Never Agree to Do Something Your Client Cannot Do

March 25, 2015

Under the New York State Supreme Court Commercial Division Rules counsel are expected to agree at the Preliminary Conference as to the method and manner of their e-discovery (“ESI”) production.  Counsel will sometimes readily agree to produce emails in their native format, with attendant metadata, without knowing whether or not their clients are able comply with such requirements.

 This appears to have been what occurred in 595393 Alberta Ltd v. Fossil Industries, Inc. (2014 NY Slip Op 32406(U))  where production of emails with attendant metadata was definitely in dispute.  It appears that the defendant agreed in its preliminary conference order to produce emails “in their native electronic format, together with their associated meta-data.”  The defendant failed to furnish the emails in that format.

 In trying to explain the failure the defendant provided the affidavit of its president explaining that the defendant “utilized a software known as Filemaker for its emails and storage of other electronic data” and that the software “bundles emails into a ‘contacts’ file upon sending and transfers the emails from a particular contact into a ‘note field.”  The defendant’s president continued to claim that “[t]his is the native format” but “the metadata is not preserved in this format.”

 The plaintiff countered with the affidavit of a computer expert who explained that the “Filemaker” software is not the native email tool, but rather a “storage or archiving tool.”  This was the case because Filemaker is not an email system.  The forensic expert continued to explain that the metadata for the underlying emails were once contained in an email system, such as Outlook.   However, when the emails were combined in the Filemaker system it “will in every instance change the file creation date and the file last modification date usually disclosed in a Windows system.”  The expert further took note that the defendant never explained what email system it used, or whether archive or backup copies of the emails were available.

 Justice Whelan found that the defendants discovery responses were inadequate and warranted the inference of willful conduct which frustrated the discovery schedule agreed to by counsel.  The Court took the drastic step of finding that “the answer served by the defendant shall be dismissed unless it furnishes the e-mails in the format agreed to and full and complete responses to the discovery demands of the plaintiff that are the subject of” the motion.

 The lesson learned here is to ensure that your client maintains emails with metadata before agreeing to its production in a preliminary conference order.