What should a litigant do when confronted with disclosure of confidential metadata? Conversely, what should you do if you learn that confidential metadata has been disclosed? Some recent case law may offer insight:

In People v. Gomez, 134 Cal. App. 3d 874, 879 (1982), the court, dealing with privileged material in general, held that failure to take reasonable precautions to maintain the confidentiality of information may be deemed consent to its disclosure.

Amersham Biosciences Corp. v. Perkinelmer, Inc., 2007 WL 329290 (D.N.J. 2007), may be particularly instructive in determining the meaning of “reasonable precautions” when dealing with confidential metadata, as it is the only case dealing with this particular topic. The New Jersey district court was asked to decide whether reasonable precautions were taken in the inadvertent disclosure of some 500-plus privileged Lotus Notes e-mail documents that were deleted within subfolders when converted to CD, but remained embedded in the larger folder when converted to single image files.

The court held that if the confidential nature of the documents was apparent on the face of the documents after their conversion from their native format to single image files, then the final spot check conducted by the disclosing party may not have been reasonable. Consequently, it would appear that “reasonable precautions” means that counsel should probably review each electronically-stored document at every stage of the conversion process. More on this issue can be found at www.law.com.

At the law firm of William A. Miller, we have experience in handling these electronic discovery issues. Give us a call at 480.948.3095 to learn more.

Comments are closed.