Motion for Recusal Based On the Metadata Properties of the Court’s Opinions Denied by the Court

11 Mar 2022

In ARCONIC CORP. v. NOVELIS INC., Civil Action 17-1434 (W.D. Pa. Feb. 10, 2022), before the Court was a motion to recuse filed by Plaintiff.

In the trade secrets litigation, Plaintiff’s motion arose from the fact that the special master’s staff was listed in the Author metadata property in several of the Court’s opinions, which according to Plaintiff, demonstrated an “appearance of impropriety.”  Plaintiff argued that “to the extent that the Special Master or her staff played a role in these opinions, recusal is required.”  Plaintiff also sought to vacate several of the Court’s decisions on the same grounds.

A special master was appointed by the Court on Dec. 17, 2017. The Order provided that the “Special Master may communicate, at any time, ex parte with the Court for any purpose relating to the duties described herein.” Neither party objected to the special master appointment order or the existence of ex parte communications.

Specifically addressed by the Court was the special master’s 81-page R&R #33. The Court filed the documents under seal on behalf of the special master. Both parties objected to the R&R #33 and the Court held oral argument. The Court determined that a subsequent SJ Opinion would not be filed under seal, and the Court directed its law clerk to email a copy of the opinion to counsel for both sides to provide an opportunity for them to suggest removal of sensitive corporate information.

The law clerk’s email was sent on Dec. 3, 2020, and the system metadata of the attached opinion reflected the special master’s staff as the “author” and a “created” date of Aug. 31, 2020. The system metadata also reflected that the document was last modified on the date it was emailed to the parties.

Based on those fact, Plaintiff accused the Court of abandoning its duty to conduct an independent, de novo review of the special master’s R&Rs by having the special master’s staff ghost write the Court’s decision.  

Plaintiff’s speculation that the special master played an improper role in the Court’s decisions was rejected by the Court.   The author metadata field is not a “smoking gun” and was not evidence of the actual preparer of the document and did not support a reasonable inference that the Court abandoned its role or provide basis for recusal.

As explained by the Court, the Court used Microsoft Word to generate the electronic versions of the opinions and orders. When a document is created in Word, the username entered is automatically added as the author in the metadata, which can be modified. It will continue to reflect the name of the original document creator until deliberately changed.  In this case, the Court did not alter or remove the author field of the metadata of the documents at issue.

To promote efficiency, the Court used a document that was already docketed as a template for the Court’s next opinion or order. To create the document, the Court used the “save as” command to create a new document. This enabled the Court to create a new opinion or order without overwriting the document being used at the starting point.

The Court did not take the steps necessary to change the name in the author field and the template document inherited the “author” named in the author field of the document from which the template was created.  According to the Court, the metadata pointed to by Plaintiff about the “author” in the Court’s opinions and orders were superficial and had no relationship to the contents of the final product.

In fact, the special master issued 40 R&Rs. Many of the early R&Rs were not objected by either party. The Court also, after independent, de novo review, issued orders that adopted R&Rs to which no party objected.

In short, the Court concluded that the author metadata field was not a reasonable or reliable way to determine who is responsible for the document. However, going forward, the Court stated that it would follow the Administrative Office of the United States Court’s suggestion to verify and edit the authors name if it is incorrect, or start with a fresh document in order to avoid the concerns that were raised by Plaintiff in this case.   

As to the “created” date, the Court noted that using the “save as” command in Word will automatically change the created date metadata field and that the created date field does not necessarily reflect when a file was created, but rather when the file came to exist on a storage medium.

For that reason, the Court rejected Plaintiff’s contention that the created date of Aug. 31, 2020 in the metadata of the Court’s SJ Opinion sent to counsel on Dec. 3, 2020, suggested that special master or her staff worked on the opinion. The Court noted the created date reflected in the metadata was shortly after the parties’ objections to R&R #33 were filed. The Court – not the special master or her staff – started to work on a draft opinion before the briefing was fully completed to aid in the timeliness of its decision. Thus, the created date automatically changed when the Court “saved as” a document on Aug. 31, 2020, to create the template for the SJ Opinion.

In conclusion, the Court emphasized that the special master and her staff did not prepare any opinions or orders of the Court. Plaintiff’s motion for recusal was denied.