UK lawyers are rightly sceptical about the relevance of US e-discovery rulings to their own cases. Occasionally, however, one comes along which is grounded in universally-applicable common sense or which throws light on some basic technological point which has not been tested in the UK. Judge Shira Scheindlin’s ruling in the Day Laborer case is one such.
Every so often, a US ediscovery case appears which is illuminating to UK lawyers dealing with e-disclosure. I put it like that, because many US cases have the opposite effect when recited to a UK audience. The general principles are broadly the same, but most US cases rely on terminology and principles – of “sanctions”, “defensibility”, “preservation” and “legal hold” – which all have their equivalents here but which we decline, so far at least, to get quite so worked up about. If the US thinks us backward as a result, then we are content to be thought so. Some of our key principles – that you do not have to look under every stone when searching for disclosable documents, for example – are near-heresies in the US.
They will come to our way of thinking eventually and, meanwhile, we have quite enough to do at a more fundamental level. When Lord Justice Jacob challenged the view that “No stone, however small, should remain unturned” (Nichia v Argos, at paragraph 50), he was enunciating a principal vital to the meaning of proportionality which needs to be clearly understood; he did not mean that we could ignore electronic documents completely if it all looked a bit complicated. Master Whitaker’s judgment in Goodale v the Ministry of Justice simply applies existing principles of proportionality, active management, discretion and co-operation which, if understood correctly, could reduce the cost of electronic disclosure in almost any case. The new Electronic Disclosure Practice Direction 31B is neither complicated nor technical, and is easily understood by anyone who bothers to read it – as some commentators may care to before they next criticise it as unduly burdensome. Let’s bite that lot off before we start inventing new problems to conquer.
Whilst most US ediscovery cases are of limited appeal in the UK, we have the luxury of picking and choosing the bits we like – as in fact do US courts, since most of the Opinions are merely persuasive rather than binding outside the court in which they were made. Some Opinions give us painstaking explanations of basic facts which are relevant and helpful in any jurisdiction, and one of those is Judge Shira Scheindlin’s Decision in the Day Laborer case (National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) which was about a Freedom of Information Act (FOIA) request. It concerns the exchange of metadata and other matters relating to the form in which documents are handed over to the other side and, in looking at it from a UK perspective, I am going to skip most of the differences between our respective systems, the controversies over Judge Scheindlin’s ground-breaking opinions on other matters, and broader questions about lawyers’ discovery /disclosure duties, and just focus on metadata.
Before you yawn and turn away at the mention of metadata, just strip it of its techno-geek (techno-Greek perhaps) connotations and ask yourself this: if your opponent gave you a paper document with addressee, sender, date and subject obscured and replaced by his own version of those things, would you find that acceptable as evidence? And if he subsequently tried to stick you with the cost of replacing the original information which, as it were, came free with the document itself, with his own version, would you cheerfully write him a cheque? I thought not. So why do UK lawyers think that the disclosure of metadata is optional?
Let us start with a definition of metadata. Practice Direction 31B says this amongst the definitions in Paragraph 5:
‘Metadata’ is data about data. In the case of an Electronic Document, Metadata is typically embedded information about the document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or paper document. It may include (for example) the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an e-mail. Metadata may be created automatically by a computer system or manually by a user;
‘Native Electronic Document’ or ‘Native Format’ means an Electronic Document stored in the original form in which it was created by a computer software program
The Practice Direction also recites some general principles in paragraph 6 which include the following:
Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure
Paragraph 7 of the practice direction says this about preservation of documents:
As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.
Finally in this context, Paragraph 33 provides as follows:
Save where otherwise agreed or ordered, electronic copies of disclosed documents should be provided in their Native Format, in a manner which preserves Metadata relating to the date of creation of each document.
…and Paragraph 28 says of this that parties who want more metadata than that which comes with the documents anyway must demonstrate that the “relevance and materiality” of such metadata justifies the “cost and burden” of producing it.
If you add these things together, you see definitions and reminders which mean that native documents which exist at the moment litigation is contemplated should be exchanged in that form complete with then existing metadata. You can protest all you like about your unwillingness to hand over documents which may include document tracking, spreadsheet formulae and other information not visible on a document’s face, but before you wax too eloquent about it, you may care to ask yourself (again) what you expect from your opponents. A draft of a disclosable document would be disclosable, so why not the tracked changes? In the absence of a legitimate claim for privilege, what exempts your formulae from disclosure? None of this derives solely from the new Practice Direction – in this respect, the PD merely affirms what would always have been proper.
Let us turn now to Judge Scheindlin’s decision via two of the many articles which have appeared about it, one called FOIA Fails to Escape the Long Arm of the EDiscovery Rules by Caitlin Murphy of AccessData and one by Jennifer Reardon and Farrah Pepper on the Law Technology News site with the heading Much Ado About Metadata. The central issues were a) the format for production (“exchange” we would say in the UK), b) the application of common sense alongside strict jurisdictional matters, and c) the need for co-operation when electronic documents and data were involved. I will take these in turn, with an eye more to the UK principles than to those of Judge Scheindlin’s own court in the Southern District of New York.
Format for Production
The Plaintiffs had proposed a protocol with their desired format for individual electronic files. The government instead provided five composite unsearchable files with no metadata. Judge Scheindlin’s findings that FOIA requests are subject to the production requirements of the Federal Rules of Civil Procedure is less significant (because purely local) than her broader statement (as reported in the Reardon/Pepper article) that the FRCP requirements “surely should inform highly experienced litigators” – at least as a matter of common sense – “as to what is expected of them when making a document production in the twenty-first century”.
I have cited enough from the UK Practice Direction to show that it contains a reasonably comprehensive set of requirements for its context – I use the word “reasonably” as a compliment, meaning something between the opposed twin evils of “vague” on the one hand and “prescriptive” on the other; its context is civil litigation to which the PD applies, namely multi-track litigation. Judge Scheindlin’s conclusion about common sense seems to me to be of near-universal application. If questions arise in any UK forum (and the rest of you are welcome to borrow it) about the most practical way to provide documents and data to opponents, PD31B provides a sensible set of suggestions.
Inclusion of Metadata
Again, forget all the stuff about whether FOIA requests are subject to FRCP requirements and whether the plaintiffs should have requested metadata. The universal message lies in Scheindlin’s suggestion that where “ESI is kept in an electronically searchable form, it should not be produced in a form that removing removes or significantly degrades this feature”. I can see why one might prefer not to give it, but why would one accept anything less? And what, almost incidentally, are the costs implications of turning one kind of data format into another?
The thorny question arose of hidden data in spreadsheets, that is, information which would not appear on a print or an image of the spreadsheet but which is accessible in its native format. This, as mentioned above, usually arises in relation to formulae, but came up in the Day Laborer case in respect of information which was subject to an FOIA exemption. In a UK civil context, there are not many reasons why a formula in a disclosable spreadsheet should itself not be disclosable. Is there a claim to privilege which does not apply to the spreadsheet itself? Perhaps Public Interest Immunity can be claimed. You get the picture – if it is part of the native document, then removing or concealing it, in Judge Scheindlin’s words, “significantly degrades” the document and there are limited circumstances in which it is right to remove or obscure it. Would you think it right, for example, to detach a sheet of workings which you found clipped to a set of printed accounts? You cannot just side-step the problem by supplying an image instead, unless the parties agree to this or the the court so orders.
The Much Ado about Metadata article says this about co-operation:
Scheindlin expressed exasperation at having to “rule on an e-discovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”
In UK’s civil proceedings to which the practice direction applies, it is mandatory for parties to co-operate in this way. That appears in the Practice Direction (see Paragraphs 8 and 9), but the Practice Direction merely reflects obligations which the parties bear anyway (see Rule 1.3, which requires the parties to “help the court to further the overriding objective”, and the “cards on the table” approach which was a key element in the 1999 Civil Procedure Rules).
There is plenty to dislike in this for a combative lawyer who thinks that he is selling his client down the river if he cooperates as the rules require. There are three points to make here: the rules do in fact require it and the court can punish in costs those who do not cooperate; non-co-operation can be expensive on your own side, never mind as between the parties, and the client needs to understand the expense implications of an aggressive route which he might otherwise favour; co-operation as to the mechanics of disclosure can generally be divorced from serious fighting about the issues. As an American judge put it, “co-operation is not all sitting around the campfire singing Kumbaya”.
There are two possible reasons why the US government delivered their documents in a hard-to-read format: one is that it deliberately set out to be difficult; the other is that it knew no better. It cannot have been motivated by the wish to save money, since the conversion of the documents would have cost it more on its own side, never mind in the hands of the plaintiffs, than merely supplying them in their native format.
The corollary to this unwillingness by parties to hand over their documents in their simplest form is that their opponents can learn to force them to do so and gain an advantage as a result. Caitlin Murphy refers in her article to “requestors becoming savvier every day about electronic discovery methods” as a means of putting pressure on the government. The same applies in UK civil proceedings. I am, of course, not urging parties to use the rules deliberately to exploit the difficulties which that may cause to their opponents. The right course is always the proportionate course, and that is the one which achieves the overriding objective at the lowest cost. That will generally mean that right is on the side of the party who knows the rules, follows them itself, and can compel opponents to do so as well.
That does not make electronic disclosure as set out in PD31B the right course in every case. The issue which we face is that the parties do not inform themselves as to what is possible and what the costs are of any particular course. Judge Scheindlin was at pains to point out that her ruling applied only to the facts of the case in front of her, and what Judge Scheindlin says is, in any event, of no authority anywhere else. This ruling, however, is firmly grounded in common sense and in her own knowledge of what is possible, and was made by reference to the nearest equivalent set of rules and guidance.
In the UK, that exists in the Practice Direction 31B CPR. It makes sense to understand how it can help even in cases and jurisdictions to which the Practice Direction does not apply.