There are many lawyers who have an unnatural fear of producing associated metadata with ESI productions. I have always viewed this as producing printed paper without ink on the pages. This is one of cases where I scratch my head at the way the Federal Rules of Civil Procedure is interpreted.
Here is what happened: Requesting Party brought a motion to compel ESI in native file format with associated metadata after a piecemeal production. Producing Party agreed to produce the ESI during a teleconference and a Court ordered was then entered. McSparran v. Pennsylvania (M.D.Pa. Feb. 18, 2016, No. 1:13-CV-1932) 2016 U.S. Dist. LEXIS 19993, at *9-11.
The Producing Party sought a modification of the Court order to not include metadata, claiming the Requesting Party did not originally request the associated metadata. McSparran, at *10. The Court AGREED with the Producing Party.
The Court cited to the metadata definition that metadata is “imbedded information that describes the history, tracking, and management of an electronic document.” McSparran, at *10, citing Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005). Metadata is produced by Court order if 1) the metadata “was specifically requested in the initial document request, and (2) the producing party has not yet produced the documents in any form.” McSparran, at *10, citing Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 357 (S.D.N.Y. 2008).
Metadata is not produced if it was not initially requested or if the ESI was produced in another form. McSparran, at *11, citing Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010) and Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008).
The Court held it would be unduly burdensome for the Producing Party to produce the ESI with metadata after originally producing the discovery as paper. McSparran, at *11.
Bow Tie Thoughts
I think cases where the Producing Party hides from producing metadata from standard ESI, such as Email, Excel, Word files, misreads the Federal Rules of Civil Procedure and ignores the realities of how collection software works and productions of ESI are made.
In my opinion, not producing embedded or substantive metadata is 1) producing the ESI in not a reasonably useable form, and 2) requires an alternation of the ESI, so the production is not in the ordinary course of business.
A collection expert using any of the great forensic tools is capturing the “data about the data” when they defensibly collect ESI. Virtually all the review applications on the market allow users to select which metadata to produce, such as To, From, Subject, Body, etc., etc. To do a “native file” production without metadata would require: 1) actively selecting not to produce metadata and 2) scrubbing the metadata from the native files. I would argue that both violates the Federal Rules of Civil Procedure and would make a solid argument for the willful destruction of evidence if an attorney is erasing track changes and other file history.
I think there is a strong argument that ESI without metadata is not in a reasonably useable form, as it hinders document review. Review applications use the metadata to populate the database of “objective coding,” the information gleamed from the four corners of a document. The content of ESI is also needed for most advanced analytics review applications to analyze communication patterns for relevance or privilege. Eliminating that information makes reviewing a production harder, driving up costs in violation of the spirit of Federal Rule of Civil Procedure Rule 1.
My views on metadata are not the law, but I think they would make very strong arguments, if coupled with expert affidavits explaining to a Court how “metadata” is collected and what it takes to actively decide not to produce the ESI as it is ordinarily maintained.
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.