In Bah v. Sampson Bladen Oil Co., No. 5:23-CV-00330 (E.D.N.C. Aug. 5, 2024), North Carolina Magistrate Judge Robert T. Numbers II denied the plaintiff’s motion to produce additional metadata, to relieve her of the obligation to sit for a deposition until the defendant complies with its discovery obligations, and to sanction the defendant for resisting and delaying the discovery process, finding the ESI was produced in a reasonably usable format and the plaintiff was entitled to no additional metadata.

Case Discussion and Judge’s Ruling

In this case involving claims of race-based employment discrimination by the plaintiff who worked for Han-Dee Hugo’s, the parties submitted a Joint Rule 26(f) Report at the outset of discovery that discussed, among other things, how they would produce ESI. They agreed that most ESI should be produced in TIFF format, with some types of ESI, like Excel spreadsheets, PowerPoint files, and audio-visual files, to be produced in native format. The parties’ Joint Report also stated that when a party produced ESI in TIFF format, the production “would also include metadata and searchable, extracted text.”  But the parties never discussed the scope of metadata that they needed to include.

The defendant eventually produced about 2,100 documents consisting of 13,000 pages in TIFF format and a handful of documents in native format. Its production included emails, HR documents, the plaintiff’s employment file, and other employee complaints. A load file containing searchable, extracted text and 13 metadata fields accompanied the production. Three weeks after receiving the production, the plaintiff told the defendant that its production was “completely unusable[.]” After discussion between the parties and their ESI vendors, however, it became clear that the production was usable but it was not as easily searchable as the plaintiff would like.

The plaintiff and her vendor claimed that the defendant needed to provide more metadata fields to allow her to easily sort, search, and process the production. For example, she claimed she could not “filter the documents by date and would instead need to search each specific date as text within the TIFF file”, and that the production lacked Bates numbers; “parent/child relationship fields,” and file extensions.

After the parties’ attempts to resolve their dispute failed and the defendant produced no additional metadata, the plaintiff filed her motion to compel. The court eventually held a hearing on her motion, where plaintiff’s counsel could not articulate how the search process worked, could not explain which metadata fields would be most helpful, and eventually admitted that “she has not personally used the ESI platform” into which the documents were loaded.

In considering the plaintiff’s claims, Judge Numbers stated: “Bah first claimed that the production was ‘completely unusable as produced.’…But this statement is false. Bah’s vendor could access the ESI Han-Dee Hugo’s produced. And it appears that she can review the materials included in the production and conduct text-based searches. So this argument does not support Bah’s claim that the production is not reasonably usable.” He also rejected the contention that that the production lacks Bates numbers and the necessary metadata (known as parent/child fields) to determine whether one file was included as an attachment to another, stating: “The record, however, belies this contention. Han-Dee Hugo’s ESI vendor explained that their production included fields for ‘Production Beg Bates and End Bates along with Production Beg Attach and End Attach.’…Bah’s ESI vendor acknowledged that these fields were included in the production.”

And, even though the defendant’s vendor acknowledged that the production lacked metadata allowing her vendor to filter documents by date and to categorize documents by file type, Judge Numbers found: “Han-Dee Hugo’s production is text searchable. And there is nothing in the record establishing that the production is less searchable for Bah than it would be for Han-Dee Hugo’s. So, on its face, Han-Dee Hugo’s production meets the requirement that ESI be produced in a reasonably usable format. Yet there may be cases where text-searchability is not enough to render ESI reasonably usable to the party requesting it… But Bah has not shown that this is one of those cases.” He also stated: “The court’s efforts to delve further into the functionality of the eDiscovery platform chosen by Bah’s counsel was frustrated by her counsel’s lack of knowledge about how that system works. During the hearing Bah’s counsel admitted that she has not used the system…And she contradicted her vendor’s claims about the production’s searchability.”

In denying the plaintiff’s motion and determining the plaintiff was entitled to no additional metadata, Judge Numbers stated: “Bah’s arguments are unpersuasive. To begin with, neither Rule 34 nor the Joint Report require production in native format. Instead, the parties agreed to produce most ESI in non-native format. And Bah has not shown that she is entitled to all metadata fields available to Han-Dee Hugo’s. The Joint Report is ambiguous about what metadata each party must provide…Given the lack of certainty on that issue, the court will apply Rule 34’s requirement that a party must produce non-native ESI in a reasonably usable form. Courts regularly find that producing ESI in a text-searchable format qualifies as being reasonably usable. Bah has not persuaded the court that the circumstances of this case justify departing from that practice…The court thus denies the motion to compel. And, as a result, it will also deny Bah’s request for a protective order and her request for sanctions.”

So, what do you think? Do you agree with the Court that the plaintiff was entitled to no additional metadata? Please share any comments you might have or if you’d like to know more about a particular topic.

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