Metadata – You Be the Judge

Wednesday, June 15, 2011 by Thought Leadership Team

As we all know well, ediscovery is a relatively young area of the law that is changing and developing rapidly. The objective of this series is two-fold: (1) continue highlighting changes and developments and (2) actively solicit feedback on the substantive legal issues from our readership. With the introductory remarks taken care of, let’s move on to today’s discussion – metadata.

Metadata is essentially data about data. It “describes when a file was created, where it was stored, and what programs the computer uses to help access the file.”[1] When in “native” format, all electronically stored information carries associated metadata. Some of this metadata details user activity on a file, such as edits and save dates, while other forms consist of background data necessary to the operation of the file but hidden from view. As the ediscovery process continues to evolve, this inconspicuous data is becoming increasingly important. Depending upon the circumstances of the case, metadata can be anywhere from relatively insignificant to practically crucial. For example, metadata is critical to determining the integrity and authenticity of files.[2] Metadata is also essential to conducting effective searching during the review process. Yet, the current Federal Rules of Civil Procedure do not expressly require mandatory disclosure of this information, and absent court order or party agreement, appear to allow parties to exclude it from their production.[3] Indeed, Rule 34(b)(2)(E) states that if production format is not specified, parties may produce ESI in the form “in which it is ordinarily maintained or in a reasonably useable form.” (emphasis added). This generally allows parties to produce ESI in TIFF or PDF – which permit Bates-stamping – without any duty to include accompanying load files, for example.

Parties certainly have the right to request metadata prior to production under Rule 34(b), but at a time when so many attorneys are simply unaware of its importance, or existence all together, it is often overlooked until it is too late.[4] With the growing importance of metadata to the ediscovery process, the question becomes whether metadata should be considered an essential and mandatory part of initial disclosures.

Not To Produce Metadata

In Autotech Technologies Limited Partnership v. Automationdirect.com, Inc., the Northern District of Illinois noted that “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.”[5] This holding was echoed in the more recent case of Chapman v. General Board of Pension and Health Benefits of the United Methodist Church, Inc., noting that “parties who do not specifically request metadata are not typically entitled to it if the responding party has already produced the documents in another reasonably useable form.”[6] The District of Columbia reached the same conclusion in D’Onofrio v. SFX Sports Group, Inc.,[7] holding that “[b]ecause no such request [for metadata] has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata.” Indeed, the approach is consistent with the Sedona Principles interpretation of the Federal Rules of Civil Procedure, which noted that in developing the 2006 Amendments, the Advisory Committee rejected proposals to require production of metadata.[8] Instead, the Advisory Committee preferred the parties to discuss production and reach their own agreement, as directed under Fed.R.Civ.P. 26(f).[9]

Produce Metadata

In contrast, other courts have found that the growing importance of metadata renders it crucial to discovery. Judge Shira Scheindlin, author of the seminal Zubulake opinions, held “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” National Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). Although Nat’l Day Laborer limited this declaration to requests for public records under the Freedom of Information Act, much of the discussion regarding the production of metadata seemed to include general admonitions. Indeed, much of the legal community’s commentary regarding the opinion has believed it is intended to have a more general scope, or at least lay the groundwork for such a trend. Indicative of this is the fact that the court took note of The Sedona Principles: Second Edition’s about-face from the 2005 Sedona Principles, in which the Sedona Conference^® now embraces the production of metadata even absent party agreement.[10]

The District of Colorado took this approach in Chevron Corp. v. Stratus Consulting, Inc.[11] when it considered the issue as a matter of first impression. Comparing Aguilar v. Immigration & Customs Enforcement [12] (heavily cited by Nat’l Day Laborer) and White v. Graceland College Center for Professional Development,[13] the court found the latter to be more applicable because the timing and authenticity of the documents were at issue in the case, and thus required production of metadata to be “reasonably useable” under Rule 34.[14]

Analysis

Although Chevron and White ordered metadata production because the specific circumstances of the case required it, very few cases do not depend upon the authenticity of authorship or timing of documents to some degree. Further, the “reasonably useable” requirement has been read to include efficiency considerations,[15] and because the availability of metadata can enhance the usefulness of most document review technologies, it can lead to reduced costs and a more effective review process. While leaving it up to the parties to address the issue in the Rule 26(f) meeting may seem to be an acceptable compromise, the practical realities illustrated in ediscovery case law have made it clear that facilitating an effective meet and confer session is difficult and rare enough already, without trusting the average, non-tech savvy attorney to explicitly request this relatively inconspicuous but extremely important information. However, expanding Rule 34 to require production of metadata also broadens the duty to preserve, which could increase discovery disputes and offset any gains realized from the change.