One advantage of using Special Masters like Phil is speed.  Phil was appointed by the court on November 26, 2025.  Materials were submitted to him between December 11^th and the 18^th.  A two-hour hearing was held on December 19^th. The decision issued on December 23^rd.

• For more information on Phil, see Congratulations to Phil Favro on the Opening Favro Law PLLC (Jun. 16, 2025).
• For more information on special masters generally, please see Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024); Court’s Use of a Special Master to Assist EEOC in Obtaining Discovery from Defendant (Jul. 30, 2025); Court Appointed a Special Master to Negotiate ESI Protocol (Dec. 12, 2024); No More “Masters”? (Feb. 16, 2024); Mediation of Discovery Disputes by Court’s Law Clerk? (Jul. 9, 2024).

One issue in Pso-Rite turned on the form of production of text messages. Phil wrote: “The production format was PDF, with screenshots of the responsive text messages produced on approximately 80 pages of documents. The text messages did not include any metadata. Nor did they reflect sender, recipient, or date and time stamp information.”  Id. at *2. He determined:

The Special Master finds that Pso-Rite’s December 17 production of text messages is not “reasonably usable” pursuant to Federal Rule of Civil Procedure (“Rule”) 34(b)(2)(E)(ii). Producing screenshots of text messages without sender, recipient, or date and time stamp information, or related metadata, is an impermissible “document dump.”

Id. He also ordered “Pso-Rite to make forensic images of the phones belonging to [custodians] Mollohan and Lee that have discoverable text messages—i.e., electronic communications that are relevant to the claims or defenses and proportional to the needs of the case—sent or received during the relevant time period on mobile communications applications. Mobile communications applications should be construed broadly and include communications from iMessage, WhatsApp, Telegram, Facebook, Facebook Messenger, Instagram, Slack, Google Chat, and any other messaging application that Mollohan and Lee used to communicate regarding matters that are discoverable in this litigation.”  Id.

Further, the order stated:

To the extent not already completed, counsel for Pso-Rite shall conduct custodian interviews of Mollohan and Lee to determine the precise nature of the mobile communications applications Mollohan and Lee have used to discuss matters that are discoverable in this litigation. As part of the custodian interview, counsel for Pso-Rite shall inquire regarding the custodians’ possible use of ephemeral (disappearing) messaging features associated with WhatsApp and Telegram (and other messaging applications) and the automated deletion feature for iMessage. In addition, counsel for Pso-Rite should inquire as to the custodians’ practices with respect to deleting text messages, whether the custodians actually read the legal hold notice issued by their former counsel in this case, what actions the custodians took to preserve discoverable text messages, and when they began doing so.

Id. at *3.  When that was completed:

Pso-Rite must then collect those messages, search the messages for discoverable communications, and produce those communications forthwith. Pso-Rite and Thrival are encouraged to continue their efforts to cooperatively develop search terms that can be run against the collection of text messages to identify discoverable communications. Nevertheless, Pso-Rite and its counsel have an independent obligation to look for, identify, and produce responsive text messages and they should be certain to undertake good faith, reasonable efforts to discharge that obligation. Pso-Rite need not manually review all of Mollohan’s and Lee’s text messages to identify responsive information. Nevertheless, Pso-Rite must do more than just use search terms to locate relevant text messages since search terms may not hit on responsive information given that texts are replete with idioms, slang, jargon, and other contextual language. Pso-Rite should also validate the production to reasonably ensure that it includes relevant and proportional information.

Id. (emphasis added).  This holding comports with the principle that a litigant may have a duty to correct an opponent’s search terms. See Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).

Further, Phil addressed the context problem – what I have called the “what is a document” issue. He wrote: “Finally, the Special Master orders the parties to meet and confer regarding the production of contextual messages surrounding relevant text message strings. While certain courts have followed the procedure articulated in Lubrizol v. Corp. v. Int’l Bus. Machines Corp., the Special Master believes the parties should reach an agreement on this issue. Any procedure on which the parties agree will apply both prospectively and retrospectively to all text message productions the parties have and shall make. The parties shall report back to the Special Master by January 12, 2026 on the nature of the agreement they have reached regarding the production of contextual messages.”  Id. at *3.

This is an important issue.  See What is a “Document?”: Interior Email Omitted from Email Chain – Sanctions Follow for Lack of Candor to Court (Sep. 11, 2025); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025); What is a Document? (Part III) (Apr. 4, 2022); What is a Document? (Part II) (Aug. 28, 2021);  What is a “Document?” (Aug. 17, 2021);   Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? (Apr. 10, 2025); What Hath Noom Wrought? (Apr. 25, 2023).

It is important to remember that:

• Fed.R.Civ.P. 34(b)(1)(C) authorizes the requesting party to “specify the form or forms in which electronically stored information is to be produced.”
• Fed.R.Civ.P. 34(b)(2)(D) states that: “The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.”
• Fed.R.Civ.P. 34(b)(2)(E)(ii) states that: “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms….”

Phil’s decision also addressed database discovery, email accounts of departed employees, advice of counsel documents and privilege logging, and directed disclosure of “a written description of its efforts to search for, identify, and produce discoverable information from its Google Workspace. The description shall offer details regarding Pso-Rite’s efforts to comply with its Rule 26(g) duty of reasonable inquiry.”

The decision provides an interesting contrast to Hur v. Lloyd & Williams, LLC, 523 P.3d 861 (Wash. App. Div. 3 2023), where an attorney’s failure to notify the opponent of receipt of privileged materials that were not intentionally obtained did not lead to disqualification.  See Redaction Errors Re-Visited, Again and Again (Mar. 13, 2023).

In Hur:

The court opined that some of the recipient’s explanations “were suspicious” but believed that counsel did not knowingly search through privileged material.  It held that disqualification was too severe and ordered receiving counsel “to destroy the files, promised to banish the e-mail excerpts from the court’s decision-making, and instructed the parties to not mention the excerpts again.”

In Hur, the court found no ethical violation by a word search of redacted documents that had been produced in discovery and added: “The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.”  The corrective action required is notification under the analog to ABA Model Rule of Professional Conduct 4.4(b).

In Militello, like Hur, there was an allegation of the recipient’s failure to give notice.  2023 WL 2579204, at *2.  That, however, was combined with knowing use of the documents.  Id.[1]

The Militello court drew a distinction between oral discussion, on the one hand, and use of documents, on the other: “[W]hile we acknowledge disqualification may not be an appropriate remedy when a client simply discusses with his or her lawyer improperly acquired privileged information, counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification.”  2023 WL 2579204, at *1.

The penultimate analysis was:

Courts cannot effectively police what a client, after reading or hearing another party’s confidential communications, chooses to tell his or her lawyer. As the cases indicate, attempting to restrict oral disclosures of that sort risks undue interference with candid discussions between the client and counsel; and disqualification would, in any event, be an ineffective remedy because the client might provide the same information to new counsel. But it is an entirely different matter if the client improperly obtained (or maintained) possession of written or digital copies of an adverse party’s confidential information and provided them to counsel for use in litigation. Insisting that counsel not read purloined documents any more closely than is necessary to determine if they are privileged, … and prohibiting their use if they are, will not inhibit legitimate attorney-client conversations; and a client whose counsel is disqualified for defying such a rule is not likely to repeat the violation. On the other hand, as the trial court ruled here, to allow continued representation of a client after counsel has been provided with, and then used, improperly obtained confidential information would undermine the public’s trust in the fair administration of justice and the integrity of the bar.

The appellate court added: “Militello’s final argument—disqualification is not appropriate when the lawyers receive the adverse party’s privileged communications from their own client—finds some support in the case law, but does not justify reversal of the decision to disqualify [counsel] under the circumstances here.”  Id. at *9.

For a discussion of District of Maryland and Maryland State cases, see “Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation.  In the District of Maryland, an attorney and client were subjected to a monetary sanction for obtaining information about the opposing litigant outside of the discovery process, regardless of privilege.  In the Maryland state action, the Court did not find the facts – involving late-night entry into others’ offices – egregious enough for dismissal; however, it held that prelitigation “self help” can support other sanctions.  As pointed out in that blog, in an Oklahoma case, use of similar materials resulted in Stored Communication Act and Computer Fraud and Abuse Act claims.

In Maryland, the duty to notify an opponent is clear.  Maryland Attorney’s Rule of Professional Conduct  19-304.4 (based on ABA Model Rule 4.4(b)) states:

An attorney who receives a document, electronically stored information, or other property relating to the representation of the attorney’s client and knows or reasonably should know that the document, electronically stored information, or other property was inadvertently sent shall promptly notify the sender.

However, the Comment to the Rule states:

Whether the attorney is required to take additional steps, such as returning the document, electronically stored information, or other property, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document, electronically stored information, or other property has been waived. Similarly, this Rule does not address the legal duties of an attorney who receives a document, electronically stored information, or other property that the attorney knows or reasonably should know may have been inappropriately obtained by the sending person….

Some attorneys may choose to return a document or delete electronically stored information unread, for example, when the attorney learns before receiving it that it was inadvertently sent. Where an attorney is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the attorney.

Maryland State Bar Association Ethics Opinion 2000-04 addresses the duties of an attorney who receives inadvertently produced privileged documents from opposing counsel in discovery:

An inadvertent transmission of privileged material may be clear from the identification on the box, envelope, or fax. Alternately, the attorney who went [sic – sent] the material may realize the error and contact the receiving attorney before the material has even been received. In either case, if the sending attorney indicates that transmission was inadvertent and asks the return of the documents, they should be returned unopened and unreviewed immediately…. Reading inadvertently produced material you know is privileged after learning of the error is similar to copying papers from an opposing lawyer’s file folders during a break in a deposition. Such conduct has been found to be dishonest….

In other situations, … the privileged nature of documents sent to you may be evident only after your review of them.… If either the content of the document or the circumstances of its production lead you to believe that the disclosure of the privileged material was inadvertent, you must inform opposing counsel of the inadvertent disclosure.

Once you have reviewed the material, you also have an obligation under Maryland Rule of Professional Conduct 1.4, Communication, to inform your client promptly that you have reviewed privileged documents received from another party, and that you have certain obligations under the Rules of Professional Conduct.

The Committee listed two alternatives:

• “[Y]ou may be required to return the documents without further reviewing them, using them or disclosing the information, when asked to do so by opposing counsel….”; or,
• “[I]f you have already reviewed the documents, your second alternative would be to consult the Courts regarding the permissible use of the inadvertently disclosed privileged material before using or further disclosing the information to anyone. For example, once you realize the information you’re reviewing might be privileged, you might seal the documents in an envelope without further reviewing them, any apply to the Court, in a sealed motion, for a ruling as to whether or how the disclosed material might be used.”

Maryland State Bar Association Ethics Opinion 2007-09 addresses the ethics of viewing or using metadata in ESI received from another:

Subject to any legal standards or requirements (case law, statutes, rules of procedure, administrative rules, etc.), this Committee believes that there is no ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata.

Part of that opinion was superseded by Rule19-304.4.

In civil litigation, both the Maryland and Federal Rules have clawback and privilege non-waiver rules. For a comparison, see Maryland v. Federal Clawback and Privilege Non-Waiver Rules . Upon notice, “both rules prohibit further use or disclosure; however, the Federal Rule provides substantial additional protection, i.e., requiring the recipient to return, sequester, or destroy the clawed back information.”  In civil litigation, it is difficult to hypothesize any situation where parties would not ask for the full protection of the Rules.

____

[1] In footnote 12, the Militello court held that it need not decide whether failure to give notice, alone, was sufficient to support disqualification.

Defense counsel “inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel that had been partially redacted but not scrubbed of embedded text.”

However, “[i]nstead of notifying counsel for L&W and sequestering the documents, opposing counsel cited portions of the embedded text in support of a summary judgment motion.”

A disqualification motion followed. It was denied.  “The failure of opposing counsel to take corrective action violated rules of civil procedure and professional conduct. Nevertheless, the trial court ruled disqualification was not an appropriate sanction because counsel’s rule violations were not intentional.”

Producing counsel used “DocReviewPad” to redact emails.  Counsel “explained he redacted the purportedly privileged e-mails by blacking out the substantive content, leaving the header information (i.e., date, sender, recipient, and subject) visible in lieu of a privilege log.”

Receiving counsel later filed a motion supported by screenshots of the produced materials.

[E]ach image has a left-hand column and a right-hand column. The left-hand columns display the results of keyword searches. The search results are sentence fragments containing the search terms “Maggie” and “rent,” accompanied by a denotation of how many “matches” had been found in the searched documents. …  Alongside each set of search results, in the images’ right-hand columns, appears a visual of e-mail headers followed by completely blacked out text.

Producing counsel “recognized the e-mail fragment as content he had intended to redact.”  Counsel then determined that “metadata associated with the redacted portions had not been removed….”  Thus, the content was discoverable when a word search was performed.

Receiving counsel responded that she “did not understand metadata,” among other defenses to the disqualification motion.  She asserted that the search hits disclosed unethical conduct, and was not privileged. Counsel “was adamant she had not tried to uncover privileged information but had simply performed a word search of the discovery materials.”

The court opined that some of the recipient’s explanations “were suspicious” but believed that counsel did not knowingly search through privileged material.  It held that disqualification was too severe and ordered receiving counsel “to destroy the files, promised to banish the e-mail excerpts from the court’s decision-making, and instructed the parties to not mention the excerpts again.”

Producing counsel appealed and the decision was affirmed.  Rule 4.4(b) required the recipient to notify the producing party, and to return sequester or destroy the material; however, the court wrote:

The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.

The court added:

There is nothing improper or unreasonable in conducting a word search on materials containing redactions. Nor is it unethical to simply read the results of that word search. See WSBA Advisory Op. 2216 (noting that “[u]nder the ethical rules,” a recipient of inadvertently sent metadata is “not required to refrain from reading the document, nor [are they] required to return the document” to the sender). Indeed, it is only by reading the materials, at least cursorily, that a recipient can be expected to discover in the first place that they were inadvertently sent privileged information.

It concluded, however, that, once read, Rule 4.4(b) required corrective action by receiving counsel.

In deflecting allegations of intentional wrongdoing, the court wrote:

Even a sophisticated computer user would likely have been confused upon initially encountering results of a word search that did not match up with the contents of the visible text. Someone familiar with metadata would likely come to realize that the mismatched content was attributable to embedded text that had been insufficiently redacted. But an individual such as Ms. Urness, who claims an unfamiliarity with metadata, might have a hard time overcoming the initial confusion.

In a final footnote to that passage, the court stated:

We do not mean to excuse counsel’s lack of familiarity with metadata. The Rules of Professional Conduct require competent representation, including “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. To the extent a lawyer uses computer technology in communications, document management, or the exchange of electronic discovery, competent representation requires an understanding of metadata. See WSBA Advisory Op. 2216.

Mistake No. 1 was failure to properly “scrub” the documents prior to production.  Mistake No. 2 was failure of the recipient to notify the sender when the potentially privileged information was read.  Thanks to David McAfee for flagging this decision in Lawyer Who Kept Mistaken Email Release Avoids Disqualification (bloomberglaw.com)(Jan. 31, 2023).

_____

[1] See, e.g., Jason Tashea, How to redact a PDF and protect your clients (abajournal.com)(Jan. 10, 2019)(“While not excusable, redacting PDFs incorrectly is a common error. Regardless of software you use, you have to be thorough. Here’s what everyone should be doing to properly redact documents…. Now, check to see whether the text is still there by copying and pasting the redacted section into a new document. If your text doesn’t appear, you’re good to go. If it does, then after you e-file or share it electronically, you will have made the same mistake as Manafort’s legal team…. You also might want to remove all the metadata in your document, as well.”); Failed redaction reveals Paul Manafort’s ‘lies to FBI’ – BBC News (Jan. 8, 2019); The Hon. Herbert B. Dixon, Jr., Embarrassing Redaction Failures (americanbar.org)(May 1, 2019)(listing technological history and redaction failures).

Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case. It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

Id. at 537.

The Hon. Paul W. Grimm denied cross-motions for summary judgment and wrote that: “It is difficult for the Court to provide the appropriate background to the underlying arbitration in this case because, as will be discussed in greater detail below, neither party has proffered any admissible evidence to support the facts set forth in their respective motions.”

The Court explained:

Very little has been written… about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. Fed.R.Civ.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

241 F.R.D. at 537-38 (emphasis added).

The decision went on to carefully analyze “a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of evidence.”  Id. at 538.  It proceeds to explain the trial court’s gatekeeper role and the various issues presented by each “flavor.”

Lorraine was the first, and has been described as “the most[,] comprehensive single opinion regarding the admissibility of ESI….”  Hon. Paul W. Grimm, et. al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 360 (2009).

It has also been called the “godfather of all cases,”  Linda Greene, “Mining Metadata: The Gold Standard for Authenticating Social Media Evidence in Illinois,” 68 DePaul L. Rev. 103, 112 (2018), and a “landmark case,”  Abraham Oxner, “A New Age of Authentication,” 23 J. Tech. L. & Pol’y 229, 234 (2019).

The ground-breaking decision remains a textbook resource today. For example:

This case is seen as an exhaustive guide to the admissibility of social media evidence in trials, and the case features a lengthy section on authenticating such evidence during the course of trial. The opinion was written by Judge Paul Grimm, who is considered to be the leading jurist on the admissibility of social media evidence. In it, Judge Grimm identified several useful tools for authenticating such evidence, including using the distinctive characteristics of specific posting habits to show that a user has a habit of posting in a certain way. This specific characteristics approach has since been used in a number of other federal cases where social media content made up a significant portion of the available evidence.

Maximilian Bungert, “Do It for the Snap: Different Methods of Authenticating Snapchat Evidence for Criminal Prosecutions,” U. Ill. J.L. Tech. & Pol’y, Spring 2021, at 121, 132–33.

History is important.

______

[1] 2006 WL 2836885.

[2] 2006 WL 5229809; 241 F.R.D. at 534.

But metadata isn’t new. In fact, it was found in a draft of the Declaration of Independence.[4]

Thomas Jefferson wrote the phrase “our fellow subjects,” and then overwrote “subjects” with the word “citizens.  See Library of Congress, The Wise Guide : Subject to Change (loc.gov).

This – and other similar hidden documentary information – was uncovered by forensic analysis.  Researchers at the Library of Congress (“Library”) used hyperspectral imaging to uncover the hidden “data about data.”

“Hyperspectral imaging is the process of taking digital photos of an object using distinct portions of the visible and non-visible light spectrum, revealing what previously could not be seen by the human eye. Fascinating details of our historical heritage have been coming to light with the use of hyperspectral imaging. For instance, recent imaging of the heavily varnished and visually obscured 1791 Pierre L’Enfant Plan of Washington, D.C., has clearly revealed invisible streets and special locations, including the ‘President’s House’ and ‘Congress’ House.'” [emphasis added].

Source: Library of Congress

Jefferson’s metadata was important.  In its article, the Library wrote:

“The correction seems to illuminate an important moment for Jefferson and for a nation on the eve of breaking from monarchical rule: a moment when he reconsidered his choice of words and articulated the recognition that the people of the fledgling United States of America were no longer subjects of any nation, but citizens of an emerging democracy.”

The Library explains that, while the sentence did not make it into the final document, the concept did.  We were “citizens,” not “subjects.”  Researcher Fenella France described the discovery as a “spine tingling moment.” Id.

However, Jefferson tried to spoliate the evidence:  “Jefferson sought quite methodically to expunge the word, to wipe it out of existence and write over it.”  Jefferson changed ‘subjects’ to ‘citizens’ in Declaration of Independence (staugustine.com) (Jul. 4, 2010).  Fortunately, just like the “gang that couldn’t spoliate straight,”[5] he failed, and his newly-found effort is instructive, illuminating the thought process behind the document.

“Chronocentrism”  has been defined as “the egotism that one’s own generation is poised on the very cusp of history.”[6]

Much of what we think is new, isn’t so new.  The first online wedding wasn’t via Zoom; it was by telegraph in the 1800’s.  When Was the First Online Wedding? – William Storey and Clara Choate’s Love Story.  “Data about data” has been around for a long time.[7]

_______

[1] E.g., Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 641, 644-47 (D. Kan. 2005).

[2] Craig Ball, Mad About Metadata | Ball in your Court (craigball.net) (Nov. 2, 2018); Sedona Conference Glossary, 21 Sedona Conf. J. 263, 337, 357, 377, 385 (2020).

[3] “A custodian may remove metadata from an electronic document before providing the electronic document to an applicant….”  Md. Code Ann., General Provs. Art. §4-205.

[4] “Jefferson submitted his ‘rough draught’ of the Declaration…. Congress eventually accepted the document, but not without debating the draft for two days and making extensive changes.”  Jefferson and the Declaration | Thomas Jefferson’s Monticello

[5] Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501 (D. Md. 2010)(Grimm, J.).

[6] T. Standage,  “The Victorian Internet: The Remarkable Story of the Telegraph and the Nineteenth Century’s On-line Pioneers” (Walker & Company 2007),  256, as cited in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 760.

[7] Of course, there has long been a forensic science of examining hidden characteristics of paper. E.g.,  Forensic Analysis of Paper or Paper Examination – Forensics Digest. For a history of paper, see D. Cycleback, Identifying and dating paper | Looking at Artifacts and Ideas (davidcycleback.com) (Feb. 10, 2013)(“A black light is effective in identifying many, though not all, modern paper stocks. This allows the collector and dealer to identify modern reprints and fakes of antique trading cards, posters, photographs, programs and other paper memorabilia. Many people buy a black light specifically for this purpose.”).

The court’s opinion explained: “The court understands the gravamen of Arconic’s motion is an assertion that the court abandoned its duty to conduct an independent, de novo review of the special master’s R&Rs [report and recommendations] by having the special master’s staff ghost-write the court’s decisions….  The only evidence pointed to by Arconic to support its recusal motion is the author and created date fields of the metadata of certain decisions.”

The court wrote:

To be abundantly clear, the court wrote the opinions referred to by Arconic; the special master and her staff did not write any opinions of this court. The steps used by the court to create templates as the starting points for its opinions, as explained more fully below, caused system metadata about the author property to be inherited from other documents. The author metadata is not a reliable way to determine the actual writer of the court’s opinions and does not constitute a reasonable basis to question the court’s impartiality or independence.

Arconic Corp., et al, v. Novelis Inc., et al., 2022 WL 409488 (W.D. Pa. Feb. 10, 2022) (emphasis added).

The court explained:

Arconic’s motion for recusal based on hidden fields of system metadata is not reasonable in light of the visible content of the court’s written decisions. It is readily apparent that the court performed an independent review of the special master’s R&Rs and that the decisions at issue are the work of the court…. Certainly, this court did not expect Arconic to scrutinize metadata in an effort to support a recusal motion. While this court used the same template process in other cases over many years, this case was the first time any issue was raised relating to any metadata associated with the opinions and orders of this court. [emphasis added].

The court wrote that “the author field of the metadata in the documents at issue stemmed from the use of the ‘saved as’ function to create templates based on documents prepared earlier in the case.”

The “saved as” command enables the court to create a template for a new opinion or order without overwriting the document being used as the starting point. The court, as noted, did not take the steps necessary to change the name in the author field of the metadata and the template document inherited the “author” named in the author field of the metadata of the document from which the template was created. The metadata pointed to by Arconic about the “author” in the court’s opinions and orders at issue is superficial and has no relationship to the contents of the final product. [emphasis added].

In support, the court’s opinion cited Craig Ball, “Beyond Data About Data: The Litigator’s Guide to METADATA.”

The court wrote:

The “author” field of the metadata is not a smoking gun or a reasonable or reliable way to determine who is responsible for the content of a document.  See Raiser v. San Diego Cty., No. 19-CV-00751, 2021 WL 4751199 , at *8 (S.D. Cal. Oct. 12, 2021) (“Plaintiff’s discovery of ‘author’ names in Word document metadata is not the smoking gun that he believes it to be”). The author field of the metadata is particularly unreliable for documents created by the “save as” command for use as a template. In Raiser , which involved different facts but a similar motion for recusal premised on author metadata, the court rejected the plaintiff’s “paranoiac allegations” that the metadata demonstrated that the court failed to read, review, or decide the plaintiff’s motions. Id. [emphasis added].

Turning to the “date created,” the court also rejected the recusal motion. “The ‘created’ date field of the metadata does not necessarily reflect when a file was actually created; rather, it indicates when a file came to exist on a particular storage medium, such as a hard drive.”  Id. at *6.

Arconic points to the created date of August 31, 2020, in the metadata of the court’s SJ Opinion attached to the email to counsel on December 3, 2020, to surmise that the special master or her staff was working on that opinion. Arconic is wrong. The created date reflected in the metadata is shortly after the parties’ objections to R&R #33 were filed. The court – not the special master or her staff — started working on a draft opinion before the briefing was fully completed to aid the timeliness of its decision. The created date changed automatically when the court “saved as” a document on August 31, 2020, to create a template for the SJ Opinion.

The court then described a better practice:

In preparing this opinion, the court reviewed the “Guidelines for Editing Metadata” released by the Administrative Office of the United States Courts, https://ksd.uscourts.gov/wp-content/uploads/2015/10/Metadata-Instructions.pdf, last visited Feb. 3, 2022. In those guidelines, the situation that occurred here was addressed:

Court users have expressed concerns regarding authorship metadata. When authors create a document using previous versions created by other authors, the original author’s name is inherited, leading readers to think it was written by someone else. To avoid this issue, the user should verify and edit the author’s name if incorrect through the Properties option (usually found under the File menu of word processing software, see File Description Metadata section on page 3). Otherwise, it is suggested to start with a fresh document, and copy and paste text from the existing documents.

Id. at 2. Going forward, this court will follow the Administrative Office’s suggestions to avoid the concerns raised by Arconic about the author field of the metadata.

Metadata scrubbing techniques are also described in M. Berman, “A Primer on Scrubbing Metadata,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts,” (Md. State Bar Ass’n. 2020), Ch. 21.

See J. Wille, “Arconic Loses Bid for New Trade Secrets Judge Based on Metadata (bloomberglaw.com) (Feb. 11, 2022).