Although not strictly a matter of appellate law, there has been substantial controversy over the manner in which electronically-stored information (ESI) must be produced in discovery. Requesting parties generally seek the production of ESI in native format with all metadata intact. Metadata, described as "data about data," includes information embedded in an electronic document or file describing inter alia its creation, revision history, tracking and management that is generally not visible or retrievable when an electronic document is printed or converted to an image file. Responding parties usually prefer to produce ESI in one of the static-image formats, PDF (portable document format) or TIFF (tagged image file format), so that the information is not electronically usable or searchable. Which format is the correct one? The December 1, 2006 amendments to the Federal Rules of Civil Procedure were designed to avoid or greatly reduce this controversy, but have achieved mixed results thus far.
Amended Fed.R.Civ.P. 34(b) provides in pertinent part:
The request [for production of documents] may specify the form or forms in which [ESI] is to be produced. . . . If objection is made to the requested form or forms for producing [ESI] -- or if no form was specified in the request -- the responding party must state the form or forms it intends to use.
Unless the parties otherwise agree, or the court otherwise orders: * * *
(ii) if a request does not specify the form or forms for producing [ESI], a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(iii) a party need not produce the same [ESI] in more than one form.
Thus, amended Rule 34(b) gives the requesting party the right and power to specify the form in which ESI is to be produced. In the absence of such specification, the default position of Rule 34(b)(ii) is that ESI is to be produced in the form in which it is maintained and used in the ordinary course of business or some other form that is "reasonably usable."
In state court litigation, the Conference of Chief Justices approved and adopted on August 2, 2006, the Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information as a reference tool for state trial court judges facing e-discovery issues. The Guidelines are available on the website of the National Center for State Courts. Guideline 6, entitled "Form of Production," is based on FRCP 34(b)(ii) and (iii):
In the absence of agreement among the parties, a judge should ordinarily require [ESI] to be produced in no more than one format and should select the form of production in which the information is ordinarily maintained or in a form that is reasonably usable.
The principal difference between Amended Rule 34(b)(ii) and Guideline 6 is that, under the Federal Rule, a party may specify the form in which ESI is to be produced, whereas under the Guidelines, specifically Guideline 3(B)(7), the form of production "preferred" by the requesting party is merely one factor the judge should consider and take into account.
On August 3, 2007, the National Conference of Commissioners on Uniform State Laws approved and adopted Uniform Rules Relating to Discovery of Electronically Stored Information. Rule 7 entitled "Form of Production" tracks the language of amended Rule 34(b), including allowing the requesting party to specify the form in which ESI is to be produced. See Rule 7(a). If a request for production does not specify a form for producing the ESI, "the responding party shall produce the ESI in a form in which it is ordinarily maintained or in a form that is reasonably usable." Rule 7(c)(1).
The influential Delaware federal court Default Standards for Discovery of Electronic Documents similarly provides:
if a request for ESI does not specify the form of production, a responding party must produce the information in the form in which it is ordinarily maintained, or in an electronically-searchable form . . .
There are two common threads running through all these authorities:
(1) three out of the four sets of rules cited above, including the Federal Rules of Civil Procedure, allow the requesting party to specify the form in which ESI is to be produced. This means that a requesting party may specify that ESI is be produced in its native format (another way of saying the form in which it ordinarily maintained) with metadata intact. This appears to be the requesting party's absolute right under these rules. If the responding party has any objection, its bears the burden of demonstrating to the court why production in the specified form is objectionable.
(2) even if the requesting party does not specify the form of production, the default standard is that the responding party must produce ESI in the form in which it is ordinarily maintained or in a form that is reasonably usable. ESI kept in the ordinary course means in its native format, obviously -- the form in which it is used during the course of ordinary business. That does not mean a PDF or TIFF image of a document. Furthermore, a static image of a document, whether in TIFF or PDF format, is not a "reasonably usable" form. Indeed, that is the whole point of those two formats, to make them not electronically usable by the recipient. Neither are TIFF or PDF files "electronically-searchable."
Responding parties typically refer to two decisions, Pace v. International Mill Service, Inc., 2007 WL 1385385 (N.D. Ind. 5-7-2007), and Wyeth v. Impax Laboratories, Inc., 2006 WL 3091331 (D. Del. 10-26-2006), as authority for the proposition that static-image files of electronic documents constitute legally-sufficient production.
Pace was decided after amended Rule 34(b) took effect but, since the conduct at issue occurred prior to the amendment, "the court addresse[d] the motion [to compel] in terms of the rule's prior version." The court in Pace cited another pre-amendment case, Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005), for its statement that, "[a]bsent a special request for metadata," a production of documents in PDF or TIFF images "complies with the ordinary meaning of [pre-amendment] Rule 34." The court then denied the motion to compel "[b]ecause [the requesting party] has not shown that he made a request that called for any specific format."
Wyeth also predates the ESI amendments to the Federal Rules and relies on the pre-amendment version of the Delaware Default Standards. It selectively quotes from the Williams v. Sprint decision, denying the motion to compel because the requesting party "has not demonstrated a particularized need for the metadata . . . it has requested."
It is important to carefully examine Williams v. Sprint, the pre-amendment decision on which both Pace and Wyeth expressly rely. Magistrate Judge Waxe based his decision in Williams on the then-current version of Rule 34 and on Principle 12 and Comment 12.a of the Sedona Principles for Electronic Document Production (July 2005). 230 F.R.D. at 648, 650-52. Sedona Principle 12 states that "[u]nless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court." Comment 12.a provides that "there should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata." Finding the Sedona Principles and comments to be "particularly instructive," the Court in Williams noted that "emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata" unless it is "relevant to the dispute." Id. at 652. This is the part of the Williams decision that Pace and Impax Laboratories quoted and referred to.
However, what Williams actually held was very different:
Based on these emerging standards, the Court holds that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business [or as an "active file" or in their "native format"], [or when a party requests ESI be produced as they are maintained in the "ordinary course of business," as an "active file," or in their "native format,"] the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to the production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. The initial burden with regard to the disclosure of the metadata would therefore be placed on the party to whom the request or order to produce is directed. . . . Placing the burden on the producing party is further supported by the fact that metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document.
Id. (footnotes omitted)(emphasis in original). Thus, Williams fully supports the proposition that production of ESI as maintained in the ordinary course of business, which amended Rule 34(b) requires in the absence of any request for a specified format, means producing ESI in native format with metadata intact.
Parenthetically, the draft commentary to the Guidelines established by the Conference of Chief Justices specifies that the Guidelines deliberately rejected the Sedona Principles' rebuttable presumption against the production of metadata. Instead, the Guidelines assume that ESI in the standard format in which it is ordinarily maintained must necessarily be "reasonably usable" or else it would not be kept that way in the first place.
I have found four other federal court decisions bearing on a responding party's obligation to produce ESI in native format with metadata intact when specifically requested:
1. Most recently, on June 12, 2007, the Southern District of Ohio (i) observed that under amended FRCP 34(b) a party may specify the form in which ESI is to be produced, (ii) noted that the responding party contended its production was proper because the request for production of documents made no such specification, and (iii) denied the motion to compel without prejudice and ordered the parties to meet and confer to resolve the dispute. Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio 6-12-2007).
2. In Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 5-4-2007), a case involving the authentication of ESI for summary judgment purposes, Chief Magistrate Judge Grimm noted that recently-revised Rule 34(b) permits a party "to identify the form or forms in which it is to be produced. A party therefore can request production of ESI in its 'native format' which includes the metadata for the electronic document." The court went on to hold that metadata is a distinctive characteristic of all electronic evidence that will properly authenticate ESI under Rule 901(b)(4) of the Federal Rules of Evidence.
3. In Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F. Supp.2d 1121 (N.D. Cal. 2006), the court granted a motion to compel and ordered ESI to be produced "in their native file format, with original metadata" over the defendant's objection.
4. In In re Verisign Inc. Sec. Litig., 2004 WL 1445243 (N.D. Cal. 3-10-2004), the responding party objected to a discovery order entered by the magistrate judge to produce responsive documents that specified that "[p]roduction of TIFF version alone is not sufficient" and that "[t]he electronic version must include metadata as well as be searchable." The district judge overruled the objections and found that the order directing defendants to produce responsive electronic documents in their native format including metadata was not clearly erroneous or contrary to law, even based on the pre-amendment version of Rule 34. The district court also rejected defendants' arguments that production of ESI in its original format (e.g., PST format for e-mails) would be overly burdensome, prejudicial, extremely time consuming and expensive.
Based on all these authorities, it is clear the emerging standard for the discovery of ESI is that production should be in the format specifically requested or, absent a specific request, in the form in which the ESI is maintained and used in the ordinary course of business.
I would welcome hearing from readers about other case decisions bearing on this developing topic.