Does Rule 37(b) Require Sanctions for the Failure to Produce Metadata?
In Ackerman v. PNC Bank, et al., Civil No. 12-CV-42(SRN/JSM)(D. Minn. January 23, 2014), the defendant produced ESI in response to plaintiff eDiscovery requests and a court order relating to a litigation hold. After the defense production was tendered (without metadata), Plaintiff sought sanctions alleging:
1. Defendant intentionally withheld evidence in violation of court orders;
2. That the litigation hold was inadequate;
3. That the ESI searches were inadequate; or
4. The documents no longer existed.
The magistrate judge denied sanctions, and Plaintiff appealed the issue to the district court judge. Plaintiff argued that Fed.R.Civ.Pro.37(b) required the entry of sanctions for the failure to produce metadata with an ESI production.
Plaintiff contented that the magistrate ruling was a clear error, as producing ESI without metadata violated Fed.R.Civ.Pro. 34(b)(2)(E). However, the district court judge denied overturning the magistrate’s order. Noting that Rule 34(b) does not specifically reference the production of metadata, it requires a party to produce documents as they are kept “in the usual course of business” or organized and labeled according to corresponding discovery requests.
Citing Fed.R.Civ.P. 34(b)(2)(E)(ii), the court wrote, “If the discovery request does not specify the form for producing ESI, Rule 34 requires a party to produce it in the form ‘in which it is ordinarily maintained or in a reasonably usable form or forms.’” In this case, Plaintiff failed to specify metadata in the discovery requests. As a result, the court agreed with the magistrate that there was no evidence that Defendant destroyed evidence or inadequately investigated for ESI and therefore, no sanction was warranted.