The Duty to Preserve Metadata: Leidig v. BuzzFeed, Inc. 1:16-cv-00642 (S.D.N.Y. Dec. 19, 2017)
July 24, 2018
By: Whitney G. Clegg
Leidig v. Buzzfeed, Inc. serves as a cautionary tale to demonstrate the critical importance of preserving evidence and its embedded metadata1 during discovery. In this defamation case, evidentiary sanctions were imposed following plaintiffs' negligent and "amateurish" preservation efforts. The plaintiffs admitted they made "no special effort" to preserve evidence for the defamation case they initiated. In fact, they took down websites where they had published disputed news stories without preserving them, and they lost metadata when transferring files from their original locations to a document production repository. However, the court stopped short of finding the plaintiffs possessed an intent to deprive the defendant of evidence. The court therefore denied harsh monetary sanctions, instead imposing evidentiary sanctions that would precisely address the prejudice caused by their actions.
Leidig v. Buzzfeed, Inc. began in April 2015 when the defendant, BuzzFeed, published an article on its website asserting that plaintiff Michael Leidig and the organization he founded, the Central European News (CEN), fabricated and sold “fake news” stories. Before publishing the article, BuzzFeed reached out to the plaintiffs for comment, to which their attorney replied stating that the article would be “highly defamatory.” Nine months later, the plaintiffs filed suit, alleging libel.
During discovery, the plaintiffs admitted that they had “taken down” certain websites displaying some of the disputed news stories that were the subject of the BuzzFeed article. The plaintiffs produced several hundred documents, but the documents produced included manually manipulated PDFs and summaries of documents not produced containing no metadata. BuzzFeed moved to compel the plaintiffs to produce original versions with intact metadata. The court ordered a second production, warning of the possibility of sanctions for spoliation. BuzzFeed objected to the second production, as well.
BuzzFeed raised four issues with the plaintiffs’ document productions. First, it claimed that the plaintiffs “failed to produce preserved versions of the disabled websites.” Second, the plaintiffs produced only screenshots of drafts of the news stories, and the metadata associated with them postdated the complaint. Third, plaintiffs produced electronically stored information (ESI) with either missing metadata or metadata that postdated the complaint. Fourth, plaintiffs produced a forwarded version of an email but not the original email.
Plaintiffs were ordered to prepare a witness to testify about their production of documents. Unfortunately, that witness was unable to answer all the questions asked of him. He did testify that the plaintiffs made “no special effort” to preserve documents before filing their complaint.
Further, he admitted that he “inadvertently changed or deleted the metadata” for some files when he tried to move them to a hard drive for production. Following his deposition, BuzzFeed moved for sanctions against the plaintiffs both for “failure to properly prepare a Rule 30(b)(6) witness” and for spoliation of evidence.
The court did not award sanctions related to the witness preparation. In order to impose sanctions, the deponent’s “inadequacies … must be egregious and not merely lacking in desired specificity in discrete areas.” Since the court found the witness had exhibited only “discrete gaps in knowledge” and had “substantial information” in a couple of key topic areas, no sanctions were ordered, but BuzzFeed was allowed to conduct a follow-up deposition of another witness.
As to spoliation, the court noted that plaintiffs were the initiators of the lawsuit, and as such, they were on notice and had a duty to preserve evidence beginning, “at the very latest,” on the date that BuzzFeed published its article. The websites were relevant, as was the deleted email which “addressed the newsgathering efforts” underlying one of the plaintiffs’ disputed news stories. The court further noted that the “duty to preserve encompassed the metadata” associated with discoverable evidence.
However, the court disagreed with BuzzFeed about the plaintiffs’ intent in failing to preserve evidence. Rule 37(e)(2)’s severe sanctions demand an intent to deprive another party of evidence, not merely “the intent to perform an act that destroys ESI.” Here, the court found only that plaintiffs were negligent, stating that their “amateurish collection of documents” revealed their lack of “reasonable steps” to preserve evidence.
Therefore, the court decided to impose spoliation sanctions targeted to address the prejudice suffered by BuzzFeed in the case. BuzzFeed would be allowed to present evidence about the plaintiffs disabling their websites after threatening litigation, and plaintiffs would be prohibited from using the date in any document to prove the date on which the document was created due to the metadata modifications.
The case offers an important lesson and a cautionary tale about how easy it is to modify or even delete metadata simply by gathering documents and ESI for production. It is often worth the time and expense to work with a capable e-discovery professional to ensure the preservation of ESI and its original metadata. Don’t run the risk of a court calling your collection “amateurish” and negligent, or worse.2
Author: Whitney G. Clegg, Member, Energy Industry Group and Litigation
© July 2018 Jackson Kelly PLLC
1 Metadata means “data about data.” For example, metadata about a Word document might include data about the specific version of the document, the document’s creator, the computer network location where it was created, data quality, file type, file size, and date of last access.
2 For additional information, see EDISCOVERY CASE LAW SUMMARIES, SUMMER 2018
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