Williams v. Sprint/United Management Co.

1. Williams v. Sprint/United Management Co. 230 F.R.D. 640 (D. Kan. 2005).

2. Facts • Plaintiff filed suit alleging age discrimination in the way the Defendant carried out a reduction in force (RIF). • 2 years into the litigation: • Has developed into what the court characterized a “contentious litigation”, judge has been overseeing discovery meetings twice monthly with the litigants. • Production of spreadsheets by Defendant addressed at one of these meetings. Judge ordered the Defendant to produce the spreadsheets “ in the manner in which it was maintained”. • Defended “scrubbed” the metadata from the spreadsheets and locked some of the cells before turning them over. • “Scrubbing” – the act of removing the metadata from a file. • Court has now ordered the Defendant to show cause why it should not be sanctioned for not complying with the original Order. The position of the court who issued the order is that metadata is included in the documents that were the subject of the original Order.

3. Sprint’s Arguments • The emerging standards of electronic discovery articulate a presumption against the production of metadata, which is not part of the document, unless it is both specifically requested and relevant. • Plaintiffs never sought the production of metadata. • Defendants removal of metadata was consistent with, if not compelled by, prior orders.

4. Key Case on Metadata • Metadata “Data typically stored electronically that describes characteristics of ESI, found in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users’ other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image.” -The Sedona Conference Glossary

5. Database Application Spreadsheet Application Word Processing Importance of Metadata

6. Emerging Standards • This case is prior to the 2006 amendments taking effect, but they were proposed at the time. The court addresses the effect the proposed amendments will have on FRCP 34 (a) in adding ESI as a separate category and requiring any request for ESI that does not specify the form of production it is to be produced in the form in which it is ordinarily maintained. The court says this is not helpful in determining whether metadata is to be included. • Court also finds no guidance from case law. • Court looks to the Sedona Principles for guidance.

7. Sedona Principles • Court looks to Principles 9 & 12 for guidance: • Principle 9: “absent a showing of special need and relevance a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual data or documents.” -Court interprets this as a “viewability” standard of whether something should be treated as part of a document. -Court finds that the contents of the cells in spreadsheets are normally viewable by the user and are therefore discoverable.

8. Sedona Principles Principle 12: “unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.” -Court finds that there is a presumption against producing metadata but a “caveat exists when the producing party is aware or should be reasonably aware that particular metadata is relevant to the dispute.”

9. Rule • The court holds that a party ordered to produce electronic documents as they are maintained in the ordinary course of business should produce the documents with their metadata intact, unless the producing party timely objects to the production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. • Places the initial burden on the producing party reasoning that the producing party is in the best position to determining whether producing the metadata is objectionable and that the removal of this data requires an affirmative act by the producing party.

10. Relevancy, Reliability & Privilege • Sprint argues that the removed metadata has no evidentiary value and is irrelevant. • Court finds that, while some of the metadata may in fact be irrelevant, not all of it is in light of the fact that one of the Plaintiffs allegations is that the Defendant re-worked the pools of data in a way that had an adverse impact on one class of employees.

11. Relevancy, Reliability & Privilege • Sprint argues that the metadata has no evidentiary value due to the possibility that it is inaccurate. • Court finds this is not good reason to remove the data and states that if the Defendant had any concerns they should have been raised prior to the removal of the metadata.

12. Relevancy, Reliability & Privilege • Sprint argues that production of the metadata would have revealed privileged information. • Court finds that Sprint, in accordance with FRCP 26(b)(5) should have raised this issue prior to removing the metadata in the form of a privilege log. Sprint failed to provide a privilege log or even describe the data that would be subject to the privilege, by failing to do so Sprint waived any attorney-client privilege with regard to the metadata at issue.

13. Request of Metadata • Sprint also argues that the Plaintiffs failed to request the metadata, therefore there was no duty to produce it. • Court finds that based on the reason for the request, Sprint should have reasonably understood that the court expected and intended for Sprint to produce the metadata along with the spreadsheets. • Court further states that if Sprint did not understand the ruling, it should have requested clarification. • Court refers back to the note to Sedona Principle 12 that states a party who “knows or should reasonably know that particular metadata is relevant to the dispute…” should produce it.

14. Holding • Court found that Sprint did not show cause why it should not produce the spreadsheets with the metadata intact. • Due to the ambiguity surrounding the production of metadata and the lack of clear law on the subject, the court did not impose sanctions.

15. Questions 1. The court acknowledges that Sedona Principle 12 does create a presumption that metadata is not automatically required to be produced, yet the exception listed in the notes to Principle 12 is given more weight. Is the exception really as encompassing as the court finds or could it’s weight be due to the “contentious litigation” that it is being applied to? Is the court trying to prevent withholding of evidence by Sprint? 2. Was the courts reading of the proposed amendments to Rule 34 as not providing guidance valid? (FRCP 34(b)(2)(B) requires production of electronically stored information as they “are kept in the usual course of business or in a form or forms that are reasonably usable.”)