METADATA 2

This is my second look at the topic of metadata (i.e., "data about data"). The first column, which was published in the fall issue, focused on the definition and description of metadata, the hazards of metadata and the need to protect client confidences; this column focuses on realizing the great value of metadata in electronic discovery.

The truth is not very many lawyers thought much at all about metadata during discovery until a case came along called Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005) ("Williams I"). In Williams I, the lawyers for Sprint scrubbed the metadata from Sprint's Excel spreadsheets before producing them to the plaintiffs. The issue in the case was whether age was the real reason behind Sprint's decision to terminate employment in connection with a reduction-in-force ("RIF"). The plaintiffs had made it clear at an earlier discovery conference with the court that they wanted the "RIF" spreadsheets produced in the form as maintained by Sprint. At a subsequent hearing to show cause why it had not produced the spreadsheets as maintained and why it should not be sanctioned, Sprint argued, among other things, that the metadata was irrelevant and that metadata is presumed not to be part of a document unless specifically requested. The court disagreed, finding that spreadsheet metadata was likely to lead to the discovery of admissible evidence in connection with the claim that Sprint "reworked" pools of employees in order to pass the adverse impact analysis. This alleged reworking might well be evidenced by metadata in association with changes. The court said Sprint should have objected based on relevance rather than unilaterally scrubbing metadata. Most importantly, the court held that "when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order". Williams, 230 F.R.D. at 652. Sprint escaped sanctions only because the law on the production of metadata was "new and undeveloped". Id.

Williams I is, indeed, a watershed case. It stands for the general proposition that a party has a duty to produce metadata. The case was decided before the new e-discovery amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2006, so it is reasonable to ask if that duty prevails under the amended rules.And what we find is that neither the amended rules nor the Advisory Committee Comments speak specifically to the circumstances under which metadata must be produced in a particular case. An amended Rule 34 does provide, however, for electronically stored information to be produced in either the "form or forms in which it is ordinarily maintained or in a form or forms that are reasonably useable". FRCP Rule 34(b)(ii) (emphasis added). That is the default language. In other words, defense counsel will choose for you, if you do not assert the prerogative found in FRCP Rule 34 (b), which is to "specify the form or forms in which electronically stored information is to be produced".

Generally speaking, the form in which electronically stored information "is ordinarily maintained" is considered to be its native format, which includes its metadata. Files in their native format are dynamic and behave just as they would in their original environment. On the other hand, a form that is "reasonably usable" is typically an "imaged" file, usually in Tagged Image File Format ("TIFF") or Portable Document Format ("PDF"), which does not include its accompanying metadata. The 1 K. Withers, "Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure", 4 Nw. J. Tech & Intell. Prop. 171, 188 (Spring 2006). If you wish to explore the subject of metadata more fully, I recommend reading Withers' article and another, P. Favro, "A New Frontier in Electronic Discovery: Preserving and Obtaining Metadata", 13 B.U. J. Sci. & Tech. L. 1 (Winter 2007). The choice between forms is largely yours and it is a choice that requires real thought about the needs of your particular case. For example, is it important to establish when and if and e-mail message was received, read, forwarded, changed or deleted? Or to prove the authenticity of that e-mail? Then getting the metadata is most likely essential to your case. One prominent legal commentator has argued that "[t]he form of production is more than a question of convenience or cost -it becomes a question of relevance and "best evidence", as it applies to electronically stored information". ¹

For as the holding in Williams II shows, you may not get a second bite at the proverbial apple. In Williams v. Sprint/United Management Co., 2006 WL 3691604 (D. Kan., Dec. 12, 2006) (Williams II), when the plaintiffs asked that a production consisting of e-mails be supplemented with its metadata, the court found that Sprint "raised legitimate concerns about producing the transmittal e-mails with their attachments in their native format". The Court found that the plaintiffs "have not sufficiently explained why they need the transmittal e-mails in their native format".

Do the cases that follow in the wake of Williams I and the ediscovery amendments support an emerging presumption for the production of metadata? Yes, where the facts of a particular case make the metadata relevant, as a quick summary of the more important cases illustrates:

First, in Hagenbuch v. 3BG Sistemi Elettronici Industriali S.R.L., 2006 WL 665995(N.D. Ill. March 8, 2006), the defendant produced all electronically stored information by converting them into a TIFF file format. The plaintiff complained that the TIFF documents were fundamentally different from the original documents and were not documents produced as they are kept in the usual course of business. The court sided with the plaintiff in this patent infringement case, explaining "[a]s an initial matter, it is clear that the TIFF documents do not contain all of the relevant, non-privileged information contained in the esignated electronic media. The parties agree that, unlike the original electronic media, the TIFF documents do not contain information such as the creation and modification dates of a document, email attachments and recipients, and metadata".

In Ameriwood Inc., Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), the plaintiff alleged that their former employees improperly used plaintiff's computers and confidential information regarding its business to sabotage plaintiff's business relationships and divert plaintiff's business to themselves. Specifically, plaintiff argued that its former employees forwarded plaintiff's customer information and other trade secrets from plaintiff's computers to defendants' personal email accounts and that the documents may have been further disseminated to others and/or deleted to hide their actions. The plaintiff sought discovery of any and all hard drives the former employees had used The defendants tried to avoid production by arguing that the request was verbroad and burdensome. The court sided with the plaintiff, noting that some electronically stored information might not be obtained during a typical search. The court explained that "[c]omputer programs may retain draft language, editorial comments, and other deleted matter (sometimes referred to as "embedded data" or "embedded edits") in an electronic file but not make them apparent to the reader. Information describing the history, tracking, or management of an electronic file (sometimes called "metadata") is usually not apparent to the reader viewing a hard copy or a screen image".

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426 (E.D. N.Y. Jan. 12, 2007), is a consolidated multi-district itigation in which the parties had tried but failed to come to an agreement concerning the form in which electronically stored information would be produced by all parties. Before the dispute came to be heard by the court, the plaintiffs had made at least six production of electronic documents using their own protocol. That protocol involved printing electronic documents and then scanning the printed pages to create TIFF images, which could then be converted into a searchable text file. The defendants complained that the process stripped the documents of metadata and contravened the intent of the 2006 amendments to Rule 34. The court refused to make the plaintiffs re-produce data that they had already produced in searchable form because it would impose an undue burden on the plaintiffs. The court then declined to offer any relief as to any productions to be made in the future.

Last, in John B. v. Goetz, 2007 WL 3012808 (M.D. Tenn. Oct. 10, 2007), the court has written a 187 page memorandum opinion that discusses in detail various electronic discovery issues, including the electronic format for production and metadata. This case is a class action in which roughly 550,000 children are trying to enforce their rights to medical services under various federal statutes. Defendants are various Tennessee state officials. The court held several lengthy and complicated hearings on electronic discovery issues, including one unusual session in which he ordered all counsel to leave the courtroom and had all the IT personnel for the various parties try to resolve the electronic discovery issues. Ultimately, the court rejected defendants' claims of undue urden, criticized the defendants' preservation and production methods, and ordered that responsive electronically stored information to be produced "shall include all metadata as well as all deleted information on any computer of any of the defendants' designated key custodians".

¹ K. Withers, "Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure", 4 Nw. J. Tech & Intell. Prop. 171, 188 (Spring 2006). If you wish to explore the subject of metadata more fully, I recommend reading Withers' article and another, P. Favro, "A New Frontier in Electronic Discovery: Preserving and Obtaining Metadata", 13 B.U. J. Sci. & Tech. L. 1 (Winter 2007).