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November2005
log of the information scrubbed. Theplaintiffs also asserted the defendantlocked cells and data on the spread-sheets, preventing the plaintiffs fromaccessing those cells. Although thecourt did not sanction the defendant,it ordered the defendant to producethe spreadsheets’ metadata and toproduce “unlocked” versions of thosespreadsheets. The court held that“when a party is ordered to produceelectronic documents as they aremaintained in the ordinary course of business, the producing party shouldproduce the electronic documents with their metadata intact, unless thatparty timely objects to production of metadata, the parties agree that themetadata should not be produced, orthe producing party requests a pro-tective order.”Inconsistent and rapidly developingmetadata-production standards — such as those set forth in
Sprint
— may leave practitioners confused abouttheir obligation to produce metadatafor legal discovery or regulatory inves-tigations. According to JonathanRedgrave of Redgrave Daley Ragan & Wagner LLP, the dangers of failing tounderstand requirements surroundingmetadata production can be costly fora producing party. Redgrave notes that“Courts may order a producing party toproduce data again if associated meta-data relevant to the action was not pro-duced initially, and they may requirethe producing party to bear the fullcost of this second round of produc-tion. Accordingly, today there is apremium on thinking through issuesrelated to form of production at theoutset of the case.”If faced with a document produc-tion potentially involving metadata, you should prepare to address thefollowing concerns:•What are the courts saying aboutmetadata and production?•What technical aspects of metadataare important to a case? and• What production obligations are impli-cated by the existence of metadata?
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The current legal climate reflects atrend toward requiring practitioners toreview and produce metadata inresponse to a discovery request.
Armstrong v. Executive Office of the President
, 1 F.3d 1274 (D.C. Cir. 1993),
rev’d in part on other grounds
, 90 F.3d553 (D.C. Cir. 1996) was one of the ear-liest cases to address the discoverability of metadata. In
Armstrong,
the districtcourt held that government agenciesthat merely instructed employees toprint out a paper version of any elec-tronic communicationhad not reasonably discharged their preservation obliga-tions under the Federal Records Act.The appellate court affirmed, stating,“[w]ithout the missing information, thepaper print-outs — akin to traditionalmemoranda with the “to” and “from”cut off and even the “received” stamppruned away — are dismembered doc-uments indeed.” As the
Armstrong
courtrecognized, metadata can provide key pieces of relevant evidence and infor-mation about a particular e-mail, spread-sheet or other electronic document. A number of courts have recognizedthe evidentiary value metadata can havein a case and have routinely orderedparties to preserve metadata duringlegal discovery. For instance, in
The Pueblo of Laguna v. United States
, 60Fed. Cl. 133 (Fed. Cl. 2004), the courtgranted the plaintiffs’ request for aprotective order and required the gov-ernment to preserve all documents,includingelectronic information, e-mailand metadata that contained relevantinformation or that might lead to thediscovery of relevant information.Courts all over the United Stateshave declared parties to have an obli-gation to produce metadata. In
Jicarilla Apache Nation v. United States
,60 Fed. Cl. 413 (Fed.Cir. 2004), thecourt included metadata in its defini-tion of “documents” that needed to beproduced. The court directed the par-ties to produce records “in the formatin which that party routinely uses orstores them, provided that electronicrecords shall be produced along withavailable technical information neces-sary for access or use.”Some courts are extending the obli-gation to produce metadata to thirdparties. For example, an Illinois courtordered a third party to reproduce doc-uments — previously produced in
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Defining Metadata
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