A Plaintiff sought the production of metadata of a Word document that was created after the commencement of the lawsuit. The Word document was the Chinese translation of hours the Plaintiff, a nanny and housekeeping, worked for the Defendants. Wang v. Yao, 2013 U.S. Dist. LEXIS 70352, 4-6 (E.D.N.Y. May 17, 2013).
The Plaintiff had to show good cause for the disclosure of the post-litigation metadata, which was relevant to the subject matter involved in the action.” Wang, at *4-5, citing Fed. R. Civ. P. 26(b)(1).
The Court held the Plaintiff to make a showing of good cause, because the “handwritten notes are controlling as to any discrepancy, and no question that the Word document Bates-stamped J00001 – J00101 was created after commencement of this action, production of the requested metadata would appear to be unnecessary.” Wang, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(i).
Bow Tie Thoughts
Just what metadata had not been produced with the Word document? How was the Word document collected? How was it produced? These questions are not answered in this case.
In litigation with individual parties, it is very tempting to simply drag and drop a native file over for production. I would encourage parties to do such with one of the inexpensive defensible collection tools. There are many options that could be in the low hundreds. This would ensure any metadata is properly preserved.
Generally speaking, parties are able to make a good cause showing for metadata associated with native files. This case was different because the native file was a post-litigation translation of handwritten Chinese. There was not an issue with the original document, thus any differences between the native file and the handwritten record would favor the original document.
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.