Legal Ruling on Metadata as Evidence

One of the most contentious issues in electronic discovery is an issue that you might not think people would fight over: the form in which electronic information is to be produced.

In the old days, before electronic discovery, form of production was an easy issue.  Documents pretty much existed in one form only – paper – and you produced them in that form.

With electronically stored information, however, it’s not quite that easy.  An electronic document may be produced by printing it to paper.  Or it may be produced in its native format.  Or it may be produced by converting it to TIF or PDF form, perhaps with an accompanying file containing some or all of the metadata associated with the underlying file.

To address this, Federal Rule of Civil Procedure 34 was amended in 2006 to provide that, when a party in discovery issues a request for the production of documents, it may specify the form or forms in which the documents are to be produced.  If no form is specified, or if the responding party objects to the requested form, then electronically stored information must be produced in the form in which it is ordinarily maintained or in a reasonably usable form.

Recently, a federal court in Massachusetts has had an opportunity to consider this Rule, as well as the Rule which provides that discovery may be limited if the benefit of the discovery is outweighed by its burden.

Dahl v. Bain Capital Partners LLC, et al., No. 07-12388-EFH (D. Mass.)  involves a class action lawsuit filed on behalf of a group of shareholders of various companies.  The shareholders, who owned stock in various companies that have been taken private, filed an antitrust lawsuit against the private equity firms who handled those buyouts.  The lawsuit alleges that the private equity firms conspired to allocate the market for leveraged buyouts in order to pay less than fair market value for the target companies.

In an opinion issued on June 22, Judge Harrington of the U.S. District Court for the District of Massachusetts considered a motion filed by the shareholders.  The shareholders had sought production of certain e-mails and word processing documents from the private equity firms, including all associated metadata.  The private equity firms had agreed to provide the requested files, but sought instead to produce only 12 metadata fields.  The court ruled in favor of the private equity firms.  It explained:

First, case law shows wariness about metadata’s value in litigation.  Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties’ time and money … Second, Rule 34 militates against the broad, open disclosure of metadata that the Shareholders seek.  The Rule 34 Advisory Committee Notes to the 2006 Amendment express concern that producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless … Instead, the notes explain that requests should be tailored to each type of program, so only necessary data is produced … Rather than a sweeping request for metadata, the Shareholders should tailor their requests to specific word documents, specific emails or specific sets of email … This more focused approach will, the court hopes, reduce the parties’ costs and work.  Furthermore, it reflects the general uneasiness that courts hold over metadata’s contribution in assuring prudent and efficient litigation.

In so ruling, Judge Harrington struck a balance between the needs of the requesting party to have access to relevant information and the right of the producing party not to be required to bear extravagant costs unnecessarily.  This compromise was rooted in the particular facts of the case – which issues are in dispute, what data is available, and how those data pertain to those issues.

Judge Harrington’s ruling is a reminder that just because information is available, it does not necessarily mean that the information should be subject to discovery.  Metadata in particular needs to be considered carefully by litigants and courts.  Most electronically stored information has a host of available metadata fields, almost all of which will not be relevant or useful in litigation.  As Bain Capital makes clear, discovery, particularly electronic discovery, must be tailored to avoid burdensome and costly productions and focus the parties on the necessary information.

Jason Fliegel is a commercial litigator at Mayer Brown LLP. His practice focuses on counseling clients on electronic discovery preparedness and compliance. He is an editor of The Sedona Principles and has written and spoken extensively on electronic discovery. He can be contacted at jfliegel@mayerbrown.com