From Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (Maas, M.J.):

A. Metadata and Discovery

"As a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application's output." Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005). ***

1. Types of Metadata

Metadata, frequently referred to as "data about data," is electronically-stored evidence that describes the "history, tracking, or management of an electronic document." .... It includes the "hidden text, formatting codes, formulae, and other information associated" with an electronic document. The Sedona Principles, Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed 607.pdf ("Sedona Principles 2d"); see also Autotech Techs. Ltd. P'Ship v. AutomationDirect.com, Inc., 248 F.R.D. 556, 557 n.1 (N.D. Ill. 2008) (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"). Although metadata often is lumped into one generic category, there are at least several distinct types, including substantive (or application) metadata, system metadata, and embedded metadata. Sedona Principles 2d Cmt. 12a; see United States District Court for the District of Maryland Suggested Protocol for Discovery of Electronically Stored. Information 25-28, http://www.mdd.uscourts.govinews/news/ESIProtocol.pdf ("Md. Protocol").

a. Substantive Metadata

Substantive metadata, also known as application metadata, is "created as a function of the application software used to create the document or file" and reflects substantive changes made by the user. Sedona Principles 2d Cmt. 12a; Md. Protocol 26. This category of metadata reflects modifications to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the document it describes and remains with the document when it is moved or copied. Id. A working group in the District of Maryland has concluded that substantive metadata "need not be routinely produced" unless the requesting party shows good cause. Md. Protocol 26.

b. System Metadata

System metadata "reflects information created by the user or by the organization's information management system." ... This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. See id. Examples of system metadata include data concerning "the author, date and time of creation, and the date a document was modified." ... Courts have commented that most system (and substantive) metadata lacks evidentiary value because it is not relevant. See Mich. First Credit Union v. Cumis Ins. Soc'y, Inc., No. Civ. 05-74423, 2007 U.S. Dist. LEXIS 84842, 2007 WL 4098213, at *2 (E.D. Mich. Nov. 16, 2007); Ky. Speedway, LLC v. Nat'l Assoc. of Stock Car Auto Racing, No. Civ. 05-138, 2006 U.S. Dist. LEXIS 92028, 2006 WL 5097354, at *8 (E.D. Ky. Dec. 18, 2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D. Del. 2006). System metadata is relevant, however, if the authenticity of a document is questioned or if establishing "who received what information and when" is important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 U.S. Dist. LEXIS 10838, 2006 WL 665005, at *3 (N.D. Ill. Mar. 8, 2006). This type of metadata also makes electronic documents more functional because it significantly improves a party's ability to access, search, and sort large numbers of documents efficiently. ***

c. Embedded Metadata

Embedded metadata consists of "text, numbers, content, data, or other information that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display" of the native file. ... Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information.... This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is "generally discoverable" and "should be produced as a matter of course." ***

2. Discovery of Metadata

a. Federal Rules

Metadata is not addressed directly in the Federal Rules of Civil Procedure but is subject to the general rules of discovery. ***

Although metadata is not specifically referenced, Rule 34 of the Federal Rules of Civil Procedure addresses the production of ESI [Electronically-Stored Information]. Fed. R. Civ. P. 34(a)(1)(A), (b)(2)(E). Under the Rule, a requesting party may specify a form of production and request metadata. Fed. R. Civ. P. 34(b)(1)(C). (A typical request might be to produce Word documents in TIFF format with a load file containing the relevant system metadata.) The responding party then must either produce ESI in the form specified or object. If the responding party objects, or the requesting party has not specified a form of production, the responding party must "state the form or forms it intends to use" for its production of ESI. Fed. R. Civ. P. 34(b)(2)(D). Thereafter, if the requesting party objects and suggests an alternative form, the parties "must meet and confer under Rule [37(a)(1)] in an effort to resolve the matter before the requesting party can file a motion to compel." Fed. R. Civ. P. 34(b), advisory committee's note, 2006 amendment.

If the requesting party does not specify a form for producing ESI, the responding "party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." Fed. R. Civ. P. 34(b)(2)(E)(ii). Although a party may produce its ESI in another "reasonably usable form," this does not mean "that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation." Fed. R. Civ. P. 34(b), advisory committee's note, 2006 amendment. In particular, if the ESI is kept in an electronically-searchable form, it "should not be produced in a form that removes or significantly degrades this feature." Id.; see also Payment Card, 2007 U.S. Dist. LEXIS 2650, 2007 WL 121426, at *4 (documents stripped of metadata allowing searches do not comply with Rule 34(b)).

The Federal Rules also specify that a "party need not produce the same [ESI] in more than one form." Fed. R. Civ. P. 34(b)(2)(E)(iii).

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c. Case Law

There is a clear pattern in the case law concerning motions to compel the production of metadata. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. *** On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.

In sum, as a recent article has noted, if a party wants metadata, it should "Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck." ***

Metadata has become "the new black," with parties increasingly seeking its production in every case, regardless of size or complexity.... The first Rule 26(f) conference was held on January 18, 2008. hereafter, the first request for production of documents was made on February 15, 2008. Throughout this time period, the Plaintiffs made no mention of metadata even though the Defendants had started to harvest their documents. I ndeed, by the time the Plaintiffs first informed the Defendants of their desire for metadata (in passing on March 18 and formally on May 22, 2008), the Defendants' document collection efforts were largely complete and they had already produced many of their electronic documents in PDF format without accompanying metadata. In these circumstances, the Plaintiffs face an uphill battle in their efforts to compel the Defendants to make a second production of their ESI.

With this heightened burden in mind, I will turn to a review of the types of ESI for which the Plaintiffs have requested metadata.

Held, Plaintiffs' application to compel the production of metadata is granted in part and denied in part.