Electronic Discovery

Metadata may be discoverable, but there is no set rule regarding production of metadata. The courts take different approaches regarding production of cleaned data versus data in its native form.

In Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L, 2006 WL 665005 (N.D. Ill., Mar. 8 2006), the defendant permitted plaintiff to inspect its electronic records but protested when plaintiff then requested that he make copies of that electronic data. Instead, defendant offerred to print out all electronic documents or, in the alternative, to convert the documents to TIFF format.  Either change to the form of the document would clean the document of metadata.

Plaintiff argued that production of the documents in their native forms was essential for the two reasons: under FRCP Rule 34, (1) he is entitled to copies of the designated electronic data, and (2) the TIFF documents created by 3B6 USA are fundamentally different from the original documents and are not documents produced as they are kept in the usual course of business. Id at 2.

Plaintiff went on to contend that:

[T]he TIFF documents are inadequate reproductions that (1) lack clarity and color, (2) lack metadata that track when a document was created or modified and whether e-mails contained attachments and to whom they were sent, (3) lack clear indications as to where each document starts and stops (i.e., the TIFF pages all run together and make it difficult to determine which pages are part of one document), (4) lack clear indications as to which documents are stored together on the original compact discs and DVDs (i.e., over sixty original compact discs and DVDs were reduced to four compact discs containing TIFF documents), and (5) make it impossible for Plaintiff to use search terms to quickly and efficiently search through the documents electronically. Id.

The court held that, in these circumstances, the data must be produced in native form:

As an initial matter, it is clear that the TIFF documents do not contain all of the relevant, nonprivileged information contained in the designated electronic media. The parties agree that, unlike the original electronic media, the TIFF documents do not contain information such as the creation and modification dates of a document, e-mail attachments and recipients, and metadata.

By contrast, the court in In re Ford Motor Co. 345 F.3d 1315 (11th Cir. 2003) found that Rule 34(a) does not permit a propounding party to perform an unrestricted, direct search of a responding party’s database compilation. That Court commented in its holding:
The Advisory Committee Notes to Rule 34(a) support this interpretation. Commenting on data compilations, the Committee stated, When the data can as a practical matter be made usable by the discovering party only through respondent’s devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. Fed.R.Civ.P. 34(a) advisory committee’s note (1970 amend.). Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search. While at times-perhaps due to improper conduct on the part of the responding party-the requesting party itself may need to check the data compilation, the district court must protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs. Id at 1317.

Notably, both of these cases took place prior to the December 1, 2006 enactment of the revised Federal E-Discovery Rules. They reflect the case-by-case approach courts must take due to the variety of data and lack of significant case law regarding E-Discovery.