The successor counsel to the Defendant claimed producing as TIFF’s would be sufficient, because the ESI was “no longer available in native format.”
Moreover, the Defendant claimed producing metadata was “unnecessary and unduly burdensome.” Silicon Labs Integration, Inc. v. Melman, 2010 U.S. Dist. LEXIS 122871, at *5 (N.D. Cal. Nov. 3, 2010).
The Plaintiffs noted that the Defendant’s production was not in TIFF format, but PDF (note, the opinion did not stated if the PDF’s were searchable or static). Silicon Labs Integration, Inc., at *5.
The Court quickly reviewed Federal Rule of Civil Procedure Rule 34. A producing party must “produce electronically stored information either in a form in which the data ordinarily is maintained or in a form that is reasonably usable.” Silicon Labs Integration, Inc., at *5, citing Fed. R. Civ. P. 34(b)(2)(E).
Rule 34 does not require the “production of metadata per se.” Silicon Labs Integration, Inc., at *5. Additionally, courts are to guard against discovery requests that are “unreasonably cumulative,” or if the “burden or expense of the discovery sought outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving those issues.” Silicon Labs Integration, Inc., at *6, citing Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).
Further, the Plaintiffs were not calling for a forensic examination of the Defendant’s computer, but that he save the emails to a CD. Silicon Labs Integration, Inc., at *6
The Defendant asserted that producing in native file format with metadata was unduly burdensome and expensive. However, the Defendant did not substantiate his claims with any declarations explaining why it was unduly burdensome or expensive. Silicon Labs Integration, Inc., at *6.
The Court granted the Plaintiff’s motion with no further discussion of metadata fields to produce, other than a production due date. Silicon Labs Integration, Inc., at *6.
Bow Tie Thoughts
Undue burden arguments must be specific and supported by affidavits beyond an attorney simply saying e-Discovery is “expensive.” A party needs to show undue burden, which could include describing the computer system at issue, the type of data requested, what technology is needed to collect the ESI, time estimates to perform the collection & data processing and costs.
Technology now exists for targeted collections off computers based on key words, self-executing tools that a service provider prepares in advance for a client and self-collection programs that a client can use under the direction or an attorney or collection expert. In short, collection technology to extract data is getting cheaper.
A good practice point in requesting metadata is to state what metadata and fields you want to review in your request. For example, a party may want “embedded metadata” and not “system metadata.” Additionally, if a reviewing party requesting email may want fields such as “To,” “From,” “Data Sent,” “Date Received,” “Subject,” and “Body,” to name a few. This is highly dependent on the nature of the lawsuit and requires more planning in drafting requests.
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 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.