Requesting party permitted to see only metadata and not substance of documents

Kravetz v. Paul Revere Life Insurance Co., 2009 WL 1639736 (D.Ariz. June 11, 2009)

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.

If John Constantine had been a lawyer, these sanctions would be his vision of ediscovery hell

Bray & Gillespie Management LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla., March 4, 2009)

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.

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Want to know more about metadata than Tina Fey knows about Sarah Palin?

Aguilar v. Immigration and Customs Enforcement Division, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008)

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.

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