Episode 58: Understanding Metadata and Recusal in eDiscovery

In this week’s #CaseoftheWeek, we are exploring a decision from the Western District of Pennsylvania in the case of Arconic Inc. v. Novelis Inc. At issue is a motion to recuse Judge Joy Flowers Conti based on the metadata in the author field of decisions that have come from the court. Arconic alleges that the Special Master has been writing the court’s opinions, as evidenced by the metadata in the author field for those opinions. The court explains how the metadata got created and concludes that the author metadata is not a reliable way to determine the actual writer of the court’s opinions and does not constitute a reasonable basis to question the court’s impartiality or independence. The case raises interesting questions about the use and reliability of metadata in electronic discovery disputes.

Introduction

Good morning, and welcome to our #CaseoftheWeek for February 22nd, 2022. My name is Kelly Twigger, I am the CEO and founder of eDiscovery Assistant and the Principal at ESI Attorneys. As always, I thank you for joining me today on our #CaseoftheWeek. Happy to be here.

Obviously, we’re doing this in cooperation with our partnership with ACEDS (the Association of Certified eDiscovery Specialists). If you’ve joined us each week, you know the drill. Each week, we pick a case from our eDiscovery Assistant database and try to identify some practical pointers from it for how you can take away from the decision on the practical aspects of it and how that can apply to your practice every day, for your benefit and your clients benefit as well.

This week’s decision comes to us from the case of Arconic Inc. v. Novelis Inc. This is a case that’s pending in the Western District of Pennsylvania and is in front of Judge Joy Flowers Conti, who is the United States District Judge in the Western District of Pennsylvania. There are a number of discovery decisions in our database from this Arconic case. Many of the decisions, if you go back and read them prior to reading this one, you’ll see that there’s a history of a lot of discovery disputes, a lot of issues.

There was a Special Master appointed in the case, and the Special Master has issued over 40 different recommendations. At issue before us in this case is a motion to recuse Judge Conti based on the metadata in the author field of decisions that have come from the Court. It’s a very novel issue that we’re looking at today and something that will really highlight the need to understand metadata and also to be able to use it effectively in your practice on a daily basis.

A couple of other things before we dive in, Judge Conti has 16 additional decisions in our database in addition to this one for today, and the issues that are tagged on this case are Special Master and metadata. Let’s dive in.

Background

Underlying facts of this case are really a trade secret case, alleged infringement of trade secrets, as I mentioned, this is before the Court on a motion to recuse. Essentially here, Arconic points out that the metadata in the author field of several of the Court’s opinions, including an opinion which was issued with respect to Arconic’s motion to terminate the appointment of the Special Master, show the author being members of the staff of the Special Master. That’s really the issue that the Arconic is raising. They believe that the Special Master has been writing the opinions of the Court, as evidenced by the metadata in the author field for those opinions.

The Court goes into and notes immediately that the Court wrote all of its opinions at issue and that the Court’s use of templates to create the opinions is what caused the system metadata to list the author of the documents to be inherited from other previously created documents. Essentially, the Court is saying this author metadata in no way reflects that anyone other than this Court is responsible for the written opinions that were issued. That’s really the crux of what we come down to, but it’s important to analyze how we get there from respect to the author metadata.

The Court does exactly what you need to do if there’s a situation like this presented, which is explain how that metadata got created and what the process was and whether it needs to be done differently going forward. The Court States, “the author metadata is not a reliable way to determine the actual writer of the Court’s opinions and does not constitute a reasonable basis to question the Court’s impartiality or independence.” I think that raises a really interesting question for us here, because if you want to take this decision and be able to apply it in certain circumstances, how are you going to do that?

Is the Court saying here that author metadata is inherently unreliable, or is it just that this situation is limited to the current facts of this case based on how metadata was created for the Court in its particular opinions that were offered and that are at issue and questioned by Arconic.

Tellingly, I think it’s really important here, the Court notes that there are many discovery disputes in this case. I mentioned that we have nine decisions in our database, and the Court describes the procedural history of this case as torturous. There’s a lot of history and bad blood between these parties, a lot of which has come out before the Special Master and the Court.

Facts

All right, let’s talk a little bit about the history of this case as it relates to the current motion. The parties had requested and the Court had appointed a Special Master back in December 2017. That is five years ago. Five years ago, a Special Master was appointed. The Court repeatedly required Arconic to identify the specific trade secrets that it alleges were infringed upon prior to undertaking discovery and that has been an issue in discovery for many of these decisions. There are multiple motions and decisions from the Special Master, some of which Arconic objected to, and the Court has issued rulings to resolve objections to all of those reports and recommendations from that Special Master.

Fast forward to January 2022, five years after the Special Master was appointed, when counsel confirmed at a status conference that fact discovery was finally closed. At that conference, there was a dispute about the disclosure of experts, but otherwise the Court asked both parties if there were any other issues to discuss, and neither party raised any issues. January 2022, five years after the Special Master appointed Court at a status conference, says, does anybody else have any other issues? Arconic said, no, we don’t have anything.

The very next day, Arconic filed a motion for Judge Conti to recuse herself with 38 attachments and a 28 page brief. The other side indicated that there had been no meet and confer between the parties prior to bringing the motion. In essence, Arconic knew about this motion at the status conference, said there were no further issues to be raised, and then dropped this on the Court a day later. Probably not the best way to make friends with the Court.

Analysis

All right, let’s talk about the analysis of what the Court looks at on the motion to recuse. The Court essentially described the motion as, “an assertion that the Court abandoned its duty to conduct an independent de Novo review of the Special Master’s report and recommendations by having the Special Master staff ghost write the Court’s decisions.” That is a pretty egregious statement against the Court.

The Court notes that the only evidence that is pointed to by Arconic to support its recusal motion is the author and created date fields of the metadata of certain decisions. They’re not challenging all of them, they’re only challenging the ones that they want to vacate.

The Court goes on to note, the test for refusal is whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.

The Court goes on to say, “that the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from her participation in the case.” In essence, we’re saying that in order to have grounds for recusal, it has to be personal, personal bias by the judge, not extrajudicial, not based on the rulings issued by the judge.

The Court also notes that in the hands of some unscrupulous advocates, a recusal motion can simply be calculated as a tactical tool designed to avoid or overturn the result which the law dictates in a case. As a result, the Court “must consider whether attacks on a judge’s impartiality are simply subterfuge to Circumvent anticipated adverse rulings.”

Given the bounds of this case, that’s certainly an option that would creep into my mind if I was the judge on this motion to refuse. Just given everything that’s gone on in certain circumstances of this case with regard Arconic, its inability or lack of desire to produce information about the trade secret infringements, and other issues that it has raised.

The Court also notes that a party must seek refusal in a timely manner. Here, five years after the Special Master has been appointed and has issued 40 plus rulings, seems a little suspect in terms of that timing. Court also notes, “Further, only in the most extraordinary of cases, such as a strong showing of bad faith or improper behavior by a judge or quasi judicial officer, or where circumstances were such to overcome the presumption of regularity as to the acts of the decision maker, may a judge be questioned as to matters within the scope of her adjudicative duties.” That essentially means we’ve got to be able to show bias of the judge. Bias in other circumstances has been showing a relationship between one of the parties and the judge on social media. Judges ownership of stock in a company may sometimes cause bias to be questioned. Those are extrajudicial and personal involvement that often result in recusal. The judges are enunciated here the very clear terms that have to be extrajudicial. Here I think it’s pretty apparent on its face that metadata within an opinion is not extrajudicial, but it’s a new and novel issue and one that has to be addressed, and metadata is becoming so prominent in electronic discovery disputes lately that it’s really key for the Court to address it with the level of detail that it does.

Then the Court jumps to looking specifically at the author field of the metadata and what the impact is here, what actually happened. The Court goes through and explains why Arconic’s argument based on the author metadata field is wrong, and then explains what that field is. The author field, and the metadata is not evidence of the actual preparer of a document and does not support a reasonable inference that the Court abandoned its role or provides a basis for recusal.

The Court notes that the author field is part of system metadata, which is not quite right, but it is definitely metadata that is created by the word processing tool that was being used here, which is Microsoft Word. The Court then goes through the fact that it uses Microsoft Word to generate electronic versions of its opinion on orders that issue, but it notes that most of the writing is done with pen and paper by the Court and staff. The Court then goes on to state that as a document is created in Word, the username entered on the file is automatically added as the author in the metadata by the system itself. It’s not authenticated, and it cannot be modified without taking physical steps to go in and change that actual information. The author field is going to continue to include the name of the person who originally created the document that is being used, even if it’s a template, unless that name is deliberately removed.

In this instance, the Court noted that it did not take steps to alter or remove the author field of metadata, and that it’s practice is to take a document that has already been docketed as a template for the next opinion, just for efficiency, right? We don’t want to have to recreate the caption, the parties , the counsel, all of that information, including formatting. We all know how difficult it is to format new documents in Microsoft Word and what kind of problems that presents, and the fact that this Court’s docket is incredibly full, and it allows them to pull up a previously issued order and essentially copy and paste right from the information that can be replicated for the new order.

The Court notes exactly that it’s practice is exactly that, to essentially use a previously issued document as a template. It will open the document, save it as a new one, but has never taken steps to change the author metadata so that the author field then inherits the metadata from the previous document that’s being used. The Court States that the metadata about the author in the Court’s opinions is, “superficial and has no relationship to the contents of the final product.” Here, the Court also notes that the Special Master had issued more than 40 requests or reports and recommendations, many of which were not objected to by either party. The Court followed its normal process of reusing those documents as templates and modify the date and signature, but not the author field.

In doing its analysis about what standard practice should be, the Court looked to the Guidelines for Editing Metadata, which is issued by the Administrative Office of the United States Courts, and that document itself identifies this issue and suggests that the Courts start with a fresh document to avoid the author metadata issue. The Court then acknowledges that it will follow those guidelines going forward, but does articulate why there is no independent basis for refusal based on this author metadata field.

The Court then really goes through each of the decisions that Arconic seeks to have vacated as a result of the recusal, and identifies the factual basis for each decision, noting that, “It is readily apparent that the Court performed an independent review of the Special Master’s report and recommendations for each, and that the decisions that issue are the work of the Court.”

The Court notes in conclusion that this is the first time this issue has been raised to it, as the first time we’ve seen it in case law, and that if Arconic had, in fact, raised this as a status conference, the Court would have been able to explain its process and why this occurred to avoid very lengthy briefing and motion practice here.

Again, we’ve talked about this, but the way that you approach discovery and the strategy that you employ has a lot to do with your relationship with the Court. And filing a motion for a judge to recuse themselves is sort of the nth degree of antagonizing and calling into question the Court’s work, which clearly on this case has been very long and very extensive. You’ve got to wonder whether that is really the best approach to take. Obviously, we’re Monday morning quarterbacking here in #CaseoftheWeek, and 2020 hindsight says maybe there was a better way to do this, maybe there’s more information on the Arconic side than we really understand from the information that’s laid out in this decision, but you’ve always got to consider the impact of what you’re doing on your client’s relationship with the Court. We’re people; we’re human beings. You can’t help but have those things impact what happens.

Takeaways

What are our takeaways from today? Well, metadata is key. We’ve talked about metadata a number of times on #CaseoftheWeek and how you can really make or break a case. You can really bring a case to its conclusion, if you understand how to use and you have metadata that impacts the case dramatically. You’ve got to know and understand what it is, how it’s created for each field, and what program you are using, because that program is going to behave differently than others in terms of its creation of metadata.

Know and understand what does a create date mean? How is that adjusted by a program? When does it change? Some of that you can do by reading some of it, you can do it just by practicing. Just create a document, export it, and then change the data number of times, export it again and see what your metadata fields look like. It’s going to be really different. You need to understand how metadata works effectively to be able to use ESI effectively.

Another issue that we already kind of talked about is that Arconic really likely shot itself in the foot by not raising this at the status conference. Nobody really likes to be surprised in such a way, particularly with a motion that essentially says, we think that you’ve allowed the Special Master to write opinions for you. That’s sort of at the core of attacking a judge here, and you want to be careful before you do those kinds of things.

Again, we can only go with the facts that are articulated in the decision that are before us on our #CaseoftheWeek analysis. There may be other facts here that led Arconic to that strategy that we’re not aware of.

This case certainly highlights the importance of paying attention to the metadata, I really would encourage you to start digging into what is the metadata that is important for the types of cases that you’re looking at. There’s a question that I have here which is I don’t even understand how they got to the metadata of these decisions because typically all the Court decisions are issued by PDF, although there would be metadata associated with that, it’s typically not available. It’s interesting to think about that. I don’t know how that occurred.

One last point about this case, and that is that footnote five of this decision indicates that there are multiple different names in the author metadata field for all the documents issued by the Court, only some of which were folks from the Special Master or her staff. This wasn’t necessarily a rampant case where every single decision had the name of the clerk who works specifically for the Special Master. In them, there were varying names across the cuff. No real clear cut ability to make the case that Arconic was trying to make, that the Court was not, in fact, doing an independent de Novo review and was instead just having the Special Master author its opinions and following up on those objections to the report and recommendations.

Conclusion

All right. That’s our #CaseoftheWeek for this week. Thank you so much for joining me. We will be back again next week with another decision from our eDiscovery Assistant database. If you are heading to legal week in New York City the week of March 7th, we will be there and we would love to connect with you. Please reach out to us at support@eDiscoveryAssistant.com and we’d love to set up a time to meet in our suite at the Conrad, show you the software and talk about how your team can leverage it.

If you are an ACEDS member and interested in using eDiscovery Assistant, there is a discount available to current ACEDS members and a trial for folks taking the ACEDS exam. If you’re interested in either of those, please drop us a line at ACEDS@eDiscoveryAssistant.com and someone of our team will be in touch.

If you’re interested in doing a free trial of our database but are not an ACEDS member, you can reach out to us at support@eDiscoveryAssistant.com and we can talk you through getting your organization on boarded.

Thanks so much. Have a great day. Stay safe and healthy and hopefully we’ll see you in New York.