Archive: January 26, 2009

1
Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production
2
Court Enforces Agreement Regarding Search Terms and Production of Disaster-Recovery Backup Tapes; Holds Third-Party in Contempt Despite $6 Million In “Extensive Efforts to Comply”

Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production

Lake v. City of Phoenix, 207 P.3d 725 (Ariz. Ct. App. 2009)

In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law.

In late 2006, after filing an Equal Employment Opportunity Complaint against the city, plaintiff submitted a series of public records requests.  The city’s subsequent production contained hard copy versions of electronic documents responsive to his request for all notes “documenting supervisory performance” within the relevant time frame.  Plaintiff suspected the notes had been backdated and requested production of the metadata associated with each document.  The city refused arguing that the requested metadata was “not maintained by the city and was not available,” and that metadata was not a public record.  In response, plaintiff brought a special action before the district court. Finding it lacked jurisdiction to hear the matter, the superior court denied plaintiff’s motion to compel.  Plaintiff appealed, and the appellate court affirmed the superior court’s ruling denying the production of metadata.

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Court Enforces Agreement Regarding Search Terms and Production of Disaster-Recovery Backup Tapes; Holds Third-Party in Contempt Despite $6 Million In “Extensive Efforts to Comply”

In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009)

In this case, the district court held defendants had sole authority to dictates search terms, per stipulated order, and sanctioned a third-party for failure to timely produce documents, despite significant efforts to comply with the deadline.  The Court of Appeals affirmed.

Individual defendants served a third-party subpoena on The Office of Federal Housing Enterprise Oversight (“OFHEO”), requesting production of over 30 categories of documents.  The court denied OFHEO’s subsequent motion to quash, and entered an order directing compliance.

The defendants then agreed to limit the requests for electronically stored information to emails stored on OFHEO’s network and backup tapes.  After the court granted several requests for an extension of time to comply, OFHEO finally produced what it represented were “all” relevant materials.  However, defendants later discovered that OFHEO failed to search all of its off-site disaster-recovery backup tapes.

Despite OFHEO’s voluntary agreement to conduct a search of these tapes, defendants moved to hold OFHEO in contempt.  Following a day of hearings on the issue, the parties entered into a stipulated order holding the contempt motions in abeyance and requiring OFHEO to conduct searches of its disaster-recovery back-up tapes and to produce those documents, as well as a privilege log, by a date certain.  Thereafter, a dispute arose requiring the court’s clarification that the stipulated order gave sole discretion to specify search terms to the defendants.  Despite OFHEO’s attempts to comply with the order, it indicated its inability to timely produce the required privilege logs.  Accordingly, defendants renewed their contempt motion.  The motion was granted and, as a sanction, OFHEO was ordered to produce a category of privileged material to defendants’ counsel for review, with the specific instruction that such production would not waive privilege.  OFHEO appealed.

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