In Episode 154, Kelly Twigger discusses whether metadata is required when producing photographs, why you might want it, and whether the failure to produce data as an initial disclosure can lead to sanctions in Moore v. Garnand, Inc. (July 3, 2024).
Introduction
Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me today.
Each week on the Case of the Week, I choose a recent decision in ediscovery and talk to you about the practical implications of it. This week’s decision highlights the importance of metadata in recreating a story, as well as the obligation to produce it. Here, that obligation originated in defendants’ initial disclosures as part of the Mandatory Initial Discovery Pilot project in the District of Arizona.
Before we dive in, just a couple of quick announcements. Many of you know that next week is Relativity Fest in Chicago. Relativity Fest is a very popular user conference. Thanks very much to my good friend David Horrigan, who invited me back this year to join a very prestigious group on the case law panel. I’m also looking forward to addressing the Relativity scholars and mentors as well. Our team from eDiscovery Assistant will also be at the event. So if you’re interested in signing up for a meeting to chat about the platform or what things are happening, watch your email and LinkedIn for a link to sign up.
I’ll also be broadcasting the Case of the Week live from FEST next week. It’s going to be very exciting. That’ll be on Wednesday, September 25th at noon central time. So a little bit different timing than our usual Tuesday morning. If you’ll be at FEST, please stop down to pop in on the broadcast.
All right, let’s dive into our case for this week.
Background
Our case this week comes from Moore v. Garnand. This is a decision from July 3, 2024 from United States Magistrate Judge Michael Ambri. Magistrate Judge Ambri has three decisions in our eDiscovery Assistant database. The issues for this case include photograph, initial disclosures, manner of production, cost recovery, sanctions, metadata, and failure to produce.
Facts
We are before the Court on a motion to compel, for sanctions, and for attorney fees and costs brought by the plaintiffs. In the underlying § 1983 action, the plaintiffs, who are the Moores, claimed that their constitutional rights were violated when the defendants obtained and executed two search warrants in connection with an arson investigation into the destruction of an apartment building on June 8, 2017.
The first warrant sought DNA and other personal effects and was executed on June 9th, a day after the fire, at the plaintiffs’ residence. The second warrant, for financial documents, was executed on June 14th at plaintiffs’ place of business. The plaintiffs claimed the warrants were not supported by probable cause and contained misrepresentations and omissions.
According to the plaintiffs, the defendants disclosed hundreds of photographs taken during the seizures, in three categories: those taken the night of the fire, of the search and seizure on June 14th at their business, and those taken during the June 9th warrant execution at their home. When defendants disclosed the photos, they did not disclose the accompanying metadata with the photos. The Moores argued that the metadata contained date and time information for the photographs that would help them reconstruct the sequence of events taken by the Tucson Police Department during their investigation, which is information that “the witnesses have forgotten.” The plaintiffs moved to compel the metadata and argued that it should have been disclosed at the beginning of the case under the Mandatory Initial Discovery Pilot (MIDP) project. That project requires each party to disclose ESI as part of its initial disclosures.
The Court also noted that many of the photographs were originally disclosed as a result of a separate state civil action that the Moores brought pursuant to the Arizona Public Records Act. Defendants made two arguments in opposition to the motion to compel: first, that the plaintiffs waited too long to make the argument as a “strategic decision,” and second, that the metadata was not necessary to understand the sequence of events because the Department had filled out placards and took photos of them to indicate the beginning of time for every specific group of photos.
Analysis
What is the Court’s analysis here? The Court rejected both of defendants’ arguments and found that the metadata should have been produced as part of the defendants’ initial disclosures and granted the motion to compel. No real surprise there. In doing so, the Court stated that “[t]he metadata appears to be relevant and should not be too difficult to retrieve assuming the Moores are correct and the metadata is attached to the images stored in the Tucson Police Department computer system.” The Court also found that the placards were not a substitute for the metadata. While the placards supplied some information from where and when each group of photos was taken, they did not reveal the actual sequence of events that took place during the investigation.
The Court granted the motion to compel and required production of all of the metadata, but did not find that sanctions were appropriate or award costs on the motion.
Takeaways
What are our takeaways?
Well, if you caught my Off the Cuff from last week, this case falls directly in line with my thoughts from that discussion. And that is that eDiscovery is about telling your story and using ESI to do that. I think what so many folks forget or don’t focus on is that when we had only paper, there was so much less written down and so much more was open to interpretation or reliance on witness testimony. We all know that witness testimony is prone to loss of memory, as well as bias, where ESI is really cold, hard facts. That’s why metadata is so important and why I advocate for it regularly. If you are just trading images or PDFs without that metadata, you are missing out on leveraging the ability to use the facts of that metadata to tell your story. Here, the plaintiffs wanted the metadata to tell the exact story of what was done when, and those kinds of specific details are going to be very hard for a witness to recall accurately after a period of time.
The data is going to be much more reliable, and it’s also going to be much harder to cross-examine. Don’t forget the metadata. Every type of ESI has metadata, but the fields that exist vary depending on the source. Know what fields exist that you can use to tell your story. It’s pretty simple. You can Google it. What are the metadata fields for X? I will say this, if you want metadata as early as possible so that you can use it to examine all aspects of the witness testimony and the story you can put together, you need to ask for it up front. Make sure you’re getting it in an ESI protocol. Make sure you’re asking for it in your request for productions. Be specific about what you’re asking for. List the fields of metadata for each source of ESI that should be responsive to your requests.
In order to be able to use that metadata to tell a story, you need to ask for it as early as possible. But as in this case, better late than never. So get the metadata, be able to leverage it. I’m telling you, once you start looking at what’s available there, you’ll understand how you can use things factually to put a story together. But you’ve got to do it. You’ve got to get into the game here with the data.
Plaintiffs here asked for sanctions as a violation of Rule 37(b), which requires a violation of court order, and not 37(c), which provides for sanctions for the failure to provide ESI in initial disclosures under Rule 26. The Court did not undertake any analysis with regard to sanctions — really likely finding, without saying so, that turning over the data was sufficient to cure the error.
Now, that’s a good result and it makes good law. But the point I want you to take away here is you need to understand what the different sections of Rule 37 are and what sanctions are available under each. The appropriate section here to argue about as a result of the failure to provide these on initial disclosures was Rule 37(c). Most courts will do an analysis under Rule 37, even if you don’t argue the right section. But it’s better to argue the right section and provide the basis for that section and all the elements that the court needs to undertake that sanctions analysis.
Finally, as the producing party, be careful that you are following the rules and the case law in your jurisdiction about what needs to be produced as initial disclosures. We’ve seen a dramatic rise in decisions for failure to produce as a result of a party’s initial disclosures, and Rule 37(c), as I mentioned, provides for sanctions where warranted for a failure to do so.
Conclusion
That’s our Case of the Week for this week. Thanks for joining me. As always, if you have suggestions for a case to be covered on the Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
We’ll see you next week live from Relativity Fest on Wednesday, September 25th at noon Central Time. Please join me. Thanks and have a great week!
