Thanks to Judge Lungstrum in Williams v. Sprint/United Management Company, 2006 WL 3691604 (D.Kan. Dec. 12, 2006) (Williams II), a golf analogy has now entered the world of e-discovery. Williams II, just like Williams I, delves into the depths of metadata and the circumstances when it must be produced. Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D. Kan. 2005) (Williams I). These and other metadata cases are discussed in this Blog at the above Page entitled “Meta Prod?”
Judge Lungstrum is inclined to a general rule requiring the production of Electronically Stored Information in the same condition in which it is maintained. This means that electronic documents should not be stripped of their metadata before production. In one of several hearings on this issue, Judge Lungstrum used a golf analogy to illustrate this point. He invoked the well known but often ignored rule of golf that requires a golfer to “Play it as it lies.” This rule prohibits a golfer from improving the position of their ball before striking it. A golfer must play their ball as they find it on the course, and not improve the lie of the ball, even if it lands in a divot. Instead, you have to play it as you find it, “as it lies.” Footnote 5 of Williams II (written by Magistrate Waxse) states that Judge Lungstrum made the following comment on the form of production of discovery at the April 26, 2005, hearing:
I think we have to keep in mind that from the defendant’s perspective-to the extent that you’re asking for information that they have got to go chase down, it’s not the defendant’s fault for the purpose of this case that they don’t keep their records in a form that’s more easily discoverable, yet on the other hand, that’s not an excuse not to give it up either if they have got it some place. I mean, it cuts both ways. I mean, we have to play it like it lies. See April 26, 2006 Tr. p. 39.
This will, I predict, become a very popular analogy in this hotly contested area of e-discovery law. Interestingly, although Judge Lungstrum announced the general rule, his Magistrate Waxse applied a “no mulligans allowed” exception of his own creation, and allowed the defendant to improve its lie (so to speak). The defendant’s production of 11,000 emails with all metadata stripped was permitted to stand, and the plaintiff’s call for penalty strokes was rejected. Again, see the above Meta Page for the full story. But the short explanation is that the plaintiff did not request metadata in the original request, and now wanted defendants to redo the entire production. The plaintiff essentially wanted a mulligan, and the Magistrate would not allow it, citing Rule 34(iii) that only requires a production in one form.
