The recent trial court decision in Hinshaw & Culbertson v. E-Smart Technologies,1 serves as notice that electronically stored information (ESI) already produced, albeit in electronic form, may be required to be reproduced if the ESI did not contain metadata. Discovery of social media is now commonplace, and New York courts are having to determine whether the information posted on a party’s Facebook site is “material” and “necessary” to an action. The analysis of what is “material and necessary” requires a careful examination of whether counsel has established a factual predicate for compelling the disclosure of “personal” ESI, and recent decisions highlight the often record-insufficiency of such foundation.
Material and Necessary
In Hinshaw, plaintiff law firm sought production of defendant’s metadata on the ground that defendant’s principal had allegedly altered highly relevant e-mails. Defendant denied this allegation, but offered to produce its metadata if plaintiff law firm produced the metadata associated with its own production. Plaintiff had not previously objected to the discovery of its own metadata, but argued that it did have to produce ESI in native form because defendant could “not make a threshold showing that [plaintiff] altered any documents.”
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