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When Can a Plaintiff Receive Metadata?

Posted on July 1st, 2016

Recent Case Law Regarding Metadata in eDiscovery

Metadata, the underlying data contained within electronic documents, includes important information such as formation, who created that data, whether it was altered and when, geographic location of the data, and more.

We have previously written a newsletter about case law regarding metadata in ESI production and electronic discovery, and it is time for an update. Here’s recent cases from 2016 and 2015 that dealt with when and how metadata can be requested and produced in civil litigation.

Case Law Regarding Metadata in ESI Productions

  • Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Case No. 13-784 (D. Utah, Mar. 22, 2016). Defendants sought access to Plaintiff’s third-party database to determine if metadata existed for the electronic data produced. Plaintiff objected to the database access, arguing that it would expose proprietary information not relevant to the suit. The court held Defendant’s forensic expert could gain access to the database to determine if the metadata existed, and if so, a Protective Order would be entered containing an “attorney eyes only” designation.
  • Guyton v. Exact Software North America, Case No. 14-502 (S.D. Ohio, Dec. 21, 2015). In an employment discrimination suit, Plaintiff sought metadata from Affidavits filed by Defendant. Defendant objected, claiming the allegation that the Affidavits were untrue or altered was based on speculation. The court declined to order the production of metadata.
  • Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., Case No. 14-P-991 (Mass. App. Ct., Nov. 17, 2015). Plaintiff alleged its former legal counsel had overbilled and altered billing records. After seeking electronic data and metadata of the records, Defendants engaged in delay tactics and claimed to be unable to separate the metadata from other files. The court held that circumstantial evidence showed Defendants had engaged in spoliation.
  • McCabe v. Gonzalez, Case No. 13-0435 (D. Idaho, Sept. 25, 2015). Plaintiff sought metadata from a police car’s onboard computer. Although the computer had been wiped and metadata was gone, the Court accepted Defendant’s explanation that this occurred before the lawsuit was filed and before there was a duty to preserve evidence.
  • S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et. al., Case No. 12-700 (M.D. La., Sept. 28, 2015). Plaintiffs alleged that certain documents were redacted and were not covered by privilege. Metadata was key in uncovering evidence that Defendants had redacted information that fell under the “advice of counsel” privilege, which Defendants had expressly waived. The court ordered Defendants to produce the documents without redaction as a result.
  • Marcantonio v. Comcast Cable Communications Management, LLC, Case No. 14-03313 (D. Colo., Aug. 25, 2015). Plaintiff production included hard copies of email communications from a personal computer. Defendant demanded the email metadata be produced. The court sided with Plaintiff in holding that Defendant produced no evidence as to why the metadata would be relevant.
  • S. ex rel Carter v. Bridgepoint Education, Inc., et. al., Case No. 10-01401, (August 17, 2015). Plaintiff failed to request electronic data in native file format at the initial request. After Defendants produced the data in TIFF format, Plaintiffs complained about the lack of metadata. The court refused to order production of the metadata sought since Plaintiffs had failed to request metadata at the outset and later failed to articulate their particular need for the metadata.

Questions About Metadata in ESI Production?

A common theme regarding metadata in court opinions across the country is that for plaintiffs to have the best chance of receiving metadata, they must request at the outset of discovery the electronic data in native file formatting complete with metadata.

If you are a plaintiff attorney who is involved in an individual lawsuit, class action case or MDL and you believe electronic data and metadata will be relevant, reach out to our plaintiff eDiscovery experts today.

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