A long war story about a Beldar cross-examination, and a technical bleg about "meta-data"

This is a technical "bleg" (meaning a beg for help from blog readers) about "meta-data," a/k/a "embedded data," in digital files. I'm hoping that a few of my readers might be able to answer my technical questions, but others might still find the technical question interesting — especially the lawyers among you — in which case you may well want to skip to the very end of this very, very long post.

But as a roundabout way to explain why the subject of this bleg could be important, I've included a trial lawyer war story, which in turn includes long quotes from one of my cross-examinations in a recent tradename injunction case. It mostly falls into the category of Beldar self-congratulations (ow! my arm's broken from patting myself on the back!). Arguably it also falls into the category of "educational examples of how to impeach a witness effectively from a prior affidavit on cross-examination" — affidavits and their uses and abuses seeming to be a subject of obsession for my legal blogging, I guess.

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Back in October 2004, when the conservative blogosphere was very busy shredding the claims by CBS News, its "60 Minutes" program, and its then-Grand Poobah Dan Ra^ther about the authenticity of the "Killian Memos," a/k/a the "Texas Air National Guard" documents forgeries, I was much impressed with how some of my readers and commenters began to delve into the "meta-data" (also sometimes called "embedded data," and yes there's a slight distinction but I'm not sure I can explain it) associated with the various .pdf files containing scans of the documents forgeries.

In addition to the .pdf scans of the so-called Killian Memos that were available for download on the CBS News website, there were other .pdf files containing scans that were purportedly made from the same original documents on various other news organizations' websites (e.g., USA Today's site), some of which those news organizations claimed to have obtained independently of CBS News' (so-called) investigatory efforts. At one point, based on a date that was embedded in one such .pdf file, it looked like Fox News' version of the scan had been created many months before CBS News claimed to have been approached — which seemed like a big, big deal at first. But then my commenters seemed to reach a consensus that the most likely explanation was that the scan had been done on a non-networked computer or scanner whose system clock was several months out of date, possibly due to a bad battery — a terrific example of the blogosphere's distributed information processing coming up with a non-conspiratorial explanation (even though it didn't fit what most of us expected, and probably wanted, to find by that point). And it marked the first time that I became aware of the possibilities that embedded data might have in an adversarial search for the truth (a/k/a "what I do for a living").

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Fast-forward to the much more recent past — this October. What I'm about to describe are all matters of public record in a tradename lawsuit that has just ended through an agreed settlement. There's no confidentiality agreement as part of the settlement, but simply for taste reasons, I'm going to conceal the actual identities of the parties, witnesses, lawyers, and products behind pseudonyms.

The defendant in the lawsuit — that is, the alleged trademark infringer — I'll call "Doe Corp." The plaintiff, whom I'll call "Doe Inc.," asserted that it had a superior right to use the tradename "Doe." Both companies were based in Europe, where they'd done business side by side for centuries. Both of them manufacture what I'll call "widgets." And both were in fact founded and are still owned by families named "Doe." But Doe Inc. claimed that it had started using the "Doe" name in connection with its widgets in the U.S. and the Western Hemisphere several years ago, and that it had spent lots of time and money promoting the "Doe" name here — whereas Doe Corp. was, according to Doe Inc., a new-comer to the widget market in the US and the Western Hemisphere. Doe Inc. also claimed that Houston is the widget capital of the Western world, and that Doe Corp. was causing customers here to become confused between Doe Inc. widgets and Doe Corp. widgets, in turn causing Doe Inc. to lose sales.

So Doe Inc. had gotten an emergency "temporary restraining order" in state district court in Houston that prohibited Doe Corp. from using the name "Doe" in this half of the world. Doe Inc.'s lawyers did so "ex parte" — meaning without anyone from Doe Corp. being present — based on Doe Inc.'s assertion that this was such a big emergency that there just wasn't time to give Doe Corp., all the way over in Europe, any notice of the hearing on Doe Inc.'s TRO application.

That very directly affected the business of my client, whom I'll call Acme. Acme is a Houston-based company that buys and then re-sells widgets from many companies, among them both Doe Inc. and Doe Corp. Because of the TRO, Doe Corp. suddenly couldn't sell Acme any more widgets — and the world-wide widget market is smoking hot right now, and Acme needs lots and lots of widgets as fast as it can get them! Indeed, Doe Inc. was even making noises about trying to use the TRO it had gotten against Doe Corp. to stop Acme from "acting in concert with Doe Corp." In other words, Doe Inc. was suggesting that Acme was deliberately helping Doe Corp. infringe on Doe Inc.'s tradename, even if just by re-selling the Doe Corp. widgets that Acme already had in its inventory. So even though Doe Inc. hadn't yet directly sued Acme, Acme instructed me to jump into the middle of this lawsuit (i.e., to "intervene") to protect Acme's own interests.

Thus it came to pass that in mid-October, we had a two-day evidentiary hearing on Doe Inc.'s application to convert its TRO into a longer-lasting pretrial injunction — called a "temporary injunction" in Texas state-court practice, but very analogous to a "preliminary injunction" in federal-court practice. This temporary injunction hearing was going to be a very big deal — potentially freezing millions of dollars of widget commerce for many months, perhaps even more than a year, until there could be a full jury trial on the merits after everyone had conducted pretrial discovery. And it was going to be conducted blind — in other words, without either side having obtained the others' documents or taken the other side's witnesses' depositions. This was going to all be "shoot from the hip" trial lawyering — by far the most dangerous, and by far the most fun (if terrifying) for the lawyers!

The final thing you need to know to understand this war story has to do with the rules governing injunctions — TROs, temporary injunctions, or permanent injunctions. A defendant can defeat an injunction by showing that the plaintiff was not diligent in trying to protect his rights — in other words, that the plaintiff knowingly let his rights be trampled for a long time without saying a peep. That's especially important in a trademark/tradename contest. So precisely when Doe Inc. first learned of the alleged tradename infringement by Doe Corp. in the U.S. was potentially very important — and could possibly even decide the outcome. "Why should I freeze everything for the next few months," judges are prone to ask, "when your client has known about this controversy, but sat on its butt without filing suit for several months, counsel?" There rarely is a good answer to this question.

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At the evidentiary hearing, we heard from a witness whom I'll call "Mr. Smith." Mr. Smith works for Doe Inc., and his company's lead lawyer, whom I'll call "Mr. Black," called Mr. Smith to testify about supposed confusion in the marketplace between the two companies. But in the course of Mr. Black's direct examination of Mr. Smith, Mr. Smith volunteered that he'd gotten his first strong hint of Doe Corp.'s allegedly infringing use of the Doe tradename in the U.S. way back in February, and that he'd gotten firm confirmation of it in April. These were surprising admissions — harmful to Doe Inc., and very helpful for Doe Corp. and Acme. And when Mr. Black was done with his direct examination, Doe Corp.'s lawyer, whom I'll call Mr. White, very crisply and effectively re-confirmed and highlighted these admissions as part of his cross-examination of Mr. Smith.

But then came my turn. And because I recalled something that it seemed that the other lawyers in the courtroom either didn't know or had forgotten, I found myself with a textbook opportunity to conduct a very, very fun cross-examination. Here's the transcript, unedited (except for the substitution of pseudonyms and a few bracketed explanations):

THE COURT: Mr. Dyer?

CROSS‑EXAMINATION BY MR. DYER:

Q. Mr. Smith, besides testifying here today in Court, you've previously given a written affidavit in this case; is that correct?

A. Yes, sir.

Q. You signed it before a notary public on September 22nd, 2006?

A. Yes, sir.

Q. Do you know that it was attached to the papers that your company's lawyers filed with the Court to ask for a temporary restraining order?

A. I don't know that personally. I know I signed the affidavit.

Q. Did you read it before you signed it?

A. Yes, sir.

Q. Did you read it carefully?

A. I did read it.

Q. I'm sorry?

A. I did read it carefully.

Q. Carefully? Did you understand it was testimony that you were giving in written form, just as if you were sitting here in court, as you are today?

A. Yes, sir, I did.

Q. You certainly wanted that testimony to be accurate?

A. Yes, sir.

Q. You certainly wanted that testimony to be complete?

A. Yes, sir.

Q. You certainly didn't want to mislead this Court?

A. No, sir.

Q. Mr. Smith —

MR. DYER: May I approach?

THE COURT: You may approach.

Q. (BY MR. DYER) Let me show you what I marked as Acme TI 2, for Acme Temporary Injunction Exhibit No. 2. Do you recognize that to be a copy of your affidavit?

A. Yes, sir.

Q. Do you recognize your signature on the second page?

A. Yes, sir.

MR. DYER: May I look over the witness' shoulder with him? We only have this one copy, I know, because it was attached to the court papers. The other counsel have it. It's not necessarily right here in hand.

MR. BROWN [the second-chair lawyer for Doe Inc.]: Here's an extra copy, if you want one.

(Tendered)

MR. DYER: Thank you.

MR. DYER: May I hand this up for the Court?

(Tendered)

THE COURT: Thank you.

Q. (BY MR. DYER) If we read together in your affidavit, it says, paragraph two, that you're employed as a quality coordinator at Doe Inc. Correct?

A. Yes, sir.

Q. Then the rest of paragraph two describes the September 20th encounter with Mr. Jones from Acme?

A. Yes.

Q. Speak up so the court reporter can hear you.

A. Yes, sir.

Q. Then the last sentence of that paragraph reads, quote, "Prior to August of this year I was unaware that there was another company named 'Doe' that sold widgets."

Do you see that, sir?

A. Yes.

Q. That's false, isn't it?

A. I believe it would be April, is when I —

Q. The statement is false as written, isn't it?

The transcript doesn't show it, but everyone who was there in the courtroom will remember that at this point, there was a long, painful silence. I'd estimate the silence to have been at least 30 seconds, but it probably seemed much longer to Mr. Smith. And I could practically hear the gears turning in Mr. Black's head as he tried to think of some objection that might get his witness off the hook I'd carefully baited, set, and then yanked.

A. Yes, sir.

Q. Misleading as written, isn't it?

MR. BLACK: Objection. It's an insignificant, technical error. Not misleading.

MR. DYER: That's a fine argument.

THE COURT: Excuse me. Do you have a legal objection?

MR. BLACK: Badgering the witness. I gave a copy so he wouldn't hover over his shoulder.

THE COURT: All right. Let's — I'll sustain the objection. Well, I'm sorry, the first question was false?

MR. DYER: Yes.

THE COURT: Reverse myself. Overruled.

Q. (BY MR. DYER) That statement that the first time you knew there was another company named 'Doe' that sold widgets was in August of this year, 2006, that was also misleading, wasn't it?

MR. BLACK: Objection. At the time —

A. No —

Q. (BY MR. DYER) Do you think it was misleading?

A. Sir, I was only told by another employee there that it was Doe [something else], not Doe Corp.

Q. Well, any other company named 'Doe.' You denied in the affidavit that you knew there was any other widget company that used the name 'Doe,' you denied having known that before August of this year, and that was just wrong when you put that in the affidavit. Do you agree, sir?

A. Yeah, that was a mistake.

Q. As you testified here today, you knew at least as far back as April of this year?

A. Yes.

Q. You could have known, as Mr. White's questions established, as far back as February of this year, had you taken the trouble to look?

MR. BLACK: Objection. Mischaracterizes the prior questioning and prior answers.

THE COURT: Overruled.

Q. (BY MR. DYER) Could have known in February, if you looked?

A. I guess my only question is how come the Acme employees didn't look?

Q. I understand that that's an argument your lawyer may make later on. But my question to you is, could you have looked in February and found out as early as that, if you had taken the trouble?

A. Yes, sir.

This whole series was about as close to a real-life "Perry Mason moment" as any trial lawyer is likely to get. But there was more, near the end of that same cross-examination.

Q. [BY MR. DYER] While we're talking about reasons you didn't do things, is there a reason you didn't tell the Court in your affidavit when you said — the same affidavit now, which said you first learned about another 'Doe' company in August — is there a reason you didn't tell the Court in that affidavit about the April and February contacts with Bernard? [Bernard was the Acme employee whom Mr. Smith identified as having told him about Doe Corp. selling widgets in the U.S. in February and April.]

A. Can you repeat that one more time?

Q. Sure. Is there a reason you left out of your affidavit the February and April contacts with Bernard?

A. Is there a reason I left it out?  No, sir, there's no reason.

Q. In fact, somebody else wrote that affidavit for you to sign, didn't they?

A. No, sir.

Q. Did you type it up?

A. I did not type it up.

Q. Who typed it up?

A. I believe our attorney typed it up.

Q. And I don't want to get into conversations between you and your attorney.  But, is it fair to say that you weren't the one who made the decision to leave out the discussion of the February and April contacts?

MR. BLACK: Objection. There's no way to answer that question without getting into attorney/client communications.

MR. DYER: If that's the case, then we may need to talk about the crime fraud exception, have some testing [of] privilege.  I'm trying to avoid that.

MR. BLACK: Hold on a second.

THE COURT: Come on up, counsel.

(Discussion at the Bench)

MR. BLACK: May I?

THE COURT: Well, no. Why don't you examine what this witness knows about the transaction, short of what he was told by his lawyer.

If you want to cover the circumstances under which this affidavit was prepared, I think that would be appropriate.  But at some point we're getting into attorney/client privilege issues.  I don't want to pre-judge the crime fraud issue, but —

MR. DYER: Somebody made a decision not to tell this Court —

THE COURT: That you haven't asked. Your question assumed that. Did not ask that.

MR. BLACK: But I'm giving you this hypothetical. Hypothetical that —

THE COURT: I'd rather not do that in front of the witness.

MR. WHITE: Can we take testimony? Did you make the decision?

(End Bench conference)

Q. (BY MR. DYER) Did you make the decision to leave that out of the affidavit, Mr. Smith?

A. No, sir.

Q. Did you make the decision what to put in the affidavit?

A. I just told things as I knew them.

Q. I don't want to get into the substance of what you told the lawyers or didn't tell the lawyers. Is it fair to say you had a communication with them verbally, and then they handed you an affidavit and you signed it after reading it?

A. Yes, sir.

Q. After missing the [sarcastic tone and "air quotes" with fingers] mistake?

A. Yes, sir.

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Based on Mr. Smith's live testimony about the dates in response to Mr. Black's questions, Mr. White's cross-examination had already highlighted the fact that Doe Inc. couldn't prove one essential part of its case — in other words, couldn't prove it had acted promptly to protect its supposed rights to the "Doe" name. But Mr. White's cross-examination hadn't quite shown that anyone was a scoundrel — only that they'd been rather slow to react.

My cross-examination took it a step further, however, impeaching Mr. Smith's personal credibility by pointing out the vast inconsistency between his live sworn testimony from the witness stand and his written sworn testimony from the affidavit. But even more important, my cross-examination showed that Mr. Smith's employer, Doe Inc., almost certainly had misled the court about this subject when Doe Inc. got the ex parte TRO. Judges don't like being misled on important things. Perhaps that misleading wasn't deliberate — Mr. Black continues to insist that this was all just an innocent misstatement, a memory lapse. But it was nevertheless on a subject so important that a "mistake" of this magnitude was not likely to be excused by the court even if innocent.

The evidentiary hearing ended a few hours later. My cross-exam of this witness was far from the only reason — Mr. White and his colleague did a terrific job on other important topics too — but suffice it to say that Doe Corp. and Acme won the hearing: The court denied Doe Inc.'s request to convert the TRO into a temporary injunction that would have remained in effect for several months until a full trial. Doe Corp. was free to go on selling its widgets throughout the Americas, and Acme was free to continue to buy and re-sell them.

And within a matter of a few weeks after the hearing, the whole case settled with a whimper, not a bang.

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That's a very long war story to lead up to my technical bleg, but it gives some context for how the subject of my bleg can become important to lawyers.

Since I had established that this witness and his employer had submitted an at-least-badly-mistaken and possibly deceptive sworn affidavit to get the TRO, Mr. White and I were very keen to dig further into the subject of that affidavit as part of our preparations for a full trial on the merits, and the judge had indicated that we'd get a chance to test just how innocent the "mistake" about the dates actually was. We wanted to know who had prepared the affidavit, who had revised it, how many drafts it went through, what changes were made during the drafting stages — and as to each of these issues, when. As the first step, Mr. White had sent a document production request that sought "the production (in electronic form) of the affidavit of John Smith .... Pursuant to Tex. R. Civ. P. 196.4, Doe Corp. requests that the document be produced in electronic form, in native format with all associated metadata." But the case settled before we got Doe Inc.'s response (which would inevitably have been the next step in a complicated battle over attorney-client privilege).

I recently took a very good online continuing legal education course about meta-data and embedded data, prepared by Mercer University School of Law Professor David Hricik. (The pseudonymous Mr. White has also taught CLE courses on this subject, and already knows much more about it than I do.) As with the meta-data embedded within .pdf files that was discussed at the beginning of this post, Prof. Hricik's course taught me how to find some of the cool info that can be embedded within, and hence extracted from, Microsoft Word .doc files. The type and extent of the available data changes depending on what settings one's Word program has as its defaults, and/or how the settings have been re-configured for any given document. But in my own experimentation, I've found that a great deal of that embedded data seems to be altered by any re-saving of the .doc file once it's been opened to look for that data. Plus, other types of embedded data, including when the file was created, appear to be re-set any time the file is even copied (for example, even onto a CD).

Hence, finally, my technical bleg: I can send rude instructions — a detailed warning that opening and then re-saving the Microsoft Word .doc file, for example — will be argued by me to be an intentional spoliation of evidence by my opponent, potentially subject to severe punishment by the court. But short of going over to Mr. Black's office and demanding to be allowed to log onto one of his networked workstations, given a password, and shown how to access the .doc file myself from where it's stored on his firm's servers — presumably with a videographer looking over my shoulder to document what I'm finding! — is there any good and fairly easy way to ensure that a digital file that's supposedly in "native format with all associated metadata" (but that almost necessarily will have been copied from an "original" file) won't have suffered some of these alterations?