Improved data access would mean more work for LPO sector

Companies could come under increasing pressure to make electronically stored information (ESI) more accessible following a document management ruling in a US intellectual property (IP) suit. In the ongoing case, Capitol Records alleges that online music service MP3Tunes supplied illegal versions of Capitol songs to consumers. During pre-trial proceedings that are still underway in New York, MP3Tunes accused Capitol of poor email disclosure. While the judge accommodated Capitol, he nonetheless hinted that time is running out for company data systems that inadequately serve legal processes.

The wording of Maas's ruling indicates that current laws and procedures are one step short of where they should be, if they are to elicit sufficient compliance. It is likely that official steps to improve data access would further increase the workload for legal process outsourcing (LPO) providers, for whom document research – particularly in the IP field – is already a significant area of activity.

While giving his interim ruling in the Southern District of New York, magistrate judge Frank Maas referred to Federal Rule of Civil Procedure 26, which sets out disclosure terms for documents used in expert witness testimony. Although Maas took the peculiarities of Capitol's ESI into account, his tone suggests that action is required to ensure that all corporate electronic records are clear, organised and discoverable.

'The day undoubtedly will come,' said Maas, 'when burden arguments based on a large organisation's lack of internal e-discovery software will be received about as well as the contention that a party should be spared from retrieving paper documents because it had filed them sequentially, but in no apparent groupings, in an effort to avoid the added expense of file folders or indices.

'Nonetheless,' he added, 'at this stage in the development of e-discovery case law, the Court cannot say that [Capitol's] failure to acquire such software and to configure its systems to permit centralised email searches means that its burdensomeness arguments should be disregarded. I therefore conclude that the … email files that MP3tunes seeks to search are not reasonably accessible within the meaning of Rule 26. The burden thus shifts to MP3tunes to establish good cause for the additional email discovery it seeks.'

Lawsuits focused on ESI accessibility have become increasingly common as electronic documents continue to replace paper in evidence chains. Last month, the Supreme Court of Arizona ruled that metadata embedded in electronic documents is subject to disclosure, following a police officer's efforts to prove that City of Phoenix records had been backdated. While the officer's legal team had requested disclosure of the material's true creation-date, embedded in the files as metadata, the city had refused.

Overturning an earlier Appeals Court ruling in favour of Phoenix, the Supreme Court of Arizona ruled: '[W]hen a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under public records law.' It would be illogical, said the Court, 'to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record'.