ESI Decision In Washington D.C.: Ask For The Metadata In Discovery

Posted by Gregg Mayer on Wednesday, February 27th, 2008   

In a case in Washington D.C., a federal judge ruled that because the plaintiff in a lawsuit did not specifically ask for metadata when requesting electronically stored information (“ESI”), then the defendant did not have to produce it.

The case adds to the evolving discussion in the legal system about when “metadata” must be disclosed.

The case, D’Onofrio v. SFX Sports Group, Inc., involves employment discrimination. The employee sought a business plan from the company. In the dispute before the judge, the employee wanted a business plan – metadata and all – but the company argued the employee did not specifically ask for the metadata and should not get it.

The employee tried to argue for the metadata using two different parts of Rule 34 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure govern court procedure, including discovery issues involving ESI.

First, the employee argued Rule 34(a) only allowed the company to turn over the business plan without metadata “if necessary.” Here’s the relevant part of Rule 34:

(a)…Any party may serve on any other party a request (1) to produce … electronically stored information … in any medium from which information can be obtained – translated, if necessary, by the respondent into reasonably usable form…”

The judge rejected this argument:

Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request…In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” …Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

In short, Rule 34(a) did not require the company to turn over with the metadata.

Second, the employee argued Rule 34(b) required production of the metadata because, under the Federal Rules of Civil Procedure, the employee could specify the form of the production. Here’s the relevant part of Rule 34(b):

The request [for electronically stored information] may specify the form or forms in which electronically stored information is to be produced.

In court pleadings, this is how the employee asked for the information:

[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.

The judge concluded that this request did not specify that the employer had to disclose the metadata. The judge wrote: “a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata.”

Consequently, the employer did not have to disclose the metadata of the business plan.

In a related matter, the employee alleged the company destroyed some electronically stored information. That issue will be litigated at a later hearing date. Check back to CIOLaw.org for updates.

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