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One E-Discovery Trap and How to Avoid It

Charles Samuel Fax


  • A suit against Zuckerberg frames important e-discovery issues concerning authenticity of documents.
  • The purported contract is allegedly a forged “cut-and-paste job,” and that the emails are equally bogus.
One E-Discovery Trap and How to Avoid It
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Most moviegoers are familiar with the film The Social Network, which chronicles the advent of Facebook and the Winklevoss twins’ lawsuit claiming Mark Zuckerberg stole their idea. Now, a comparable suit against Zuckerberg is moving forward in discovery, and it frames important e-discovery? issues concerning authenticity of documents.

In his first amended complaint [PDF], filed in April 2011, plaintiff Paul Ceglia alleges that he owns 50 percent of Facebook. He bases his claim on a purported contract with Zuckerberg signed in 2003, payment of $1,000 equity toward the venture, and a subsequent series of emails with Zuckerberg. According to Ceglia, these emails reflect “an intense period of creating collaboration during which Ceglia contributed sweat equity, along with many innovative business and marketing ideas.”

In his answer, Zuckerberg denies signing the contract, writing the emails attributed to him, or receiving the emails that Ceglia allegedly sent. Zuckerberg asserts that the purported contract is a forged “cut-and-paste job,” and that the emails are equally bogus.

In this case, discovery is focused on the authenticity of the contract and emails. This includes a forensic analysis of all computers and electronic media used by Ceglia during the period relevant to his claim, as well as “the original, native electronic files consisting of or containing the purported emails described in the Amended Complaint and all electronic copies of the purported emails.”

For his part, Zuckerberg is producing “all emails in their original, native and hard copy form” between the parties “that were captured from Zuckerberg’s Harvard email account.” These documents date back to 2003–2004, when Zuckerberg was a student.

The potential costs of this discovery can only be imagined—but the resources of the parties, coupled with the stakes, clearly have made their efforts both feasible and worthwhile. This discovery could entail, among other things, forensic examinations of each item of hardware used by Ceglia dating back eight years; examination of hardware housed at Harvard during the same time frame; identification of hundreds of pertinent emails in all electronic media produced; production and review of the metadata for each email; and related forensic analyses.

The metadata issue is especially vexatious. To be admissible as evidence an email must be authenticated.

Absent an admission of authenticity or extrinsic proof thereof, authenticity is proven through production of the document in its native format. This includes the email’s metadata—which shows when the document was created, on which computer it was created, when it was modified, and when it was sent.

Discovery of metadata, however, can be expensive and cumbersome. Barring a case like Ceglia v. Zuckerberg, where key documents are immediately at issue and forgery is the defense, it is not necessarily good practice to seek metadata at the outset of discovery. The opposing party might argue that review and production of such material could take months, and that the cost of production outweighs its utility; therefore, either the discovery should be barred or the cost should be shifted to the requesting party. After considerable delays and expense, the requesting party could be swamped with reams of useless data. In many cases, it may be prudent to defer a request for metadata until the party has reviewed all electronically generated documents produced to determine which ones, if any, require authentication through metadata.

However, delaying a request for metadata can be risky. This is especially true if the discovery period is short. Even assuming counsel has reviewed the documents in a timely manner, until preparation of a dispositive motion or pretrial preparation, he or she still might not appreciate the significance of a particular document, or the necessity of proving (or disproving) its authenticity. If discovery has ended, counsel’s ability to challenge authenticity may be lost.

This trap can be avoided, however, by a simple expedient: Both parties can agree not to seek metadata at the outset of discovery but reserve the right to request at their own expense, by a date certain, a stipulated amount of metadata from the other side. For example, “10% of all electronic discovery produced, or ‘x’ amount, whichever is less—and expandable on good cause shown.” This phased approach is recommended in the recently published handbook, Managing E-Discovery and ESI: From Pre-Litigation Through Trial, citing Mancia v. Mayflower Textile Servs. Co. [PDF]. and the rule 26(f) requirement for a discovery plan. While the adversaries in Ceglia v. Zuckerberg have no need for such an agreement because metadata is the central issue in the suit, this approach may be advisable where that is not the case.