Discovery Resources

Metadata is presumed to be undiscoverable, and therefore a party should not waste time and resources trying to obtain such data unless there is a need for it.

By Scott Paterson

Wyeth v. Impax Labs, Inc., 248 F.R.D. 169 (D. Del. 2006)

Employee/Employer Implicated:  Defendant

eLesson Learned:  A discovering party should not waste time trying to discover metadata.  Metadata is presumed to be undiscoverable, and therefore the data will only be available if the party can show a particularized need for the data.  And since metadata is presumed to be undiscoverable, a party may hide any metadata related to the produced documents by converting the documents to a TIFF or PDF.  However, the producing party must preserve the integrity of the electronic documents it produces in the case that the other party does demonstrate such a particularized need for the data.  The failure to do so will not support a contention that the production of documents in the native format is overly burdensome. 

Wyeth v. Impax Labs arose from a dispute over discovery production.  The original lawsuit was a patent dispute between the parties.  Before the court was the Defendant’s, Impax, motion to compel discovery production. 

Impax sought to compel Wyeth to produce various documents.  Included in those documents were the Pleadings, Deposition Transcripts, and Orders from another patent litigation that Wyeth was involved in, documents from locations and facilities outside the United States, and all documents produced after February 10, 2003.  The discussion of these documents is not relevant or related to electronic discovery, and therefore will not be discussed here.

Of importance, however, is Impax’s request for the form of the documents to be produced.  Specifically, Impax contended that the electronic documents should be produced in their native format, complete with metadata.   Wyeth had provided these documents in TIFF format, an image format lacking any metadata or document history.   Wyeth contended that the documents should not be produced in their native format because Impax has not made a particularized showing of need for the metadata and the collection of this data would be overly burdensome. 

Metadata is information describing the history, tracking, or management of an electronic document.  This definition can be obtained from the Proposed Advisory Committee Note to Federal Rule of Civil Procedure 26(f), available here.  To remove this information from a document requires an affirmative change in the document, usually through scrubbing or converting the document to an image file.  Most metadata has limited value in evidence, and is therefore considered a waste of litigation resources.

Emerging standards of electronic discovery appear to create a general presumption that the production of metadata is not required.  The Delaware Default Standard for Discovery of Electronic Documents, available here, follows this general presumption.  This is not to say that metadata is never discoverable, however.  First off, parties can agree on a standard format for the production of electronic documents, and in the absence of an agreement, the documents may be produced in an image file, such as a TIFF or PDF.  A party may also discover the otherwise undiscoverable metadata if it can demonstrate a particularized need for the native format of an electronic document. 

There are several lessons to take away from this.  First a discovering party should not waste time trying to discover metadata unless there is a particularized need for such data.  Second, since metadata is presumed to be undiscoverable, a party may hide any metadata related to the produced documents by converting the documents to a TIFF or PDF.  However, this leads to the third lesson, the producing party must preserve the integrity of the electronic documents it produces in the case that the other party does demonstrate such a particularized need for the data.  The failure to do so will not support a contention that the production of documents in the native format is overly burdensome. 

Finally, the court addressed one final issue, and that was related to the costs of producing electronic documents.  Ordinarily, discovery production costs are borne by the party producing the documents.  This case did not change anything.  According to the Default Standard for Discovery of Electronic Documents(reference above), the costs of discovery are borne by each party, only to be apportioned upon a showing of good cause to redistribute the discovery costs.  A party cannot show good cause for the organization and imaging of these documents because the party imaging the documents will benefit from the organization and imaging as well.  Therefore, the costs of imaging and organizing electronic discovery is not borne by the requesting party, but the producing party.

Scott Paterson is a third year student at Seton Hall Law School with an interest in Tax Law.  After graduation, Scott will be working for a New Jersey Superior Court Criminal Judge.

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e-Lessons Learned Disclaimer:

The opinions expressed by bloggers and those providing comments are theirs alone, are provided solely for informational purposes, and do not necessarily reflect the opinions of e-Lessons Learned. We are not responsible for the accuracy of any of the information supplied herein and are not liable for any errors or omissions in this information, or any losses, injuries, or damages arising from its display or use. By using this blog site you understand that there is no attorney client relationship and it should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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