In a class action alleging unlawful governmental searches, the initial requests for production did not specify the form in which electronically-stored information (ESI) was to be produced, and was silent with respect to metadata. After substantial completion of collection efforts, the plaintiffs requested that all e-mails and electronic documents be produced in TIFF format with metadata and extracted text, and that all spreadsheets be produced in native format. Magistrate Judge Maas, sitting in the Southern District of New York, stressed that e-discovery should be a party-driven process, meeting and conferring at the outset of litigation to resolve such issues without court intervention. Magistrate Maas went on to discuss the nature of metadata, including the distinction between substantive metadata, system metadata, and embedded metadata. The court initially noted that “courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” The court also looked to the Sedona Principles, quoting from the commentary to Principle 12, which advises courts to consider: (i) what metadata is ordinarily maintained; (ii) the relevance of the metadata; and (iii) the importance of reasonably accessible metadata to facilitating the parties’ review, production, and use of the information. “In selecting a form of production, the two ‘primary considerations’ should be the need for and probative value of the metadata, and the extent to which the metadata will ‘enhance the functional utility of the electronic information.'” Ultimately, the Court ordered production of metadata associated with certain e-mails and spreadsheets, as well as all metadata associated with word processing and PowerPoint files, (to the extent such metadata is relevant), on the condition that Plaintiffs bear the full costs associated with producing those files a second time. Aguilar v. U.S. Dept. of Homeland Security, No.07-8224, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008).
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