monthly installment from Cybercontrols

The Case for Meta Data

February, 2008-In a flurry of recent cases in state and federal court, the CyberControls litigation consulting team have been burning the midnight oil over a wide array of electronic discovery issues particularly in the area of metadata production or lack there of.

The FRCP Rule 34 has created the proverbial paradigm shift in the way that requesting parties need to pay considerable attention to electronically stored information (ESI). One aspect of electronic discovery is the importance of communicating with the producing party even before the Rule 16 (b) and Rule 26 (f) meet and confer session that all ESI is requested to be produced in its natural form with all accompanying metadata. In a recent case, D’Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008), the plaintiff sought production of certain business plans. The producing party complied by producing printed copies of the specified business plans. The plaintiff submitted a modified request for production of the same documents in electronic form but did not specify metadata. The appellate judge evaluated the sequence of events including numerous production requests and the producing partys steady resistance in complying with the courts instructions to arrive at some agreement on the discovery disputes over the span of many months. The ruling that followed did not go well for the requesting party. The court concluded that the plaintiffs request for production did not specify that the requested business plan in question be produced solely in its original format with accompanying metadata.

In our opinion, the courts have perpetuated the misconception that metadata is to be regarded as something deserving of its own, detached consideration. The metadata associated with an electronic document is not evident when a document is produced in a printed form or as a scanned object in a .tiff file. This may be in part, why it is that judges and lawyers have perceived metadata as something separate from the main body of a document or e-mail? Surely, the visible contents of a document or e-mail message should be sufficient to meet the production obligation? Not exactly. This why it is critical to remember to communicate from the very start that you as the requesting party are seeking all electronic documents and e-mails in an electronic form that includes all accompanying metadata in a readable, searchable form. It makes good sense to begin making this point perhaps with a preservation notice that precedes the pretrial meet and confer session where continued emphasis of the form of production including metadata is reiterated.

We welcome the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at

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