Produce the Metadata: The Juggernaut Rolls On

One of the recurring battles in electronic discovery practice is the form in which electronically stored information shall be produced, if the parties can't agree, under Rule 34(b) of the Federal Rules of Civil Procedure as amended December 1, 2006. The trend in federal courts in the past few years has been in favor of producing native files with their underlying metadata.

As more states amend their rules of civil procedure to address electronically stored information--and to date thirty have--more state courts are going to grapple with the question of what is a proper form of production when the parties cannot agree.

The Arizona Supreme Court ruled in late October that a governmental authority receiving a request for public records must produce the metadata as well as the native electronic files. This made the news on National Public Radio that evening, and the next morning it was on the front page of The Arizona Republic. Two remarkable events: first that a state court has made such a ruling, and second, that this now makes headlines in the general public media. Five years ago any news editor would have considered this too esoteric to be worthy of any air time or print space.

The implications of this state supreme court decision are significant. It jump-starts the adoption at state level of the trend in the federal courts: that unless the parties agree otherwise, native files with metadata must be produced.

The unanimous five-judge panel got right to the point in the first paragraph: "We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws."

The full opinion may be found at: http://www.supreme.state.az.us/opin/pdf2009/CV090036PR.pdf

A Phoenix police officer named David Lake sued the City of Phoenix in federal court alleging employment discrimination. Because the defendant is a public entity, Lake made a formal public records request for his supervisor's notes under state law--Arizona Revised Statutes ? 39-121. It is not clear whether he did this in addition to, or in lieu of, serving a request for production in his federal action under Fed.R.Civ.P. 26(b).

In response, Lake received paper printouts. This has the familiar feel of those contests federal magistrate judges have dealt with over the past couple of years. Lake suspected that some printouts had been backdated when prepared on a computer, so he asked for the native electronic source files, with all metadata. The city refused, citing a decision from 1952 as authority that metadata is not a public record.

Under A.R.S. ? 39-121.02, Lake brought a special action in Arizona Superior Court for relief. The Superior Court denied his motion, and he appealed to the state Court of Appeals, which also turned him down, with one dissent.

The Arizona Supreme Court agreed to hear this because it is "a recurring issue of statewide importance." In determining whether or not metadata is part of a public record, the five-judge state panel reached over to one of the leading civil cases in the federal courts on this topic, Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005).

"The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page" the opinion said before quoting the Williams case cited above. "'Arizona's public records law requires that the requestor be allowed to review a copy of the "real record." It would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.'"

If Lake had pursued production under the federal rules applicable to his main action, his counsel would likely have relied on the same case, and a federal magistrate judge would likely have ruled the same way.

As a final note, by the time this case reached the Arizona Supreme Court, it had a larger cast of characters than just Lake and the city. Large well-known law firms filed amicus briefs on behalf of various news media on one side and on behalf of local and state governments on the other. Remember that this is about a word that most lawyers and judges had never heard of a few years ago: metadata.

Active in e-discovery since the mid-1990s, Cliff Shnier is an attorney and independent electronic discovery consultant based in Scottsdale, Arizona. He has also owned a service bureau and held executive positions with national e-discovery providers. A graduate of the University of Toronto Faculty of Law, Cliff actively practiced law for 11 years and has extensive courtroom experience litigating complex commercial matters, as well as negligence and criminal cases. E-mail him at cliff@cliffshnier.com.

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