2009-01-03 Another Reason to Request eDiscovery Bifurcation, Retain an Expert, and Ask and Substantiate Metadata Request

Case: Kingsway Financial Serv, Inc. v. Pricewaterhouse-Coopers LLP
Cite: 2008 WL 5423316, 6 (S.D.N.Y. 2008)
Date: 2008-12-31
Topics: Late request metadata, failure to substantiate request for metadata.

In another decision relying on (the very recent decision in) Aguilar v Dep't Homeland Security, the Kingsway Financial decision provides a nice "what not to do" list for counsel about to engage in eDiscovery.

What should counsel do? First, bifurcate discovery into merits based and eDiscovery tracks. In that way you need not eat up merits based discovery requests (depos, interrogatories, etc.) by engaging in eDiscovery, and vice-versa. Second, any issue or unresolvable dispute may then be addressed much earlier in the discovery cycle. Third, retain a technology expert to assist in early eDiscovery planning and execution.

What is clear from this decision is that plaintiffs neither understood the type of metadata, nor could they articulate a good foundation for the reason metadata was requested in the first place. Now, the Aguilar decision (upon which the Kingsway court relies) does emphasize the importance of metadata (although a general understanding of the criticality of metadata for authentication and admissibility is still a ways off) and repudiates the first Sedona proclamation that most metadata is of no value. Aguilar might easily stand for the proposition that ESI production almost mandates concurrent metadata production.

Here, the Court steps away from that position, and places the burden on the requesting party to (a) request metadata, and presumably in an initial discovery request; (b) identify the type(s) of metadata sought, and (c) provide at least some reason for the request. In this blogger's opinion, the assistance and participation of an expert from the outset of litigation might well have resulted in a different decision (i.e., the production of the metadata sought much earlier in litigation, or perhaps a sanctions hearing for spoliation/negligent evidence destruction) :

"Plaintiffs do not identify the types of metadata they seek nor do they explain why metadata is relevant in this matter. In addition, plaintiffs do not raise any questions about the authenticity of any documents produced by PwC nor do they claim that any document has been improperly “doctored” or modified."

"The nature of metadata and the current state of the law regarding its production are discussed in detail by the Honorable Frank Maas, United States Magistrate Judge, in Aguilar v. Immigration & Customs Enforcement Div. of the United States Dep't of Homeland Sec., 07 Civ. 8224(JGK)(FM), 08 WL 5062700 (S.D.N.Y. Nov. 21, 2008). As Aguilar points out, there are three different types of metadata: (1) substantive metadata; (2) system metadata, and (3) embedded metadata. 08 WL 5062700 at *3-*4. In general, metadata is relevant when the process by which a document was created is in issue or there are questions concerning a document's authenticity; metadata may reveal when a document was created, how many times it was edited, when it was edited and the nature of the edits. In the absence of an issue concerning the authenticity of a document or the process by which it was created, most metadata has no evidentiary value. 08 WL 5062700 at *5.

"In its response, PwC represents that much of the metadata sought by plaintiffs was deleted from PwC's computer system prior to the commencement of this action and no longer exists. With respect to a number of plaintiffs' requests for metadata, PwC sets forth the date and time on which the documents for which metadata was requested were last modified, but no other information."

"In light of the dubious value of metadata and plaintiffs' total failure to explain its relevance to the claims and defenses in this action, plaintiffs' application to compel its production is denied. Given the advanced stage of discovery in this litigation and the absence of any showing that production of metadata would serve any useful purpose, I am left with the strong sense that ordering the production of metadata would not shed any light on any of the claims or defenses in this action. This ruling resolves Items 38, 39, 40, 41, 50, 51." Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL 5423316, 6 (S.D.N.Y. 2008)"