Electronic Discovery Law
Order to Produce Electronic Spreadsheets as Kept in the Ordinary Course Requires Production with Metadata Intact; Spreadsheet Cells to Remain Unlocked
Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)
Shirley Williams sued Sprint/United Management Company in a collective action asserting that age was a determining factor in Defendant's decision to terminate employment in connection with a reduction-in-force ("RIF"). Regular discovery conferences were held with Magistrate Judge Waxse, who entered orders in this decision concerning Defendant's production of electronic spreadsheets.
During the May 19, 2005 discovery conference, Plaintiffs requested that the actual "active file" electronic versions of all Excel RIF spreadsheets be produced so that data could be manipulated electronically without being re-entered. The Court noted its understanding that Platintiffs wanted the spreadsheets produced in the form as maintained by Defendant rather than as previously agreed (TIFF format.) On June 2, Plaintiffs also noted that columns are missing and information cut-off from non-electronic versions. Defendant expressed concern with the production of Social Security numbers and privileged adverse impact analyses, stating that it would make redactions as necessary prior to production of the requested electronic versions.
On June 23, Defendants produced 2083 Excel spreadsheets in electronic form promising to produce the remainder by June 27. On July 7, Plaintiffs told the Court that Defendant had scrubbed the files of metadata and locked cells preventing access. Defendant responded that the metadata is irrelevant, contains privileged information, and was never requested or discussed at any discovery conference. The Court ordered Defendant to show cause why it had not produced the spreadsheets as maintained and why it should not suffer sanctions for this failure. (The order to show cause did not cover Defendant's redaction of Social Security numbers and privileged impact analyses since Defendant indicated that it would make these changes and Plaintiffs did not object.)
Defendant asserted that its modifications to the native files, which consisted of deleting adverse impact analyses, deleting Social Security numbers, deleting metadata, and locking cell values, were appropriate to protect disclosure of information ruled non-discoverable, prevent circumvention of court rulings, and maintain the integrity of data. Defendant further argued that it wanted to prevent "undeleting" of data and limit information to those pools from which the decisions at issue were made, metadata is presumed not to be part of a document unless specifically requested and relevant, and the scrubbing was consistent or compelled by Judge Lungstrum's prior orders.
The Magistrate examined case law and the Federal Rules of Evidence (both current and proposed) and found insufficient guidance as to whether the production of electronically stored information as ordinarily maintained would require production with the metadata intact. The current version of FRCP 34 provides little guidance on when and how electronic documents should be produced. Proposed Rule 34(b) requires production "...in a form or forms in which it is ordinarily maintained,..." but is unclear on whether this encompasses metadata. In re Verisign, Inc. Securities Litigation, 2004 WL 2445243 (N.D.Cal. Mar.10, 2004) is distinguishable because the Court had specifically ordered the production of metadata. In re Texlon Corp. Sec. Litig., 2004 WL 3192729 (N.D.Ohio July 16, 2004) does not directly state that metadata should have been produced.
As primary sources were found insufficient, the Magistrate turned to the Sedona Principles for Electronic Document Production and associated Comments. Comment 9.a. uses "viewability" as the standard for determining what should presumptively be considered part of a document under FRCP 34. This would include all metadata ordinarily visible to the user of a spreadsheet. Under proposed Rule 34, electronically stored information is a separate category such that what constitutes a "document" is no longer at issue. Principle 12 and Comment 12.a. evidence a presumption against the production of metadata except when the producing party is aware or should be reasonably aware of particular relevant metadata.
Based on these emerging standards, the Court holds that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order.
The Court held as follows:
-Spreadsheet metadata is not irrelevant as claimed by Defendant. It is likely to lead to the discovery of admissible evidence in connection with the claim that Defendant "reworked" pools of employees in order to pass the adverse impact analysis. This alleged reworking might be evidenced by metadata in association with changes. Besides, Defendant should have objected based on relevance rather than unilaterally scrubbing metadata.
-Since Defendant failed to provide any privilege log in connection with metadata that will allegedly reveal privileged information, the privilege has been waived. However, this waiver does not apply to data relating directly to Social Security numbers and adverse impact analyses where the Court has permitted data removal.
-Defendant should have known that the Court expected and intended production of the metadata. It should have reasonably understood that the metadata was relevant and should have produced it or offered an appropriate objection or motion.
-If Defendant understood that the Judge's previous orders compelled the scrubbing of all metadata, it should have objected or requested a protective order prior to producing the scrubbed spreadsheets.
-Defendant failed to show sufficient cause for locking certain spreadsheet data and cells prior to production. "Defendant should have been reasonably aware that locking the spreadsheets' cells and data was not complying with the spirit of the Court's directive that the spreadsheets be produced as they are kept in the ordinary course of business."
-Defendant has shown cause why it should not be sanctioned. The law on the production of metadata is new and undeveloped, and the Court's prior rulings are arguably ambiguous.
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