There is a clear pattern in the case law concerning motions to compel the production of metadata. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.
In sum, as a recent article has noted, if a party wants metadata, it should “Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.” Hagenbuch [v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 U.S. Dist. LEXIS 10838 (N.D. Ill. Mar. 8, 2006)] illustrates the wisdom of this advice. In that patent infringement suit, the plaintiff demanded electronic document production in native form in his first document request. The defendants rejected this request and produced the documents in TIFF format without metadata. The court noted that the TIFF documents did not contain such relevant information as the creation and modification dates of documents, email attachments and recipients, and other metadata. The court also observed that the metadata was relevant to the plaintiff’s infringement claim because it “will allow him to piece together the chronology of events and figure out, among other things, who received what information and when.” The court therefore ordered production in native form despite the fact that the defendants could not Bates stamp the documents and had already made a production.
By comparison, in [Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008)], the court denied a motion to compel the production of metadata for Word documents after the plaintiff had already produced the documents in both PDF and paper format. In that case, the initial production request did not specify a form for production. As the court noted, the plaintiff therefore could have produced its documents in the form in which they were ordinarily maintained or in a reasonably usable form. In concluding that production in PDF form constituted a reasonably usable form, the court relied heavily upon the defendant’s failure to ask for metadata at the outset. The court stated that it “seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.” . The court also noted that, “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” It concluded that the defendant “was the master of its production requests; it must be satisfied with what it asked for.”
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The Federal Rules of Civil Procedure, case law, and the Sedona Principles all further emphasize that electronic discovery should be a party-driven process. Indeed, Rule 26(f) requires that the parties meet and confer to develop a discovery plan. That discovery plan must discuss “any issues about disclosure or discovery of [EST], including the form or forms in which it should be produced.” In fact, the commentary to the rule specifically notes that whether metadata “should be produced may be among the topics discussed in the Rule 26(f) conference.” As the commentary further observes, early identification of disputes over the forms production may help avoid the expense and delay of searches or productions using inappropriate forms.” Thus, at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention.
Likewise, courts have emphasized the need for the parties to confer and reach agreements regarding the form of electronic document production before seeking to involve the court.
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Metadata has become “the new black,” with parties increasingly seeking its production in every case, regardless of size or complexity. In keeping with that trend, the Plaintiffs in this case argue that all metadata for all electronic documents should be produced, both because the metadata is relevant to their claims and because it will enable them to search and sort the documents more efficiently. In evaluating these assertions, the timing of the Plaintiffs’ request is important. The first Rule 26(f) conference was held on January 18, 2008. Thereafter, the first request for production of documents was made on February 15, 2008. Throughout this time period, the Plaintiffs made no mention of metadata even though the Defendants had started to harvest their documents. Indeed, by the time the Plaintiffs first informed the Defendants of their desire for metadata (in passing on March 18 and formally on May 22, 2008), the Defendants’ document collection efforts were largely complete and they had already produced many of their electronic documents in PDF format without accompanying metadata. In these circumstances, the Plaintiffs face an uphill battle in their efforts to compel the Defendants to make a second production of their ESI.
Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (internal citations removed).
Post Process 