Supreme Court of Arizona holds Metadata is Subject to Public Records Requests
October 30, 2009
Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)
In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” [Emphasis added.]
In the course of the underlying litigation, David Lake, a Phoenix police officer, sought the production of metadata associated with notes he suspected were backdated. The city denied the request, contending the metadata was not a public record. The city’s refusal was upheld on appeal.
Upon appeal of the issue to the Supreme Court, however, the opinion was vacated. In so holding, the Supreme Court determined that “[t]he court of appeals erred in concluding that ‘the public records law supports a distinction between the metadata ‘records’ that Lake sought to acquire and the ‘public records’ that are accessible to the public.’” The pertinent question, as identified by the Supreme Court, was not whether the metadata itself could be considered a public record, but rather, “whether a ‘public record’ maintained in an electronic format includes not only the information normally visible upon printing the document but also any embedded metadata.” Accordingly, the court held that “when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under public records law.” In support of this conclusion, the court reasoned:
The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a police officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page. Cf. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (noting, in discussing federal civil discovery rules, that “metadata is an inherent part of al electronic document.”). Arizona’s public records law requires that the requestor be allowed to review a copy of the “real record.” Lake, 220 Ariz. at 486 ¶ 48, 207 P.3d at 739 (Norris, J. dissenting). It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.
Addressing the city’s hypothetical “administrative nightmare” when identifying metadata to respond to records requests, the court noted that “[a] public entity is not required to spend ‘countless hours’ identifying metadata; instead, it can satisfy a public records request merely by providing the requestor with a copy of the record in its native format.” The court went on to note that metadata would not be responsive to every request.
Ending its discussion, the court made clear what it did not decide in this opinion:
We do not here decide when a public entity is required to retain public records in electronic format. That a public record currently exists in an electronic format, and is subject to disclosure in that format, does not itself determine whether there is a statutory obligation to preserve it electronically.
A copy of the full opinion is available here.
A summary of the underlying opinion from the Arizona Court of Appeals is available here.
Contracts: Throughout the Universe, From the Beginning of Time
October 30, 2009
Inspired by a odd contract phrase that has suddenly popped up in a few places, the WSJ had an interesting story yesterday on the lengths to which lawyers are willing to go to be thorough in the agreements they draft. The Terms of Use on Starwars.com tell users that they give up the rights to any content submissions “throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed.” Starwars.com is hardly alone here. According to a post on the THR, Esq. blog, the phrase is spreading rapidly throughout the legal universe, as a search of the SEC’s Edgar database “turned up 560 examples of the phrase in the last couple years alone, including in CBS CEO Les Moonves’ employment agreement.” For the record, a spokeswoman from Lucasfilm, which runs the Starwars.com Web site, says “to be honest with you, we have had very few cases of people trying to exploit rights on other planets.” One of my favorites in this area, which I still remember doing a double-take over when I saw it for the first time when I was practicing law, is the release form that releases all…
Friday’s Three Burning Legal Questions
October 30, 2009
Here are today’s three burning legal questions, along with the answers provided by the blawgosphere. 1) Question: I just received a Christmas card with a photo of one of my relatives with her ex-boyfriend. I was surprised because I know they had a nasty break-up. I was even more surprised to see that the photo is of her performing, um, certain “acts” upon him. Can he do this? Answer: No, that would constitute “unlawful photography and criminal impersonation.” (Associated Press) 2) Question: I am a 17-year-old girl. What are the chances of me finding a 112-year-old man who has 18 children by five prior wives to marry me? Answer: 100 percent. (Jonathan Turley) 3) Question: I am a gang member suing the city for excessive force by the police. I’m afraid the jury will not go my way based on my appearance (I have numerous tattoos, including the name of my gang tattooed prominently on my upper lip). Is there any kind of “Extreme Makeover” available for this situation? Answer: Of course! (Lowering the Bar)
Gov. Schwarzenegger Has a Message for the Calif. State Assembly
October 30, 2009
The blawgosphere wants to know: What message was Governor Arnold Schwarzenegger sending to the California State Assembly through his veto last week of Assembly Bill 1176? At first glance, the Governor’s message seems fairly routine: But take a closer look at the combination of letters along the left side of the two main paragraphs. They seem to spell out the Governor’s sentiments a bit more clearly. (Still not grasping the Gov’s message? Click here for a highlighted, R-rated version courtesy of Legal Juice). As discussed in this post on the Lowering the Bar blog, the odds of this message materializing randomly may be as high as one in 200 billion. Then again, the odds against someone becoming Mr. Universe, a superstar Hollywood actor, and then the Governor of California are probably pretty high, too.
Sedona Continues Call for Cooperation
October 30, 2009
By Jennifer H. Rearden and Farrah Pepper
New York Law Journal
October 29, 2009
It turns out that Jean-Paul Sartre's famous pronouncement that "hell is other people" was overly broad. Other people per se are not the problem, but rather other lawyers -- and uncooperative ones at that. A federal judge in the late 1980s confirmed as much, as a recent e-discovery opinion reminds us: "If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."[FOOTNOTE 1]
To read the full article, posted at Law.com, click here.
Is Gmail Making the Leap From the ‘Unacceptable?’
October 30, 2009
Back in August, Esquire Magazine posted a series of “rules” that included this one: Esquire’s Rule #1033. If your lawyer’s email address ends in hotmail.com, gmail.com or yahoo.com (or aol.com), find a new lawyer. This prompted a flurry of discussion in this post on the Simple Justice blog (written by SHGLaw@aol.com, aka Scott Greenfield) and ultimately here on Legal Blog Watch as to the validity of Rule #1033. As Carolyn Elefant wrote at the time, I suppose that Hotmail, Yahoo or Gmail addresses suggest that a lawyer is too cheap or lacking in tech savvy to set up an e-mail account on his own firm’s server. In addition, some have raised privacy concerns about Gmail, which would presumably apply to the other services as well. Questions about the confidentiality of a firm’s e-mail might be another reason for a client to avoid a lawyer using one of these services. This week, however, proponents of Gmail as a serious and professional business email service received a boost when the the Los Angeles City Council voted unanimously to outsource its entire e-mail system to Google. L.A. thus becomes the largest city in the nation to make the move to Gmail, with Councilman…
Anacomp Executive Purge?
October 30, 2009
We are tracking down strong rumors that there has been a major purge of executives at Anacomp by its board of directors. Once we get confirmations and details we'll post more 411.
411: We tracked the rumor down. In fact, Howard Dratler, Anacomp CEO, got right back to us to set the record straight. There were never any plans to unseat him as CEO. But Dratler did hire Scott Winkler to be the general manager of Anacomp's CLX business. According to Dratler, "Winkler's initial focus will be on better alignment of our Development, Product Management and Marketing organizations with the goal of building on/accelerating the strong progress we have made over the past several years and taking our eDiscovery and Litigation Support business to the next level."
But, there's more. Anacomp consolidated its corporate marketing function into the CLX product management/product marketing group. With that move, Anacomp hopes to get better coordination to expand their communications to the market. Dratler claims that "Beyond the few executives that were laid off yesterday [6], we did not make any other layoffs in the business development or product development organizations."
Finally, Dratler disowned the rumor that the Anacomp board was in the process of selling its business. In fact, says Dratler, "All of the changes we made yesterday reflect a commitment of our board to make changes that will allow us to expand our business further and take it to the next level."
So balance your checkbook for another reason and have a great Halloween.
Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation
October 29, 2009
Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009)
In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars. Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].”
Defendant (a doctor) was arrested in April 2007 for the misdemeanor offense of obstructing a peace officer following his refusal to move away from the car of a person threatening to commit suicide. The arrest was recorded by a camera in the car of one of the responding officers. The video was eventually uploaded to the hard drive of a police department computer and viewed by several officers. At “some point” however, the video (along with numerous others) was “lost” and could not be retrieved.
The city explained that the video was lost accidentally as the result of “glitches in its newly installed digital video system.” Additionally, as the court noted, “the department failed to have any type of back-up system in place to ensure the preservation of the video recordings.”
Addressing the motion for sanctions, the court first laid out the controlling law, including the five factors identified by the Ninth Circuit to be considered when imposing dispositive sanctions:
(1) the existence of certain extraordinary circumstances; (2) the presence of willfulness, bad faith, or fault by the offending party; (3) the efficacy of lesser sanctions; (4) the relationship or nexus between the misconduct and the matters in controversy; and, as an optional consideration where appropriate, (5) the prejudice to the party victim of the misconduct.
Turning to the alleged spoliation, the court found that the city had a duty to preserve the video, even following defendant’s acquittal, because it was reasonably foreseeable that civil litigation would ensue. Accordingly, sanctions were warranted. Rejecting the request for default judgment, the court instead “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [the defendant].”
The court then supported its decision, addressing each of the Ninth Circuit’s factors in turn. As to the question of willfulness or bad faith by the offending party, the court rejected the city’s attempt to minimize its fault by arguing the loss was accidental. Specifically, the court pointed out that the city “utterly failed to have any controls in place to ensure the video recordings from police vehicles were adequately preserved” and reasoned that “[i]n view of the importance of the video recordings, it went beyond mere negligence for the department no to have adequate safeguards in place for protection for the recordings.” The court therefore concluded that the loss of the video was a result of recklessness.
As to the remaining factors, the court found they weighed in favor of sanctions, particularly in light of the prejudice to defendant.
Finally, before imposing its chosen sanctions, the court addressed the question of whether a less drastic sanction was warranted. Specifically contemplating the effectiveness of a possible adverse inference instruction, the court found such an instruction insufficient and unable to adequately cure the loss of defendant’s best evidence.
Accordingly, the court imposed the sanction of designating that the officers had used unreasonable force, but left the remaining issues of whether a taser had been used and whether the officers acted with malice for the jury.
A copy of the full opinion is available here.
Legal Believe It or Not
October 29, 2009
Among the truth is stranger than fiction items in today’s news: An assistant attorney general in South Carolina was fired after police found him in his SUV parked in a cemetery in the company of a stripper, a Viagra pill and various sex toys. The 66-year-old former state legislator explained to police that he was on an innocent lunch break and always kept the Viagra and sex toys in his car “just in case.” The attorney for a New Jersey man on trial for murder is employing a rather weighty and certainly novel defense. His client, he contends, was too fat to commit the crime. Whoever shot the victim would have had to be able to quickly run up and then back down a flight of stairs. At 5 feet 8 inches and 285 pounds, the unhealthy 62-year-old could never have pulled it off, his lawyer asserts. A jury this week convicted a judge in Washington state of patronizing a prostitute and threatening to kill another man who talked about having sex with him. The conviction means that Michael Hecht will no longer serve as a Superior Court judge. But the court’s presiding judge and the state attorney general are…
Soupy Sales, Expert Witness
October 29, 2009
I was such a fan of the subversive humor of comedian Soupy Sales that, when he died this week, I wished for a legal angle so I could blog about him. After all, this was a man who not only perfected pie throwing as an art, but who once told the viewers of his children’s TV show to sneak into their parents’ bedrooms, “take some of those green pieces of paper with pictures of George Washington, Benjamin Franklin, Lincoln and Jefferson on them,” and “send them to me.” In return, he promised, “I’ll send you a postcard from Puerto Rico.” Well, my wish came true. A couple of different bloggers — Dwight Sullivan at CAAFlog and Danny Jacobs at On the Record — picked up on this piece of trivia from Sales’ obits that I completely overlooked: He once served as an expert witness called to testify in the court martial of a sailor accused of tossing a pie into an officer’s face. As recounted in the Los Angeles Times obituary of Sales: Noted defense attorney William Smith enlisted Sales to tell how he had never been prosecuted for assault with a pie. (Once, however, actor Bob Cummings sent him…