Litigation Involving Native Files and Metadata

23 Oct 2013

Courts Support Plaintiff eDiscovery Requests; Require Increased Defendant Data Production

Modern discovery presents technological challenges to every litigator, and emerging ethical rules make clear that it is every attorney’s duty to understand electronic discovery. What is a native file? What is metadata? How does metadata compare to TIFF and PDF productions, and why is metadata important in litigation?

Generally, a native file is a copy of the original document in the format created by the application used to generate the file such as Microsoft Word, PowerPoint or Excel.  Metadata, the “data about data,” is essentially the digital DNA of a particular electronic file.  It can tell you who the author is, when it was created, what program was used to create the file, where the file was electronically stored, when it was modified, who modified it etc. Critically, such original metadata of a file maybe altered or lost when a document is converted from its native format and scanned and produced as a TIFF or PDF.  And, without metadata, produced documents lose coherence, and plaintiffs may miss valuable and probative underlying information about a particular electronic file.

Recent Case Law Involving Metadata and Native File Disputes

  • Barrette Outdoor Living, Inc. v. Michigan Resin Representatives.[1] Court awarded sanctions for spoliation after forensic examination found incriminating metadata and deleted files, despite scrubbing efforts by losing party.
  • Amdocs (Israel) Limited v. Openet Telecom, Inc.[2] Court reduced requested costs, as metadata extraction was not analogous to making copies, awarding only costs necessary to meet the terms of the joint discovery plan.
  • W Holding Company, Inc. v. Chartis Insurance Company of Puerto Rico.[3] Court issued a protocol order including specific sanction warnings if parties neglected electronic data discovery obligations.
  • Harry Weiss, Inc. v. Mendez Moskowitz et al.[4] Court approved sanctions, finding grossly negligent destruction of electronic data, including hardware and metadata.
  • Herrmann v. Rain Link, Inc.[5] Court found failure to preserve metadata as negligent and for spoliation sanctions required a showing of prejudice to the innocent party.
  •  Ellis v. Toshiba.[6] Court denied attorney fee request, finding willful spoliation of metadata evidence.

Courts continue to support discovery requests for metadata and production of electronic records in their native file format, rejecting objections that such production would be unduly burdensome.

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[1] 2013 WL 3983230 (E.D. Mich), August 1, 2013.

[2] No. 1:10cv910 (E.D.Va 2013), March 21, 2013.

[3] 2013 WL 135262 (D. Puerto Rico), April 3, 2013.

[4] 2013 NY Slip Op 038927, May 30, 2013.

[5] Case No. 11-1123-RDR (D. Kan.), July 19, 2013.

[6] Nos. B220286, B227078 (Cal. Ct. App. 2013), August 7, 2013.