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Claims of Improper Metadata Use Rejected in Sex Blogger's Bankruptcy
New York Law Journal
June 16, 2009
An upstate New York Bankruptcy Court judge has dismissed an attorney's claims that an adversary -- a lawyer for a former congressional staffer who described her sexual activities in a notorious blog -- improperly used "metadata" to trace the authorship of an electronic filing.
Attorney Robert Steinbuch is being "disingenuous" by suggesting that Matthew Billips violated New York's Lawyer's Code of Professional Responsibility by using technology to surreptitiously trace a motion to compel that Steinbuch filed in the U.S. District Court in the District of Columbia, said Bankruptcy Court Judge Margaret Cangilos-Ruiz of the Northern District of New York.
Steinbuch is seeking in the bankruptcy court a determination that claims underlying his previous district court filings in the District of Columbia and in Arkansas against debtor Jessica L. Cutler are nondischargeable due to her "willful and malicious injury" of Steinbuch under 11 U.S.C. §523(a)(6) of the U.S. Bankruptcy Code.
Cutler is the former aide to U.S. Sen. Mike DeWine, R-Ohio, who was fired in 2004 after being identified as the blogger known as "Washingtonienne."
Her blog described in explicit detail the ongoing sexual relationships she said she was conducting with six men, sometimes for money, while she worked for Congress. Steinbuch, a counsel to the U.S. Senate Judiciary Committee between 2002 and 2004, said he was the man identified as "RS" on Cutler's blog and his suits in the District of Columbia and Arkansas claim that Cutler and her blog invaded his privacy.
Cutler published a novel based on her exploits, and now Sarah Jessica Parker of "Sex and the City" fame is producing a "Washingtonienne" series for HBO.
Cutler filed for Chapter 7 bankruptcy protection in the Northern District of New York in In re: Jessica L. Cutler, 07-31459, in May 2007. At the time, she was living in Syracuse. She listed assets of $0 to $10,000 and liabilities of less than $50,000.
Billips represents Cutler in the civil suits filed by Steinbuch.
Steinbuch contended that the documents he believed Billips improperly referenced contained privileged information between Steinbuch and attorney Schuyler Carroll of Arent Fox, Steinbuch's former lawyer.
But Cangilos-Ruiz ruled in Steinbuch v. Cutler, 07-50064, that the document in question and its assigned file name, "C:\Documents and
Settings\resteinbuch\Desktop\MASTER\Briefs\DC\DefDiscovery\Motion2
Compel.pdf," were public documents available through the electronic case filing system of the District of Columbia court.
"Mr. Billips' observation of the original file name was not made possible by use of computer software, nor did such file name come from 'behind' the visible document," Cangilos-Ruiz wrote, citing the circumstances in ethical canons and advisory opinions in which metadata abuse has been recognized. "Neither was disclosure of the original file name an inadvertent act on behalf of plaintiff. The original file name of a document filed via a court's ECF system plainly shows on the court-generated Notice of Electronic Filing."
The judge warned Steinbuch against further use of what Billips termed the "frivolous and factually inaccurate ethics complaint" in an attempt to delay or gain an advantage in the civil claims Steinbuch is pursuing against Cutler.
"The court forewarns plaintiff that if there is any further attempted exploitation by plaintiff to misuse this proceeding and this court to inappropriately attempt to extract some advantage in other litigation or otherwise bog down this litigation, this court will appropriately deal with such behavior, including considering the imposition of sanctions and the reporting of such conduct," Cangilos-Ruiz wrote.
Cangilos-Ruiz also rejected Steinbuch's argument that Billips improperly noticed Steinbuch on April 1, 2009, and had papers served on April 6, that Steinbuch would be deposed on April 28 in Georgia. Steinbuch said such notice and deposition was disrespectful to his religion because it allegedly interfered with Steinbuch's observance of the Passover holiday, which ran from April 8 to April 15 this year.
Cangilos-Ruiz called Steinbuch's contention "blatantly misleading and baseless" and ordered that he pay attorney's fees and other costs for missing the April deposition.
Carroll withdrew as Steinbuch's attorney in December 2008. Steinbuch, a Little Rock, Ark.-based attorney who taught in the 2008-09 academic year at the University of Georgia Law School, has been representing himself pro se in the proceeding against Cutler in the bankruptcy court.
Billips, of Billips & Benjamin in Atlanta, appeared pro hac voce before Cangilos-Ruiz. Syracuse attorney Robert B. Ribarovski is representing Cutler in the Chapter 7 case in the Northern District.
Billips filed a request that Cangilos-Ruiz order Steinbuch to pay $14,195 in attorney's fees and expenses for the missed deposition. Billips deferred comment on Cangilos-Riuz's decision, saying the ruling speaks for itself.
"I think the judge was very clear in her order," Billips said in an interview.
Calls to Steinbuch were not returned.
