According to a recent article, the way state ethics boards address inadvertently disclosed data could have an impact on where lawsuits are filed. Forum-shopping plaintiffs may be drawn to jurisdictions such as Maryland and New York City, where lawyers are permitted to examine hidden metadata in electronic documents provided by opposing counsel. If metadata are viewed as an important litigation issue, plaintiffs would likely prefer to litigate in such venues.Pepperdine University School of Law Professor Donald Childress was quoted as saying, “To the extent there are little to no [uniform] rules about this, it really provides for gamesmanship.” Attorneys are advised to provide the text in electronic material, such as e-mail, text messages or social media, in a PDF format. See (California) Daily Journal, October 20, 2010.
Meanwhile, a company that provides technology and consulting services has released its “Fourth Annual ESI Trends Report,” which surveys in-house counsel about their management of electronically stored information (ESI) in the context of preparation and response to litigation, regulatory matters and internal investigations. According to the Kroll Ontrack® report, while more companies have an ESI discovery strategy, relatively few have tested their policies to assess whether they are defensible. Companies have also failed to take advantage of early case assessment technology despite its ability to save time and costs. The survey further showed a decline in the number of companies that have updated their ESI discovery policies to include social networking sites and use. The report recommends that corporate IT and legal departments share responsibility for discovery preparation and response.