Metadata May Be Part of Production of Documents Kept in Ordinary Course of Business

Darnley Dickinson Stewart, Bernstein Litowitz Berger & Grossmann LLP

Williams v. Sprint/United Mgmt. Co ., 230 F.R.D. 640 (D. Kan. 2005). In an age discrimination collective action, the Court ordered defendant to produce certain candidate selection spreadsheets that were maintained in Excel format. Plaintiffs asked that the actual electronic "active file" version of the spreadsheets be produced so that, among other things, they could manipulate the data contained on the spreadsheets without having to key it in again. After defendant produced the spreadsheets as "TIFF" images, the Court ordered they be produced as they were maintained in the ordinary course of business, but permitted Sprint to redact any privileged information as well as the candidates' social security numbers. However, when Sprint produced the electronic spreadsheets, it "scrubbed" the metadata from the documents, and locked certain of the cells on the spreadsheets so that plaintiffs could not access them. Upon the Court's order that defendant show cause why it should not be sanctioned, Sprint argued that (i) it scrubbed the metadata from the documents to preclude the possibility that plaintiffs could "undelete" or recover privileged information; and (ii) when the Court ordered Sprint to produce the spreadsheets as maintained in the ordinary course, that did not require the production of the electronic documents with the metadata intact in the absence of a specific request and showing from plaintiffs that the metadata was relevant. After a very informative description of metadata, the Court determined that neither Fed.R.Civ.P. 34(b) nor the relevant caselaw answered the question at hand. Accordingly, the Court turned to the Sedona Principles for Electronic Document Production for guidance, and ruled as follows:

Based on the 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, 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.

230 F.R.D. at 652. Ultimately, the Court found that at least some of the metadata was relevant and should have been produced, but that Sprint was permitted to remove certain metadata reflecting privileged matters that had been protected by the Magistrate Judge in previous orders. Finally, the Court held that Sprint's locking of the spreadsheet cells (which Sprint claimed was necessary so as to prevent inadvertent or intentional alteration of the data) violated the spirit of its directive that the spreadsheets be produced as they were ordinarily kept in the ordinary course because with the cells locked certain of the data and columns were cut off. The Court noted that any alleged concern on the part of Sprint regarding alteration of the data could have been addressed through the use of electronic "hash marks," which create a "digital fingerprint" sufficient to show whether and when the documents were altered.