After initial requests for metadata were not made by the plaintiffs, and the parties were unable to resolve their differences in “meet and confer” meetings, the court compels the production of metadata if the plaintiffs paid the costs since discovery production had been nearly completed, in Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) (No. 07 Civ. 8224 (JGK)(FM))
As the importance of electronic evidence grows, metadata also increases in significance. There is still some uncertainty about this form of evidence. Metadata has been referred to as “data about data.” In general, metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records.” Autotech Techs. Ltd. P’Ship v. AutomationDirect.com, Inc., 248 F.R.D. 556, 557 n.1 (N.D.Ill. 2008); see also Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (Metadata is “information about a particular data set which describes how, when and by whom it was collected, created, accessed and/or modified and how it is formatted.”) (quotations omitted).
One metadata issue concerns obtaining metadata as possible evidence, usually during the discovery process. One recent case on metadata highlighted three forms.
The case involved a civil rights class action by more than thirty Latino plaintiffs who alleged that the government violated their Fourth Amendment rights based on unlawful searches of their residences during an effort to locate and arrest individuals who had been previously ordered removed in immigration proceedings. During preliminary discovery discussions, the parties did not indicate the form in which electronically stored information (“ESI”) would be produced.
Most of the document collection had been completed when the plaintiffs mentioned metadata “in passing” for the first time. The plaintiffs later requested metadata as part of the ESI production. The government responded that it would provide the metadata upon a showing it was relevant. The court ordered the parties to resolve their discovery differences, including over the metadata, in meet and confer sessions. While some differences were narrowed, the court construed the plaintiffs’ letters as “a motion to compel the Defendants’ production of (1) responsive emails and electronic documents (such as Word, PowerPoint, and Excel documents) in TIFF format with corresponding metadata, and (2) meaningful information about the metadata fields of ICE’s hierarchical databases so that the Plaintiffs can determine which database metadata they should request.” Aguilar, 255 F.R.D. at 353.
The court identified three categories of metadata:
- Substantive metadata (such as data reflecting “modifications to a document, such as prior edits or editorial comments, and data that instructs the computer how to display the fonts and spacing in a document”);
- System metadata (including “the author, date and time of creation, and the date a document was modified”), and
- Embedded metadata (for example, “spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information”).
The motion to compel was granted in part and denied in part. The court reviewed the authorities under the rules of discovery, case law and the Sedona Conference, a recognized nonprofit organization focusing on electronic document production issues. As the court explained its conclusion:
“This lawsuit demonstrates why it is so important that parties fully discuss their ESI early in the evolution of a case. Had that been done, the Defendants might not have opposed the Plaintiffs’ requests for certain metadata. Moreover, the parties might have been able to work out many, if not all, of their differences without court involvement or additional expense, thereby furthering the “just, speedy, and inexpensive determination” of this case. See Fed. R. Civ. P. 1. Instead, these proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiffs’ Bivens claims. Hopefully, as counsel in future cases become more knowledgeable about ESI issues, the frequency of such skirmishes will diminish.Aguilar, 255 F.R.D. at 364. For counsel considering the production and possible use of metadata, the Aguilar case provides some useful guideposts.
…
[T]he Plaintiffs’ application to compel the production of metadata is granted in part and denied in part. More specifically, the Defendants are directed to produce (a) any emails that OPLA received with metadata attached in a form that contains that metadata, and (b) the metadata for their spreadsheets. The Defendants further are directed to produce the metadata for their word processing and PowerPoint files if the Plaintiffs agree to pay the costs associated with producing those files a second time….
Comments
Post new comment