Metadata – Page 12 – Electronic Discovery Law

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 4427269 (D. Kan. Sept. 25, 2008)

Dec 01 2008

Key Insight: Court denied without prejudice plaintiff’s request for order compelling defendants to produce emails and attachments in native electronic format with metadata intact, pending plaintiff’s obtaining a computer expert to advise on the issue; court further allowed plaintiff?s request for additional time to retain expert to analyze ESI produced by defendants, and, if necessary, to designate such expert as trial witness

Nature of Case: Wrongful termination, FMLA violations, retaliation

Electronic Data Involved: ESI, primarily email and attachments

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 Sept. 22, 2008) (Unpublished)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

Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)

Dec 01 2008

Key Insight: Second Circuit found no error in trial court’s order denying plaintiff’s request to examine in their entirety numerous computer hard drives belonging to Ogilvy and American Express employees and granting the request only to the extent it involved electronic records pertinent to disputed dates of creation of two documents, since plaintiff failed to show any error in district court’s determination that ?such wholesale rummaging? through American Express’s electronic records was not appropriate

Nature of Case: Trademark infringement and misappropriation

Electronic Data Involved: Computer hard drives of employees of American Express and Ogilvy who worked on a particular ad campaign

Tag:Metadata