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Electronic Discovery — Metadata — Timing Is Everything

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From Autotech Techs. LP v. AutomationDirect.com, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. April 2, 2008):

It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format. Ordinarily, courts will not compel the production of metadata when a party did not make that a part of its request. See D'Onofrio, 247 F.R.D. at 48 (D.D.C. 2008); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 2006 WL 3091331, at *1-2 (D.Del. Oct.26, 2006) ("Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files"). Cf. Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006) (requiring production in native format where requesting party asked for it and producing party did not object). See also Ralph C. Losey, E-Discovery, Current Trends and Cases 158-59 (2007) (summarizing recent cases as amounting to a "lesson ... that in order to obtain metadata you may need, you should specifically ask for it to begin with").

Some courts faced with issue regarding the production of metadata have looked for guidance to the The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, July 2005 Version), available generally at http://www.thesedon aconference.org. 3 One comment from the conference is of particular interest here, addressing a hypothetical situation where, like ADC here, a party requesting production did not specify a format:

The producing party assembles copies of the relevant hard copy memoranda, prints out copies of relevant e-mails and electronic memoranda, and produces them in a PDF or TIF format that does not include metadata. Absent a special request for metadata (or any reasonable basis to conclude the metadata was relevant to the claims and defenses in the litigation), and a prior order of the court based on a showing of need, this production of documents complies with the ordinary meaning of Rule 34.

Williams v. Sprint/United Management Co., 230 F.R.D. 640, 643 (D.Kan. 2005)(quoting The Sedona Principles, Comment 9a); Pace v. International Mill Service, Inc., 2007 WL 1385385, *2 (N.D.Ind. May 7, 2007)(same). In a later comment, the conference states that "[a]lthough there are exceptions to every rule, especially in an evolving area of the law, there should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata." Williams, 230 F.R.D. at 651 (quoting The Sedona Principles, Comment 12a). There was no request for metadata here until recently -- after production. ADC was the master of its production requests; it must be satisfied with what it asked for.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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