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13 July 2009

Defendants Not Required to Produce “Every Last Bit” of Metadata Per US District Court Ruling
Anthony Diana, Vazantha Meyers,

In a ruling that could potentially save clients millions of dollars in production and preservation costs, Judge Edward F. Harrington of the US District Court for the District of Massachusetts has denied plaintiffs’ motion in Dahl, et al. v. Bain Capital Partners, LLC, et al., requesting the production of all metadata associated with the emails and word documents produced by the defendants in the case. 

Metadata is technically data about other data in any sort of media.  In Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 ( Nov. 21, 2008 ), the court engaged in an in depth discussion on the meaning of metadata in the context of litigation.  The Aguilar court identified three types of metadata: substantive, system and embedded.  Substantive metadata was identified as data “created as a function of the application software used to create the document or file,” such as prior edits or editorial comments. System metadata was defined as data that “reflects information created by the user or by the organization’s information management system,” such as data concerning author, date and time of creation and modification. And embedded metadata was defined as consisting of “text, numbers, content, data or other information that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” (i.e., spreadsheet formulas).

The order issued in Dahl, in which a group of private equity firms are being sued for various violations of antitrust laws due to their involvement in joint bidding procedures for leveraged buyouts, was in response to plaintiffs’ Motion for Entry of Order Governing Discovery Format.  Plaintiffs’ were asking the court to force the defendants to produce every last bit of metadata associated with produced data. In response, defendants offered 12 specific fields that they believed would most likely lead to admissible evidence. The Dahl court, noting both the reservations that courts have expressed regarding the value of metadata and Rule 34’s stance against broad and open requests for documents, limited production of metadata to the 12 fields that were offered by the defendants. The court advised plaintiffs that instead of making “sweeping requests for metadata,” such requests should be tailored to specific documents, which would in turn reduce the costs and burdens associated with electronic discovery.

In the ruling, the court also denied defendants’ request to shift the cost of discovery, but did state that if plaintiffs wanted the “reasonably usable” documents that were produced “as they are kept in the usual course of business” to be changed into a format of their own choosing, plaintiffs would have to bare the burden of those costs. However, the court noted that if defendants had changed the format of the documents for their own use, then they should offer to share access to the altered documents with plaintiffs, presumably without cost-shifting to the plaintiffs. 

The Dahl court’s ruling represents a recent trend to reduce the sometimes astronomical costs associated with electronic discovery by requiring all parties to be measured and reasonable in the requests for documents, or bear the costs themselves. Litigants should be mindful of this ruling when negotiating the production of data and always attempt to limit broad requests for data that would arguably fail to lead to the production of admissible evidence, particularly metadata.

For inquiries related to this Client Alert, please contact the authors, Anthony Diana at adiana@mayerbrown.com or Vazantha Meyers at vmeyers@mayerbrown.com.

For information about Mayer Brown's Electronic Discovery & Records Management practice, please contact, Anthony Diana at adiana@mayerbrown.com, Michael Lackey at mlackey@mayerbrown.com, or Edmond Sautter at esautter@mayerbrown.com.

Learn more about our Electronic Discovery & Records Management practice.


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