Two main issues are identified. The first one: how should the plain-view doctrine be construed in the case of electronic documents search and seizures ? The second: how should we mediate, one one hand, the right of an accused not to be compelled to participate in self-incrimination, with, on the other hand, the arrival of ever more powerful and efficient cryptographic tools that can be used to conceal incriminating evidence?

If one can’t answer these questions, he may at least try to formulate them!

1. The Defendants, Transocean Offshore Deepwater Drilling, Inc., Deepwater Horizon, BP Products North America, Inc., Halliburton Energy Services, Cameron International Corporation d/b/a Cameron Systems Corporation and MI SWACO, through their officers, agents, employees, and subcontractors, are ordered:
(a) To reasonably refrain and resist from any changing, alteration and/or destruction of any documents pertaining to the April 20, 2010 explosion or subsequent efforts expended in connection with such event, including all infonnation stored, held or maintained in electronic format or via the internet; and to take immediate action to prevent the automatic andlor systematic programmed deletion or discarding of such documents.
(b) To reasonably refrain and resist from any changing, alteration and/or destruction of any and all tools, instrumentalitics, and/or devices which may have been used by workers, in any capacity, as well as any work authorizations or other documents indicating status of work at the time of the event in question as well as any and all physical evidence of any kind in any way connected with the accident and/or accident scene in question.

Read all the protective order [PDF].

How will they preserve the oil and the fire?!

1. Types of Metadata
Metadata, frequently referred to as “data about data,” is electronically-stored evidence that describes the “history, tracking, or management of an electronic document.” It includes the “hidden text, formatting codes, formulae, and other information associated” with an electronic document. The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf (“Sedona Principles 2d” ); see also Autotech Techs. Ltd. P’Ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 557 n. 1 (N.D.Ill.2008) (Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records”). Although metadata often is lumped into one generic category, there are at least several distinct types, including substantive (or application) metadata, system metadata, and embedded metadata. Sedona Principles 2d Cmt. 12a; see United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 25-28, http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf (“Md.Protocol” ).

a. Substantive Metadata
Substantive metadata, also known as application metadata, is “created as a function of the application software used to create the document or file” and reflects substantive changes made by the user. Sedona Principles 2d Cmt. 12a; Md. Protocol 26. This category of metadata reflects modifications to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the document it describes and remains with the document when it is moved or copied. Id. A working group in the District of Maryland has concluded that substantive metadata “need not be routinely produced” unless the requesting party shows good cause. Md. Protocol 26.

b. System Metadata
System metadata “reflects information created by the user or by the organization’s information management system.” Sedona Principles 2d Cmt. 12a. This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. See id. Examples of system metadata include data concerning “the author, date and time of creation, and the date a document was modified.” Md. Protocol 26. Courts have commented that most system (and substantive) metadata lacks evidentiary value because it is not relevant. See Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., No. Civ. 05-74423, 2007 WL 4098213, at *2 (E.D.Mich. Nov.16, 2007); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car Auto Racing, No. Civ. 05-138, 2006 WL 5097354, at *8 (E.D.Ky. Dec.18, 2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). System metadata is relevant, however, if the authenticity of a document is questioned or if establishing “who received what information and when” is important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3 (N.D.Ill. Mar.8, 2006). This type of metadata also makes electronic documents more functional because it significantly improves a party’s ability to access, search, and sort large numbers of documents efficiently. Sedona Principles 2d Cmt. 12a.

c. Embedded Metadata
Embedded metadata consists of “text, numbers, content, data, or other information *355 that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file. Md. Protocol 27. Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information. Id. This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is “generally discoverable” and “should be produced as a matter of course.” Id. at 27-28.

” a “costs, time and effort” argument involving email is the same as when hard copy documents are in issue. For example, the cost, time and effort to produce hard copy documents which are disorganized or stored in various places could also be considerable. Such an argument may or may not prevail in this or any other case because there is cost, time and effort associated with all document production. In any event, it does not appear to me that searching email archives for producible documents is inherently more onerous or expensive than conducting manual searches for hard copies of documents.”[¶28]

The question now becomes one of proportionality between the costs incurred by Oceaneering and the usefulness of the documents to be found. The judge concludes that “[i]t is for the receiving party, in this case GRI, to do so. A receiving party knows its case and is in a better position to assess whether a document aids its position.”[¶34] In the proportionality analysis, aside from the 8M$ claim, it is also important to note that the counterclaim by Oceaneering weighted against them in its attempt to limit document production – Oceaneering must lie in its self-made bed… This decision underlines – if need still be – the need for a comprehensive approach to e-discovery and a global readiness in that matter so as not to have to run to the court to catch one’s metaphorical breath – it may not work and you’ll still have to run.

[8]      Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”.  In this case, the respondent’s hard drives were seized under an Anton Piller order.  They were imaged and the imaged hard drives were made available to the plaintiff.  The plaintiff can have access to the imaged hard drives at any time.  Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff.  Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.

She replaced <While placing any burden at all on the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the line has to be drawn somewhere lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.> with <If the spoliating party offers proof that there has been no prejudice, the innocent party, of course, may offer evidence to counter that proof. While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a ”gotcha” game rather than a full and fair opportunity to air the merits of a dispute.>.

She added <I note that not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.>.

After <destroyed backup data potentially containing responsive documents of key players>, she added <that were not otherwise available>, thereby drawing the line between reasonably accessible and inaccessible documents based on the proportionality test. She then continued by adding a footnote stating:

A cautionary note with respect to backup tapes is warranted. I am not requiring that all backup tapes must be preserved. Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved. When accessible data satisfies the requirement to search for and produce relevant information, there is no need to save or search backup tapes. See Fed. R. Civ. P. 26(b)(2)(B).

She further added <While routine searches of backup tapes are not required, they should be searched when it has been shown that relevant material existed but was not produced, or relevant material should have existed but was not produced. Because both conditions are met, Okabena is required to conduct this search or explain why it is unable to do so.>.

Interestingly, she replaced <Second, that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation were grossly negligent in their failure to preserve the evidence.> with <Second, that if relevant evidence was destroyed after the duty to preserve arose, the loss of such evidence would have been favorable to the Citco Defendants.> and added <This failure resulted from their gross negligence in performing their discovery obligations.>.

You should read all the Zubulake Revisited Amendment as this will likely be the last judgment in that case…

Hat Tip to WortzmanNickle.

Here are the documents prepared by JTAC which relate to this great initiative:

• Canadian Citation Committee – The Preparation, Citation and Distribution of Canadian Decisions (PDF)
• Use of Neutral Citation for Case Law (PDF)