R.F.M.A.S., Inc. v. So is the story of a copyright infringement and trade dress suit over jewelry designs. The extensive opinion covers everything from spoliation to discovery requests. A small section of the opinion addresses requesting the metadata of photos. R.F.M.A.S., Inc. v. So, 2010 U.S. Dist. LEXIS 83247 (S.D.N.Y. Aug. 10, 2010).
Like any good photographer, a lawyer must keep their subject in frame when drafting their discovery requests.
To barrow from photography parlance, the Plaintiff’s discovery requests were blurry and out of focus.
In one request, the Plaintiff effectively wanted the Defendants to re-organize discovery they had already produced, so that the sales data would be matched to photos of the jewelry. The Court barred any such reorganization as outside the producing party’s Rule 34 obligations. R.F.M.A.S., Inc., at *105.
The Plaintiffs also requested system metadata, which is “– information about the way a computer file is stored, as opposed to the substance of the file.” At *106, FN 111.
The Court relied heavily on Aguilar v ICE, 255 F.R.D. 350 (S.D.N.Y.2008) in summarizing how to request metadata.
Federal Rule of Civil Procedure Rule 34(b)(1)(C) allows the requesting party to control their form of production and specify metadata for production. R.F.M.A.S., Inc., at *106, citing Aguilar, 255 F.R.D. at 355.
If no form of production is stated, a the producing party “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” and “need not produce the same electronically stored information in more than one form”. R.F.M.A.S., Inc., at *106-7, citing Federal Rule of Civil Procedure Rule 34 (b) (2) (E) (ii)-(iii).
However, when it comes to metadata:
“[I]f a party wants metadata, it should ‘Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.'”
R.F.M.A.S., Inc., at *107, citing Aguilar, 255 F.R.D. at 355 (citations omitted).
The Court held that even if the requested photos were responsive, the Defendants were under no obligation to produce the metadata related to the photos. R.F.M.A.S., Inc., at *107.
Bow Tie Thoughts
Without metadata, a litigation support review system is nothing but an empty database.
Metadata is free coding to populate that database.
Requests for “all metadata” will end in overbroad objections. Moreover, unless system metadata is the smoking gun in the lawsuit, attorneys will probably request substantive or embedded metadata.
Substantive metadata, also known as application metadata, is “created as a function of the application software used to create the document or file” and reflects substantive changes made by the user.
Embedded metadata consists of “text, numbers, content, data, or other information that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file.
Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 354-355 (S.D.N.Y. 2008)
However, most discovery requests will not dive into the different kinds of metadata. The most common requests will state the different fields of metadata to populate your litigation support database, such as “To,” “Date Sent,” “Subject” and other relevant information for review.