Stephanie L. Gutwein, Faegre Drinker Biddle & Reath LLP
What is metadata?
“Metadata” is “data about data.” See Palar v. Blackhawk Bancorp. Inc., No. 11-4039, 2013 WL 1704302, at *1 (C.D. Ill. Mar. 19, 2013). Metadata should not be confused with “native” documents because metadata and production of a document in “native” format are not the same thing. “[P]roduction of an electronic document in ‘native format’ does not result in production of ‘metadata.’” Palar, 2013 WL 1704302 at *1.
The types of metadata for a particular file or document will depend on the electronically stored information (ESI) type. For example, in an email, metadata likely will include information such as the subject, sender, recipient(s) and date of the email. A Microsoft Word document will typically have metadata such as file name and size, the date the file was created and modified, how many times the document has been altered and the document’s creator.
When do metadata issues arise?
The Federal Rules of Civil Procedure do not specifically address metadata. However, Federal Rule of Civil Procedure 26 and 34 may bear on a client’s obligation to produce metadata, and practitioners should review these rules carefully.
Courts routinely require parties to specifically request metadata before they will order an opposing party to produce it, and they are less inclined to find discovery deficiencies related to a failure to produce metadata when a requesting party did not request that metadata in advance. See, e.g., Pace v. Int’l Mill Serv., Inc., No. 205 CV 69, 2007 WL 1385385, at *2 (N.D. Ind. May 7, 2007) (rejecting plaintiff’s argument that Rule 34 automatically requires parties to produce metadata); Williams v. Sprint/United Mgmt., 230 F.R.D. 640, 651 (D. Kan. 2005) (holding that production of documents that does not contain metadata satisfies Rule 34 “[a]bsent a special request for metadata (or any reasonable basis to conclude the metadata was relevant to the claims and defenses in the litigation), and a prior order of the court based on a showing of need”); MetLife Investors USA Ins. Co. v. Lindsey, No. 2:16-CV-97, 2018 WL 5292222, at *1 (N.D. Ind. Oct. 25, 2018) (rejecting producing party’s contention that producing documents in non-searchable PDF format satisfied its obligations under Rule 34 because production failed to comply with the parties’ agreement during their initial case-management conference planning meeting to produce ESI in native format to the extent possible, but rejecting receiving parties’ argument that they were entitled to all metadata associated with production because they had not specifically requested it). Id.
However, once parties have agreed to produce certain metadata, courts tend to hold parties to that agreement. See, e.g., Eli Lilly & Co. v. Wockhardt Ltd., No. 1:08-CV-1547-WTL-TAB, 2010 WL 2605855, at *1 (S.D. Ind. June 22, 2010).
Courts also are not in agreement over the costs associated with e-discovery work that a party may recover. See, e.g., CSP Techs., Inc. v. Sud-Chemie AG, No. 4:11-CV-00029-RLY, 2015 WL 2405528, at *1 (S.D. Ind. May 20, 2015) (analyzing law within and outside of the Seventh Circuit and holding that defendants could recover nearly $95,000 for the fees of the Clerk, the cost for transcripts, the e-discovery costs for scanning, OCR, Bates labeling, TIFF/PDF conversion, image/file copy, and litigation copies but could not recover of the costs associated with document collection, password recovery, searching, data hosting/electronic storage services, and the fee for an e-discovery specialist). Prevailing parties thus should not overlook or omit costs associated with their e-discovery work when petitioning to recover costs at the end of litigation. Occasionally, courts permit recovery of these costs and may be more inclined to do so in cases where the requesting party demanded large volumes of metadata with the productions, requiring the producing party to incur extra expense to comply with the requests.
Metadata can be relevant in criminal proceedings as well. For example, in United States v. Cherry, 920 F.3d 1126, 1129 (7th Cir. 2019), a criminal defendant challenged the propriety of his conviction based in part on his allegation that the government failed to provide him with exculpatory evidence. After arresting an individual involved in a drug deal outside of Chicago, a member of the Chicago Police Force and Drug Enforcement Agency task force photographed the car in which the drug deal occurred, the bag containing the drugs that was inside the car, and cash that officers also found at the scene. Cherry, 920 F.3d at 1131. All of the photographs bore the same time stamp, so there was no way to determine the order in which the officer took the photographs, and the officer testified that he could not recall. Id. The defendant wanted to use this evidence to support his argument that the bag had been sealed before the officers found it, and, therefore, the contraband had not been in plain view. But the government had not produced the metadata to support or refute this argument. Id. at 1132.
Eventually, the defendant moved for an order requiring the government to produce the metadata associated with the photographs, so he could prove the order in which the officer took them. Id. However, the government was unable to produce the metadata because the officer had taken the photographs with his personal camera, which he had sold at a garage sale over a year earlier. The defendant then argued that the court could not consider the photographs in evaluating whether the government had probable cause to arrest the defendant because the government had failed to preserve the metadata associated with them. Id. The defendant also moved to dismiss the indictment after his trial and argued that the government had violated Brady v. Maryland, 373 U.S. 83 (1963) because it failed to preserve and produce exculpatory evidence—the metadata associated with the photographs. Id. at 1140-41. Recall that Brady “requires that the government disclose evidence materially favorable to the accused, whether that evidence is impeachment evidence or exculpatory.” Id. at 1140.
The district court rejected both arguments. It held that “the camera was not sold in bad faith, in part because the exculpatory nature would not have been obvious to the officer at the time the camera was sold.” Id. at 1140-41. The court’s conclusion was informed by the defendant’s failure to request that the government preserve the metadata and approximately two-year delay in asking for the metadata. Id. The Seventh Circuit upheld the district court’s decision, finding it was not an abuse of discretion. Id.
Public Records Requests
Indiana’s Public Access Counselor (PAC), the government official charged with overseeing the operation of Indiana’s public access laws, like Indiana’s Access to Public Records Act (Indiana Code ch. 5-14-3), has also addressed public agencies’ obligations with respect to metadata. For example, the PAC has advised:
- A public agency is not required to “sweep” its documents to remove metadata before producing them, and if the agency swept the documents and attempted to charge the requestor for that effort, it must show that performing the sweep of the documents for metadata is “reprogramming” the computer system. See Opinion of Public Access Counselor, No. 07-FC-70 (Apr. 16, 2007), available here.
- Indiana public agencies do not have to “create or provide copies of lists of names and addresses (including electronic mail account addresses)” unless other statutes require the public agency to publish the requested lists and disseminate them to the public, but “if a public agency has created a list of names and addresses (excluding electronic mail account addresses) [for example, in metadata form,] it must permit a person to inspect and make memoranda abstracts from the list unless access to the list is prohibited by law.” See Opinion of Public Access Counselor, No. 13-FC-27 (Feb. 22, 2013), available here.
- Most recently, the Public Access Counselor revisited issues related to metadata and public records earlier this year. See Opinion of Public Access Counselor, No. 19-FC-2 (Mar. 4, 2019), available here.
- Typically, a public agency must produce the entirety of an email that is responsive to a public record request and not subject to being withheld, including “metadata such as sender, recipient, date, and subject line.” However, that there may be a circumstance where that metadata, if disclosed, could “compromise the underlying sensitive material,” including for example by disclosing protected non-public deliberations and negotiations, and, in those cases, redactions of metadata may be appropriate, but the agency must demonstrate the appropriateness of its withholding this information. See Opinion of Public Access Counselor, No. 19-FC-2 (Mar. 4, 2019), available here.
These PAC opinions demonstrate that persons may request and obtain metadata from Indiana’s public agencies. Requestors are more likely to be successful in obtaining this data if they specifically request it and, even then, are unlikely to obtain data in forms that it does not already exist in the public agency’s files.
In sum, practitioners should remember the following principles in dealing with metadata:
- Request metadata early and specifically, including in public records requests.
- Consider more specific, supplemental requests if necessary.
- Raise any issues before discovery closes.
- Consider requesting at least some costs incurred for electronic discovery.
- Remember that the duty to preserve information includes the obligation not to scrub certain metadata.
- Exercise reasonable care in production of information to prevent the disclosure of confidential or privileged information, even in metadata.
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