Authored By: Danielle Y. Alvarez

Citation: Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

Employee/Employer Implicated: Employees and Government Officials

e-Lesson Learned: Metadata is an integral part of an electronic record, so it should not be stripped from PDFs and other productions of electronic public records under FOIA.

Tweet This: Agencies: SDNY rules that metadata is part of an electronic public record – are you properly handling FOIA requests?

Metadata includes those properties related to electronic files in their original format, such as the original identifier/file name, custodian, source/file directory, modified date and time, creation date and time, time offset value, etc. In a precedent-setting opinion in the Southern District of New York, Judge Scheindlin (thinking Judge Judy? Not that Judge Scheindlin!) held that certain metadata is part of an electronic public record and subject to disclosure under discovery rules as well as the Freedom of Information Act (“FOIA”).

Authored By: M.J.R.

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 WL 4789275 (N.D. Ind., Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, In-house Counsel, Senior Management, information technology manager

e-Lesson Learned: Discoverable data must be produced in a reasonably usable form in which it is ordinarily maintained and not in a format more difficult for the requesting party to use in litigation.

Tweet This: Indiana Court hands down a harsh punishment for shady electronic discovery practices!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data. It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services. The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

Authored By: Joscelyn K.

Citation: Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. Nov. 18, 2010).

Employee/Employer Implicated: Counsel; Information Technology Manager

e-Lesson Learned: Original format is not necessary, but the format provided must be accessible for opposing counsel to use in litigation. Metadata is only necessary if it may result in pivotal discovery.

Tweet This: Proper Format and Additional Metadata is not an issue unless burdensome or pivotal!

Legal counsel for both parties left the judge frustrated from unprofessional conduct and lazy discovery techniques. Judge Hollows stated, “In the future, the court will decline to hear any discovery matters where the Federal and Local Rules are not strictly followed.” So, when it comes to electronic discovery being strictly followed, keep in mind the following: 1) address the issue EARLY; 2) keep documents in easily accessible format; and 3) supply metadata for pivotal documents. In the facts, Brinckerhoff worked for the Town of Paradise as a volunteer firefighter. Subsequently, she was appointed to a civil service position and eventually terminated. She brought suit for wrongful discrimination and requested documents in their original format. Included in the documents was an evaluation of plaintiff while she worked for the Town. In Plaintiff’s motion to compel, she argued that defendant should be required to produce responsive emails in their native format (not hard copy).

Authored By: Michael Tucker Jr.

Citation: Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)

Employee/Employer Implicated: In-House Counsel; Outside Counsel

e-Lesson Learned: Litigating parties have a mutual obligation to discuss the issue of electronic discovery at the discovery conference. Failure to discuss the issue results in both heightened scrutiny of a later motion to compel discovery of ESI and, if the motion fails, sifting through 4,000 pages of e-mail printouts.

Tweet This: Discuss ESI format at your discovery conference or be happy with the format you get.

From 2001-2009 Melissa Brinckerhoff was a volunteer firefighter in the town of Paradise, California. Volunteer is a misnomer however, as the town’s firefighters were entitled to benefits and some pay. These volunteers are also protected by various anti-discrimination statutes. Brinckerhoff was fired in 2009. She filed an action claiming that the fire department extended her probationary period and later terminated her because of her gender and claimed disability based on a back injury.

Authored By: Fernando M. Pinguelo

Citation: An Interview with Brazilian Cyber Law Attorney Renato Opice Blum

Tweet This: Crimes Are Virtual But Damages Are Real: World Gathers In Brazil 4 The Congress On Electronic Crimes & Protection http://ellblog.com/?p=2110

Recently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection. Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home. Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.

Authored By: Francis M. Giantomasi

Citation: Heriot v. Byrne, 2009 WL 742769 (N.D. Ill., March 20, 2009) T.A. Ahern Contrs. Corp. v. Dormitory Auth. of State of New York, 2009 NY Slip Op 29125, 1 (N.Y. Sup. Ct. 2009)

Employee/Employer Implicated: Independent electronic vendors

e-Lesson Learned: An independently run eDiscovery project performed by qualified and competent vendors can be useful when there’s “loads” of documents to sift through. However, be careful because their mistakes become YOUR mistakes and may result in costing YOU.

Tweet This: Pros & cons of using an independent vendor to solve your eDiscovery woes --> http://ellblog.com/?p=2046

Suppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible. Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.

Authored By: Jignesh Shah

Citation: Bray & Gillespie Management LLC v. Lexington insurance Co., 2009 WL 2407754 (M.D. Fl. 2009)

Employee/Employer Implicated: Outside Counsel, Senior Management, In-House Legal Assistant

e-Lesson Learned: Failing to search for and timely produce documents in the format requested during discovery could cost you more than $25 million dollars.

Tweet This: $25 Million Fail - Be thorough, timely, and compliant in satisfying motions to compel! --> http://ellblog.com/?p=1796

Don’t take your discovery obligations lightly! When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary. Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance. Can you afford that?

Authored By: Scott Paterson

Citation: Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. 2008)

Employee/Employer Implicated: Outside Counsel that failed to request ESI with metadata.

e-Lesson Learned: At the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. However, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests for metadata.

Tweet This: Don’t Forget Your Metadata, The Burden Later May Be Too Much

This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment. The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens. This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata. During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008. There was no discussion of metadata at this conference. On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information ("ESI") produced. This request did not mention metadata either.

Authored By: Brian Biglin

Citation: Ford Motor Company et al v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J.)

Employee/Employer Implicated: Counsel for Edgewood Properties

e-Lesson Learned: If you ask for electronic documents in their native format, but your opposition objects, ask again to seek the meet and confer that the courts envision. Do NOT object to the format long after they have produced the documents “their way,” especially not eight months later.

Tweet This: If at first you don’t get the metadata, try, try again [ASAP!]

Where a party requests that their opponent include metadata (native file format instead of, say, a .TIFF image of the document) in its electronic document production and no prior agreement exists, the opposition may answer the request by objecting and producing the material in a less desirable format (see Fed.R.Civ.P. 34(b)(2)(D)). If they do, then the requesting party must assert their own objection within a reasonable time, lest their ability to have the court consider their request and get the metadata through a meet and confer or a motion to compel may be lost. In this complex suit involving contract, tort, and environmental statute claims surrounding contaminated concrete from a former factory site which Ford sold to Edgewood, defendant/counterclaimant Edgewood made an initial discovery demand for documents in their native format from Ford. Edgewood was entitled to request this, but under the discovery Rules, this does not guarantee that they will get what they want. Unless Ford willingly complied, only an agreement or a court order could ensure that Edgewood got the metadata. Here, there was no agreement, and Ford went ahead and did things their own way, sending the documents in .TIFF format.

Authored By: Noura Jebara

Citation: Case Citation Lake v. City of Phoenix, 2009 WL 73256 (Ariz. Ct. App. Jan. 13, 2009)

Employee/Employer Implicated: Phoenix Police Officer

e-Lesson Learned: Because metadata associated with an electronic document does not fall under any one of the definitions of ‘public records’ under Arizona law, the presumption in favor of disclosing public records does not apply to an individual’s request for such metadata. So the moral of the story is: If you request documents that aren’t considered ‘public records’ in AZ, such as metadata, there’s no hope for you to get that metadata. You can, however, find other ways to get to the information you need.

Tweet This: Dont judge book by its cover/In AZ u cant get metadata 2 verify a pub doc b/c Metadatas not a pub record

We're all familiar with the saying “Don’t judge a book by its cover.” Perhaps you've fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register. At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe. Doing some research on the book would’ve saved you some money, right? As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right. After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity. Lake is told that he can’t get the metadata. Dead-end? Nope. If there’s a will there’s a way. By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work. Procedural History After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City. The City failed to produce several records related to his request and delayed the production of other records. So what does one do? Sue. Duh!