E-Discovery Update: Get Your Metadata Straight

Get Your Metadata Straight

February 6, 2017

Tired of hearing about metadata? Here’s one case where it made a difference.

In Singh v. Hancock Natural Res. Group, Inc., et al., 2016 U.S. Dist. LEXIS 179974 (E.D. Cal. Dec. 29, 2016), the parties had agreed to produce single-page TIFFs, searchable text, load files and a metadata file. The plaintiffs produced in this fashion, but with one important distinction — their clients had forwarded all the emails to their counsel first so when the metadata was extracted, what appeared in the “to,” “from,” “cc,” “bcc,” date and other fields was the information from the forwarded email, not the original.

Defendants argued that the metadata for the emails plaintiffs forwarded to their counsel was worthless and irrelevant. In addition, some of the emails produced by the plaintiffs had missing or different text from the same emails that were produced by the defendants. The metadata would have helped to explain these differences, if the correct information had been produced.

Plaintiffs’ counsel (now former counsel) offered no explanation for the inconsistencies in the emails, except that “he did not have any experience in e-discovery and was working with a computer specialist to correct the problem.” Since California State Bar’s opinion on e-discovery competency (Formal Opinion 2015-193) and other case law clearly requires attorneys to have e-discovery knowledge or engage others who do, this argument failed. The judge noted in a footnote that “the lack of competency to respond to electronic discovery is absolutely not a sufficient explanation for the failure to provide proper responses and persisting in this explanation repeatedly through the joint statement as reasonable, frankly, is absurd.”

Finding that the metadata in this case was significant, the court ordered the plaintiffs to produce the emails in the agreed-upon format using the original, native email for metadata. The court also chastised the plaintiffs for not fixing the problems when they were raised and instead forcing the defendants to file a motion. For that, the court imposed sanctions of $4,800 on the plaintiffs.

There are two important takeaways from this case. First, when it comes to e-discovery, incompetence is no excuse. If you don’t know what you are doing, consult with or hire someone who does. Second, producing electronically stored information (ESI) with worthless metadata is not going to be acceptable to either the opposing party or the court. Make sure you are following sound procedures when collecting and producing ESI.