Metadata: Ask and You Shall Receive
Computer files and emails produced alone have only two-dimensions: you can only see what is on the screen or printed on paper. But how and when were those documents created? How do you know the file or email has not been altered? What formulas or procedures were used to create the document? When you want answers to these questions, what you are looking for is metadata, or “data about data.” Federal courts are now regularly compelling metadata production as part of electronic discovery, but with a caveat: parties better ask for it outright and have a legitimate reason to do so.
In Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Security, 255 F.R.D. 350 (S.D.N.Y. 2008), the federal court opined that metadata requests would be held to the same standard of all other electronically stored information (ESI): is the information relevant to a claim or defense? If so, does it pass the balance test of Rule 26(b)(2)(C), being that its relevancy outweighs the burdens and costs of its production?
The court divided metadata into three sub-categories, according to its general relevance from lowest to highest:
- Substantive metadata is created as a function of the application software, and includes prior edits to documents. Substantive metadata should not be routinely requested unless for good cause, such as if a party has a legitimate suspicion that a document was altered.
- System metadata is information created by the user or the software, such as the author, date and time of creation and modifications. This is relevant information if the authenticity of a document is in question.
- Embedded metadata is data that is used to create the final document or spreadsheet but is not apparent on its face. This includes mathematical formulas, hyperlinks, internally linked files and databases. The court held that embedded data should be produced as a matter of course.
The court noted it is more likely to compel production of metadata if the party requests it in the initial document production and the 26(f) conference, and stressed that it is important to discuss ESI protocols early to avoid protracted discovery litigation.