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JANUARY 2006
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Uncertain
& Unseen
Pending amendments to the federal rules should provide
guidance to handling metadata.
M
By Todd Nunn
etadata is information
about, and contained within,
a document. It describes
how, when and by whom the
document was created, accessed,
modified, and formatted.
Metadata is frequently not
viewable in the document without
special effort. It is easily altered and
destroyed inadvertently, and much
or all of it is not reproduced if
the document is imaged or printed.
It serves an important purpose
in document management, but is
typically not relevant in litigation.
But, like other electronic information,
if relevant, its destruction could
subject a party to sanctions.
There has been little guidance
regarding preservation and production
of metadata. The pending amendments to the Federal Rules of Civil
Procedure do not expressly discuss
the subject — but they will
potentially offer greater certainty
and predictability to the handling
of
metadata
in
litigation
in
the same way they will clarify
the handling of other types of
electronically stored information.
Todd Nunn is a partner in the document
analysis technology group at Preston
Gates & Ellis, and is based in Seattle.
E-mail: toddn@prestongates.com
DEVELOPING LAW
Because of its marginal relevance in
litigation, commentators discuss
production of metadata as the
exception rather than the rule:
• “Absent a legal requirement to the
contrary, organizations are not required
to preserve metadata.”
— The Sedona Guidelines: Best
Practice Guidelines & Commentary for
Managing Information & Records in
the Electronic Age (2005), Comment
3.f. at p. 29.
• “Unless it is material to resolving
the resolution of a dispute, there is
no obligation to preserve and produce
metadata absent agreement of the
parties or order of the court.”
— The Sedona Principles for
Electronic Document Production
(2005), Principle 12 at p. 46.
But the comments to Principle 12
J A N UA R Y 2 0 0 6
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show that the treatment of metadata
depends on the particular facts of the
case: “Of course, if the producing party
knows or should reasonably know that
particular metadata is relevant to the
dispute, it should be produced.” So,
although the Sedona Principles discuss
a “modest legal presumption in most
cases that the producing party need
not take special efforts to preserve or
produce metadata,” in those rare
cases where the metadata is relevant
it is much like any other electronic
document. Careful attention should
be given to whether metadata might
be relevant for a particular type of
document or case.
WILLIAMS CASE
A recent case surveyed the developing
law of metadata in litigation. In
Williams v. Sprint/United Management
Company, 230 F.R.D. 640 (D.Kan.
2005), an employment class action, the
court ordered the employer to produce
spreadsheets in native format to
allow plaintiffs to review the formula
underlying the cells and to manipulate
the data in the cells.
When the electronic versions of the
Microsoft Excel spreadsheets were
originally produced, the plaintiffs
discovered that the employer had used
software to scrub metadata from the
files. The court ordered the employer
to produce the spreadsheet files with
the metadata intact.
The question posed by the court
was whether, in a litigation setting,
scrubbing metadata can be done
without the agreement of the parties
or with notice by the producing party.
The court concluded that the
federal rules did not provide sufficient
guidance on the production of
metadata to decide its case, and
instead, relied on the comment to
Sedona Principle 12. It held “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.”
THE AMENDED FEDERAL RULES.
The Standing Committee on Rules of
Practice and Procedure approved a set
of proposed amendments to the
Federal Rules of Civil Procedure, in
June 2005. The amended rules were
approved by the Judicial Conference
of Senior Circuit Judges and are in the
process of review by the Supreme
Court. If approved by May 1 and
absent intervention by Congress, they
will become law on December 1, 2006.
Although the pending federal rules
do not specifically reference metadata,
there are a number of amendments
that should clarify issues related to its
preservation and production:
1. FRCP 16(b)(5), 26(f). Early
Discussion of E-Discovery. These
amendments state that “provisions for
disclosure or discovery of electronically
stored information” should be included
in the scheduling order. They add
the requirement that there be discussion
of “any issues relating to disclosure
or discovery of electronically stored
information, including the form or
forms in which it should be produced”
at the initial conference between
the parties. Parties will face less
uncertainty if they discuss the
relevance, preservation and production
of metadata early in the litigation.
2. FRCP 26(b). Sources Not
Reasonably
Accessible.
This
amendment states that a party
need not provide discovery of
electronically stored information
from sources that the party identifies
as not reasonably accessible because
of undue burden or cost.
This provision is generally thought
to concern sources such as backup
tapes, but could also be relevant to
metadata considering the burden
and expense required to preserve it in
regularly accessed documents.
The comments to the rule make
clear that parties must identify any
sources of potentially responsive
information that they are not
searching.
This
rule
provides
an opportunity to avoid the burdens
of retaining and producing irrelevant
metadata without the uncertainty
and risk of sanctions.
The producing party must show
that the identified sources “are
not reasonably accessible,” and then,
if the parties cannot agree, the
requesting party must establish
that the need for the information
outweighs the cost.
One caveat: This rule is a potential
trap for the unwary because it implies
that if the source is not identified,
production will be required.
3. FRCP 34(b)(ii). Form of
Production. This amendment states
that, absent order or agreement,
“a responding party must produce
the information in a form or forms
in which it is ordinarily maintained
or in a form or forms that are
reasonably usable.”
This is important because, as the
Williams case held, production in
the form in which documents are
“ordinarily maintained” may mean,
at least in certain circumstances,
with metadata intact.
But this amendment and the
comments also clarify that the “rule
does not require a party to produce
electronically stored information in
the form in which it is ordinarily
maintained, as long as it is produced
in a reasonably usable form.” Time
and practice will tell us exactly what
that phrase means, but it was requested
so that alternatives to production of
native files are available.
The comments point out that the
option to produce in a reasonably
usable form does not mean that
the form of production can make
the information more difficult or
burdensome to use efficiently in the
litigation, including a “significant”
degrading of electronic searchability.
Arguably, this may require some
metadata fields be produced with
the images, for instance, to allow for
searching of date, author or other
information about the document.
If the federal rules are amended
this year, the new provisions will
provide greater certainty in raising
and addressing metadata preservation
and production issues. But even in the
absence of amended rules, parties can
avoid risk by raising metadata issues
with opposing counsel and the court
early in the litigation. LTN
This article is reprinted with permission from the
January 2006 edition of the LAW TECHNOLOGY
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