Ah, the Metadata Debate

Shannon Kirk & Kathryn Hong, writing in Law Technology News for January 16, have focused their attention on the seemingly unanswerable question: When is production of metadata required in response to a Rule 34 Request ("Rule 34: A Cause for Confusion"). It is a bit too simplistic to say that there conclusion is that metadata ought to be produced only when it is requested but I suspect that is the view of the authors.

The problem is that there are differing interpretations of Rule 34's mandate in the manner in which they are usually kept. Does that mean organized as they are in the normal course? Does it mean produce paper if kept on paper? Does it mean produce in native? Of course the parties have the opportunity to specify in their Rule 34 request the format in which electronically stored information should be produced. However, that does not end the debate. Often a party will request native production with metadata just to make life more difficult and discovery more expensive for opposing parties. (Yes, I know that view is rather cynical, but I have seen it happen.)

The metadata issue is one which should be sorted out in the initial meet and confer. The parties need to take a realistic view of the value of metadata in the case at hand as contrasted with the cost (to both parties) of dealing with metadata. If the parties can't agree, a strong direction from the court should be required.