Have you ever thought your adversary was withholding relevant ESI from document production? Have you wanted to look at the withheld documents to show that some are indeed relevant? Well, you might be able to – but it’ll cost you. In Nachurs Alpine Solutions, Corp. v. Banks, an Iowa District Court recently ordered that documents deemed nonresponsive by Defendants and withheld from production be produced to Plaintiff, but that Plaintiff would have to bear its own costs of reviewing them.
The rules governing discovery of electronically stored information, though not fully developed, have matured enough to provide the basic “do’s and don’ts” for attorneys. Frequently, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document’s metadata, the data automatically embedded in an electronic file that contain information about the document, such as its origin and history of revisions. But what are a lawyer’s responsibilities concerning the transmission or receipt of metadata outside of the discovery context? A recent ethics opinion from the State Bar of Texas offers some guidance—and a stern warning: attorneys risk violating state rules of professional conduct if they mishandle metadata.