ESI, including horizontal or vertical deduplication, the filtering of data by date ranges, file types, custodians as well as the use of search terms, keyword searching, concept clustering, or other advanced methodologies.
• Providing that ESI or other tangible or hard copy documents, which are not text searchable, need not be made text searchable when produced.
• Recognizing the requesting party is responsible for the incremental cost of creating its copy of any requested information.
• Encouraging parties to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or other forms of non-text-searchable ESI.
• Noting that ESI stored in a database or a database management system can be produced by querying the database for discoverable information resulting in a report or a reasonably useable exportable electronic file for review by the requesting party or its counsel.

Several years ago, in an article to the members of the Illinois Association of Defense Trial Counsel, I wrote that if left unchecked, the cost of electronic discovery will prove to be the biggest single threat to our civil jury trial system. Only time will tell whether these steps will fulfill their purpose of streamlining ediscovery and reducing the cost of federal-court litigation or whether a more “radical” step such as some form of mandatory cost as under the Texas rules will be required.

Pilot photo courtesy of Flickr user UNC – CFC – USFK under this Creative Commons license.

Plaintiff sought disability benefits from defendant insurance companies, but the insurance companies denied the claim. So plaintiff sued. The insurance companies sought discovery of the hard drives and storage media plaintiff had used for business purposes.

After plaintiff objected to this discovery, defendants moved to compel. The court granted the motion, but added an unusual twist — it allowed the defendants to see the metadata from documents the plaintiff had worked on but prohibited review of the documents themselves.

The court found that the insurance companies “need not and may not review the substance of documents on plaintiffs’ hard drives and media devices.” Accordingly, the order permitted a third party consultant “only [to] extract metadata and other necessary electronic information regarding the amount of time spent on documents.”

While metadata may often be irrelevant to the claims or defenses in a matter, the court in this case recognized a limited purpose for which it may properly be discovered. The insurance company sought the information merely to ascertain how much time the plaintiff spent working on the computer. The actual content of the documents was apparently unrelated to the disability claims.

The plaintiff had challenged the metadata’s ability to show the number of hours he worked on the computer. But siding with the notion of broad discovery, the court advised that the plaintiff would be free to challenge the weight the information should be given at trial.

By now, any attorney worth his or her salt knows that the federal rules have set up a two-tier system for the discovery of electronically stored information (“ESI”). Under Rule 26(b)(2)(B), a party need not produce ESI from sources that it “identifies as not reasonably accessible because of undue burden or cost.” The federal rules themselves do not provide any guidance as to what “sources” of ESI should be considered “inaccessible.” Indeed, the Advisory Committee Notes explain: “it is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information.”

One of the conundrums created by the federal ediscovery rules is whether there is any duty to preserve ESI from a source that a party has designated as “inaccessible.” The Advisory Committee Notes to Rule 26(b)(2) explain that the identification of a source as inaccessible “does not relieve the party of its common law or statutory duties to preserve evidence.” The Advisory Committee Notes furnish no guidance for counsel in this scenario. The Notes to Rule 26(b)(2) state that whether a party is required to preserve ESI from an inaccessible source “depends on the circumstances of each case.” The Note then observes, “[i]t is often useful for the parties if you discuss this issue early in discovery.”

In Forest Labs, the defendants filed a spoliation motion claiming the plaintiff failed to preserve backup tapes concerning the drug it manufactured which was the focus of the litigation. The district court concluded that the backup tapes in question were inaccessible because they were used solely for disaster recovery purposes. Nonetheless, the court ordered that a hearing be held on the defendant’s spoliation motion. The court also noted that if ESI is destroyed intentionally or willfully, “that fact alone is sufficient to demonstrate [the] relevance” of the lost evidence, and would be sufficient to warrant the entry of sanctions. However, as our last post indicated, the Fifth Amendment’s Due Process Clause can limit the type of sanctions which may be imposed for the loss of ESI, and requires a nexus be demonstrated between the information destroyed, and the plaintiff’s claim or the defendant’s defense.

Federal Law Governs Spoliation Sanctions

Forest Labs initially noted that the Sixth Circuit in Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009)(en banc), recently held that federal law governs the imposition of sanctions for spoliation in all federal cases. The Sixth Circuit in Adkins observed that previously the Second, Fourth, and Ninth Circuits had reached the same conclusion. Those courts recognized that the authority to impose sanctions for spoliation stems from a court’s inherent power to control the judicial process, and “is evidentiary in nature.” Adkins also explained that “federal courts generally apply their own evidentiary rules in both federal question and diversity matters.”

No Sanctions For Destroying Evidence Before A Duty To Preserve Is Triggered

The district court in Forest Labs also recognized that a party seeking sanctions must first show that the opposing party had a duty to preserve the allegedly spoliated ESI at the time it was destroyed. As the district court aptly noted: “any destruction of potentially relevant evidence that occurs before the trigger date would be harmless, since the party was unaware of the need to safeguard evidence.”

Party Seeking Sanctions Must Provide Support For Its Position That A Duty To Preserve Was Triggered

In Forest Labs, the defendants asserted that the plaintiffs “should have known by the late 1990’s, when [they] first began developing [the drug], that litigation over the patent was inevitable.” The court rejected that argument noting that the defendants had proffered no evidence that could support such a finding. The district court explained that the defendants provided no proof that anyone “under plaintiffs’ control had reason to anticipate, or actually did anticipate litigation in the 1990’s.” The court rejected the argument that a duty to preserve is triggered simply when future litigation was merely possible. The court explained that such an approach would be crippling for large corporations.

However, in 2003 plaintiffs brought suit against another company alleging infringement of the same patent as the one at issue in this case. As a result, the court concluded that a duty to preserve was triggered in August 2003 by virtue of that prior litigation. Because plaintiffs acknowledged that they did not halt the recycling of their backup tapes until almost two years later in May, 2005, the court in Forest Labs then analyzed whether the backup tapes in question were inaccessible, and/or needed to be preserved.

Preservation of Inaccessible Sources of Information

In addressing whether there was any duty to preserve backup tapes in this instance, the court in Forest Labs turned to Zubulake where the court explained:

As a general rule, [a] litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in it’s policy. On the other hand, if the backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would be likely subject to the litigation hold.

Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). As a result, the court in Forest Labs concluded that if the backup tapes that had been destroyed were “inaccessible,” there could be no sanctions for spoliation. The court then concluded that the backup tapes were inaccessible because they were solely used by the plaintiff for disaster recovery.

However, the district court also noted Zubulake further held that if a party can identify where a particular employee’s documents are stored on backup tapes, then those tapes should be preserved if the information contained on the tapes is not otherwise available. Zubulake noted that when the exception is applicable, it applies to all backup tapes. Zubulake, 220 F.R.D. at 218.

Accordingly, the court ordered that a hearing be held to determine whether or not the Zubulake exception was applicable. The court in Forest Labs observed that the Zubulake exception has three requirements. First, a party must be able to identify where particular documents are stored on backup tapes. Second, it must be shown that documents of those key players are actually stored on the tapes. Finally, the information stored on the tapes must not be “otherwise available.” The court ordered that the hearing was to focus on the application of Zubulake’s exception for the backup tapes in question.

Culpability and Relevance

Forest Labs noted that the failure to produce information can fall “along a continuum of fault ranging from innocence through the degrees of negligence to intentionality.” It observed that Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991), recognized that the sanction of an adverse inference should be available even for the negligent spoliation of ESI. The court in Turner explained: “it makes no difference to the party victimized by the destruction of evidence whether the act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance.”

However, Forest Labs also recognized that the party seeking sanctions must produce some evidence suggesting that the documents destroyed were relevant to their claim. The court noted that relevance in this context means something more than “sufficiently probative to satisfy Rule 401.” Rather, the relevancy test to obtain sanctions for spoliation requires that a party demonstrate the lost evidence “would naturally have been introduced into evidence.”

However, Forest Labs also recognized that prior decisions had concluded that “when evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance. By contrast, when the destruction is negligent, relevance must be proved by the party seeking the sanctions.”

The Federal Rule’s Approach to Inaccessible Sources of Information

While the district court in Forest Labs relied exclusively upon Zubulake in ordering the hearing, it should be noted that the approach taken by the federal rules for determining whether a source is “inaccessible” involves an analysis of the costs, and burdens of retrieving and producing ESI from that source. Thus, a number of factors including the condition of the backup tapes, and whether they are indexed, organized, electronically searchable or have to be restored are factors to consider on the issue. The number of hours it would take to restore, search and produce the information could vary significantly based on these and other factors. Thus, counsel should resist the temptation of simply focusing on a single factor as in Zubulake in determining whether information on backup tapes is inaccessible.

So what are your options when it comes to preserving inaccessible sources of information? You essentially have four. A party can do nothing, and continue to reuse its tapes or backup storage media on its regular rotation cycle. However, as the Forest Labs decision demonstrates, that approach can result in sanctions, even when the backup tapes are considered inaccessible. Additionally, it a party uses its backup tapes for anything other than for disaster recovery, it is unlikely that a court will conclude those backup tapes are inaccessible.

A somewhat less risky approach is to remove selected tapes from their normal rotation cycle which may contain relevant information. However, a party still runs the risk that an argument will be made that relevant information was contained on other tapes that were not preserved, and that a motion for sanctions be brought. We do not recommend either of these approaches, but recognize that some clients are more risk tolerant than others.

What the Advisory Committee Notes encourage is a discussion between the parties, and if possible, an agreement between the parties concerning whether there is any obligation to preserve ESI from an inaccessible source. If such an agreement cannot be reached, the safest course to action is to bring the issue to the court’s attention, and seek a ruling that the preservation of information from an inaccessible source is unnecessary. When such a ruling is sought, be sure to provide the court with a declaration explaining in detail not only why the source of information is inaccessible, but also outlining the cost to the client of having to preserve the information on those tapes indefinitely.

Finally, in our last post, we addressed a recent decision recognizing the Fifth Amendment’s Due Process Clause can in appropriate instances, limit the nature and/or extent of the sanctions imposed for the spoliation of ESI. We suggest that such an instance is presented when a party claims that it does not need to prove the “relevancy” of the lost information because it was allegedly disposed of “intentionally or in bad faith” as noted in Forest Labs. If the lost or missing information has nothing to do with any party’s claim or defense, it would seem that the Fifth Amendment should preclude the issuance of an adverse inference or a default judgment. A party case or defense should not be prejudiced in that way by the loss or destruction of ESI which is not relevant to the case.

In the movie Constantine, Keanu Reeves plays an occult detective with the ability to detect demonic beings on earth, and to see into hell. Had his character been a lawyer rather than an occult detective, he would simply have to read the Bray & Gillespie decision to see what a vision of ediscovery hell looks like.

The Bray & Gillespie decision addressed some basic ediscovery mistakes involving a request for production of ESI in its native state with its accompanying metadata. However, those mistakes were compounded by what the Magistrate Judge described as material misrepresentations and omissions by counsel for the party producing that data. The decision also stands as a stark reminder that a supervising partner, and his firm can be held liable for the ediscovery snafus of their local counsel and predecessor counsel.

The court recognized that any motion for sanctions, even one which names only the party, puts both the party and its attorney on notice that the court may access sanctions against either or both of them, absent a showing of substantial justification for the conduct at issue. In Bray & Gillespie, the court determined that it was not appropriate to require the client to pay for the sanctions resulting from the decisions made by its outside counsel. Rather, the court sanctioned outside counsel and his firm, and also issued a Rule to Show Cause why another attorney from that firm should also not be personally sanctioned for his conduct in the case. Even more chilling is the fact that the Magistrate Judge indicated that she was willing to entertain additional sanctions, including a request that the court dismiss the case, if the data she ordered produced contained more metadata than what the sanctioned attorneys offered to produce in discovery.

The plaintiff (B & G) owned a series of resorts in Florida that were damaged by Hurricanes Charley, Frances and Jeanne. The resorts were insured through Lexington with a $25 million per occurrence property damage limit. The dispute involved whether the damage to the resorts was the result of three separate “occurrences,” and whether Hurricane Jeanne caused any property damage in addition to the damage caused by the prior two hurricanes.

Counsel for the B & G initially gathered paper documents and ESI relating to the damage caused by the three hurricanes. The paper documents were scanned, and the ESI, including emails and their attachments, were harvested in their native format. The scanned documents and the ESI were then downloaded to a hard drive and converted to TIFF images. The process used to create the TIFF images captured the metadata for the ESI. The TIFF images were then loaded into a litigation management database. Counsel for B & G provided copies of the documents in both their paper form and on discs to Lexington in support of their insurance claims.

Lexington initially determined that the damage to the plaintiff’s properties was the result of only one occurrence. Later, it paid an additional $25 million to B & G for the damages associated with the second hurricane. Plaintiff (B & G) then filed suit seeking damages caused by the third hurricane.

Lexington filed several production requests seeking ESI in its native format “without deletion or alteration of meta-data.” B & G never objected to the form of production specified in the defendant’s production request, a critical mistake in retrospect as it turned out.

B & G’s initial production response referenced an agreement between the parties in which it agreed to reproduce all of the documents and ESI which had been provided to Lexington prior to the commencement of the litigation, and further indicated that would begin production of additional documents on a rolling basis. That initial production response further noted that per that agreement, “all documents will be provided by sending discs containing scanned copies of the documents; no hard copies of the documents will be provided.” Counsel for Lexington understood that the reference to scanned documents only applied to those documents that originally existed in paper form, and did not apply to ESI.

Lexington filed several motions to compel, and following a renewed motion to compel, B & G discharged its original counsel which had collected the and produced pre-suit, the ESI and paper documents to Lexington. In response to Lexington’s first motion to compel, B & G, produced a disc containing approximately 100,000 documents. In response to Lexington’s renewed motion to compel, B & G produced another 7 discs of information which contained over 720,000 pages of documents, many of which were emails. However, the ESI B & G produced was not in its native state in those two productions, rather the ESI was produced as TIFF images without any optical character recognition (OCR) or the addition of any metadata loads. These two productions were handled by B & G’s local counsel. At some point during this process, new counsel for B & G became involved, and what transpired is a textbook example of how a lawyer can make a bad situation worse.

According to the court, that new counsel “concocted a story” about how the ESI was initially gathered – that B & G had printed the documents from its electronic systems, and then scanned the documents to create TIFF images of them. While new counsel was not involved with the original production, in court’s view he ignored known or readily available facts about the actual process used to collect and produce that ESI.

As you might expect, Lexington filed a motion for sanctions because those productions did not comply with the format specified in its production requests. B & G’s new counsel offered to produce “load files” with 7 metadata fields for the TIFF images previously produced, and was willing to add OCR to the text of the images. Additionally, at some point, counsel offered to provide Lexington with all of the metadata in the database that was originally harvested by B & G’s predecessor counsel. However, when Lexington asked B & G to disclose in writing what metadata was contained in that database, B & G’s new counsel inexplicably withdrew that offer.

In response to Lexington’s motion for sanctions, B & G’s counsel claimed that their failure to learn how the information had been gathered, and produced by predecessor counsel was the result of predecessor counsel’s refusal to provide them with the information. However, at a subsequent evidentiary hearing, B & G’s counsel conceded that the problems with predecessor counsel had been overstated, and they could not provide any examples of information requested that had not been provided. Additionally, B & G’s counsel admitted at that evidentiary hearing, that he had incorrectly advised Lexington that the ESI had been printed out and scanned. At no time during the process did counsel ever mention the existence of the original hard drive containing the ESI in its native state, the production of which could have avoided the entire problem. Moreover, once the motion for sanctions was filed, B & G’s counsel worked with an outside vendor, Logix Systems, to provide the missing metadata.

So what lessons can be learned from the Bray & Gillespie decision?

Do not ignore production format.

As one of my partners was fond of saying: “Sometimes its good to begin at the beginning.” Always carefully examine the format chosen by your opponent for the production of any ESI. Discuss the pros and cons of the requested format with the client, and if the client prefers that its data be produced in a different format, then timely object to the format so the objection is preserved.

Don’t simply ignore the issue, and produce data in the format of your choice, otherwise you may be forced to produce the data a second time in a different format or face sanctions as in Bray & Gillespie. Remember, however, that the ESI must be produced in a “reasonably useable format.” The court in Bray & Gillespie ruled that the TIFF images without OCR and any metadata load files was not reasonably useable. In that state it could not be electronically searched. Remember that the Advisory Committee Notes to Rule 34 provide that if the client maintains or stores its data in a form that is electronically searchable, whatever format you produce that data cannot significantly degrade its electronic searchability.

Responsibility of Supervising Partners or Managing Attorneys

Supervising counsel must also take their responsibilities seriously. In Bray & Gillespie, local counsel was involved in several of the productions which failed to comply with defendant’s requested production format, and the failure to object to the production format was made by predecessor counsel. However, the court directed most of ire, and its Rule to Show Cause against B & G’s counsel who was not involved in either production which ultimately prompted the renewed motion for sanctions and evidentiary hearing. Bray & Gillespie should be read in light of In re Seroquel Productions Liability Litigation, 244 F.R.D. 650 (M.D. Fla., 2002), where new counsel was also sanctioned for inadequate supervision of the production process. Changing horses midstream is especially difficult when it comes to ediscovery. Moreover, counsel taking over for another firm should not expect leniency from a court regarding the discovery decisions made by prior or local counsel.

Complete candor is a must.

Finally, when you realize a mistake has been made, complete candor with opposing counsel and the court is a must. There is an old saying: “When you’re explaining, you’re losing.” Attempting to explain a misstatement about a discovery mistake, may make it appear as if you are attempting to hide the mistake. Busy counsel must take the time to make sure that they have their facts correct, otherwise they run risk of geometrically compounding the original error and taking a situation that might be resolved, and turning it into one where sanctions are likely.

If your answer to this post’s headline is yes, then here is the case you have been yearning for. In the holiday spirit of “one-stop shopping,” one district court recently attempted to explain everything you ever wanted to know about metadata but were afraid to ask.

The district court in Aguilar v. Immigration and Customs Enforcement Division explains not only what metadata is, but also talks about its various types – application metadata, system metadata and embedded metadata.

The opinion notes that not all metadata is necessarily useful or discoverable and discusses when production of the various types of metadata may be warranted. The court even mentions how the Sedona Principles’ position on metadata has changed over time – and luckily for us, Sedona has not changed its position on metadata as frequently as Illinois’ Lt. Governor has changed his position on how a new Senator from Illinois should be selected.

As an added bonus, the court also explains what native files are (and no, fighting-Illini fans, it has nothing to do with the Chief) as well as “load files” for TIFF production. Importantly, the court traces a series of decisions and concludes that where the metadata is not requested upfront with the initial discovery request, courts are less inclined to grant belated requests for metadata, after collection efforts have begun or data has been produced.

If you want to be able to impress your lawyer friends at cocktail parties with your IT knowledge or simply be able to smoke that know-it-all associate the other side sends to the next discovery scheduling conference who has a nasty habit of asking for native files and metadata, then hunker down with Aguilar.