The UPC and the admissibility of electronic records

Note that the Uniform Photographic Copies of Business and Public Records as Evidence Act, 28 U.S.C§ 1732, states that:

“If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. “

So even if an original has been destroyed, an accurate copy can be submitted in court. The UPA has been adopted by a majority of states. It was originally passed in 1951 in order to address the admissibility of records stored on microfilm.

When Does a Party Control ESI?

Courts have adopted three different tests that determine when a party controls electronically stored information.

The Legal Right Standard - adhered to by the 3d, 5th, 6th, 7th, 10th, & 11th Circuits - provides that a party will control ESI when a contract states that it owns it.

Under the Legal Right Plus Notification standard a party is obligated to disclose to a requesting party that the third party has possession of its electronic files, and if it is aware that a party has access to the data then it must disclose this as well.

The “Practical Ability” Standard states that a party must produce ESI it can readily obtain.

The Sedona Conference has rejected this last standard, and states that a party should have actual possession.

S.D.N.Y.: When linked to documents are not attachments

Earlier this year, Magistrate Judge Katharine Parker in, Nicolas v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP), 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), ruled on the Plaintiffs’ motion to reconsider whether or not they should have access to documents linked to in Gmail messages and electronic files produced from Google Drive. The Plaintiffs contended that the links were attachments to the emails and other documents, and noted the lack of metadata allowing them to determine which linked documents went with which ‘parent’ documents.

The Plaintiffs’ e-discovery vendor estimates that Noom can collect the linked to documents in two weeks. Noom contested the idea that the links should be regarded as attachments and offered to assist the Plaintiffs in locating those which a search of the production did not uncover. It also rejected the request on the grounds that it was nor proportional to the needs of the case, submitting a statement from its expert that the cost of collecting the links would be $180K. It also asserted the the Plaintiffs’ tool, MetaSpike's Forensic Evidence Collector, would not do the job.

Magistrate Parker noted that the parties had previously agreed to the use of Google Vault to collect Noom’s files even though it would not collect the path for those files. But, the Plaintiffs objected to its use for collecting Gmail messages.

In deciding to deny the Plaintiffs’ motion, the Court cited Sedona Principle 6 that states a party is best situated to determine how to collect its own data, and also noted that the MetaSpike tool often stalled during collection. She also noted that the parties’ ESI protocol failed to describe links as document attachments, and concluded that, “It is clear to this Court that there was no meeting of the minds on whether hyperlinks were attachments and this Court, when entering the order, did not view hyperlinks to be attachments. While the protocol does reference ‘files with extracted embedded OLE documents, ‘ the Court understands this to refer to embedded, displayed documents such as a graph or a chart within a Word document or email—not hyperlinked documents. “ Id. at *3. In making her decision, she acknowledged that it may be necessary to re-balance proportionality considerations at some stage in litigation, and the requirement of Fed. R. Civ. P. 34 that ESI be produced in a reasonably usable format.

Magistrate Parker also faulted the Plaintiffs for failing to show how any of the linked documents were material to their cause of action. She noted that there was a process in place that will allow them to request missing linked documents, and that by asking for the linked documents they were unlikely to reveal their strategy. The parties already agreed that Vault was an acceptable collection tool and that some linked documents would have to be retrieved mulitple times. The failure of the Plaintiffs to specify how much and how long it would take to collect the linked to documents was crucial:

"Noom estimates the costs would be upwards of $180,000. Plaintiffs have not effectively countered these projected costs. Initially, Plaintiffs posited that what they requested would cost less than $5,000—a number that was not credibly supported by evidence. The recently submitted Declaration of Plaintiffs’ ESI expert Douglas Forrest also does not adequately address the issue of costs and delay. Forrest proposes that Noom could write a program to utilize Google's Application Programming Interface (“API”) to extract links to Google Drive documents from other Google Drive documents, emails, and Slack communications. (ECF No. 236.) He suggests that Noom's ediscovery programmers could create such a program within two weeks. While it may be true that creating such a program would cost far less than $180,000, the Forrest declaration does not address the time it would take to apply the program, load, and review the documents." Id. at *4.