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Bankruptcy courts are faced with increasing discovery disputes over electronic discovery. One increasingly prevalent topic of contention is the production and use of metadata, which can be used in a variety of ways in avoidance actions and other adversary proceedings. This article will outline what metadata actually means, how it is produced, and some of the issues that can arise both inside and outside of bankruptcy in the discovery and use of metadata.

Real estate debtor principals who guaranty a debtor’s debts often face uphill battles to obtain stays pursuant to § 105 of the Bankruptcy Court of guaranty actions against them by secured creditors of the debtor. The bankruptcy court in In re Chicora Life Center, LC[1] recently issued such a stay. That court applied traditional § 105 analysis to a guarantor with very favorable facts, making Chicora Life Center unlikely to be a harbinger of real estate mortgage guarantors obtaining stays more readily.

Section 363 of the Bankruptcy Code provides for a trustee or debtor-in-possession to sell property of the bankruptcy estate outside of the ordinary course of business. To facilitate such sales, § 363(f) of the Bankruptcy Code permits a trustee or debtor-in-possession to sell such property “free and clear of any interest in such property” under certain circumstances. Pursuant to § 363(f), bankruptcy courts throughout the country routinely enter orders approving sales of assets free and clear of interests, liens, claims and encumbrances.

The Bankruptcy Litigation Committee had a tremendous 2016! We strived to continue to provide our members with enlightening and useful substantive information while also offering enjoyable and valuable social and networking opportunities.

[1]For those of you who are new to mediation, know that it is a confidential[2], nonbinding process in which a neutral helps the parties find a solution to their disputes. While mediation has been gaining popularity in bankruptcy cases the past few years, to paraphrase Barbara Mandrell and George Jones[3], I am proud to say that I was mediating when mediation wasn’t cool.

In Ozenne v. Chase Manhattan Bank (In re Ozenne), a majority of the U.S.