Don’t Forget Your Metadata, The Burden Later May Be Too Much

October 29, 2009

Authored By: Scott Paterson

Citation: Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. 2008)

Employee/Employer Implicated: Outside Counsel that failed to request ESI with metadata.

e-Lesson Learned: At the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. However, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests for metadata.

Twitter This: Don’t Forget Your Metadata, The Burden Later May Be Too Much

This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment. The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens. This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata.

During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008. There was no discussion of metadata at this conference. On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information (”ESI”) produced. This request did not mention metadata either.

The subject of metadata first arose on March 18, 2008, when the Plaintiffs mentioned it “in passing.” However, by this time, the Defendants had almost completed their document collection efforts. The first formal discussion regarding metadata occurred on May 22, 2008, during a conference call to discuss the production of ESI. The Plaintiffs requested that emails and electronic documents be produced in TIFF format with a corresponding load file containing metadata fields, and that spreadsheets and databases be produced in native format. Again, by this date, the Defendants had already substantially completed their document collection efforts.

The Defendants objected to producing electronic documents in the form requested by the Plaintiffs, proposing instead to produce their ESI in the form of text-searchable PDF documents. The Defendants stated that they would provide the Plaintiff with metadata if the Plaintiffs were able to demonstrate that the metadata associated with a particular document was relevant to their claims. After various discovery conferences, the parties were unable to agree on the production of metadata.

Metadata is electronically-stored evidence that describes the history, tracking, or management of an electronic document. This includes the hidden text, formatting codes, formulae, and other information associated with an electronic document. The court distinguishes between three types of metadata.

Substantive metadata is created as a function of the application software used to create the document or file and reflects modifications to a document. System metadata is information created by the user or by the organization’s information management system. This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. Courts have commented that most system and substantive metadata lacks evidentiary value because it is not relevant. System metadata is relevant, however, if the authenticity of a document is questioned or if establishing “who received what information and when” is important to the claims or defenses. Embedded metadata consists of text, numbers, content, data, or other information that is directly or indirectly inputted into a native file by a user and which is not typically visible to the user viewing the screen. This data includes spreadsheet formulas, hidden columns, externally or internally linked files, hyperlinks, references and fields, and database information. This type of metadata is often crucial to understanding an electronic document.

Under the general rules of discovery, metadata is discoverable if it is relevant to the claim or defense of any party and is not privileged. The relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The discovery of metadata is also subject to the balancing test of Rule 26(b)(2)(C), which requires a court to weigh the probative value of proposed discovery against its potential burden.

If the party requesting discovery does not specify a form for producing ESI, the responding party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. This does not mean that a responding party is free to convert ESI from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information.

The Sedona Conference stated that “Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.” The commentary to the Sedona Principles advises parties to consider: (i) what metadata is ordinarily maintained; (ii) the relevance of the metadata; and (iii) the importance of reasonably accessible metadata to facilitating the parties’ review, production, and use of the information. The Sedona Conference concluded that even if native files are requested, it is sufficient to produce memoranda, emails, and electronic records in PDF or TIFF format accompanied by a load file containing searchable text and selected metadata. This satisfies the goals of Sedona Principle 12 because the production is in usable form, and paired with essential metadata.

Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. However, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests for metadata, often concluding that the metadata is not relevant because its probative value does not outweigh the burden on the producing party. Therefore, if a party wants metadata, it should ask for it up front, otherwise, if the party asks too late or has already received the document in another form, it may be out of luck. At the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention.

By the time the Plaintiffs requested the metadata, the Defendants’ document collection efforts were largely complete and they had already produced many of their electronic documents in PDF format without accompanying metadata. Because of this, the plaintiffs faced a heightened burden to compel the production of the metadata.

The court weighed the possible probative value of the metadata the plaintiff sought, and balanced it against the burden on the defendant to produce the data again. Because the relevance of the emails is very low, and the burden high, the defendants did not need to reproduce the emails sought. Next, because there is value in the metadata from the word processing and PowerPoint documents, but the burden remains high, the court directed that the costs of reproducing these documents must be paid by the requesting party. However, the relevance of the Excel spreadsheet metadata is very low, but so is the burden to reproduce the native Excel spreadsheet. Therefore, the spreadsheets will be produced because the burden does not outweigh the relevancy of the information. Finally,

In the conclusion of the case, the court stresses the importance that counsel work out their discovery disputes and requests early in the case. The court hopes that in future cases counsel will become more knowledgeable about ESI issues so that the frequency of skirmishes such as this will diminish.

Scott Paterson is a third year student at Seton Hall Law School with an interest in Tax Law. After graduation, Scott will be working for a New Jersey Superior Court Criminal Judge.

Article posted on October 29, 2009 at 12:09 PM |