Contact Information: Contact: Henry Stimpson Stimpson Communications 508-647-0705 HStimpson@StimpsonCommunications.com Sara Crocker Wolf Greenfield 617-646-8231 scrocker@wolfgreenfield.com
New Federal E-Discovery Rules Change Patent Litigation
Hidden Metadata in Microsoft and PDF Documents Can Create Landmines, Wolf Greenfield Lawyer Says
| Source: Wolf Greenfield
BOSTON, MA -- (MARKET WIRE) -- November 30, 2006 -- The new federal rules on electronically stored
information are changing the litigation game -- especially for patent
suits, Adam Kessel, a litigator with Wolf, Greenfield & Sacks, P.C., a
Boston intellectual property law firm, writes in the October issue of New
England In-House.
The new rules take effect on December 1, so companies and their law firms
should "adopt best practices now to avoid being put at a disadvantage in
future litigation," he writes.
Understanding metadata is crucial. Metadata, which describes other data,
is usually embedded in electronic documents. Metadata can include
information such as when and by whom a document was last modified and prior
drafts of a document, enabling people to see all edits.
Under the new rules, parties have "the right to request documents in their
'native' format, with all metadata preserved," he writes.
The rules formalize a trend in the case law. "A district court in Illinois
recently ordered a patent infringement defendant to produce documents in
native format that it had already produced once in Tagged Image File Format
(TIFF), which is essentially an electronic equivalent of a paper printout
of data."
Even PDF files aren't always a safe format for metadata since some metadata
is maintained by the computer operating system and thus applies to all
files. PDF files may also contain custom metadata similar to the metadata
contained in Microsoft Office documents.
"Attorneys must thus exercise caution in avoiding inadvertent disclosure,
even for PDFs," Kessel writes.
The new rules require scrupulously preserving electronic information.
"When a party anticipates litigation, it is imperative to halt any
automatic document destruction of expiration systems in order to be
protected by the [good faith] safe harbor. It is unlikely that a court
will construe good faith to include inaction when a party knows relevant
information may be destroyed automatically," Kessel concludes.
The article can be found at www.newenglandinhouse.com/gateway.cfm?id=458
and Kessel can be contacted at akessel@wolfgreenfield.com.
Founded in 1927, Wolf Greenfield in Boston (www.wolfgreenfield.com) is one
of the most experienced law firms specializing in intellectual property
law, including patents, trademarks, copyrights, licensing, trade secrets
and litigation.