Case Law & Regulations

  • Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production:

    In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law.

    In late 2006, after filing an Equal Employment Opportunity Complaint against the city, plaintiff submitted a series of public records requests.  The city’s subsequent production contained hard copy versions of electronic documents responsive to his request for all notes “documenting supervisory performance” within the relevant time frame.  Plaintiff suspected the notes had been backdated and requested production of the metadata associated with each document.  The city refused arguing that the requested metadata was “not maintained by the city and was not available,” and that metadata was not a public record.  In response, plaintiff brought a special action before the district court. Finding it lacked jurisdiction to hear the matter, the superior court denied plaintiff’s motion to compel.  Plaintiff appealed, and the appellate court affirmed the superior court’s ruling denying the production of metadata.

    Addressing the merits of plaintiff’s request, the appellate court conceded that Arizona “has a strong policy of public access to and disclosure of public records,” but noted that the presumption requiring disclosure arises only after a determination that a certain record is a public record.  The court continued, stating that although the term “public record” had not been defined by the legislature, the Arizona courts have long recognized three alternative definitions:

    (1) a record "made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference";  (2) a record "required to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done";  or (3) a "written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by ... law or not."

    Addressing each definition in turn, the court found that metadata did not fall under the first definition where the officer creating the notes at issue “did not create the metadata pursuant to any such duty, as it was generated only as a by-product of his use of a computer” and where “the purpose of the metadata was not to “disseminate information to the public” or “to serve as a memorial of an official transaction…”

    Similarly, regarding the second definition, the court found that “[the officer] was not ‘required by law’ to create or maintain metadata about his notes nor was he required to create or maintain such data ‘to serve as a memorial and evidence of something written, said or done.’”

    The metadata also did not fall within the scope of the third definition, although the appellate court admitted that it was a closer question.  Ultimately, the appellate court found the third definition did not apply and drew a distinction between the information actually created by the officer, i.e., the notes, and information created by the computer, i.e., the metadata.

    The appellate court then addressed plaintiff’s arguments that the metadata contained valuable information, unavailable from any other source, and that the information was essential for authentication.  The appellate court rejected the arguments.  Relying on its prior reasoning, the court first found the arguments inapplicable because metadata is not a public record.  Second, the court noted plaintiff’s failure to provide authority suggesting that Arizona’s public records law was “co-extensive” with the evidentiary rules in litigation.  Third, the appellate court found that the law supported a distinction between the metadata records sought and public records available to the public.

    Addressing the argument that because the metadata is embedded it should be considered a public record, the appellate court found that “[p]hysical location of the information…does not determine whether it meets the definition of a public record.”  The court went on to note the “practical reality” that each time a government employee logs onto the computer, clicks a mouse, pushes the keys, “a ‘record’ has arguably been generated.”

    In conclusion, the court summarized its discussion and held that because metadata was not a public record, the presumption in favor of production did not apply.

    It should be noted that at least one court in Washington State has reached the opposite conclusion regarding the production of metadata as a public record.  O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Wash. Ct. App. 2008).  This case was mentioned in a footnote by the Arizona Court of Appeals and was distinguished in light of Washington’s specific statutory language defining a public record as, “any document, including ‘data compilations from which information may be obtained or translated,’ which contains ‘information relating to the conduct of government… owned, used, or retained by any state or local agency regardless of physical form or characteristics.’” Copyright © 2009, K&L Gates LLP

  • Finding that Production of Privileged ESI Effected Waiver, Court Describes Risks of Privilege Review Using Keyword Searches and Offers Guidance on Proper Assertion of Privilege

    In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status.  The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s Rule 34 requests.  The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI.

    In March 2007, defense counsel notified the court that individualized privilege review of the responsive ESI would delay production unnecessarily and cause undue expense.  To address this concern, defendants gave their computer forensics expert a list of keywords to be used to search and retrieve privileged and protected documents from the population of documents that were to be produced to plaintiff, and requested that the court approve a “clawback agreement” fashioned to address the concerns noted in Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005).  Later, when the discovery deadline was extended, defense counsel notified the court that defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary.  Following their privilege review, defendants produced responsive ESI in September 2007. Copyright © 2009, K&L Gates LLP

  • FRCP Rule 502

    On September 19, 2008, the President signed into law S. 2450 creating FRE 502, a new rule of evidence entitled: “Attorney-client privilege and work-product doctrine; limitations on waiver.” The text of the Advisory Committee Note for new FRE 502, as supplemented by a Congressional addendum added during the Rule's passage appears below.

    Rule 502(b) provides that such an inadvertent disclosure "in a federal proceeding or to a federal office or agency" is not a waiver if the holder "took reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error." The Advisory Committee explains that the "reasonable steps" requirement is "flexible." In addition to tests for reasonableness set forth in certain prior case law, the committee recognizes the practical realities of electronic document review by saying that a party that uses "advanced analytical software applications and linguistic tools" in screening for privilege and work product (e.g., searching for key names and terms) may be found to have taken "reasonable steps" to prevent inadvertent disclosure.  Copyright © 2009, K&L Gates LLP

  • Michigan Amends Court Rules to Address E-Discovery

    On December 16, 2008, the Michigan Supreme Court adopted amendments to Michigan’s Court Rules to address discovery of electronically stored information in civil litigation.  The new rules became effective January 1, 2009.

    The adopted amendments affect the following rules:

    • 2.302 General Rules Governing Discovery
    • 2.310 Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other Purposes
    • 2.313 Failure to Provide or Permit Discovery; Sanctions
    • 2.506 Subpoena; Order to Attend
    Copyright © 2009, K&L Gates LLP
  • Louisiana Amends Three More Rules to Address Treatment of Electronically Stored Information

    Effective January 1, 2009, Louisiana has adopted amendments to several civil rules to specifically address the treatment of electronically stored information.

    CCP 1354 Subpoena deuces tecum - was amended to govern the form of electronically stored information produced in response to a subpoena duces tecum and specifically addresses the format of production and production of documents not reasonably accessible, among other things.
    CCP 1471 Failure to comply with order compelling discovery; sanctions - was amended to establish that where electronically stored information is lost as the result of a routine, good-faith operation of an electronic information system, a court may not impose sanctions pursuant to this rule.
    CCP 1551 Pretrial and scheduling conference; order - was amended to specifically direct consideration of discovery of electronically stored information in the pre-trial order. Copyright © 2009, K&L Gates LLP 

  • New Year, New Rules: Alaska and Virginia Adopt E-Discovery Amendments to Civil Rules

    On December 19, 2008, the Supreme Court of Alaska adopted amendments to Alaska’s Rules of Civil Procedure to address the discovery of electronically stored information.  The amendments affect rules 16, 26, 33, 34, 37, and 45 and become effective April 15, 2009.

    On October 1, 2008, the Supreme Court of Virginia adopted amendments to Virginia’s Rules of Civil Procedure. The new rules address the discovery of electronically stored information. The amendments affect rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13. The rules became effective as of January 1, 2009.
    Copyright © 2009, K&L Gates LLP 

  • California Legislature Reconsiders E-Discovery Amendments

    On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information.  As stated in AB 5:

    This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any party to the action.  This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection of documents, tangible things, land or other property, or electronically stored information.

    The proposed amendments closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.

    This bill is virtually identical to the “original” e-discovery bill, Assembly Bill 926, vetoed by Governor Arnold Schwarzenegger earlier this year.  The notable exception is the inclusion of an urgency clause which would make the bill effective immediately upon signing. Copyright © 2009, K&L Gates LLP

  • President Bush Signs into Law S. 2450, a Bill Adding New Rule 502 to the Federal Rules of Evidence

    On Friday, September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection.  S. 2450 is identical to proposed Evidence Rule 502, as approved by the Judicial Conference of the United States in September 2007.

    Now that the bill has been signed by the President, it has been assigned Public Law Number 110-322 by the Office of the Federal Register. Next, OFR editors will prepare it for publication as a Slip Law, and then include it in the next edition of the United States Statutes at Large.

    New Evidence Rule 502 will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment. Copyright © 2009, K&L Gates LLP

  • Finding Waiver of Attorney-Client Privilege and Work Product Protection, Court Orders Production of Attorney Notes of Employee Interviews Concerning Intel's Compliance with Evidence Preservation Obligations

    In this decision, the district court adopted the Special Master’s Report and Recommendation concerning the Motion of AMD and Class Plaintiffs to compel Intel to produce notes of its counsel's investigation interviews of designated employees concerning Intel's compliance with its evidence preservation obligations (the “Weil Materials”).  The Weil Materials included notes taken during and after the custodian interviews, meeting notices, emails between attorneys regarding the interviews, etc.  The court ordered Intel to produce the requested Weil Materials, as redacted by the Special Master. Copyright © 2009, K&L Gates LLP

  • Magistrate Judge Imposes Monetary Sanctions and Recommends Adverse Inference Instruction, but not Dismissal, for "Reckless and Egregious Discovery Misconduct"

    In this patent infringement case, plaintiffs sought terminating, evidentiary and monetary sanctions based upon defendants' spoliation of evidence.  Plaintiffs argued that defendants had destroyed three types of evidence:  (1) source code; (2) early architectural, design and implementation documents; and (3) reports.  Plaintiffs contended that the spoliation of these materials impacted plaintiffs' ability to meet their burden of proving infringement.

    The court held several hearings and received extensive briefing on the spoliation issue, which the court observed “became a moving target because of Defendants' belated production of evidence that it had previously stated was either nonexistent or destroyed.”  In the end, the magistrate judge imposed a monetary sanction of fees and costs associated with defendants' discovery misconduct, and recommended that the district court give an adverse inference jury instruction to address the spoliation that occurred.  Although the magistrate judge found that the discovery misconduct by defendants in the case was "among the most egregious" the court had seen, she declined to recommend terminating sanctions because there was no evidence that defendants engaged in deliberate spoliation, and because the extreme sanction of dismissal would go beyond what was necessary to cure the prejudice to plaintiffs. Copyright © 2009, K&L Gates LLP

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