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Form of Production, Metadata and Embedded Data after the 2006 E-Discovery Amendments

Thomas Y. Allman, Esq., Mayer, Brown, Rowe & Maw LLP

Rule 34 provides for discovery and production of all types of electronically stored information – whether visible content, embedded data or metadata^[1]  - but the Rule does not regulate the extent, if any, that metadata and embedded data must be produced in any particular case.^[2]  The focus in Rule 34 is on the form or forms of production of the electronically stored information is sought in discovery.^[3]  While this necessarily implicates issues about metadata and embedded data, it is not synonymous with it.

Electronically stored information is created and stored in a “native” file format which uniquely reflects the software application operating in conjunction with a computer’s file system.  This “native” format contains information apparent to the user, but also may carry embedded data and metadata accessible only to the application that created it.  While some information (e.g., file name, size and date information) is routinely furnished in discovery, other types of metadata and embedded data are rarely relevant and present significant functional and practical drawbacks when produced as part of a native file format.^[4]  The production of metadata and embedded data also raises potential ethical and practical issues which may complicate privilege review.^[5] 

Rule 34(b) outlines a procedure for reaching agreement on the form or forms of production of electronically stored information.  As a matter of best practice, and pursuant to the intent of Rule 26(f) the issues should be discussed promptly at the initial early meet and confer.  In Kentucky Speedway, LLC v. National Association of Stock Car Auto Racing, Inc.,^[6] for example, the court stressed the role of Rule 26(f) under the 2006 Amendments in refusing a belated attempt to seek metadata.  A party seeking production of metadata or embedded data should therefore identify its interest in its production promptly so as to allow the producing party to attempt to accommodate the request or raise an appropriate objection, as is implicitly provided in Rule 34(b).^[7]  An early and practical agreement is the preferred outcome,^[8] and failure to discuss the issue or make a specific request waives objection to production without the specific metadata or embedded data.^[9]  Typically, where the issue is contested in a timely fashion, courts require a showing of particularized need^[10]  or relevance^[11] before ordering production of metadata and embedded data.^[12]  Even if relevant, the cost-benefit limitations under Rule 26(b)(2)(C) may apply.^[13] 

Under amended Rule 34(b), if a party has not requested a particular form or forms of production and no agreement or a court order exists, a producing party has the option to produce either in the form or forms “in which [electronically stored information] is ordinarily maintained” or in a “reasonably useful” format.  The reference to the form in which it is maintained appears to encompass production in some variation of native file format with appropriate metadata and embedded data determined by the type of ESI involved.^[14]  The “reasonably useable” option allows for production in other formats,^[15] such as hard copy or imaged formats provided that any metadata or embedded data necessary to make the format comparably useful to the way it is available to the producing party, especially in regard to search capabilities, is also furnished.^[16]

The need for metadata and embedded data varies depending upon the type of electronically stored information involved and the issues in the case.  It is very difficult to generalize about the topic, although valiant efforts have been made.^[17]  In actual practice, the topic is negotiated on a case-by-case basis.^[18]  Parties frequently agree to produce email in convenient and difficult to alter forms that faithfully preserve the appearance of the content so that the images of individual pages can be Bates numbered and readily used in depositions and at trial.^[19]  Such page image production formats, principally the Tagged Image File Format (“TIFF”) and Adobe Portable Document Format (“PDF”) are typically accompanied by “load files,” i.e., ancillary files containing textual content and relevant metadata.  In other cases, such as production of spreadsheets, sound recordings, animated content, web pages, video and drawings (which do not lend themselves to production in imaged form) or large databases, production is often best accomplished in “native” or “quasi-native” file formats because of the complexity involved.^[20]

In any event, absent an agreement to the contrary, it is advisable to preserve sources of ESI covered by a litigation hold in their native file formats if there is any possibility that metadata or embedded data relating to that electronically stored information may be deemed material.  This preserves the ability to prepare an appropriate extract of any metadata which may be required or to make production in some variant of a native file format or in native file format.  In the leading case of In re Priceline.Com Inc., Sec. Litig.,^[21] the court ordered production in “TIFF” and “PDF form but required the original data be maintained in its original native file format for the duration of the litigation.  Indeed, a failure to maintain ESI in native format pending production arguably constitutes spoliation by a party on notice of its possible use, since discoverable metadata and embedded data are no different than other forms of ESI.^[22] 

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Author Bio: Thomas Y. Allman is Senior Counsel to Mayer, Brown, Rowe & Maw LLP and previously served as Senior Vice President, General Counsel and Secretary of BASF Corporation.