Although documents must be produced in native format, all metadata need not be produced

July 20, 2009 | Leave a Comment

Dahl v. Bain Capital Partners, LLC, 2009 U.S. Dist. LEXIS 52551 (D. Mass. Jun. 22, 2009)

The court denied producers’ request to shift discovery costs to requestor. Producers failed to identify inaccessible documents or why they were inaccessible, or how they would sustain an undue burden or cost in document production; thus, producers failed to overcome the presumption that parties must bear their own costs. However, producers need not pay for the cost of scanning and OCR for paper documents, or for OCR for those electronic documents without search capabilities, as producers would “not have to pay to change the format of their responsive documents.” Requestors did not establish that such translation was required to make documents “reasonably usable.” Id. at *5-*6. However, if producers elected to make such changes to their own electronic documents, they should give requestors access to those documents; requestors would only bear the cost of copying the documents to DVD.

Requestors sought “all of the metadata associated with emails and word documents produced” by producers. Producers, however, offered to produce only 12 fields of metadata. The court ruled in favor of producer, stating that “[m]any courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties’ time and money.” Id. at *7. In addition, the Advisory Committee Notes to Rule 34 “express concern that producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless….Instead, the notes explain that requests should be tailored to each type of program, so only necessary data is produced.” Id. at *8. Accordingly

[r]ather than a sweeping request for metadata, [requestors] should tailor their requests to specific word documents, specific emails or specific sets of email, an arrangement that, according to their memorandum, suits [producers]. This more focused approach will, the court hopes, reduce the parties’ costs and work. Furthermore, it reflects the general uneasiness that courts hold over metadata’s contribution in assuring prudent and efficient litigation.

Id.

The court then ruled that the spreadsheets requested should be produced in their native format, as they were maintained in that fashion by producers in the ordinary course of business. The court distinguished its ruling regarding metadata for the emails and word processing documents as follows: “Maintaining spreadsheets in their native format is necessary to assure the integral elements of a spreadsheet remain undisturbed. In contrast, the court is not convinced that metadata is an integral element of a given email or word document.” Id. at *9,n1.

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