To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding privilege, confidentiality, and other key discovery considerations. But what happens when parties establish requirements in their ESI protocols that they later cannot fulfill? Three recent case opinions reflect how courts can react negatively to such situations.Read More
Key Insight: Defendant moved to compel plaintiff to produce for forensic examination the cell phone that recorded videos produced by Plaintiff. The court denied the motion, noting there must be good cause to order forensic examination when a party has already produced the electronic information sought and in native format. Defendant alleges there was a reason to believe metadata for the video was altered based on counsel’s own analysis using a free online metadata tool. After investigating the online metadata tool, including uploading a court document that did not contain any metadata, the court found that the tool shows an automatic message for every file that is uploaded to the website indicating that metadata “could have been changed or deleted” – something court noted “is hardly the thing on which one should base a motion to compel.”
Nature of Case: Breach of Contract
Electronic Data Involved: Cell phone
Key Insight: The court denied plaintiff’s motion for recusal based on metadata in the court’s orders that suggested that the special master was the author of some of the court’s opinions in the case. Plaintiff claimed the author field on the metadata suggested the special master was the author of the court’s opinions but the court explained how this opinion was wrong. The author field of the metadata for a document created from a template will continue to reflect the name of the person who originally created the document unless that name is changed. The court did not change or remove the author field when using a template document that had previously been prepared in the case but acknowledged going forward it would revise the authorship data on its court orders as needed. Further, the court’s decisions demonstrate that the opinions and orders are those of the court, acting independently of the special master, based on the differences between the court’s decisions and the related R&Rs by the special master.
Nature of Case: Trade Secrets
Electronic Data Involved: Metadata
Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.
The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.
Nature of Case: Breach of Contract
Electronic Data Involved: Emails, Metadata, PDFs
Key Insight: After changing counsel, plaintiff sought an order compelling the defendant to reproduce prior ESI productions and to produce all future ESI productions in either native format or accompanied by metadata identifying the custodians, recipient, and date of the document. In denying plaintiff’s motion to compel, the court noted the parties “could and should have reached agreement on the format of ESI production in the nearly three years the case was pending” and plaintiff never requested a specific format previously, and also produced ESI to defendant in non-native format without metadata. Nothing in Rule 34(b) nor the Advisory Committee Notes indicates whether metadata must be produced to be considered reasonably usable. Thus, “absent a specific request to the contrary or special circumstances not at issue here, courts regularly find that searchable PDF documents constitute a reasonably usable form.”
Nature of Case: Civil Rights
Electronic Data Involved: PDF Documents
Key Insight: Plaintiff filed a motion to compel and for sanctions against defendants, claiming the defendants’ production of ESI relating to the treatment of plaintiff’s mental illness was produced in PDF as opposed to its native Excel format and not reasonably usable. The court granted plaintiff’s motion to compel, ordering defendants to produce the ESI in their native Excel format and awarded plaintiff’s counsel $25,000 in fees. The court rejected defendants’ argument that it converted the Excel data into PDF because it was required under HIPAA and Illinois law given the protective order in place. The court further found the ESI in PDF form was not “reasonably usable” under Rule 34(b). There is missing data and text, and it eliminated plaintiff’s ability to sort and organize the data contained in the spreadsheets. Quoting another court’s decision, the court noted: “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version[.]” This forced plaintiff to sort more than 270,000 pages of information, much of which is either redacted or difficult to read.
Nature of Case: Prisoner Civil Rights
Electronic Data Involved: Prisoner Records
Key Insight: Petitioners filed an action alleging the government violated their Sixth Amendment rights by recording their conversations and meetings with counsel while detained at Corrections Corporation of America (CCA). Petitioners sought spoliation sanctions against CCA, alleging an upgrade to the operating system where the recordings were saved wiped all metadata that would have shown if the US attorneys viewed the video recordings containing privileged communications. The court denied the motion, finding petitioners could not establish the threshold question: whether any metadata actually existed to show who logged in to view the recordings. “If there is no evidence that logging metadata ever existed, it could not have been intentionally destroyed to deprive petitioners of its use, and there can be no spoliation as it relates to that specific ESI relevant to petitioners’ claims.”
Nature of Case: Violation of Sixth Amendment Rights
Electronic Data Involved: Video Recordings
Key Insight: In their discovery requests, Defendants sought data concerning the Plaintiff’s use of social media and text messages concerning matters relevant to the litigation. After Plaintiff provided responses to these discovery requests, Defendants filed a Motion to Compel Plaintiff to submit to a forensic examination of his mobile phone. Defendants based their Motion on the arguments of ensuring complete collection of data from the mobile phone, and more specifically, complete data of Plaintiff’s use of social media messaging and text messaging with several parties on said mobile phone.
The Court denied Defendants’ Motion because it found that the electronic stored information (ESI) already produced was complete and/or sufficient due to the Plaintiff already working with an ESI expert to obtain the requested data, particularly from the mobile device. In short, the Defendants’ lacked a sufficient reason to believe that the data already produced was not complete.
Similarly, the Defendants failed to demonstrate that a forensic examination of the mobile device would produce relevant data showing that Plaintiff had a pattern or practice of deleting the above mentioned messages. Moreover, the data produced by the examination would only show that a message was deleted, not when or why the message(s) were deleted, the contents of the message(s), or a pattern of deleting messages. In sum, the Court found that the requested forensic examination would be “disproportionate to the slight importance” it would provide to the litigation.
Nature of Case: Product Liability
Electronic Data Involved: Cellular Phone, Text Messages, Social Media, Social Media Messages,