It is nearly impossible to litigate in today’s world without conducting discovery of electronically stored information, sometimes called “ESI.” In Arizona, Rule 26.1(a)(9) of the Rules of Civil Procedure specifically requires the prompt disclosure of “electronically stored information.” ESI is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. For purposes of discovery, this broad definition most commonly includes email correspondence and electronic records and files, may also usually includes something called “metadata.”
Metadata is data about data. It describes how and when and by whom a particular set of data was created, used or collected, and how the data is formatted. In other words, it is information describing the history, tracking, or management of an electronic file. Its importance is highlighted in a recent Texas case: In re: Waste Management of Texas, Inc., 392 S.W.3d 861, 876 (Tex. App. 2013) This matter was an antitrust action between two competing sanitation companies and details a lengthy discovery dispute. In 2009, Waste Management responded to an order to compel the production of various internal business records. Waste Management produced responsive records in the format of its choice. Instead of producing files in their native form (the original files), it produced the content as an Adobe PDF file. As a result all the metadata was effectively scrubbed away before handing over the requested documents. Interestingly, the court’s order specifically reserved for a later decision the question of whether the production must include metadata, perhaps because neither party understood the importance of metadata at that time.
Several years later, the trial court ordered Waste Management to produce similar information, but this time in its native, electronic format with all metadata. Waste Management unsuccessfully petitioned the Court of Appeals to direct the trial court to withdraw its order. Waste Management claimed that the trial court’s order was overbroad and constituted an undue burden. These arguments failed. Specifically, in response to Waste Management’s argument that the cost of producing metadata (i.e., producing the electronically stored information in its native format) was an undue burden, the court pointed out that they were on notice that metadata might be requested in the future. Yet, they decided to incur the cost to remove metadata and produce the data in PDF form. The court stated, “It is not our role to rescue Waste Management from potentially costly discretionary decisions.” Id. at 876
The outcome of this case should serve as a lesson to businesses that they cannot ignore the importance of metadata and the fact that it is discoverable. This is our first in a two-part series of blog posts addressing some of the more interesting issues and cases related to the discovery of electronically stored information.