Metadata – Page 13 – Electronic Discovery Law

Kinexus Representative LLC v. Advent Software, Inc., 2008 WL 4379607 (Del. Ch. Sept. 22, 2008) (Unpublished)

Dec 01 2008

Key Insight: Where defendant produced ESI as TIFF images and plaintiffs sought order compelling compliance with RFP instruction to ?produce documents in electronic form in the most accessible, searchable, maneuverable and common medium available to [defendant],? arguing that documents must be produced in native file format with metadata or in searchable OCR format, court declined to hold that 2005 Court of Chancery Rules required OCR format or native file format, including metadata, without a particularized showing of need; court found defendant?s proposal to provide searchable ?extracted text? was acceptable compromise and ordered production of ?extracted text? contingent on plaintiffs? agreement to reimburse all of defendant?s related expenses given plaintiffs? failure to timely object to non-searchable TIFF format

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: ESI

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D. Fla. Dec. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?

Electronic Data Involved: ESI, “.sav” data

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

Dec 01 2008

Key Insight: Finding that forensic analysis of defendants? business and home computers was appropriate where plaintiffs presented evidence of specific problems that raised questions regarding accuracy, completeness and authenticity of defendants? email production, court articulated detailed 20-point protocol covering, inter alia, instructions for parties? retention of third party forensic expert, scope of forensic search, privilege review and cost-shifting

Nature of Case: Breach of contract, tortious interference with contract, violations of trade secrets and unfair trade practices acts, and related claims

Electronic Data Involved: Work and home computers containing both business and personal information; email

Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL 4533902 (D. Md. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court imposed monetary sanctions pursuant to Rule 37 for discovery violations related to defendant?s responses to discovery and its inadequate 30(b)(6) deponent, but declined to award spoliation sanction of adverse inference where defendants failed to preserve emails and could not identify blind copy recipients or explain who wrote the emails or to whom they were intended to be sent but where plaintiff failed to show injury resulting from the emails and could not establish that access to the emails or their recipient lists would have been favorable to that showing; court noted, ?the evidence in this case is easily distinguishable from the destroyed evidence in cases where courts have imposed spoliation sanctions?

Nature of Case: False advertising, tortious interference, unfair competition and related claims

Electronic Data Involved: Blind copy email recipients

Leist v. GHG Corp., 2008 WL 183330 (S.D. Tex. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim

Nature of Case: Wrongful termination and retaliation claims

Electronic Data Involved: Hard drive, metadata

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL 5423316 (S.D.N.Y. Dec. 31, 2008)

Dec 01 2008

Key Insight: Citing Aguilar v. United States Dep?t of Homeland Sec, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), which stated: ?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.?, court denied motion to compel production of metadata where plaintiff failed to show its relevance and made no claim that the documents had been improperly modified

Nature of Case: Claims arising from the Securities Exchange Act

Electronic Data Involved: ESI, metadata

Peacock v. Merrill, 2008 WL 509636 (S.D. Ala. Feb. 22, 2008)

Dec 01 2008

Key Insight: Where defendants did not have any knowledge of a particular computer disk containing relevant evidence, much less an exact copy of that disk, when they first deposed plaintiff, and plaintiff’s prior sworn statements about the disk were conflicting, court granted defendants? motion for leave to depose plaintiff a second time on the limited issue of her knowledge of the existence of the disk and its contents

Nature of Case: Conversion, interference with business relationships, breach of fiduciary duties and conspiracy claims

Electronic Data Involved: Metadata; CD-ROM containing data retrieved from inoperable computer

United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)

Dec 01 2008

Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms

Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests

Electronic Data Involved: Hard copy and electronic files

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Palgut v. City Of Colo. Springs, 2007 WL 1238730 (D. Colo. Apr. 27, 2007)

Dec 01 2007

Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes and embedded data

Tag:Metadata