The amendment to Rule 34(a) ends the debate over whether various parts of electronic files, including metadata, are subject to discovery because they are, or are not, part of a “document.” Metadata is “electronically stored information,” discoverable if relevant, not privileged, and within the limits that govern discovery. This semantic change tracks the evolution of cases and secondary literature treating metadata. Rather than viewing it only as a conceptually separate element of an electronic “document,” metadata is also increasingly recognized as including the software that assembles information from different databases and brings it together for the reader. Disputes over producing metadata are dealt with under the Rule 34(b) provisions on the form of production, recognizing that these provisions are subject to the relevance limit under Rule 26(b)(1) and the proportionality limits under Rule 26(b)(2)(C) that apply to all discovery.

Rule 34(b) provides a procedure for identifying disputes over producing metadata before production occurs. The Rule 34(b) procedure for requesting forms of production allows a requesting party to ask for metadata and allows a responding party to object. In the written response to the production request, the responding party must state the forms it intends to use for production if the request does not specify a form or if the responding party objects to the requested form. If after the meet and confer process and subsequent discussion, one party still seeks metadata over an opponent’s objection and the court must decide, Rule 34(b) provides guidance by identifying two default choices that apply if there is no requested form or no agreement. One option is “native format,” the form in which the producing party maintains the information, which most understand to include existing metadata associated with the electronically stored information. The second option is a form that is reasonably usable for the litigation, which may, but need not, include metadata. The Committee Notes point out that although the Rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that unnecessarily burdens the requesting party. If information is stored in a way that uses metadata for searchability, for example, the metadata should not be “scrubbed” to make that information more difficult to search. But in a particular case, depending on the electronically stored information at issue, it may be possible to produce that information in a form that is reasonably usable without including metadata. Whether metadata should be produced depends on the relevance and importance of the metadata in the particular case, including its importance to searching the information produced.

In some early cases in which litigants “scrubbed” metadata from their electronically stored information or otherwise deviated from native format, courts rejected the production as insufficient and even imposed sanctions. In more recent cases, courts have cited the language in the Rule and Notes in carefully analyzing the reasons proffered for producing electronically stored information without metadata and the reasons proffered for insisting that it be included. The case law and commentary recognize that there can be valid reasons for removing metadata. Due to its hidden, or not readily visible, nature, metadata that is privileged or confidential is more likely to be inadvertently disclosed. If parties redact privileged, protected, or confidential information, producing metadata may reveal what was redacted. Requiring the production of all metadata can unnecessarily increase the amount of information that must be reviewed for relevance and privilege. Resolving disputes over producing metadata will require judges to decide whether the metadata is relevant; whether the information it supplies can be obtained more easily elsewhere; whether the information it supplies is cumulative; whether the metadata may enable the use of technology tools to search or sort the information being produced; and whether the costs and burdens of producing the metadata outweigh the benefits it provides.

This aspect of electronic discovery, with the complexities it can entail, demonstrates the need for lawyers to attend to production issues at a level of detail that was simply not required with paper. When the lawyers are unable to agree, conscientious judges must exercise management and supervision that is also more detailed and often more difficult than was true for conventional discovery. For example, in Williams v. Sprint/United Management Co., an employment case involving a workforce reduction, a court found that the defendant’s unilateral decision to produce electronically stored information with the metadata removed was unacceptable. The court conducted a meticulous and detailed review, concluding that the metadata associated with changes to spreadsheets identifying pools of employees was relevant to the plaintiffs’ claim that the defendant reworked the pools to pass an adverse impact analysis, while other categories of metadata were not relevant to issues in the case. The court rejected the defendant’s argument that producing metadata made the information easy to alter without detection, finding that the “defendant could have run the data through a mathematical process to generate a shorter symbolic reference to the original file, called a ‘hash mark’ or ‘hash value,’ that is unique to that particular file,” and that this “digital fingerprint” would have avoided the problem. Although the court concluded that the defendant would not be sanctioned for unilaterally “scrubbing” the metadata and “locking” certain data and “cells” on spreadsheets it produced, the defendant nonetheless paid a substantial cost. The court held that the defendant had waived any attorney-client privilege or work-product protection with respect to the metadata except for metadata directly corresponding to information the court permitted the defendant to redact.

Williams demonstrates how one aspect of electronic discovery requires the judge to exercise a degree of management and supervision that is more detailed and often more difficult than was true for conventional discovery. It also demonstrates how judges working to manage and supervise novel and unwieldy e-discovery problems may impose standards that are clearer in hindsight than they were to the parties when they made the challenged discovery decisions.

Lee H. Rosenthal is a United States District Judge for the Southern District of Texas. Rebecca Bolin, Yale Law School ‘06, provided helpful assistance and suggestions.

Preferred Citation: Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), http://yalelawjournal.org/forum/metadata-and-issues-relating-to-the-form-of-production.

A Few Thoughts on Electronic Discovery After December 1, 2006

• Installment 1: An Overview of the E-Discovery Rules Amendments
• Installment 2: Meeting and Conferring
• Installment 3: Not Reasonably Accessible Information and Allocating Discovery Costs
• Installment 4: Privilege Review
• Installment 5: Metadata and Issues Relating to the Form of Production
• Installment 6: Sanctions
• Installment 7: Conclusion