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1 Electronically Stored Information (ESI) Issues Affecting Litigation and Public Records Request Chris Hazelip and Mike Mullin Rogers Towers, P.A.

2 Review of E-Discovery Concepts Electronically ll Stored Information ESI Metadata Required Disclosures FRCP Rule 26(a)(1)(b) Undue Burden Exception Litigation Holds Safe Harbors

3 Fla. R. Civ. P not yet in accord. Fla. Stat and , et seq. Rules 1B , et seq. and 1B , Florida Administrative Code, et seq.

4 SI and Public Records Electronic Agency Records FOIA Federal Records Act (FRA) Fla. Stat. Ann (2)(f)

5 etadata as public record [M]etadata is an inherent part of an lectronic document... hy does this matter for public records? Authenticity, integrity, admissibility Essential to making electronic spreadsheets and databases useful

6 ow public record keeping requirements esh with discovery requirements verlap rganization of public records for search nd retrieval in place mployees and officials accustomed to aving and producing information ot completely coextensive, however ossible lack of compliance with public ecords requirements even though discovery ulfilled

7 Recent public records ecisions s in e-discovery

8 mstrong v. Executive Office of the esident,, 1 F.3d 1274 (1993) aid the foundation for many of today s ecisions recognizing the public s rightof ccess to metadata in public records. oncludes that electronic records are not erely extra copies of the paper version ecause they contain important data not ontained in other versions.

9 ke v. City of Phoenix,, 218 P.3d ) lectronic records, including their metadata, all within Arizona s definition iti of a public ecord. Arizona s public records law requires that the equestor be allowed to review a copy of the real record, which includes the metadata of a ublic record maintained in an electronic ormat.

10 Neill v. City of Shoreline,, 240 P.3d 49 (2010) ashington Supreme Court also held that an electronic ersion of a record, including its embedded metadata, is a ublic record subject to disclosure under the state t public ecords act. win v. Onondaga County Resource covery Agency,, 72 A.D.3d 314 (2010).Y. Appellate decision that granted Plaintiff access to the etadata of electronic versions of digital photographs

11 tional Day Laborer Organizing Network v. ited States Immigration and Customs forcement Agency,, 2011 WL (2011) Scheindlin decision that established a presumption that the government must produce metadata in response to requests for records, specifically listing 8 metadata fields that must be produced. Judge Scheindlin s required fields: List 9 fields for all forms of ESI List 10 additional fields for List 4 additional fields for images of paper records Lawyers need to realize that courts expect them to meet and confer

12 enalties udge Scheindlin refused to order cost sharing or ost shifting when requiring the government to re- roduce documents. n another case and court, Metropolitan Opera ssn,, 212 F.R.D. 178 (2003), the penalty was more evere. laintiffs were granted their motion for judgment s to liability as well as attorney s fees as sanctions or the defendant s discovery abuse.

13 Practical Issues

14 ssie v. County of Suffolk,, 2007 WL N.Y. Dec. 21, 2007) o Lame Excuses!! nlikely to result in the administrative nightmare at the City envisions. e 218 P.3d at 1008 blic records requests that are unduly rdensome or harassing can be addressed under

15 harging a fee Fla. Stat. Ann (4) Special service charge

16 sing an exception Fla. Stat. Ann include... bids for contracts, public records produced by a government attorney subject to privileges, il documents containing trade secrets, etc.

17 Conclusion his is a growing area of the law with ited case law. The lack of case law mbined with Judge Scheindlin s history authoring influential opinions in this ea make it likely l that t other courts will ok to National Day Laborers for guidance deciding their own e-discovery cases.

18 The End

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