Request for Metadata Denied: Requestor fails to establish that the produced document was not reasonably usable.
April 15th, 2008
Larry Wescott’s article at www.electronicdiscoveryblog.com outlines why the court denied the request for metadata:
Requestor sought to compel producer to produce document in native format after producer had already produced it in hard copy and PDF format. Requestor alleged that the original version of the document, produced in Microsoft Word, contained metadata which indicated when the document “was created, when it was modified, and when it was designated ‘confidential.’” Id. at *3.
Requestor had not specified a production format for the document. Thus, producer had the option of either producing it in the form it was ordinarily maintained, or in a reasonably usable form. Requestor alleged that when the document was converted from Word to .PDF, it was not produced in the form it was originally maintained. However, requestor failed to provide corroborating evidence (i.e. an affidavit) to support its assertion.It was not clear from producer’s submission whether it had actually produced the Word file. Assuming it did not, the court considered whether the .PDF and hard copy production was “reasonably usable.” As the document contained a modification history (along with the document itself), requestor’s argument was that the hard copy copy does not include the metadata that would be associated with the document as it is stored on [producer]’s engineering computer.” Id. at *10.
The court noted the late request for metadata – after production of the .PDF and hard copy versions. In addition, requestor had not originally requested metadata in its document requests. It also cited the July 2005 version of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery, citing an example that absent a special request for metadata, hard copy or .PDF production satisfied Rule 34. Also noting that that version of the Principles stated that “there should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata,” id. at *13, the court denied the motion.