The form of production and metadata are center of many motions in compel. One such battle was fought in a case in Alaska regarding insurance coverage.
The requesting party sought the production of an affidavit of a deceased insured that was key to determining whether a vehicle was covered or not. The first affidavit was not signed, but another version was after some modifications. Johnson v. RLI Ins. Co., 2015 U.S. Dist. LEXIS 115308 (D. Alaska Aug. 31, 2015).
The request for production sought the original affidavit and “any draft, revision, and previous version of this affidavit.” The producing party produced the discovery as .pdf’s. Johnson, at *15.
Judge Sharon Gleason summarized the issues as follows:
In the context of this case, a fully responsive production that included revisions and previous versions would implicitly include the draft affidavit documents in the original Microsoft Word format in which they had been drafted, because in that format revisions and the authors of those revisions could be visible within the document metadata that would not be visible in another form. And the need for native-format documents and the accompanying metadata regarding the drafts is heightened here, where John Stenehjem is deceased and RLI seeks to introduce his signed affidavit into evidence under Federal Rule of Evidence 807’s residual hearsay exception.
Johnson, at *15.
The Court explained that the metadata within the draft affidavits would be highly relevant to the claims in the case. Johnson, at *15-16. Converting the Word documents to .pdf made it “more difficult…to use the produced documents efficiently in this litigation.” Johnson, at *16. Moreover, the requesting party did not have the ability to access or search the relevant information. As such, the Court granted the motion to compel the affidavits in native file format. Id.
The opinion took a slight detour on native file production of the claim file. The Court held the requesting party did not explicitly state they sought the production of embedded metadata, thus denied the motion to compel. The Court made a surprising statement that production of the claim file as .pdfs or PAPER was in a reasonably useable form. Johnson, at *16-17.
There is a good chance that part of the claim file was paper originally, such as handwritten notes, which would be a “document” under the Federal Rules of Civil Procedure and not ESI. Regardless, this was surprising, as most Courts reject anyone converting ESI to paper for a production.
Bow Tie Thoughts
It is a safe practice to always request embedded and substantive metadata. Knowing who is the author of ESI, who accessed files, when they were printed, should be done as standard operating procedure. Most of today’s review applications have advanced analytics that empower attorneys to create timelines, cluster communications between senders, and recognize communication patterns based on context. These features all require metadata. Producing ESI without this metadata hobbles an attorney from analyzing not just the opposing party’s discovery, but their own.
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.