One E-Discovery Trap and How to Avoid It

http://ow.ly/85rQP

An article by Charles S. Fax posted on the ABA Litigation News website.

This article discusses litigation involving Facebook founder Mark Zuckerberg, and provides insight into the request for production of metadata during litigation.

The article mentions the case in which Paul Ceglia alleges that Mr. Zuckerberg made him partial owner of Facebook several years ago.  A link to the complaint in that case is provided in the article.  Since the case relies on purported evidence of contracts that were created electronically, and is being defended by claims that the evidence is fabricated, metadata is a crucial element in this case.

The author states, "The potential costs of this discovery can only be imagined—but the resources of the parties, coupled with the stakes, clearly have made their efforts both feasible and worthwhile. This discovery could entail, among other things, forensic examinations of each item of hardware used by Ceglia dating back eight years; examination of hardware housed at Harvard during the same time frame; identification of hundreds of pertinent emails in all electronic media produced; production and review of the metadata for each email; and related forensic analyses.

The metadata issue is especially vexatious. To be admissible as evidence an email must be authenticated."

The article goes on to further state that metadata is sometimes not essential to a case, however there are risks to not requesting metadata early in the matter.  The article provides some advice as follows, "...delaying a request for metadata can be risky. This is especially true if the discovery period is short. Even assuming counsel has reviewed the documents in a timely manner, until preparation of a dispositive motion or pretrial preparation, he or she still might not appreciate the significance of a particular document, or the necessity of proving (or disproving) its authenticity. If discovery has ended, counsel’s ability to challenge authenticity may be lost.

This trap can be avoided, however, by a simple expedient: Both parties can agree not to seek metadata at the outset of discovery but reserve the right to request at their own expense, by a date certain, a stipulated amount of metadata from the other side. For example, “10% of all electronic discovery produced, or ‘x’ amount, whichever is less—and expandable on good cause shown.” This phased approach is recommended in the recently published handbook, Managing E-Discovery and ESI: From Pre-Litigation Through Trial, citing Mancia v. Mayflower Textile Servs. Co. [PDF]. and the rule 26(f) requirement for a discovery plan."  Links to the referenced article and case are provided in the writing.