Saturday, June 20, 2009

2009-06-20 Counsel Competency and eDiscovery, Meet and Confer - The New Black, and eDisovery Apocrypha, or a Trip Down (Sedona's) Memory Lane

A light week for eDiscovery and digital evidence, with two decisions. Interestingly enough, these decisions provide a study in contrasts, and also point out the dangers lurking in misdescribing, misapplying, or misapprehending the nature of computer generated information or data. The first, from the District of Arizona, finds the court compelling production of metadata. Interestingly enough, the second decision, from the U.S. District Court for the Eastern District of Wisconsin, relies on the “old” Sedona Principles, and finds that metadata need not have been preserved. That said, this second decision might be more representative of two failures by plaintiff: competency, and failure to meet and confer.



Kravetz v. Paul Revere Life Ins. Co., 2009 WL 1639736 (D. Ariz. 2009)
Kay Beer Distributing, Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. 2009)

Case: Kravetz v. Paul Revere Life Ins. Co.
Citation: 2009 WL 1639736 (D. Ariz. 2009) [Designated “Not for Publication”]
Date: 2009-06-11
Topics: Production of ESI metadata, but not associated content compelled, metadata as relevant evidence

This brief decision from the U.S. District Court for the District of Arizona finds the court deciding defendants’ motion to compel production of hard drives and computer storage media. Here, defendants proposed the computer hard drives and other storage media would be provided to a third party to “determine the number of hours” spent typing by plaintiff each day on his computer (relevant evidence for plaintiff’s disability claims). Plaintiff argued in opposition that such examination would not enable defendants to determine the number of hours plaintiff expended “typing” on his computer each day.

The Court first points to the broad language of Fed. R. Civ. P. Rule 26(b)(1) and Rules 34(a)(1)(A):

“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). Rule 34(a)(1)(A), Fed.R.Civ.P., allows a party to inspect, copy, test, or sample ‘any designated documents or electronically stored information.’” Kravetz v. Paul Revere Life Ins. Co., 2009 WL 1639736, 1 (D.Ariz.) (D. Ariz. 2009)

U.S. District Judge Martone then discusses why metadata comprised evidence relevant to plaintiff’s claims (and defendants’ defenses). Moreover, the Court determined that defendants had provided sufficient evidence (most likely by way of expert testimony) to support their assertions:

“Defendants have properly explained why the metadata on Kravetz's hard drives and storage devices may be relevant to the number of hours Kravetz worked prior to and after his injury.” Id.

Metadata vs. Content Production

Plaintiff argued that producing his hard drive and storage media was overbroad and would cause undue burden. In what seems to be a response to assertions either of privacy or privilege, the Court orders that only metadata relevant to the hours worked prior to his injury would be produced, and that neither defendants nor the forensic expert were permitted to view the content associated with such metadata:

“Defendants have properly explained why the metadata on Kravetz's hard drives and storage devices may be relevant to the number of hours Kravetz worked prior to and after his injury. However, defendants need not and may not review the substance of documents on plaintiff's hard drives and media devices.” Id.

“We will, therefore, compel plaintiff to provide the requested computer devices with the limitation that defendants may only extract metadata and other necessary electronic information regarding the amount of time spent on documents, but not the substance of the documents themselves. To the extent plaintiff challenges the ability of metadata to show the number of hours he worked, he is free to argue the weight that should be given to this information at trial. Id.

Note that the Court permits plaintiff to argue the probative value (or weight) of the metadata at trial.

Kudos to EDDE Co-Chair George Paul’s firm, Lewis & Roca, who represented defendant in this matter.

Case: Kay Beer Distributing, Inc. v. Energy Brands, Inc.
Citation: 2009 WL 1649592 (E.D.Wis. 2009)
Date: 2009-06-10
Topics: Metadata production denied, failure to meet and confer on search terms, failure to meet and confer

In case anyone believes that the decision (approving the “original” Sedona Principles position that most metadata is without value and denying a party’s motion to compel production thereof) is now history, we refer to this vintage June 2009 decision in which the Court relies on the 2005 (i.e., “original”) Sedona Principles position, finding that no duty to preserve metadata, and no reason to compel production thereof.
Author’s Note: Other than the metadata approach (which, imo, might be the punishment doled out by the court on this hapless plaintiff) this decision is well reasoned.

Of course, the Sedona Principles 2008 metadata approach reversal, together with the late 2008 repudiation of the earlier (metadata valueless) Sedona approach in Aguilar v Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Security, 255 F.R.D. 350, 2008 WL 5062700 (SDNY November 21, 2008) [see EDDE Digest 4] seems to have escaped notice by the court.

To be sure, this case started out on the wrong foot. Both parties apparently represented to the Court that ESI discovery was not anticipated. The Court notes that in somewhat wry language:

“Although the Rule 26(f) Joint Report and Discovery Plan from December 28, 2007 indicated that the parties “do not anticipate that electronic discovery will be a significant feature of this case,” subsequent events have proven this optimistic prognostication wrong.” Kay Beer Distributing, Inc. v. Energy Brands, Inc., 2009 WL 1649592, 2 (E.D. Wis. 2009)

It’s also not insignificant that the parties’ discovery plan was submitted fully one year after the effective date of the 2006 eDiscovery amendments to the Federal Rules of Civil Procedure.

Did I mention that things started out on the wrong foot? Try this sample:

“Things started out on the wrong foot when Energy Brands erroneously stated that it did not have electronic data, including emails, concerning the claims asserted against it. In March 2008 counsel for the parties met and conferred on Kay Beer's request for email. (Weber Decl. in Supp. of Mot. to Compel, Exs. K-M; Doc. # 53-12, 53-13, 53-14.) In a letter of March 26, 2008, Brian W. McGrath, outside counsel for Energy Brands, represented that Energy Brands did not have electronic data that would include emails relating to Kay Beer. ( Id. at Ex. M; Doc. # 53-14.) At a hearing before the Court on a motion for a protective order the following month, counsel for Energy Brands claimed that everything that in-house counsel for Energy Brands had been able to find in a corporate document search had already been produced to Kay Beer. ( Id. at Ex. CC at 5; Doc. # 53-30.) On May 16, 2008, when asked to admit that it had in its possession or control stored electronic information relating to Kay Beer created on or before November 2, 2007, Energy Brands entered a denial. ( Id . at Ex. I, Resp. to Admit 11; Doc. # 53-10 at 3.) Three days later, Energy Brands admitted that it did have email dating back to approximately June 2003.” Id., at p. 2

The parties were unsuccessful at resolving issues related to the production of additional ESI. In short, plaintiff argued that email production was inadequate, and demanded an ESI search using much broader terms than originally used. Defendant argued that the new search terms demanded to be used by plaintiff was overly broad.

Incredibly, plaintiff then conceded that most of the information demanded (which was stored on five DVDs) was not likely to have any bearing on its claims, and the Court so notes the consequences:

“In this case, even Kay Beer concedes that it is highly unlikely that the vast majority of the ESI on the five DVDs Energy Brands has compiled has any bearing on the issues remaining in this case. Yet, Kay Beer insists that it be provided the DVDs so that it can conduct its own search. Energy Brands has no obligation to turn over to an opposing party in a lawsuit non-discoverable and privileged information.” Id., at p. 4

This deserves the first EDDE “D’oh” Award.

Failure to Meet and Confer to Agree on Search Terms

Nope. Plaintiff didn’t, although defendant offered, and the court also took notice:

“Kay Beer asserts in a footnote that Energy Brands has refused its request to produce the appropriate scope of email, but it offers no factual support for this assertion. (Doc. # 97, Kay Beer Reply at 6, n. 3.) To be sure, among the 313 requests to produce Kay Beer expounded in this case were at least a dozen directed to Energy Brands in which Kay Beer requested that Energy Brands produce email sent or received by named persons that included various terms. But the terms were stated in the disjunctive, requiring Energy Brands to produce ESI having nothing to do with Kay Beer or the facts of this case. See REQUESTS TO PRODUCE NOs. 110-122. The fact that Energy Brands did not want to add to the ESI it would have to review is not evidence of recalcitrance. Kay Beer's assertion that Energy Brands refused to conduct a further search is refuted by three separate emails from counsel for Energy Brands offering to work with Kay Beer's counsel in formulating search terms to locate emails that might be relevant. (Doc. # 53-23, Weber Decl., Exs. R., at 4, and V ., at 3, 7.)” Id., at p. 6

With the following language, one might guess in which decisional direction the Court is headed:

“Instead of working with Energy Brands' counsel, Kay Beer seems to have persisted in its demand that Energy Brands turn over all ESI that even mentions its name or some variant thereof.” Id.

Native File Format, Bates Stamping and Metadata (Oh my)

The Court first points out that plaintiff requested ESI in native data format; here, in the form of Outlook .pst files. The Court, apparently relying on expert declaration, then states:

“Kay Beer has also insisted that all documents be produced in native Outlook format, despite the fact the documents could not be Bates stamped in that format, they would be subject to alteration, and it would not be possible to select certain documents and produce only those in that format.” Id.

Interestingly enough, no mention is made that (as with any other physical evidence) the storage media containing such file could be Bates stamped, a working copy could be made of the original, (presumably forensically sound) .pst file without altering the original (else how do forensics examiners investigate ESI?) and that single emails could be produced either as .msg files, or as .tiffs, with associated metadata provided in a separate production.

These options appeared to lie outside the ken of plaintiff’s counsel.

What appears to have sealed the deal with the Court is plaintiff’s agreement that ESI be produced in either hard or soft copy (whichever was cheapest):

“Energy Brand asserted that Kay Beer's request that documents, information, and or data be produced in their original electronic format was unduly burdensome and noted that the parties had agreed at their Rule 26 conference that either a hard copy or electronic copy would be produced depending on what was most cost-effective.” Id.

Metadata – Circa 2005

Here’s where the Court takes a journey into the past, and relies on a Sedona position repudiated by the Sedona Principles themselves in 2008:

“Energy Brands also agreed that if Kay Beer made a good faith request based on demonstrated need for the native form of a document, Energy Brands would endeavor to produce the document in native form. ( Id.)” Id.

"Energy Brands' offer is consistent with The Sedona Principles for Electronic Document Production, which state that “[u]nless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.” The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, July 2005 Version), available generally at” Id.

Blognote: ESI cannot be authenticated without at least some metadata. See George Paul’s excellent book “Foundations of Digital Evidence” (ABA 2008). All recent decisional authority read by the author of this digest clearly indicates that if metadata is relevant, or may lead to relevant information, it is, (in the absence of privilege, or a showing of inaccessibility, burden, etc.) discoverable.

Blognote: Time to murder a metaphor. It may be that the court punished plaintiff’s counsel for its incompetence, and indeed, that seems to be the theme here, but bad lawyering makes bad law; and this case stands out as an exemplar. Although one District Judge’s decision is not necessarily binding even on fellow District Judges (or Magistrate Judges for that matter) it is also reasonable to expect some deference to be paid to precedent set by earlier decisions. Now, those parties arguing for the production of metadata will have the unpleasant task of arguing against an opinion whose reasoning has been thoroughly repudiated by the very sources relied upon in that prior opinion. Bring on the experts, and the latest version of the Sedona Principles, or proceed at your peril.


No comments: