Arizona Supremes: Metadata Subject to Public Records Law

Arizona is suddenly on the cutting edge of e-discovery law, with a new decision from the state's supreme court. 

In what freedom-of-information advocates hailed as a groundbreaking victory, the Arizona high court held Thursday that when a public entity maintains a public record in electronic format, any attached metadata also constitutes a public record subject to disclosure.

Writing for the unanimous Court, Justice Scott Bales stated that "[i]t would be illogical, and contrary to the policy of openness underlying the public records laws, 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."

The issue arose when a recently-demoted Phoenix police officer filed an administrative complaint and a federal lawsuit alleging employment discrimination.  In connection with the litigation, the officer also submitted a public records request to the City of Phoenix, seeking notes that his supervisor made that were kept in his personnel file.  After the City produced the notes in paper copy, the officer came to suspect that the notes, which had been created on a computer, had been backdated.  He sought production of the associated metadata so that he could determine when the document at issue was created or modified and by whom.  The City of Phoenix denied his request, citing a 1952 Arizona Supreme Court case in support of its assertion that metadata did not constitute a public record.

In overruling the Court of Appeals - which had upheld the trial court's ruling that the City need not produce the metadata - the Arizona Supreme Court adopted the reasoning of the dissenting judge below, Judge Norris, who argued that metadata is not an "electronic orphan," but instead part of the computer-created document itself.  If the computer-created document is a public record, the Court reasoned, the attached metadata necesarily is as well.

The Court also sought to allay concerns that the ruling would create an "administrative nightmare" for public entities, finding that a public entity can satisfy a public records request by producing the requested records in native format.  The Court, however, expressly declined to address whether and when a public entity has the duty to preserve public records in electronic format.

As Arizona goes, so goes the nation?  A Washington Court of Appeals ruled last summer in O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Wash. Ct. App. 2008) that the electronic version of an e-mail, along with the associated metadata, constitute public records subject to that state's public records law.  Unlike the Arizona law, however, the Washington public records act specifically provides that such items are subject to disclosure.  That case is now pending before the Washington Supreme Court.

Coming Soon to a Wisconsin Courtroom Near You?

It looks like Wisconsin will soon join a number of states (roughly half of the country) who have amended or adopted rules of civil procedure to include specific provisions regarding discovery of electronically stored information. 

After considering the issue for several months, the Wisconsin Judicial Council filed a petition with the state Supreme Court proposing amendments to the state statutes that provide the rules of civil procedure. 

In general, the proposed amendments are consistent with, and based on the 2006 amendments to the Federal Rules of Civil Procedure regarding electronic discovery.  For example, the proposed amendments:

  1. Encourage the parties to discuss electronically stored information early in the discovery process;
  2. Address the format in which electronically stored information should be produced;
  3. Limit the information that must be produced to reasonably accessible information; and
  4. Contain a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.

Despite these general similarities, the proposed amendments differ from their federal counterparts in three important respects. Unlike their federal counterparts, the proposed amendments:

  1. Provide a definition for "electronically stored information" that is "intended to be broad enough to cover all current types of computer based information yet flexible enough to encompass future changes and technological developments." 
  2. Do not require the parties to discuss electronically stored information at a discovery conference because Wisconsin does not require a discovery conference.  Instead, the proposed amendments "encourage the courts to address the management of electronic discovery early by adding electronically stored information to the list of items that can be addressed by scheduling order, although it is not required."
  3. Do not contain a claw-back procedure to protect parties who inadvertently produce privileged or protected information. According to the Judicial Council, "waiver of privilege is more properly addressed under the rules of evidence, including the attorney client privilege and the work product doctrine, than in the discovery rules."  

The Supreme Court is expected to hear public comment on the proposed amendments soon, but the hearing date has not yet been scheduled.  Stay tuned!

2007 E-Discovery Cases - Year in Review

Kroll Ontrack, an electronic discovery and computer forensic service provider, has put together an interesting analysis of the electronic discovery case law that has been decided since the new federal rules were enacted a year ago.

According to Kroll, of the approximately 105 e-discovery opinions reported since December 1, 2006, the major issues involved in these cases break down as follows:

  • 25% of cases addressed discovery requests and motions to compel
  • 24% of cases addressed spoliation/sanction
  • 23% of cases addressed issues involving the form of production
  • 9% of cases addressed preservation/litigation holds 
  • 7% of cases addressed attorney-client privilege and waiver 
  • 6% of cases addressed production fees 
  • 6% of cases addressed admissibility of electronic evidence

The moral of the story?  75% of the cases analyzed by Kroll Ontrack dealt with discovery requests, motions to compel, the destruction of electronic data, sanctions, and the format in which electronic data must be produced.  E-discovery is not going away any time soon and corporations must have a game plan and a document retention policy in place that permits them to respond efficiently and cost effectively to document requests and motions to compel that request electronic data.  Without a game plan, corporations could, quite unintentionally, find themselves in the quarter of the cases that discuss sanctions and the spoliation of evidence.