Reviewing UTC codes in Instant Message Metadata

When reviewing metadata for instant message chats, emails, and other ESI, it’s common to come across metadata listing the time on which messages were sent and delivered. See this example in a chart filed with a motion that is available on Docket Bird. As we can see in the column entitled, ‘Start Time: Time’ there are references to a date and time followed by the UTC -4 code

. . . further to the right there's another column entitled, 'Timestamp: Time', with a different UTC code, UTC-5.

What's going on here? Two things: The first field, 'Start Time: Time’' shows when a thread of text or instant messages began. The date and time given in the first row is 9/26/2014 11:39:03 AM. The second field, 'Timestamp: Time' has the entry, 11/10/2014 4:32:48 PM. This shows when the current message is exchanged. But why the change from UTC-4 to UTC-5? If you look at a map like this one showing the universal time code zones:

. we can see that the UTC-4 zone covers parts of Nova Scotia, Venezuela, the Amazon and Chile. UTC-5 is the zone for the eastern United States.

So are these messages between a businessman in New York City and an client in Caracas? Not likely. UTC-5 the standard time zone for the eastern United States, but during daylight saving time the east coast shifts to UTC-4. Daylight saving time ended on November 2, 2014.

Sometimes of course messages are exchanged between individuals in different time zones. If you want to update the time of messages sent in New York (during standard time) to recipients in London to the UK's time zone, and you have the metadata in Excel use a formula in this format:

=A2-4/24

. . . although the hour would need to be increased by one since London is on 'British Summer Time'.

7th Circuit Order for Management of Privileged ESI

The Tip of the Night for October 23, 2015 discussed the 7th Circuit's E-Discovery Pilot Program. The [Proposed] Pilot Project Case Management Order No. 2, available on the 7th Circuit's e-Discovery Council site, provides further insight into how the United States Court of Appeals for this circuit recommends that parties protect attorney-client privilege and work product.

This draft order states that parties should provide, "as much objective metadata as is reasonably available" on a privilege log, in addition to stating the basis of the privilege. The order specifically defines objective metadata as data not containing a description of ESI. The order allows for the designation of categories of ESI or documents that can be withheld because their production would be too burdensome.

If there are challenges to the assertion of privilege by one party or the other, the parties must meet and confer in order to make a good faith effort to designate categories for the documents at issue. The parties must prepare briefs on the legal issues pertaining to each category, and provide samples from each category for in camera review by the court if the issues cannot be resolved on the basis of the briefs.

The order also has a section providing for the clawback of privileged documents pursuant to Federal Rule of Evidence 502(d).

District of Delaware's Access to Source Code Standard

The United States District Court for the District of Delaware has taken the unusual step of publishing a Default Standard for Access to Source Code. This protocol governs how parties can access the source code of another party's software absent an agreement between them. There are eight key principles:

1. The code is inspected on a stand-alone computer.

2. The stand-alone computer is supplied by the owner of the source code.

3. The stand-alone computer is given to an independent escrow agent.

4. Only the requesting party's outside counsel and two of its experts can access the stand-alone computer.

5. The source code cannot be printed or copied.

6. The provider must supply a manifest of every file and its MD5 checksum.

7. Software must allow the source code to be searched and analyzed.

8. If there is an issue of missing files, build script, compilers, and assemblers needed to rebuild the application from the code must be provided.