Shark week, er, eDiscovery Case Week, continues! In Hoehl Family Found. v. Roberts, No. 5:19-cv-229 (D. Vt. April 13, 2023), Vermont District Judge Geoffrey W. Crawford ruled on several discovery disputes, including ruling that, “[b]y failing to produce documents with complete and accurate metadata, Defendants fell short of their discovery obligations”, so he ordered defendants to “to supply complete and accurate metadata for those documents by June 1, 2023”.
This case involved disputes over investment management services provided by defendants to the plaintiff family Foundation (there was also an additional case filed in New Hampshire against the defendants by an entity owned by the plaintiff family where discovery was proceeding jointly). There were two motions to compel, both filed by the Foundation – in the first motion, the Foundation sought to compel Defendants to rectify allegedly incomplete discovery responses in four areas, the first of which related to the Foundation’s contention that Defendants improperly produced documents without original metadata and in a manner other than the way the Defendants kept the documents in the usual course of business.
The court approved a stipulated discovery order on February 27, 2020, which stated ESI would be produced in the following formats: “native files; single-page TIFFs or PDFs (with load files for e-discovery software that includes metadata fields identifying natural document breaks and companion OCR and/or extracted text files). For any production made in non-native format, the producing party shall preserve the integrity of the underlying ESI, including original formatting, file structure (e.g., files attached to email), and metadata.”
Defendants produced 39,557 pages of documents on February 12, 2021 and produced additional documents on a “rolling” basis through February 2022, the majority of which were emails. On May 11, 2021, counsel for the Foundation asserted several deficiencies with Defendants’ productions, two of which explicitly concerned the lack of complete and accurate metadata. First, the Foundation asserted that “Defendants’ recent document productions include at least 9,588 documents with missing filenames and file extensions”, which they contended made it difficult to identify emails. Second, the Foundation noted that Defendants had produced “at least 5,658 documents with incorrect metadata in the ‘date created’ field.”
Defendants indicated that the DAT files produced identified emails and they also stated that “[t]he discrepancies you might see regarding the ‘Create Datetime’ field do not indicate errors, but rather may reflect changes made to servers, file organization, etc. occurring at Eideard that resulted in created dates being updated.”
However, after discovery issues were raised in the other case and the parties conferred by video on August 18, 2022, The Foundation’s counsel asserted that they discussed “how original metadata had not been retained because Defendants acknowledged that they moved documents from where they are stored in the ordinary course of business to intermediary folders in preparation for document production” and that “metadata was stripped during this process.” The parties also attempted to negotiate production of a folder tree, but the two screenshots of a folder tree that were produced were not satisfactory to the Foundation.
Judge Crawford addressed the defendant’s assertion that the Foundation “failed to raise these metadata issues until August 26, 2022, when counsel for BDP first raised the issue”, by stating: “Contrary to Defendants’ assertion that the Foundation ‘never … raised any issue as to metadata’ before August 26, 2022…, the Foundation’s May 11, 2021 letter did raise issues about the metadata in Defendants’ productions.” Regarding the potential contention that Defendants had adequately addressed the issues based on the Foundation’s August 17, 2021 reply to the Defendants, Judge Crawford noted that: “(1) most of the documents that Defendants produced were emails and (2) the Foundation’s motion seeks metadata associated with non-email documents. Thus it seems likely that the metadata issues with documents other than emails were not apparent at the time of Defendants’ fall 2021 productions.”
As a result, Judge Crawford stated: “The court accordingly rejects Defendants’ contention that the Foundation somehow sat on its rights regarding the metadata presently at issue. The court also rejects that argument insofar as it is premised on the fact that the Foundation did not itself raise any metadata issues during the time between its May 2021 letter and the parties’ August 2022 meet-and-confer. Defendants concede that discovery in this federal case proceeded jointly with discovery in the BDP Holdings case in New Hampshire. And BDP did raise metadata issues in February and August 2022. The Foundation joined BDP on those issues at those times. Thus even if the Foundation was not the first to raise the issues at those times, it did raise them by joining BDP.”
As for Defendant’s argument regarding burden, Judge Crawford stated: “The court agrees that—in the language of Rule 26(b)(2)(C)(ii)—the Foundation has had ‘ample opportunity’ to conduct word searches of the documents that Defendants have produced. But as the Foundation correctly observes, it cannot search or review associated metadata that has not been produced… Moreover, the Foundation seeks the metadata as an aid for organizing the productions that it has received from Defendants.”
So, Judge Crawford stated: “By failing to produce documents with complete and accurate metadata, Defendants fell short of their discovery obligations… Because the Foundation seeks metadata for non-email documents, the court understands that the metadata issues relate to a set of approximately 10,000 documents—not the entire 400,000-page production. The Foundation is directed to send Defendants a list of that subset of documents, and Defendants are ORDERED to supply complete and accurate metadata for those documents by June 1, 2023. This imposes some burden on Defendants, but, as the New Hampshire court stated, that is ‘a function of the way in which the defendants chose to respond to the RFPs in the first place.’”
So, what do you think? Should it be so difficult to include complete and accurate metadata in a document production? Please share any comments you might have or if you’d like to know more about a particular topic.
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