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Does the Destruction of Metadata Necessarily Prejudice Plaintiffs?

Posted on August 28th, 2013

Our last blog reviewed the legal standard for spoliation of electronically stored evidence in a district court case within the 10th Circuit. In Herrmann v. Rain Link, Inc., Case No. 11-1123-RDR (D. Kan. July 19, 2013), the court ultimately held that although the defendants failed to preserve ESI, this was merely negligent and plaintiffs failed to demonstrate prejudice. (It should be noted that although the court found defendant’s behavior merely negligent, had the court found it willful, the court would have still required a showing of prejudice to the innocent party.)

However, one issue regarding the defendant’s alleged spoliation was a close call for the court: Was the plaintiff prejudiced by the destruction of metadata? There were four separate counts that plaintiff alleged:

1. Defendant produced emails in PDF form, not in native file format. Of course, PDFs are basically the equivalent of taking a picture or screen shot of electronic data, so metadata is not included. However, plaintiff failed to articulate what he would have expected the missing evidence to show, or how it would have been relevant to a claim or defense.

2. Defendant produced corporate meeting minutes and admitted that the minutes were not drafted at the meeting, but after the meeting with handwritten notes given to his assistant. Plaintiff wanted any drafts of the minutes, alleging the document produced was merely to “paper the file” and was not based on actual events. However, since the defendant readily admitted that the minutes were created after the meeting and that prior drafts were hand-written notes that were thrown out as was the regular course of business, the court was not convinced that plaintiff was prejudiced.

3. Another issue regarded Work-In-Progress data with year-end numbers. Plaintiff wanted more information about where defendant came up with such numbers. However, that document was created by a former employee, and defendant claimed ignorance as to how the numbers were calculated. Noting that defendant did provide current spreadsheets regarding WIP information, the court did not even rule on prejudice, because it was never demonstrated that the “missing” data ever even existed.

4. Finally, plaintiff alleged that a memo from defense counsel, produced in PDF format, lacked metadata and constituted spoliation. The memo concerned a telephone call between plaintiff’s attorney and defense counsel, and defense counsel filed an affidavit that the document was, in fact, created on the date noted. Defendant claimed that his computer crashed and the metadata was lost. The court noted that this was a “close call,” but sided with defendant, as a licensed attorney, is held to an oath to tell the truth. The court believed defense counsel’s affidavit, and noted the metadata would likely not prove otherwise.

Were the magistrate judge’s recommendations correct in this case? Should plaintiffs be required to show prejudice for negligent loss of metadata?

ILS – Plaintiff Electronic Discovery Experts

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