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D.S.C.: Fact Summaries Withheld Despite Faulty Metadata Review

In January 2019, Special Master William L. Howard issued a report and recommendation, Wellin v. Wellin, No. 2:13-CV-1831-DCN, No. 2:13-CV-3595-DCN; No. 2:14-CV-4067-DCN, 2019 U.S. Dist. LEXIS 20940 (D.S.C. Jan. 15, 2019), on the motion of Wendy Wellin to compel the production of fact summaries, or in the alternative make a supplement to the privilege log.

Earlier the Special Master had recommended that the privilege log of the Wellin children be supplemented to identify the subject matter of factual summaries created in anticipation of litigation, and the author and recipient of each summary. The Court had initially ordered the production of some factual summaries, since they were not prepared in anticipation of litigation, but were used to record memories of the children with respect to certain transactions. After this production counsel for the Wellin children located additional factual summaries in its database, which were similar, but not identical to the summaries which had already been produced. When de-duping the newly found summaries, the metadata of the summaries was not compared and a word by word electronic comparison was not made of the summaries. Their review of the newly found summaries also led them to conclude that values in their 'Creation Date' field were inaccurate. Twenty-two factual summaries were added to the privilege log, since their review concluded that they were created before a particular date, after which the Court determined any summaries should be regarded as work product.

Despite the Wellin Children's confusion about how to analyze the summaries and the unreliable metadata, the Special Master accepted evidence in an ex parte letter from their counsel that each summary was prepared before the 'work product deadline'.

Special Master Howard also concluded that Wendy Wellin did not have a substantial need for the summaries because she was able to take the depositions of the authors of the work product in question.

This case produced an earlier decision of note in 2014, when the Court concluded that non-parties had to produce native files with metadata, after failing to timely object to doing so.

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