Published by Pike & Fischer, a subsidiary of BNA, In c. http://ddee.pf.com Vol. 5, No. 11 | November 2005 Applying Sedona Principles, U.S. District Contents 1 News: Using Sedona Principles, Court Says Metadata Must Be Produced U.S. District Court Says Metadata Must Be Produced Under emerging standards of elec- vember 2003 (the case was filed the tronic discovery, a court order direct- preceding April), and again in Decem- 4 Courts & Procedure: The ing a party to produce electronic ber 2004. The plaintiff claims that to Current Legal Landscape spreadsheets as they are kept in the date, the defendant has produced for Native File Production ordinary course of business requires “only a few improperly redacted ver- the producing party to produce those sions relating to some plaintiffs and 6 Cases: Internet Archive Wins documents with the metadata intact. initial opt-in plaintiffs.” On April 12, Dismissal of Complaint; Magistrate Judge David J. Waxse’s 2005, defendant’s counsel agreed to Delaware High Court Adopts opinion in Williams v. Sprint/United begin producing the documents. Tough Standard For Revealing Management Company, 2005 WL No documents were produced by Identity of Anonymous Blogger; Scope of E-discovery 2401626, D. Kan. (September 29, the next discovery hearing on April in Florida Cases Examined; 2005), a provisionally certified em- 21, but counsel acknowledged that he Ginsburg Denies Emergency ployment action, is noteworthy not had nine boxes of such documents in Plea to Vacate Stay only for its holding on producing his possession and again stated that Lifting PATRIOT Act Gag Order metadata, but for the “emerging stan- their production would be forthcom- dards” he relied on to reach it. ing. On May 5, plaintiff sought a court 10 Talking Tech: Automated order requiring production, and an Document Review Proves Its Long Procedural History agreed order requiring production by Reliability Because the litigation has been June 1 was entered. “highly contentious,” the Magistrate At the May 19 discovery confer- 13 Professional Announcements: Judge has conducted discovery confer- ence, plaintiff requested that the de- Sedona Hires, New Virtual Law ences twice a month since March 2005 fendant produce “the actual electronic Firm, ‘b-Discovery’ Expands to resolve discovery issues identified ‘active file’ version of all the Excel by the parties. One of the ongoing dis- RIF spreadsheets” to enable the plain- 15 Calendar covery disputes concerned the tiff to “perform statistical or manipu- defendant’s production of spreadsheets lative things without taking the June 24 for (a) electronic versions of that relate to the Reductions in Force spreadsheets and going through the Excel and other spreadsheets, (b) other (RIFs) that feature prominently in the laborious process of keying in all that documents (other than Minutes) relat- underlying action: the plaintiff, on be- data again.” The defendant reported it ing to the RIF meetings, and (c) e-mails half of herself and others similarly situ- was producing TIFF images per a prior accompanying the spreadsheets. ated, asserts that her age was a deter- agreement, and would prefer to con- On June 23, defendant tendered to mining factor in including her in a RIF. tinue to do so, and subsequently as- plaintiff’s counsel 3083 Excel spread- The spreadsheets deal with candi- sess the electronic content of those sheets in electronic form and indicated date selections and other decisions files. that it had identified 983 additional made by the defendant’s Human Re- After some argument, during which spreadsheets that had not been fully sources Department, and according to the court opined that the only neces- processed that would be produced no the plaintiff, constitute the “essential sary review of the files would be for later than June 27. materials” regarding the termination. privilege, the Show Cause Order was They were requested initially in No- renewed, setting a production date of continued on page 2 Copyright © 2005 IOMA, Inc. Published by Pike & Fischer Digital Discovery & e-Evidence http://ddee.pf.com At the July 7 discovery conference, plaintiff’s counsel TSG9_05.pdf, page 102) defines it as “information about a advised the court that defendant had scrubbed the Excel particular data set which describes how, when and by who it spreadsheets to remove the metadata prior to production. was collected, created, accessed or modified and how it is Accordingly, file names, dates, and authors had been de- formatted (including data demographics such as size, loca- leted, along with recipients, printout dates, changes and tion, storage requirements and media information). modification dates, and other information. Defendant pro- Technical Appendix E to The Guidelines expands upon vided no log of the information that had been scrubbed, and that definition by specifying that metadata includes “all of had locked certain cells and data, making access impos- the contextual, processing, and use information needed to sible. identify and certify the scope, authenticity, and integrity of The defendant admitted scrubbing and locking the data, active or archival electronic information or records.” It also arguing that metadata from spreadsheets is irrelevant and provides examples and describes some of the problems privileged. Moreover, it continued, plaintiff never requested metadata presents (e.g. it can be altered either intentionally that metadata be included in the production, nor discussed or inadvertently, extracted during native file conversion, it at any of the many discovery conferences. A Show Cause and may be inaccurate). Order ensued, resulting in the Memorandum and Order un- Finally, it makes the following observation about the der consideration. importance of metadata: Certain metadata is critical in information manage- Defining Metadata ment and for ensuring effective retrieval and account- Judge Waxse sets the stage for his decision with a gen- ability in record-keeping. Metadata can assist in prov- eral discussion of metadata and its implications for elec- ing the authenticity of the content of electronic docu- tronic document production. He looks to both the Advisory ments, as well as establish the context of the content. Committee note to Proposed Federal Rule of Civil Proce- Metadata can also identify and exploit the structural dure 26(f) and The Sedona Guidelines: Best Practice Guide- relationships that exist between and within electronic lines & Commentary for Managing Information & Records documents, such as versions and drafts. Metadata al- in the Electronic Age for working definitions of the term. lows organizations to track the many layers of rights The Advisory Committee Note (see http://ddee.pf.com and and reproduction information that exist for records click on the second entry under “Proposed & Enacted and their multiple versions. Metadata may also docu- Rules”) defines metadata as “information describing the his- ment other legal or security requirements that have tory, tracking, or management of an electronic document.” been imposed on records; for example, privacy con- Appendix F to The Sedona Guidelines (see http:// cerns, privileged communications or work product, or www.thesedonaconference.org/contents/miscFiles/ proprietary interests. Digital Discovery & e-Evidence http://.ddee.pf.com Managing Editor, Carol L. 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