Fighting Unnecessary E-Discovery Demands

A recent decision from a Pennsylvania trial court highlights the utility in fighting unreasonable discovery demands. In Brogan v. Rosenn, Jenkins & Greenwald LLP, the court denied a motion to compel electronic discovery, including metadata. Metadata is essentially embedded or hidden data about data. For example, an image may include metadata that describes when the image was created and a text document’s metadata may describe when the document was written and/or edited. More and more attorneys are becoming familiar with metadata and starting to include requests for metadata in their e-discovery demands. 

In the Brogan case, the party from whom the e-discovery was sought was able to affirm for the court that all requested documents had been produced in paper format or did not exist. The production of all requested documents in paper format precluded the party seeking the e-discovery from being able to establish that the e-discovery sought information that they did not have that was reasonably calculated to lead to the discovery of admissible evidence. The Pennsylvania case highlights that when fighting e-discovery requests, a party should establish for the court that the requests are disproportionate to the scope of litigation, seek irrelevant data and lack importance to the adjudication of the case. Additionally, establishing the costs and burdens associated with providing the electronic information should be laid out for the court. Specifically with respect to metadata, the party seeking the discovery must be held to hire its own experts and if they will not, then such discovery should be denied. 

Companies can minimize the costs of e-discovery by working with counsel even before litigation arises to ensure hard copies of documents likely to be discoverable are preserved and/or easily producible from a data storage device. Programs are available that will clean metadata from documents and, to the extent that those documents would be produced in electronic format, having the metadata scrubbed is a strategy to consider. If metadata has been requested, the party seeking it must be forced to bear the cost.


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