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Relying on Delaware’s Default Standards, Court Holds Production in Native Format with Metadata Not Required

Posted in CASE SUMMARIES

Wyeth v. Impax Labs., Inc., 2006 WL 3091331 (D. Del. Oct. 26, 2006)

In this patent litigation, the court denied in part and granted in part defendant’s motion to compel. Impax contended, among other things, that Wyeth should be ordered to produce electronic documents in their native format, complete with metadata, and not in the Tagged Image File Format (“TIFF”) in which they were produced. Wyeth argued that Impax was not entitled to electronic copies in their natural state for two reasons: (1) Impax had not made a particularized showing of need for the metadata, and (2) collection of this data would be overly burdensome.

The court noted that metadata is defined as “information describing the history, tracking, or management of an electronic document,” and that removal of metadata from an electronic document usually requires an affirmative alteration of that document, through scrubbing or converting the file from its native format to an image file, for example. 2006 WL 3091331, at *2, citing Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (quoting Proposed Advisory Committee Note to Federal Rule of Civil Procedure 26(f). It stated that “[m]ost metadata is of limited evidentiary value, and reviewing it can waste litigation resources.” It also observed:

“Emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata[.]” The Default Standard for Discovery of Electronic Documents utilized in this District follows this general presumption. Paragraph 6 directs parties to produce electronic documents as image files (e.g. PDF or TIFF) if they cannot agree on a different format for production. “Default Standard For Discovery of Electronic Documents (“E-Discovery”),” Ad Hoc Committee for Electronic Discovery of the U.S. District Court for the District of Delaware, http:// www.ded.uscourts.gov/Announce/Policies/Policy01.htm. [hereinafter “Default Standard”]. However, if the requesting party can demonstrate a particularized need for the native format of an electronic document, a court may order it produced. Id. Therefore, the producing party must preserve the integrity of the electronic documents it produces. Id. Failure to do so will not support a contention that production of documents in native format is overly burdensome.

The court concluded that, since the parties never agreed that electronic documents would be produced in any particular format, Wyeth complied with its discovery obligation by producing image files. Further, neither party argued that the need for accessing metadata was foreseeable or generally necessary, and Impax did not demonstrate a particularized need for the metadata. Accordingly, the court denied this part of Impex’s motion.

In addition, Impax sought an order compelling Wyeth to bear its own discovery costs. Impax contended that Wyeth had refused to produce documents unless Impax paid Wyeth’s imaging costs. Wyeth contended, only by reference, that it was under no obligation to pay for copying costs of voluminous materials.

Again, the court cited the court’s Default Standards, which stated that the costs of discovery are borne by each party, only to be apportioned upon a showing of good cause to redistribute discovery costs. The court concluded that Wyeth had not demonstrated good cause for cost-shifting; Wyeth had not shown that the documents were “overly voluminous,” and Wyeth itself benefited from the imaging and organization of the documents into Wyeth’s litigation database. Thus, the court granted this portion of Impax’s motion.