Why Fight Over Producing Metadata?

A party fighting over not producing metadata is like bringing a protective order to produce a document without ink on the paper. Metadata is part of the native file. The “Data about Data” is captured during collection and processed for production. An active effort would have to be made to strip a native file of its metadata, which arguably is not producing the discovery in the form it is ordinarily maintained at best, or spoliation of evidence at worst.

Yet these battles still happen.

Consider the following: the producing party in Younes v. 7-Eleven, Inc., brought a motion for a protective order against the production of metadata. The Court denied the protective order and ordered the production of the requested metadata. Younes v. 7-Eleven, Inc., 2015 U.S. Dist. LEXIS 33793, at *2-3 (D.N.J. Mar. 18, 2015).

The Plaintiffs sought the metadata for 38 documents and two Excel spreadsheets to identify “the date of origination, author, custodian, date of each modification and author of each modification, and to the extent available, any data which established to whom the document had been electronically distributed.” Younes, at *11.

The metadata had not been produced pursuant to a discovery agreement, prior to any discovery productions. Discovery was produced that did not identify dates of creation, author, or to whom the file was distributed to. Younes, at *10. Depositions to “get to the bottom” of produced discovery was unsuccessful; with deponents denying the existence of programs discussed in discovery, not answering who created specific documents, or claiming they not to have knowledge about projects. Younes, at *11.

The Court explained that under Fed. R. Civ. P. 34(b)(2)(E) a party can request electronically stored information in a specific form with metadata. Younes, at *13. However, some Courts have required a “particularized need” for metadata. Id.

The Court held the Plaintiffs demonstrated a particularized need for metadata, stating:

To the extent it is necessary, plaintiffs have shown a particularized need for the requested metadata. Plaintiffs have demonstrated that many of the paper documents produced to date are missing source, date, and other key background information. This missing information is plainly relevant and discoverable. Further, the requested metadata is relevant to authenticating 7- Eleven’s documents, especially since the authors or creators of some important documents are unknown.

Id.

The Defendant arguments against producing metadata for the following reasons:

(1) The parties agreed at the outset of the case that documents need only be produced in PDF format without metadata;

(2) 7-Eleven does not possess much of the requested metadata;

(3) The metadata that is available is “extremely limited, minimally meaningful and potentially misleading”; and

(4) It would be “unreasonably burdensome to require 7-Eleven to reproduce [its] … documents with metadata.”

Younes, at *14.

The Defendant’s explained that the only metadata they maintained was the embedded metadata in the file preserved by the native application (such as PowerPoint or Excel). Id. As such, the document author could only be company name based on the Microsoft license; date created; and date of last modification and the author who made the modification. Younes, at *15.

The Court did not find any of the producing party’s arguments persuasive. Moreover, good cause existed to modify the original agreement to not produce metadata. Younes, at *16. The Court explained:

Had plaintiffs known at the outset of the case the difficulties they would face in obtaining relevant information regarding 7-Eleven’s documents, it is unlikely they would have agreed to forego requesting metadata. The changed circumstances plaintiffs face justify modifying their earlier agreement not to request metadata.

Younes, at *16-17.

The Court ordered the production of metadata for the specifically requested discovery. The Court stated in its holding:

Thus far plaintiffs have undertaken substantial efforts to obtain key information about some of 7-Eleven’s documents without success. This includes basic information such as who prepared a document and when and to whom the document was distributed. There is no justifiable reason to deny plaintiffs this basic discovery that may exist in 7-Eleven’s metadata, especially when 7-Eleven has not offered to voluntarily provide the requested information. 7-Eleven’s suggestion that plaintiffs should question its witnesses at their depositions about the requested information is unnecessary and impractical. Plaintiffs should not have to use their limited deposition time to question witnesses about basic issues such as when scores of documents were prepared, who prepared them, who received them, etc. The requested metadata is unquestionably relevant to important issues in the case. It cannot be gainsaid that plaintiff is entitled to this information.

Magistrate Judge Joel Schneider drove home the pointless of not producing metadata that contained the basic information of who did what and when. This information should be produced as a matter of standard operating procedure.

Requested metadata might not contain everything a requesting party desires, but if there is relevant information, it should be produced. Moreover, it is unlikely for a native file to NOT have some type of embedded metadata. Virtually all applications will track some information on Word, PowerPoint, Excel, and other similar applications.

Parties should think of metadata as free objective coding for their review databases. It should not be feared, because the data can be used to expedite document review and leverage the analytical tools. The alternative is reducing discovery review back to clicking through files like paper in a box. Such tactics only drive up the cost of discovery in opposition to Federal Rule of Civil Procedure Rule 1’s mandate to handle cases in a cost-effective manner.

Advertisement

What Did We Learn About eDiscovery in 2014?

As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions.

Here are the practice areas I found to be the most interesting in 2014, which can be heard in full on my 2014 eDiscovery Year in Review on iTunes or Buzzsprout (Presented by Paragon):

Application of Proportionality Analysis

Judges Questioning Why The Court Was Asked Permission to Use Predictive Coding

We still have Form of Production issues eight years after the 2006 eDiscovery Amendments to the Federal Rules of Civil Procedure

The Importance of Documenting Services for Taxation of Costs

What will 2015 hold for us in the world of electronic discovery? I think we will see proportionality analysis focus on the value of the information sought in relation to the case and not solely just the cost of the discovery. Parties will have to explain how the information is useful, such as how it relates to a claim, opposed to merely saying, “It is expensive.” This will require counsel to focus on the merits of the case and how the requested discovery will help advance the litigation.

I personally hope litigants stop asking Judges for permission to use predictive coding. No one asks, “Can I de-dup the data? Is it ok to use clustering? May I please use conceptual search in addition to keywords?”

The issue with all productions is whether or not the production is adequate. In my view, parties going to war over predictive coding as a means to review electronically stored information is asking the Court to issue an advisory opinion. The time to fight is when the there actually is a dispute because a production is lacking, instead of engaging in arguments of how much a human being can read in an hour compared to a computer algorism.

To learn more on the issues from the past year, please check out my 2014 eDiscovery Year in Review audio podcast on iTunes or Buzzsprout.

I want to thank Paragon for sponsoring the 2014 eDiscovery Year in Review. Please check out their website and recent blog post on the Convergence of eDiscovery and Information Security to learn more about their services.