Metadata Reveals Redacted Files Containing Discoverable Data
In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et. al., Case No. 12-700 (M.D. La., Sept. 28, 2015), the Middle District of Louisiana considered Plaintiff’s motion to compel Defendants to produce additional documents for which Plaintiff argued Defendants had waived the attorney-client privilege.
The court had earlier required Defendants to submit revised privilege logs to Plaintiff and to produce all responsive documents for which Defendants had waived the attorney-client privilege. Defendants provided Plaintiff with revised privilege logs and produced some responsive documents, but Plaintiff concluded that Defendants had failed to produce all documents for which it had waived the attorney-client privilege. Plaintiff moved to compel production of the remainder of the documents.
The court found that the privilege log listed items that fell under the “advice of counsel” privilege, which Defendants had expressly waived. The court also found that some of the documents produced by Defendants contained metadata that had not been redacted, although the imaged files showed redaction. By comparing the redacted image with the unredacted metadata (and relying in part on information provided through native format production), Plaintiff claimed that other redacted files also contained discoverable information for which Defendants had waived the privilege. The court agreed, and ordered Defendants to produce the additional documents.