e-Discovery Docket Sheet

In an employment case involving allegations of age discrimination, the plaintiffs requested native production of Microsoft Excel spreadsheets so that they would be able to determine whether the documents “had any actual other columns or types of information available on a spreadsheet.” After receiving the spreadsheets from the defendant, the plaintiffs claimed the defendant “scrubbed” the spreadsheet files to remove metadata without producing a log of the information scrubbed. The plaintiffs also asserted that the defendant locked cells and data on the spreadsheets, thus preventing the plaintiffs from accessing those cells. The defendant admitted that it had scrubbed metadata and locked certain cells but argued that the plaintiffs never requested production of the metadata and claimed that the metadata was irrelevant and contained privileged information. The court gave the defendant seven days to show why it should not produce electronic Microsoft Excel spreadsheets in native format and why it should not be sanctioned for its behavior. The defendant declared that its actions were made in good faith, designed to prevent the plaintiffs from discovering information that the magistrate had ruled undiscoverable, and maintain data integrity. Although the court did not sanction the defendant, it ordered the defendant to produce the spreadsheets' metadata and to produce “unlocked” versions of those spreadsheets. The court held, “when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order.” Williams v. Sprint/United Mgmt Co., 2005 WL 2401626 (D.Kan. Sept. 29, 2005). (For a longer treatment of this decision, see our article this month, “Defining Metadata,” on page 1.)

In an employment-related suit, the defendants filed a motion for sanctions alleging that the plaintiff violated a court order and withheld discovery. In its request for interrogatories and production of documents, the defendants specifically defined a “document” as including “electronic recordings” and “tape recordings.” After the plaintiff failed to provide the requested documents and information, the defendants sought to compel discovery. The court granted the motion and ordered the plaintiff to comply, to which the plaintiff then submitted answers to the interrogatories. During a deposition a month later, the plaintiff revealed that it failed to produce tape and electronic recordings falling within the scope of the defendants' discovery requests. Although the plaintiff produced four electronic recordings shortly thereafter, the defendants sought Fed. R. Civ. P. 37 sanctions and requested dismissal of three of the plaintiff's claims. Alternatively, the defendants sought an order prohibiting the plaintiff from introducing the recordings at trial. Defending the late production, the plaintiff claimed that he did not initially turn over the recordings because they were stored on his computer in a format that could not be easily copied. The court found this “a wholly unacceptable basis for failing to comply with discovery” and determined that the recordings would be excluded from evidence at trial. The court stated, “[m]uch of present day discovery is contained on computers. It is both parties' duty to comply with the rules of discovery and court orders despite technical difficulties.” Shank v. Kitsap County, 2005 WL 2099793 (W.D.Wash. Aug. 30, 2005).

The plaintiffs alleged that the defendants concealed information and submitted false claims for payment relating to aircraft and parts delivered to the government. Claiming the defendants had attempted to “sweep evidence under the rug,” the plaintiffs sought a preservation order, requiring the defendants to “preserve documents, physical evidence, and electronic (computer-based) evidence for discovery and trial.” The plaintiffs further claimed that the defendants' past conduct demonstrated a genuine concern that they might destroy relevant documents. In reply, the defendants stated that they had already taken appropriate steps to preserve relevant evidence within days of being notified of the lawsuit. The court found that the plaintiffs failed to show that any evidence would be lost or destroyed absent a preservation order. In refusing to grant the preservation order, the court declared that the defendants demonstrated they had the capability to preserve the evidence at issue. The court also issued an Initial Order Regarding Planning and Scheduling and stated, “the parties have a duty under Rule 26(f) to meet and develop a discovery plan, including arrangements for electronic discovery in accordance with this court's Electronic Discovery Guidelines.” United States v. The Boeing Co., 2005 WL 2105972 (D. Kan. Aug 31, 2005).

When Producing Native Documents, Metadata Must Remain Intact