The Defendants produced the written report, but the native file and its metadata were gone. Raines v. College Now Greater Cleveland, Inc., 2014 U.S. Dist. LEXIS 75373, 10-11 (N.D. Ohio June 3, 2014).
The Defendants brought a motion to dismiss and argued the Plaintiff could not bring a claim for spoliation of evidence, because the Plaintiff could not show her case was “disrupted.” Raines, at *10.
The elements for a spoliation of evidence are as follows:
(1) There was pending or probable litigation involving the plaintiff;
(2) knowledge on the part of defendant that litigation exists or is probable;
(3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case;
(4) disruption of the plaintiff’s case; and
(5) damages proximately caused by the defendant’s acts.
Raines, at *10.
The Court held the Plaintiff sufficiently alleged a claim to survive a motion to dismiss, even though she was not clear on damages. The Court stated the Plaintiff only had the physical document, but not the metadata, which the Plaintiff claimed had independent value. Raines, at *11.
The Court denied the Defense motion and stated, “We will later sort through whether any loss of metadata has caused damage.” Id.
Let’s be frank: You want the metadata. Metadata can contain who created the document, edited it last, who printed it, and track changes. Stating metadata has “independent value” is putting it mildly when given only a physical copy of the document.
The “independent value” of metadata should be explained to a Judge in an affidavit by an expert. There are different types of metadata, with substantive and embedded being more likely to have relevant information than system metadata. I cannot help but think system metadata would be needed in a forensic examination to determine who destroyed a file, but I am not a forensic expert.
Knowing who created the document, or edited the file, or who made changes, is required information to identify key players in a lawsuit. Moreover, these facts are the basis for deposition questions on “why did you change this section of the report?”
Does metadata have independent value? You bet. Should a lawyer argue that on their own to a judge? No. Retain an expert to explain the technical issues on why the information is important and how not having it negatively impacts analysis to determine the truth in the lawsuit. Additionally, explain what must be done to determine how the data was destroyed.
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 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.