In an employment class action against Allstate involving alleged coercion to convert employees into independent contractors without their original benefits, the Plaintiffs sought the production of metadata of native files (along with several other discovery demands). Romero v. Allstate Ins. Co., 2010 U.S. Dist. LEXIS 111985 (E.D. Pa. Oct. 21, 2010).
The Defendants refused, arguing the following:
(1) It was contrary to the parties’ previous agreement regarding the format of electronic discovery;
(2) Plaintiffs were not entitled to re-production ESI produced before in the litigation now with metadata; and
(3) Federal Rule of Civil Procedure Rule 34 and prior court decisions did not require the Defendants to produce the extensive amount of metadata that Plaintiffs now demand without a showing of a “particularized need” for it.
Romero, at *24-25.
You’re In Good Hands with the Judge
The Court rejected the Defendants arguments against the production of metadata.
The “understanding” the Defendants claimed precluded the production of metadata was from a 2002 letter. In the letter, the parties discussed production of documents as Tiffs with Bates Numbers. Romero, at *26.
The Court noted that the Defendants did not show how the 2002 “understanding” was not limited to the parties 2002 discovery requests. Romero, at *26-27.
The Defendants also never based an objection on the 2002 “understanding” to producing metadata pursuant to the current discovery requests. Romero, at *27.
As the Court summed up, “…the Court finds no basis to impose the October 2002 “understanding” on document requests served eight years later and after substantial new developments have occurred in this matter.” Romero, at *27.
The Court quickly denied the Defendants second argument that the Plaintiffs were seeking the re-production of discovery already produced. Romero, at *27-28. The Plaintiffs were only seeking the metadata on ESI not already produced, so the argument was moot. Romero, at *28.
The Court rejected the Defendants final arguments with a review of Federal Rule of Civil Procedure Rule 34 and governing case-law. Romero, at *28-29.
Pursuant to Rule 34, a requesting party may state the form of production with associated metadata. Romero, at *28. The responding party can produce as designated or object. Romero, at *28-29.
The Court cited the importance of producing metadata:
Certain metadata is critical in information management and for ensuring effective retrieval and accountability in record-keeping. Metadata can assist in proving the authenticity of the content of electronic documents, as well as establish the context of the content. Metadata can also identify and exploit the structural relationships that exist between and within electronic documents, such as versions and drafts. Metadata allows organizations to track the many layers of rights and reproduction information that exist for records and their multiple versions. Metadata may also document other legal or security requirements that have been imposed on records; for example, privacy concerns, privileged communications or work product, or proprietary interests.
Romero, at *29-30, citing The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, App. E (The Sedona Conference Working Group Series Sept. 2005 Version), available at http://www.thesedonaconference.org/content/miscFiles/7 05TSP.pdf.).
The Court further cited Principle 12 of the Sedona Principles, highlighting that requesting metadata is nothing out of the ordinary:
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.
Romero, at *30-31, (quoting The Sedona Principles Second Edition; Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 12 (The Sedona Conference Working Group Series June 2007 Version), available at http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf)
The Burden to Not Produce
The Court took the Defendants to task for stating producing metadata was unduly burdensome with no explanation on how it was burdensome. Romero, at *33-34.
The Court further noted that removing the metadata involves an affirmative alteration of the electronically stored information, such as converting it to a TIFF or scrubbing the metadata from the native file. Romero, at *34.
The Court did go an extra step and found the Plaintiffs did state a “particularized need,” because the metadata was necessary to identify custodians, creation dates and modification dates of native files. Romero, at *34-35.
As the Court explained, “Metadata will provide Plaintiffs with crucial information and permit them to engage in a more effective and meaningful search and use of Defendants’ extensive documentation.” Romero, at *36.
The Plaintiff’s Reply Brief further explained the many benefits of the metadata production:
Apart from its clear relevance to Plaintiffs’ substantive claims, the requested metadata is also crucial for Plaintiffs to be able to search, understand, and use the documents to be produced by Defendants. . . . Thus, the requested metadata is necessary for Plaintiffs to be able: (a) to understand what attachments were attached to what emails; (b) to verify the authenticity of documents; (c) to understand when documents were actually created or modified by Defendants (or their agents); (d) to understand what custodians possessed what documents, thereby allowing Plaintiffs to use those documents during particular depositions; (e) to sort, review, and search electronic documents by metadata fields; and (f) to understand the creation and storage context of the documents themselves. Without this essential information, Plaintiffs will not be able to search, understand, and use the documents in any meaningful way — that is, the same way Defendants can use these electronic documents as they exist in their native state.
Romero, at *35-36.
Bow Tie Thoughts
Parties should not fear producing associated metadata to make document review more effective. Both parties need to know custodians, dates when email messages were sent and when Excel files were modified. Parties who stand in opposition to allowing effective searches and auto-coding of databases will likely find themselves on the losing side of motions to compel.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.