Court highlights “particularized need” for production of Metadata.....(yet again).
Metadata, as highlighted in previous posts, is the “data about data” and a key-witness to eDiscovery proceedings; providing multiple forms of information and evidence on ESI.
Although metadata is inherent in documents in their native file format, parties often dispute the production of it during proceedings due to time, cost or effect on their claim, even though instances of redaction, editing and “scraping” of metadata can fall dangerously close to sanctions of Spoliation and against legal ethics in preservation and production of evidence.
In the recent instance of Younes v. 7-Eleven, Inc. 2015, a protective order was requested against the production of metadata to establish; “the date of origination, author, custodian, date of each modification and author of each modification, and to the extent available, any data which established to whom the document had been electronically distributed” - all extremely relevant, practical information accessible during a well-executed eDiscovery process in line with legal ethics and compliance standards.
Why the struggle against production?
Rule 34(b)(1)(c) of the Federal Rules of Civil Procedure require ESI to be produced in native format, with metadata attached. This amendment makes metadata routinely discoverable, intending this secure provision of evidence to be more commonplace. Yet without the proper utilisation of technology and resources, both the file and metadata must be unaltered during collection. If this occurs then a sanction of spoliation of evidence may be brought against the party.
Rule 34(b)(2)(E) states that a party can request ESI in a specific form with metadata - but some courts have a “particularized need” for metadata. One of the Defendant’s claims against the production of evidence referred also to Rule 34 FRCP; claiming that the reproduction of such evidence (associated with a mere 38 documents and 2 Excel sheets would be “unduly burdensome”).
Production of metadata is presumably a primary nuisance and headache for parties and firms not familiar or equipped to deal with an acceptable standard of technology. Yet this “obstacle” is increasingly disregarded by the judiciary, with State bars (e.g. California, Virginia) increasingly calling upon a higher degree of technological competence from lawyers to aid ediscovery and proceedings in line with legal ethics and duties of competence.
The court in this instance found a “particularized need” for the production of metadata, as the plaintiff’s own substantial efforts to obtain vital information were without success, and stated ;
“There is no justifiable reason to deny plaintiffs this basic Discovery that may exist in 7-Eleven’s metadata, especially when 7-Eleven has not offered to voluntarily provide the requested information. 7-Eleven’s suggestion that plaintiffs should question its witnesses at their depositions about the requested information is unnecessary and impractical…..The requested metadata is unquestionably relevant to important issues in the case. It cannot be gainsaid that plaintiff is entitled to this information.”
The judiciary in this instance highlighted the fact that the core elements of information requested should have been produced as standard procedure during discovery proceedings, without even considering the obligations of Federal Rules of Civil Procedure, general production of metadata and lawyer’s ethical obligations of due diligience,competence and safeguarding against spoliation.
The Role of WebPreserver
WebPreserver technology creates authenticated, evidentiary standard snapshots from content on social media, blogs and websites for use in litigation. With the simple, efficient use of a Plug-in and single-click capture technology, snapshots are created and saved in digitally signed PDF and WARC formats, with all original metadata not contained in printouts, to archive and share with clients and colleagues and use in litigation.
Authentication is ensured by way of an automated Digital signature and timestamp on each Snapshot, in compliance with the E-Sign Act, Federal Rules of Evidence and other standards of regulatory compliance. Metadata versions of content are also saved and secured for additional circumstantial evidence in support of your digital content.
This simplified, secure technology is suitable for litigation support, legal professionals, law enforcement authorities, digital forensic experts and more. Additional features include the option to download or save your digital content on our user-friendly online platform. Organise in folders, with the use of keyword tagging or make available to those involved in your case or company.
The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.