If I Am Sued, Do I Have to Disclose My Metadata?

Posted by Gregg Mayer on Thursday, February 7th, 2008   

Metadata is the hidden stuff. It’s the information stored in electronic files, including email, that may not be apparent to users.  It includes the dates a file was accessed, modified, sent, received, the names of whomever opened and changed it, and even the prior versions of a document. One area of development in the e-Discovery frontier is whether metadata must be disclosed along with the other electronically stored information. The answer is simple: maybe.

No consensus exists that metadata must be disclosed. One reason is the Federal Rules of Civil Procedure do not directly address whether metadata must be disclosed. Instead, this is a matter that is left to the judges.

One thing is clear:  Metadata certainly can be discoverable in litigation (some judges have already decided that), but it is not clear if it always has to be disclosed.

Consider two cases:

In the 2005 Kansas federal case of Williams v. Sprint/United Management Co., the plaintiff sued for age discrimination. She wanted to look at spreadsheets showing the employment history of the company.

When the company turned over the spreadsheets, it blocked out the plaintiff’s ability to see the metadata. The plaintiff complained.

The court decided that the metadata should be available to the plaintiff and ordered the company to reproduce the spreadsheets with the metadata in tact. In fact, the court said metadata should always be produced unless a party objects. In the judge’s words:

…the Court holds that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order.

On the flip side, about a year later in a Kentucky federal court, the judge disagreed with the Kansas judge in the Sprint case. In Kentucky, the judge explained there should not be a default rule of always disclosing metadata. On the contrary, the plaintiff in this case failed to show a need for the metadata and was not allowed to get it. The court stated:

The issue of whether metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a Rule 26(f) conference [the initial meeting of the lawyers to talk about discovery]. Here, the parties clearly had no agreement that the electronic files would be produced in any particular format. Plaintiff did not notify defendant ISC that it sought metadata until seven months after ISC had produced both hard copy and electronic copies of its documents.

Plaintiff has not made any showing of a particularized need for the metadata. Although plaintiff argues generally that it “needs document custodian information for the prosecution of its case”… plaintiff does not identify any specific document or documents for which such information would be relevant…In most cases and for most documents, metadata does not provide relevant information… Depending on the format, the metadata may identify the typist but not the document’s author, or even just a specific computer from which the document originated or was generated.

In short, whether you have to disclose your metadata depends on the facts of your case.

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