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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