Metadata As "The New Black" - Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec.

Sunday, October 4, 2009 - 01:00

David Lender and Jason Lichter

Weil, Gotshal & Manges LLP

In Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec. , 255 F.R.D. 350 (S.D.N.Y. 2008), the court analyzed the "clear pattern in the case law" on metadata which shows that 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." Id. at 357. However, if metadata is not sought in the initial document requests, and the producing party has produced the documents in another form, courts have tended to deny later requests for metadata. Thus, the court concluded that "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.'" Id. (citation omitted).

The court provided a good explanation of the different types of metadata, dividing it into three categories: substantive metadata (e.g., data reflecting "modifications to a document, such as prior edits or editorial comments, and data that instructs the computer how to display the fonts and spacing in a document"), system metadata (e.g., "the author, date and time of creation, and the date a document was modified"), and embedded metadata (e.g., "spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information").

Significantly, the court stated that metadata is no different than other forms of ESI and "thus is discoverable if it is relevant to the claim or defense of any party and is not privileged." Id. at 355. The court also held that requests for metadata are subject to the balancing test of Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure, which requires a court to balance the needs of the discovery against its burden and costs. Applying this balancing test, the court granted the plaintiffs' request for the production of metadata associated with Word and PowerPoint documents, which the court recognized was "at best, only marginally relevant," but only on the condition that plaintiffs pay all of the costs associated with a second production of these documents. Id. at 357.

Given the still developing case law as it pertains to metadata, litigants are advised to discuss the production of metadata at the Rule 26(f) conference, including agreeing to the specific metadata, if any, that will be produced, and for what types of documents. In many instances, only limited metadata fields will be necessary, for example, to facilitate searching in a party's electronic document review environment. Courts have begun to recognize that many types of metadata have only limited value, and have declined to order its production, especially where the producing party is reasonable. See, e.g., Dahl v. Bain Capital Partners, LLC , No. 07-12388-EFH, 2009 WL 1748526, at *2 (D. Mass. June 22, 2009) (limiting production of metadata to 12 fields proposed by producing party because "case law shows wariness about metadata's value in litigation.").

Please email the authors at david.lender@weil.com or jason.lichter@weil.com for questions about this article.