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This Week in eDiscovery: Ruling on Intentional vs. Inadvertent Privilege Disclosures, Royal Family Photo Puts Metadata in the News

Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the week of March 11-17. Here’s what’s happening.

Motion to Avoid Privilege Waiver in Spoliation Dispute Fails

In Lubrizol Corp. v. IBM, a breach of contract case amended by Lubrizol to include a spoliation allegation, a federal magistrate judge ruled in favor of the Plaintiff and against the Defendant’s motion to allow for production of certain documents without waiving attorney-client privilege.

Lubrizol alleged IBM breached its contract to implement an enterprise resource planning software known as S/4HANA and later committed spoliation by deleting email boxes of key personnel on the project and failed to institute a timely litigation hold even after sending IBM a notice terminating the contract for cause and corresponding about the possibility of a lawsuit.

Lubrizol argued IBM failed to produce information responsive to certain interrogatories and requests for production and refused to produce a witness on a spoliation-related topic. While Lubrizol filed a motion to compel production, IBM filed a motion pursuant to Federal Rule of Evidence 502(d) that would permit it to produce some privileged spoliation-related materials without waiving the attorney-client privilege over other, unproduced materials on the same subject matter.

IBM argued its position wasn’t cherry-picking because IBM would produce all relevant documents and information within the scope of the Rule 502(d) order. IBM, however, didn’t agree to produce documents regarding the broader question of whether it reasonably anticipated litigation at the time that the alleged spoliation occurred. Magistrate Judge Jennifer D. Armstrong wrote she was troubled by the possibility that IBM could be enabled to “disclose documents that support its spoliation position while continuing to withhold other, less favorable, documents.” She denied IBM’s motion and granted Lubrizol’s motion to compel, citing several factors:

  • It’s unclear whether a court has the authority to enter a Rule 502(d) order that covers intentional, rather than inadvertent, disclosures of privileged documents and information.
  • IBM’s proposed Rule 502(d) does not eliminate the risk of selective disclosure and it is not likely to meaningfully narrow the disputes between the parties.
What Metadata Can Do for eDiscovery

What do Royal Family watchers and eDiscovery professionals have in common? They both understand the power of metadata.

The saga over the public withdrawal of the Princess of Wales, Kate Middleton, following a recent surgery, took a technological turn after a family portrait of the princess with her three children released by Kensington Palace on March 10 was “killed” by multiple photo agencies because it was discovered to be manipulated.

As pointed out by Doug Austin on his eDiscovery Today blog, an article on Harper’s Bazaar compiled what several news outlets gleaned from the photo’s metadata, chiefly that the image was uploaded to a Mac and that it was saved twice in Adobe Photoshop, on March 8 and early in the morning of March 9. The metadata revealed the type of camera used to take the image, which the palace said was shot by the Prince of Wales in advance of Mother’s Day in the United Kingdom, but didn’t specify a date or time.

Other recent eDiscovery news and headlines:

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