June 29, 2010 marks the first anniversary of the California Electronic Discovery Act. It is unlikely there are any decorations at state courthouses celebrating the date.
There are many California judges, attorneys and bar associations preparing educational events on e-Discovery. However, there are few cases directly addressing electronically stored information and the one year old law.
One of the first (unpublished) metadata cases in California was a criminal prosecution involving photos and assault. The Court summarized metadata of the photos as “information like date, time and exposure that is recorded when an image is captured.” See, People v. Wood, 2009 Cal. App. Unpub. LEXIS 9959, 11-12 (Cal. App. 4th Dist. Dec. 17, 2009).
A photographer expert testified on the metadata from over 4,000 photos, creating a chronology of when each photo was taken down to the minute. The expert also explained on cross-examination how metadata can be altered. Wood, at *11-12.
This was one of the first cases addressing metadata after the enactment of the California Electronic Discovery Act…yet had nothing to do with the Act. This was a criminal case.
Judges, special masters and discovery referrers will have to address electronically stored information. It is only a matter of time before a California judge finds herself with a dispute over the form of production and associated metadata fields. When that day comes, the entire state should listen closely.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.