Discovery Resources

The Standard for Producing Metadata

By: Shannon P. Hennessy

Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)

Employee/Employer Implicated:  Counsel and Miscellaneous Employees

eLesson Learned:  When a party is ordered to produce electronic files in the format that they are maintained in the ordinary course of business, the party should produce these files with metadata intact, unless there is an objection, protective order, or agreement otherwise.  Before scrubbing or locking data, parties should look to the Court for guidance.  Further, clear communication in the discovery process will help ease the uncertainty that comes along with e-discovery. 

Plaintiffs sued Sprint claiming age was the maincontinue…

Metadata is presumed to be undiscoverable, and therefore a party should not waste time and resources trying to obtain such data unless there is a need for it.

By Scott Paterson

Wyeth v. Impax Labs, Inc., 248 F.R.D. 169 (D. Del. 2006)

Employee/Employer Implicated:  Defendant

eLesson Learned:  A discovering party should not waste time trying to discover metadata.  Metadata is presumed to be undiscoverable, and therefore the data will only be available if the party can show a particularized need for the data.  And since metadata is presumed to be undiscoverable, a party may hide any metadata related to the produced documents by converting the documents to a TIFF orcontinue…

By Courtney C. Ray

United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008)

Employee Implicated: Visa Unit Chief at the United States Consulate General

eLesson Learned: Failure to provide a method of production means requesting parties receive the documents in their reasonably used state, regardless of their ability to search and the lack of metadata. Furthermore, inadequate search terms will not be disciplined without proof that a broader basis of terms would have resulted in more hits.

The Magistrate Judge in this case overall did not punish Petrovich’s conduct. However, although her conduct was not punished the Magistrate did leave open the opportunity for the defensecontinue…

By Brett Van Benthysen

Employee/Employer Implicated: Owner, experts

eLessons Learned:  Request for data must be narrowly tailored.  Court can devise a plan to have third party collect data and have Court review data before it is turned over to adversary.  Court can use equitable principles to start discovery process even before mandatory conference as prescribed by the Federal Rules of Civil Procedure 26(f). 

In an action for copyright infringement and unfair competition, under both Federal and State law, Antioch claimed that Scrapbook was selling copyrighted products.  Antioch claimed that without permission, Scrapbook sold decorative stickercontinue…

Internet Music Exchange Website Faces E-Discovery Sanctions for Failure to Preserve “Transitory” Electronically Discoverable Information

By K.K.

Arista Records LLC v. Usenet.com, Inc., 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009)

Employee/Employer Implicated:  Defendant Internet Service Company – Usenet.com

eLesson Learned:  Additional action is necessary to preserve all relevant electronically stored information that relates to pending litigation. 

Usenet.com is an internet service that provides daily posts and news updates for subscribers. Until the recent lawsuit, subscribers to usenet.com could post a request, upload and download music through the website. 

In January 2007, several record companies joined together in a suitcontinue…

Before complying with a discovery request, parties should seek to obtain a protective order to prevent the inadvertent dispersal of sensitive information.

By Matthew T. Utermark

Employee/Employer Implicated: Counsel

eLesson Learned:  Complying with discovery requests, particularly those for electronic documents, can be an overwhelming ordeal.  To protect from inadvertent disclosures of documents when complying with discovery requests, the parties involved should seek protection orders to prevent the disclosure of sensitive information.  While protective orders are normally aimed at preventing sensitive information from being released, this case illustrates the importance of protective orders andcontinue…

By Frank Gonnello, Jr.

When I was first invited to attend the 2009 LegalTech New York show, I knew I couldn’t miss out on a day of shameless plugging of e-Lessons Learned and networking with some of the biggest names in the electronic discovery world. So this morning I cut class, threw on my best suit, grabbed a buddy, and traveled with PDA in hand to the Hilton NY.

I’ve never been to a LegalTech event, let alone any conference where my title was Chief Blog Officer, so I wasn’t sure what to expect, but I figured an event that sounds like the brain childcontinue…

Don’t Let Opposing Counsel Be The First To Manually Review E-Mails You Produced, Or You Risk Waiving Privilege

Anonymous Law Student

Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)

Employee Implicated: IT specialist retained for document review

eLesson Learned: Protect yourself and your business by spending the extra money needed to make sure every document you are going to hand over to opposing counsel is reviewed at least once by an actual human being and not just a sophisticated document review program.

Rhoads Industries, Inc. sued Building Materials Corporation of America for breach of contract.  Extensive discovery ensuedcontinue…

Failure to Cooperate Fully in the Discovery Process May Result in Sanctions

By Patrick J. Ryan

In re Seroquel Prods. Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007)

Employer/Employee Implicated: Counsel

eLesson Learned: A party’s counsel should cooperate fully with the discovery process to ensure that it will not incur sanctions on behalf of itself or the party. This requires, at the very least, that the party’s counsel provide all relevant, requested documents and information in both a timely fashion and useable format. Above all, counsel must bear in mind that discovery is in no way meant to be an adversarial process.

The plaintiffs incontinue…

By Sheetal Patel

Square D. Co. v. Scott Electric Co., No. 06-00459, 2008 WL 2779067 (W.D.Pa. July 15, 2008)

Employee Implicated:  Counsel

eLesson Learned:  Causing constant and unreasonable delays in effectuating a court-ordered forensic inspection not only hinders the effective adjudication of a case but also makes judges extremely angry.  While counsel could make relevant and timely objections, counsel should refrain from obstinate behavior in the discovery process because it may ruin your rapport with the judge and ultimately harm your client’s interests.  Further, if a party wishes to limit the scope of a forensic inspection, it should request the court to do so prior to the inspectioncontinue…