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Sanctions Not Warranted for Failure to Produce ESI in Native Format with Intact Metadata

Posted in CASE SUMMARIES

Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007)

In May 2007, the court entered an order granting plaintiff’s motion to compel discovery and directing defendant to supplement its discovery responses specifically with regard to electronically stored documents.  In its initial objections to the discovery requests, defendant had objected to the request that it produce records "as they are maintained in the ordinary course of business in their ‘native format,’ along with the intact metadata."  Specifically, defendant objected to the request as "unduly burdensome" and "impos[ing] obligations on Cumis beyond those permissible under the Federal Rules of Civil Procedure."  When defendant served the supplemental responses required by the court’s May order, it produced the material on CD-ROMs in readable PDF form, but did not include metadata or provide the material in native format.

Plaintiff moved for sanctions, arguing that the production violated the court’s May order.

The court concluded that, because its May order did not address the issue of metadata or "native format" files, it could not be said that defendant’s failure to produce that information was a violation of that order.  As such, there was no basis to sanction the defendant.  Further, after considering the submissions and arguments of the parties, the court found that defendant’s objections to the production of metadata were well founded, and clarified its May order to reflect that defendant shall not be required to produce its electronically stored documents in "native format" or to produce metadata.

The court began its analysis by stating:  “Metadata has been defined as ‘information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it was formatted.’"  (Citing Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (quoting Appendix F to The Sedona Guidelines:  Best Practice Guidelines and Commentary for Managing Information & Records in the Electronic Age ).).  The court further observed:

Although Rule 34 speaks of "data compilations," it does not explicitly reference or require the production of metadata. The Rule does indicate that a request for electronic discovery may specify the form of production, and that if a particular form is not specified, information must be produced "either in a form or forms in which it is ordinarily maintained, or in a form or forms that are reasonably usable." Rule 34(b)(ii).

In this case, Plaintiff requested that "[a]ll electronically stored documents shall be produced as they are maintained in the ordinary course of business in their ‘native format,’ along with the intact metadata." As indicated above, Defendant objected to this request, and the Court has not, up to this point, addressed the discoverability of metadata.

In Wyeth v. Impax Laboratories, Inc., 2006 WL 3091331, *2 (D. Del. 2006) (unpublished), the court stated that "[m]ost metadata is of limited evidentiary value, and reviewing it can waste litigation resources."  (Citing Williams v. Sprint, supra, 230 F .R.D. at 651).  Likewise, the Eastern District of Kentucky stated in Kentucky Speedway, LLC v. NASCAR, Inc., 2006 U.S. Dist LEXIS 92028, *24 (E.D. Ky. 2006), "In most cases and for most documents, metadata does not provide relevant information."  In Williams v. Sprint, 230 F.R.D. at 651, the court noted that "[e]merging standards of electronic discovery appear to articulate a general presumption against the production of metadata[.]"

The court noted that plaintiff had expressed a concern that, particularly with regard to emails, the metadata might contain relevant information about who composed or received the message that might not appear in the PDF or hard copy.  However, the court determined that an affidavit of defendant’s employee, a Senior Manager in Information Security Assurance, had adequately addressed plaintiff’s concerns, and also showed that ordering defendant to produce metadata would be extremely burdensome with no countervailing discovery or evidentiary benefit to the plaintiff.

The employee explained that defendant stored information in three electronic formats:  APEX files, Lotus Notes (email), and Microsoft Office files.  APEX was "custom created" for defendant’s use for policy and claims management, and did not generate metadata.  Thus, with regard to APEX files, the court found that the issue was “moot,” since defendant could not produce what did not exist.

As for the Lotus Notes email messages, the employee explained that they only contained a “small amount of metadata,” which included date and time of the creation of the message file, as well as a long string of characters that served as a unique identifier for each message.  The employee stated that she had reviewed the screen-shots of the email messages produced, and that "[a]ll metadata pertaining to the individual messages, except for the unique identifier referred to in the above paragraph is visible on these printouts."  Thus, the court found that, except for the “identifier" which would have no evidentiary value, the relevant metadata already appeared in the PDF copy.  It explained:  “Were this not the case, there would be value in producing the metadata.  However, since the PDF copies contain all the relevant information that Plaintiff would otherwise glean from the metadata, I agree with Defendant that producing the metadata for the emails would be unduly burdensome.”

Finally, the employee stated that, in the ordinary course of business, documents generated by Microsoft Office were kept in paper form, which was the form in which they were produced to plaintiff.  The employee stated that producing the metadata for these documents would consume substantial resources.  The court found that the substantive information contained in Microsoft Office documents speaks for itself, and was reflected in the discovery that had already been provided to Plaintiff.  It concluded:

Given the admonitions of Williams v. Sprint, Wyeth, and Kentucky Speedway, supra, regarding the relative lack of worth of metadata, and the lack of any showing by Plaintiff that the metadata underlying Microsoft Office documents would be likely to lead to the discovery of relevant evidence, I agree with Defendant that the production of this metadata would be overly burdensome with no corresponding evidentiary value.