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Some Courts are Slow to Get e-Discovery

Now and then a court opinion comes along that gets me worked up, and a case from Arizona this week has had this effect. I don't have a case name -- the link I have is from a local ABC affiliate -- but the gist of the opinion is that metadata is not a "public record" within the context of the state's freedom of information laws. Here's what really got me: to reach its conclusion, the court applied a three-pronged test that was developed in -- get ready -- 1952. Sure, that's when the rules for public records were formulated, I get that -- but to use a rule that was adopted before computers, electronic documents and metadata even became mainstream is really a stretch for me. When they applied the test, the court found that the metadata was created only as a by-product of the police officer's performance of his duty, and that its creation or preservation was not required by law. True, and true. But an argument can definitely be made that as a part of an electronic document, it is in its entirety considered a public record. Indeed, in its opinion the court stated that "We do not question that metadata may contain valuable information, but we reject Lake's contention that electronic evidence is legally equivalent to a public record." This conveniently ignores the fact that the original document itself is an electronic record. At least one judge got it right: the dissenting judge stated that metadata "is not an electronic orphan...It has a home; it exists as part of an electronic document. When, as here, that electronically created document is a public record, then so too is its metadata." Perhaps this kind of thinking is not surprising, considering that the judges are state-based. I'd wager you wouldn't hear this argument coming from a panel of federal judges.

Full post as published by Inter Alia on January 15, 2009 (boomark / email).