This week, we'll be posting a guest post from Doug Austin over at CloudNine's eDiscovery Daily Blog. CloudNine is one of our main partners in providing excellent eDiscovery and computer forensics services to clients here in South Carolina. In this post, CloudNine takes a look at eDiscovery in case law.
In Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., No. 15-1435 (E.D. Cal., Dec. 29, 2016), California Magistrate Judge Jennifer L. Thurston granted the defendants’ motion to compel (in part), ordering the plaintiffs’ to “produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer”.
In this breach of contract case over the sale of farmland, the defendants requested email communications in TIFF format with the corresponding metadata. The plaintiff produced TIFF formatted emails, but only after they had been forwarded from the subject computer to the office of the former attorney for the plaintiffs, rendering the metadata “wholly useless and irrelevant because it pertains to the forwarded versions of the emails to Plaintiffs’ counsel’s paralegal, not the original emails between Plaintiffs and Hancock.”
The defendants argued that the metadata from the native versions of the email was crucial because it appeared that the plaintiffs produced key emails that were changed when compared to the same emails directed to the recipient. According to the defendant, some emails appeared to have been “whited out” from the plaintiffs’ versions, and in other instances new and different text had been inserted into Plaintiff’s versions. In one example, the plaintiffs’ copy of an email stated that the defendant’s representative indicated (apparently, when discussing a document related to the sale) that “It’s Acceptable.” The one produced by the defendant did not have this language.
Regarding the inconsistencies, the plaintiff’s only argument was that their attorney (who had since been replaced) explained that he did not have any experience in eDiscovery and was working with a computer specialist to correct the problem.
There was also a dispute over whether the defendants had actually ever sent an email with a signed copy of the sales agreement. The plaintiffs provided a standalone PDF copy of the sales agreement signed by the plaintiff (with no supporting metadata) and an email from the plaintiff, sending an unsigned version of the agreement.
With regard to the forwarded emails produced with incorrect metadata, Judge Thurston ruled “In light of the significant showing as to the importance of the metadata from the native computer, the Court GRANTS the motion. Thus, the motion to compel as to any request for electronically held documents is GRANTED. Within ten days, the plaintiffs SHALL produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer.”
Observing that the defendants were arguing that the email that discussed the sales agreement included an unsigned, draft copy of the agreement and that the plaintiffs had failed to provide an email which supported that the plaintiff sent an executed, final copy of the sales agreement, Judge Thurston ordered the plaintiff to “provide all responsive emails and documents… in the format demanded and with the accompanying metadata from the native computer.”
So, what do you think? Would a native file production have eliminated the issue? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
We continue to enjoy sharing CloudNine's great posts on the uses of eDiscovery in the courtroom and beyond. This case would have gone very differently with the use of quality eDiscovery services, and the leading attorney on the case admitted as much after the fact and was working with a computer specialist to rectify the issue.
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