Leidig v. BuzzFeed, Inc., No. 16 Civ. 542 (VM) (GWG) (S.D.N.Y. Dec. 19, 2017).

In this defamation case, the court ordered evidentiary sanctions to address the prejudice caused by the plaintiffs’ negligent preservation efforts.

This matter began in April 2015 when the defendant, BuzzFeed, published an article on its website calling the plaintiffs, Michael Leidig, et al, “The King of Bullsh*t News.” BuzzFeed reached out to the plaintiffs for comment before releasing the article. Their attorney responded that the article “would be ‘highly defamatory.’” Nine months later, the plaintiffs filed suit, alleging libel.

During discovery, the plaintiffs stated that they had “taken down” websites of some of the disputed news stories, such as the Austrian Times and the Croatian Times. The plaintiffs produced some 400 documents, but those included “documents bearing no metadata, including manually manipulated PDFs” and other problematic files.

BuzzFeed moved to compel the plaintiffs to produce original versions of “authentic” documents with intact metadata. The court ordered a second production and warned the plaintiffs of the possibility of sanctions for spoliation.

BuzzFeed objected to the plaintiffs’ second production as well. BuzzFeed raised four issues. First, it claimed that the plaintiffs “failed to produce preserved versions of the disabled websites.” Second, the plaintiffs produced only screenshots of news story drafts and supporting source material, with metadata postdating the complaint. Third, they produced electronically stored information (ESI) with missing metadata or metadata that again postdated the complaint. Fourth, they produced a forwarded version of an email but not the original.

The court ordered the plaintiffs to prepare a witness regarding their production of documents for a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6). Unfortunately, that witness was unable to answer every question. 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. BuzzFeed moved for sanctions against the plaintiffs both for “failure to properly prepare a Rule 30(b)(6) witness” and for spoliation of evidence.

As to the witness, the court noted that to impose sanctions, the deponent’s “inadequacies … must be egregious and not merely lacking in desired specificity in discrete areas.” Here, the witness’s “discrete gaps in knowledge” did not justify sanctions. The court did grant BuzzFeed leave to conduct a follow-up deposition.

As to spoliation, the court turned to Rule 37(e), noting first that it allows sanctions only where evidence has been lost. BuzzFeed failed to establish that all of the data it complained about had in fact been lost. The court limited its analysis to the disabled websites, deleted email, and missing metadata, all of which were indisputably lost.

The court noted that, as the initiators of this lawsuit, the plaintiffs 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 clearly relevant, as was the deleted email, which “addressed the newsgathering efforts” underlying one of the plaintiffs’ disputed news stories. Further, 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.” The court did find that the plaintiffs were negligent; their “amateurish collection of documents” revealed their lack of “reasonable steps” to preserve evidence.

The court turned last to prejudice. The deleted email was sent after BuzzFeed published its article and therefore did not prove that the plaintiffs engaged in “contemporaneous newsgathering” for the earlier story it referenced. The court deemed that its loss was not prejudicial. The missing websites and metadata, on the other hand, did prejudice BuzzFeed.

Therefore, the court crafted spoliation sanctions that addressed the prejudice, such as allowing BuzzFeed to present evidence about the plaintiffs disabling their websites after threatening litigation.

Takeaways on Preserving Metadata

It’s startlingly easy to modify or even delete metadata simply by gathering documents and ESI for production. Don’t run the risk of a court calling your collection “amateurish” and negligent. Work with a trusted vendor or a capable ediscovery professional to ensure that you preserve not only ESI but also its metadata.

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