On June 22, 2009, the U.S. District Court for the District of Massachusetts denied the plaintiffs’ “sweeping request for metadata” in the case of Dahl, et al. v. Bain Capital Partners, LLC, et al. In this complex antitrust litigation involving many private equity firms, the plaintiffs requested that the court enter an order, in part, compelling the defendants to provide all metadata associated with e-mails and word documents that the defendants produced. Metadata is persistent, electronically stored information revealing the history of an electronic document, e.g., who created or modified a document, and when one created, sent, received or forwarded an e-mail. Producing metadata increases parties’ discovery costs because it adds to the volume of information that must be processed and produced and often requires the use of specialized vendors. The plaintiffs also requested that the defendants bear the cost of converting hard copy documents into an electronic form. The court denied these requests, and only required the defendants to provide certain limited fields of metadata and documents “as they are kept in the usual course of business.” Should other courts adopt the approach taken here, defendants’ electronic discovery obligations may be significantly reduced.
Court’s Analysis and Decision
At the outset of the court’s decision, it noted that the “Supreme Court has expressed frustration with trial courts’ supervision of discovery[.]” In the spirit of supervising an organized and managed discovery process in this case, the court ruled on several outstanding issues including:
Whether the defendants had to produce all metadata as the plaintiffs requested, or only the 12 fields of metadata the defendants offered to produce
Who bore the responsibility for paying costs associated with discovery
The court framed its decision on both of these matters within the context of the overall goal of discovery, which is to “focus on matters reasonably calculated to produce evidence admissible at trial.”
In denying the plaintiffs’ request for all metadata associated with the defendants’ e-mails and word documents, the court relied on case law questioning the value of metadata in litigation because “it does not lead to admissible evidence and that it can waste parties’ time and money.” Although the court did not analyze any evidence regarding excessive costs associated with responding to the plaintiffs’ requests, it cited concerns in the Advisory Committee Notes to the relevant discovery rule that complying with such a broad request for metadata would place undue financial burden on the defendants. The court further noted that the plaintiffs should focus their requests so as to reduce the parties’ costs and work by uncovering admissible evidence.
The plaintiffs also requested that the defendants produce paper documents in a scanned format with optical character recognition (OCR), and OCR for electronic documents without text search capabilities. The court ruled that while the parties are responsible for their own discovery costs, the defendants do not have to pay the costs of changing the format of their responsive documents. The rules of discovery only require that parties produce documents as they are kept in the ordinary course of business. If one party wants documents in a format other than the one in which the producing party usually maintains them, then the requesting party must pay for those changes.
The court did temper its decision regarding costs by noting that the discovery rules suggest that producing parties should translate electronically stored information into a “reasonably usable” format, if necessary. However, the plaintiffs in this case did not demonstrate that the documents to be produced by the defendants were not reasonably usable in their ordinary format. The court also remarked that if the defendants alter the documents for their own use in the litigation, they should offer the plaintiffs access to those re-formatted materials.
Practical Implications for Plaintiffs and Defendants
Production of metadata is increasingly becoming a key battleground in discovery disputes. If other courts adopt the approach taken here, the scope of disputes over metadata may become more limited. As a default position, plaintiffs would have to accept documents and materials as defendants maintain them in the ordinary course. Conversely, defendants could not reasonably expect to scan documents with OCR for their own use in litigation and not provide access to those reformatted materials to plaintiffs. Defendants may also consider using the court’s overarching principal with respect to runaway discovery costs in negotiating limitations on the production of metadata. With two Supreme Court decisions reinforcing the judiciary’s concern with increasing discovery costs, district courts like the Massachusetts court may be sympathetic to defendants’ resistance to broad discovery requests, particularly with respect to electronically stored information. Nevertheless, while the parties’ burdens of production may be reduced, parties may need to do more work at the outset to create more focused discovery requests.