By Peter Coons, Senior Vice President, Computer Forensics and Collections Expert, D4
In late September 2011, at the Eastern District of Texas Judicial Conference, Chief Judge Randall R. Rader introduced a Model Order to be used in patent litigation.
Of interest to me are the items in the Order that addressed electronic discovery. Rader stated that one reason for the Model Order was to keep costs in check. His speech included the comment that “in one 2010 report, the Federal Judicial Center determined that Intellectual Property cases had costs almost 62% higher, all else equal….”. He continued, “I saw one analysis that concluded that .0074% of the documents produced actually made their way onto the trial exhibit list—less than one document in ten thousand. And for all the thousands of appeals I’ve evaluated, email appears even more rarely as relevant evidence.”
The Model was the brain child of an eDiscovery committee that comprised judges from three district courts: Chief Judge James Ware (N.D. Cal.), Judge Virginia Kendall (N.D. Ill.), and Magistrate Judge Chad Everingham (E.D. Tex.).
There are three main themes in the eDiscovery; metadata, e-mail, and inadvertent waiver of privilege.
I just wanted to say a few words about my old friend, metadata.
Metadata
Item #5 in the Order – “General ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall not include metadata absent a showing of good cause. However, fields showing the date and time that the document was sent and received, as well as the complete distribution list, shall generally be included in the production. “
My thoughts on metadata: Is the above consistent with the Sedona Conference and its recommendations on metadata?
Sedona Principle 12 initially stated that “[u]nless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.”
The current Sedona Principle 12 was revised. It now provides that the form of production should take into account “the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.”
I don’t believe all attorneys actually know what metadata is and how it can be used. I wonder how many eDiscovery practitioners the eDiscovery committee consulted with prior to coming up with metadata #5. The Order states that metadata, absent good cause, is not needed. The exception is fielded data with recipients, times the document was sent or received, etc.
So they give two examples, but are there additional metadata elements that may be relevant in a patent case? What about the time a document was created, accessed, or modified? What about the metadata in a document management system that tracks who accessed a document and when? Or more importantly the audit trail information that identifies when it was uploaded to the DMS or when it was modified.
Forget about databases. One could argue that each element of a record is metadata. So if that is true then I guess the Model Order would recommend that none of it has to be produced.
There is no mention of metadata in the FRCP, but what about Rule 34 where it states:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms;
Is a Word document that is tiffed and stripped of the create date, modified date, author, etc. the same format as it is stored in the normal course of business? Perhaps it is OK because that information is not important. But is it useful? My vote is, YES.
Also, what about metadata and how it can be used to expedite review? If the Judge Rader is concerned about cutting costs then eliminating all the metadata may have the opposite effect. If I am on the receiving end of a document production and I don’t have document dates and therefore can’t quickly identify documents in a certain month and year then I am going to spend more time and money trying to review all the documents. Now the absence of metadata is working against me…
I think it comes down to this – Is the metadata relevant? Can it assist with the review process? Does it hurt to produce it? Is there an extra effort or cost to produce it?
I am not advocating producing every piece of metadata, but wouldn’t the Model Order better serve the intended audience if the language read:
“General ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall only include those metadata elements that serve to assist and facilitate a speedier and more efficient production and review of documents. Any metadata that is considered responsive to specific requests or that help support claims or defenses related to the matter must also be produced. For example, fields showing the date and time that the document was sent and received, as well as the complete distribution list, may typically be included in the production. “
I am not a lawyer, so I am sure that someone that practices law for a living can come up with something better. Regardless, all of these issues need to be discussed at the 26(f) meet and confer. If both sides address metadata and any other potential issues and can avoid the Court’s involvement then everyone is better off in the end. If you know anyone that needs assistance with 26(f) conferences they can e-mail me at pcoons@d4discovery.com.
