Metadata – Page 8 – Electronic Discovery Law

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

St. Jude Medical S.C. Inc. v. Tormey, No. 11-cv-00327, 2013 WL 3270374 (D. Minn. Mar. 25, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion for sanctions for alleged fabrication of evidence and violation of the court’s order to produce certain hardware (computers, hard drives) related to the alleged fabrication but denied sanctions where Defendant consistently claimed he had no additional hardware to be produced and consistently stuck with his explanations related to the creation of the allegedly fabricated documents and surrounding circumstances; regarding fabrication, court explained that ?Discrepancies and inconsistencies without more, however, do not necessarily fabrication make.?; as to both spoliation and fabrication court indicated it would be up to the jury to decide who to believe

Nature of Case: Claims related to loan repayment and whether loan to defendant was forgiven in “walk-away” agreement

Electronic Data Involved: Contents of hard drives

A.J. Amer Agency, Inc. v. Astonish Results, LLC, No. 12-351S, 2013 WL 9663951 (D.R.I. Feb. 25, 2013)

Dec 01 2013

Key Insight: Observing that the meet and confer requirement is not an empty formality, court ordered parties to engage in a substantive good faith conferral and to follow five directives: 1) plaintiff?s requests for material in electronic format should be based on what it has already, what it needs for this case, as well as what is reasonably accessible, mindful of the cost-shifting provisions in Rule 26(b)(2)(B); 2) parties should consider what approach would be least costly and burdensome to defendant for production of comparable websites with similar graphics; 3) only sales training materials actually reviewed by the sales team that presented to plaintiff were discoverable; 4) plaintiff should explore what material is already accessible to it using a password that it already has before exploring with defendant what needs to be produced with respect to particular software; 5) once the scope of appropriate discovery is clear, defendant should supplement its responses to specify whether documents exist or not

Nature of Case: Insurance agencies alleged claims for breach of contract, fraud in the inducement, breach of fiduciary duty and breach of obligation of good faith and fair dealing arising from a marketing agreement between defendant to supply websites, digital marketing, training and consulting services

Electronic Data Involved: ESI; website templates, sales training materials

Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log

Nature of Case: Breach of contract, conversion

Electronic Data Involved: ESI, email, hard copy

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

In re Porsche Cars N. Amer., Inc. Plastic Coolant Tubes Prods. Liability Litig., No. 2:11-md-2233, 2012 WL 203493 (S.D. Ohio Jan. 24, 2012)

Dec 01 2012

Key Insight: Addressing Plaintiff?s motion for an Order Regarding Production of Electronically Stored Information, court limited scope of its findings and order to jurisdictional discovery and granted plaintiff?s motion to the extent that it required production of ESI in its native format with metadata intact, noting that plaintiff did not have the burden of showing why the metadata requested with native format production was relevant to each of their requests and that upon a request for production in a specific format, the burden shifts to producing party to show why it is unduly burdensome

Nature of Case: Products liability

Electronic Data Involved: ESI in native format

Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction

Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin

Electronic Data Involved: ESI

Commercial Law Corp., P.C. v. Fed. Deposit Ins. Corp., No. 10-13275, 2012 WL 1230554 (E.D. Mich. Apr. 12, 2012)

Dec 01 2012

Key Insight: Court overruled plaintiff?s objections to an order allowing mirror imaging of its computers where there was sufficient evidence of the likelihood of fraud to warrant such a search, where the request for inspection was timely (and need not have been asked for in the first discovery request because information evidencing possible fraud did not come to light until later), and where the protocol devised adequately protected potentially privileged information

Nature of Case: Action for recovery of attorneys fees

Electronic Data Involved: Forensic inspection of computers

Tag:Metadata