By Evan Harris
Kentucky Speedway, L.L.C. v. National Association of Stock Car Auto Racing, Inc., 2006 U.S. Dist. LEXIS 92028 (E.D. Ky.)
Employees implicated: Counsel
eLesson Learned: Courts have recently become more reluctant to order a party to produce metadata unless the requesting party can show it’s necessary to the case. Thus, a party should limit its metadata requests to specific documents where the metadata is necessary and relevant. These requests should also be made in a timely fashion in order to prevent the appearance of a frivolous discovery request.
Kentucky Speedway filed suit against the National Association of Stock Car Auto Racing (“NASCAR”) alleging that NASCAR had monopolized the markets for premier stock car racing and premier stock car racetracks. Speedway claimed that NASCAR “starved competing racetracks of revenue” so it could purchase the tracks at a reduced price. During the discovery phase, Speedway sought to obtain documents from NASCAR pertaining to, among other things, its “growth strategy, attempts to expand, and attempts to stifle competition by other major motorsports facilities.” A subsequent e-discovery dispute arose when Kentucky Speedway requested that NASCAR produce the metadata concerning the author and document creation information for all documents that were previously produced through discovery.
If You Want It, You Have to Ask For It
Relying on the Sedona Conference, the court defined metadata as “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it was formatted.” The court also expressly rejected the old view that all documents should be produced with the corresponding metadata attached unless a party objects, the parties agree that metadata shouldn’t be produced, or the producing party requests a protective order. Instead, the court adopted the Sedona Conference’s view that metadata should not be produced absent a clear agreement between the parties or a court order. Furthermore, the court noted that other courts had recently adopted a general presumption against the production of metadata as well.
The court reasoned that a general presumption against the production of metadata was appropriate because metadata will often fail to provide any relevant information. By way of example, the court noted that metadata will often only identify the typist and not the document’s author or computer from which it was generated.
If You Want It, Don’t Wait to Ask For It
The court stressed that a party that feels it will need metadata should not wait until the discovery process is already underway. Rather, a party should express its desire to obtain metadata for specific documents with its adversary during the mandatory Rule 26(f) discovery conference. Here, in rejecting the request for metadata, the court noted that Speedway and NASCAR didn’t had an agreement specifying that electronic documents would be produced in any particular format. Furthermore, Speedway didn’t request metadata until seven months after NASCAR had produced the documents in question.
If You Want It, Have a Reason to Ask For It
Absent any previous agreement regarding metadata, the requesting party must show a particularized need for it. It will not be enough to do like Speedway and claim that the metadata is needed to determine the origins of the documents. The requesting party must identify specific documents for which the metadata would be relevant but would not be obtainable through other means. The court reasoned that requesting metadata for specific documents would be less burdensome and would be more likely to produce relevant information than a blanket request for metadata of all documents would be.
In a further effort to save time and money, the court ordered the parties to work out the metadata dispute without the court’s assistance. However, the court did leave the door open for itself to assist the parties if they were unable to resolve a properly limited request.
Evan Harris is a third-year law student at Seton Hall University School of Law.
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February 16th, 2009 at 7:00 pm
This ruling is helpful in future suits where a party may be requesting a large amount of metadata without doing their own due diligence to shift through information to see what they really need.
March 9th, 2009 at 7:14 am
Application metadata is irrefutably an integral component of every document or e-mail. It’s information (the metadata) is created simultaneously by the application software at the moment a new document or e-mail starts to be created. The metadata is dynamic throughout the stages of initial creation and development but is finalized once the user has saved the document or in the case of e-mails has sent the e-mail. The metadata is stored on the computer along with the document’s data as one data file.
If a user opens that same document up at a later time
and makes a revision, the metadata associated with that document is updated with the current date and time, and the revision changes last made to the original version.
Application metadata is not separated and stored in a unassociated state from the document “parent.” The metadata and the document are one data file. The same pertains to an e-mail message.
My point is that somewhere in the past, attorneys have convinced the courts and their opponents that metadata is inherently a separate element from the the document or e-mail that it was created with. That is flawed thinking.
Most lawyers don’t understand what metadata is, how it is generated, or why it even exists. Lawyers by nature do not
want to produce anything that they don’t think they have to produce. So, metadata has become the bastard child of document production and the courts and even the new FRCP amendments have not sufficiently dealt with this issue.
Because metadata is no more than “other” data that is unique unto the document it was created with, then a producing party cannot without showing cause, scrub
portions (metadata) of a data file (the document or e-mail).
I contend that the producing party should not be permitted to arbitrarily scrub portions of a document’s content (data) without showing cause. Otherwise, one could reason that the full and complete production was purposely incomplete.
To press the producing party’s role even further, I contend that the producing party is obligated to either review all metadata associated with each document and e-mail before production for relevancy and responsiveness or they should automatically plan to just produce the entire document and its metadata if the requesting party asks for it.