E-Discovery, MetaData, and Spoliation of Evidence

EDITOR’S NOTE: AS MY LAUNCH POINT I AM USING THE FOLLOWING COMMENT POSTED TO THIS BLOG. I’M NOT SURE WHO ACTUALLY ORIGINATED MOST OF THE ORIGINAL LANGUAGE FOUND BELOW BUT WHOEVER IT WAS, THEY KNOW WHAT THEY ARE TALKING ABOUT.

Almost everything done during this mortgage fraud was accomplished through the use of electronic media. MERS is simply an electronic platform  that hosts a database that provides access to thousands of users. Transmittal of loan information from a loan originator was not done through sending the loan the documents. In most cases it was accomplished by including a description of loans on a spreadsheet with limited information — just enough to make the loans look good enough to sell, even though they were (a) already sold and (b) had a negative value from the start.

Most transmission of data is accomplished in one of two ways — email and FTP. All email and all documents prepared electronically have “meta data” tagged  or attached to them. This meta data will often tell you who the original author was, when it was created, who modified it, and much more information that you’d love to know but never thought you could see. It is  all housed on (a) each and every computer that received and sent (or uploaded) it (b) each and every server that received and transmitted it (c) each  network server in each of the business locations of the pretender lenders and (d) each back-up device that was used in preserving the information.

I have already received reports that surreptitiously obtained back-up media conflicts wildly with the “original” documentation that was used in court, meaning they changed it and said they didn’t.

Now here is the kicker: from the start of litigation, each party has a legal duty to preserve evidence and you can get some very nice results accusing the other side of “spoliation” of evidence when you actually catch them at it or when the presumption arises that they did it because they refuse to let you see the data and then meta data. Your assumption that the pretender lender has free hands to change evidence is contradicted by the law. And the lawyers who participate in change or spoliation of evidence are subject to more than sanctions — their licenses are on the line.

Here is an example of what you will find when you start digging. A loan is closed. before it closed the data was entered on a spreadsheet that was set to a loan aggregator. The loan aggregator changed some of the data and split up the loans into groups including each group into a new spreadsheet. The Collateralized Debt manager then creates the groupings known as tranches, sometimes changing the data or intervening data that loosely describes some of the data in the spreadsheet, all of  which is then used to create new spreadsheets that are then used to form the basis of the bonds that don’t exist but nonetheless are submitted for ratings to the rating agencies. Included in each grouping are esoteric or exotic vehicles that appear to be hedge positions but which in actuality reduce the value of the the best looking tranche of loans to less than zero. The transmission data will be devoid of any reference to transmittal of any document that was signed at closing. In fact, the documents signed at closing are neither requested nor reviewed by anyone and are generally destroyed or sent to some central place where they are kept in low-security areas. The data will often show that a scanned copy of a document was used by a program to re-create the original by using color matching and printing.

There have been many seminars given in recent years on electronic discovery mostly ignored by most lawyers because the subject is too intimidating. I am invite those of you who know this subject, to write in and help me develop the topic in language that will be understandable by most lawyers and even most laymen.

COMMENT FROM BLOG —-

Sunday 22 August 2010

Some sources for what to demand in discovery:

From “Mass Extinction Of Pools Becomes Clearer” on this site. Do a search under that title and look for the post by…wait. Let me paste the post:

avirani0203, on July 29, 2010 at 11:24 am Said:
So true ANONYMOUS. This is where you have to get down to the nitty gritty. I am seeing too many old-fashioned requests for document production. By old-fashioned, I mean that they are asking for paper documents.
In order to get to the heart of the real fraud, e-discovery is a must. The federal courts and some state courts like Texas have very strong e-discovery rules. What everyone is looking for is in the metadata. Remember, MERS is one huge computer database. The loans were transferred electronically. MERS has an e-note registry. The key information is in those native files. Any tampering or destruction of the metadata is grounds for a spoliation order.
Following is a sample of some definitions that I believe should be included in each and every document production request:
ESI” means electronically stored information including, but not limited to, information electronically, magnetically or optically stored as: (a) digital communications (e.g., e-mail, voice mail, instant messaging); (b) word processed documents (e.g., Word or WordPerfect documents and drafts); (c) spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); (d) accounting application data (e.g., QuickBooks, Money, Peachtree data files); (d) image and facsimile files (e.g., PDF, TIFF, JPG, GIF images); (e) sound recordings (e.g., WAV and MP3 files); (d) video and animation (e.g., AVI and MOV files); (e) databases (e.g., Access, Oracle, SQL Server data, SAP); (f) electronic mail, contact and relationship management data (e.g., Outlook, Maximizer, ACT!), including emails resident on Plaintiff’s and/or Plaintiff’s agent(s)’ servers or computers; (g) calendar and diary application data (e.g., Outlook PST, Yahoo, blog tools); (h) online access data (e.g., temporary internet files, history, cookies); (i) presentations (e.g., PowerPoint, Corel Presentations); (j) network access and server activity logs; (k) project management application data; (l) computer aided design/drawing files; and (l) back up and archival files (e.g., ZIP, GHO)
“Metadata” means system and application metadata. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file’s name, size, custodian, location, and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, draft language, commentary, collaboration and distribution data and dates of creation and printing. For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data, in addition to the To, From, Subject, Received Date, Sent Date, Time Sent, CC, BCC and Body fields.
“Documents” means the original and each non-identical copy of any written, graphic, electronic, or magnetic matter, however produced, whether sent or received, or neither, including drafts and both sides thereof, in your possession, custody, or control and specifically includes ESI and metadata (as defined). The term shall include handwritten, typewritten, printed, photocopied, or recorded matter. It shall include communications in words, symbols, pictures, sound recordings, films, tapes, drawings, blueprints, charts, maps, graphs, photographs, still or moving picture films, parts or components of equipment, models, information stored in, or accessible through, computer or other information storage or retrieval systems, all other “documents and tangible things,” and any physical object in the possession of, subject to the control of, or within the knowledge of the party responding to these requests for production, including their counsel, experts or investigators. Any and all documents and data existing as electronic or magnetic data shall be produced on disc, either DVD (digital versatile disc) or CD (compact disc) or on external hard drive in the following format: (a) documents in WordPerfect 5.1 or higher shall be produced in the format in which they are maintained (*.wpd); (b) documents in Microsoft Word for Windows 2.x or higher shall be produced in the format in which they are maintained (*.doc); (c) documents in Microsoft Works 4.0 for Windows shall be produced in the format in which they are maintained (*.wps); (d) documents in Microsoft Excel for Windows 4.0 or higher shall be produced in the format in which they are maintained (*.xl*); (e) documents in Lotus 1-2-3 shall be produced in the format in which they are maintained (*.wk?); (f) web pages which cannot be produced as a hard copy shall be produced in *.htm or *.html format; (g) encoded text files shall be produced in the format in which they are maintained (*.txt); (h) Adobe Acrobat .pdf files shall be produced in *.pdf format; (i) electronic mail shall be produced in .pst, .msg or .nsf format; and (j) all other electronic documents and data shall be produced in native format, or in ASCII format, delimited appropriately, with a key, if necessary, identifying the data fields, if production in native format is not feasible. All hard copy (e.g., paper) documents shall be produced as Group IV, black and white, single-page .tiff or color .jpg images with a standard Summation (.dii) load file.

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Max Gardner’s Top Reasons For Wanting A Pooling Servicing Agreement:

http://blog.ncblc.com/?s=pooling+and+servicing+agreement

The Alphabet Problem And The PSA:

http://www.maxbankruptcybootcamp/alphabet-problem-pooling-servicing-agreement

Source for the above two is a neat little site:

http://homeequietytheft.blogspot.com/