Courts are “tooling down” and becoming circumspect on how electronically stored information (ESI) is used in discovery and motion practice. The recent decisions discussed below address the production of metadata, the detail required in an ESI privilege log, the use of emails on a motion to dismiss, and the implication of changing a person’s ESI password. In addition, in LM Bus. Assoc. v. State of New York,1 new jurisprudence has been created regarding a conversion cause of action as it relates to computers.
In addition, the New York State Bar Association recently issued Opinions 1019 and 1020 concerning ESI and opined that where “reasonable” precautions are used to safeguard confidential client information, lawyers may access such information remotely from their home and may use in transactional work “cloud-based” technology to store such client information.
Production of Metadata Deferred
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