Case No. 2:03-CV-00565 PGC
United States District Court, D. Utah, Central Division
Filed May 09, 2007
ORDER GRANTING MOTION TO COMPEL PRODUCTION OF ELECTRONIC DOCUMENTS IN NATIVE FORMAT
*1 Plaintiff Salt Lake Tribune Publishing Co. moves the court to compel defendant Management Planning to produce several documents in their native format with application and system metadata included. Specifically, Tribune Publishing seeks production of document control numbered MP 16433-34 and seven drafts of defendant Management Planning’s Draft and Final Reports, control numbered MP 17012 to MP 17095; MP 17096 to MP 17163; MP 17786 to MP 17869; MP 17870 to MP 17954; MP 17955 to MP 18041; MP 18042 to MP 18135; and MP 18136 to MP18221. Tribune Publishing contends that the metadata is highly relevant in this case because at issue is whether Management Planning failed to consider relevant evidence or based its analysis on improper foundation when preparing its appraisal of The Salt Lake Tribune. Management Planning objects to the production in native format, contending that it has already produced the information as required by Rule 34(b) of the Federal Rules of Civil Procedure, no basis exists for production, production would compromise document integrity, and production would be unduly burdensome in that it must conduct a forensic analysis to determine whether in native format the documents include protected communications with counsel.
The court is persuaded that the application data appears relevant and that Tribune Publishing has established good cause
for production of the documents in native format. Additionally, Management Planning’s integrity and burden concerns are alleviated by ordering Management Planning to take measures – such as those Tribune Publishing proposes – that protect document integrity but do not remove the application metadata and ordering Tribune Publishing to pay the costs of a forensic analysis.
Rule 34(b) provides for production of documents in forms in which they are ordinarily maintained or forms that are reasonably usable.
Management Planning asserts that the documents are ordinarily maintained and therefore it produced them in hard copy. Management Planning does not contend, however, that the documents are not maintained in electronic form. Rather, Management Planning apparently converted the documents from their native electronic format to TIFF and text format and then produced them. Additionally, these formats are not reasonably usable with respect to the issue at hand – the hard copy and the TIFF forms do not contain metadata and the text forms do not contain application metadata. In short, the TIFF and text formats are less usable than the native format.
Management Planning also contends that metadata is not part of a document and does not have to be produced. Rule 34 recognizes that “documents” has been interpreted to included electronically stored information (ESI) although labels have not kept pace with technology.
Other courts have recognized that metadata is discoverable ESI.
*2 Management Planning objects that the integrity of the documents cannot be maintained if produced in native format. Management Planning, however, has not explained why the methods of protecting integrity – such as producing the document in read only format – proposed by Tribune Publishing will not preserve the documents’ integrity. The court anticipates that the parties can swiftly come to some agreement as to a method to preserve the documents’ integrity without stripping the application metadata.
Finally, Management Planning objects that the demand is unduly burdensome and oppressive because it must perform a forensic analysis to determine whether the application metadata contains references to protected communications with counsel. Rule 34 anticipates that courts may protect against such burdens by requiring that the discovering party pay costs.
The court appreciates the burden of analyzing the application metadata of 600 pages imposes on Management Planning, which has produced the documents in three formats. The court therefore orders Tribune Publishing to pay the costs of a forensic analysis, not to exceed $10,000 absent a showing of good cause. Such analysis shall be completed as soon as practicable. Management Planning shall produce the documents in native format within seven days of the completed analysis.
Management Planning requests attorneys fees and expenses for the costs of this motion. As the court has found good cause for production, the court denies the request.
Accordingly, the court HEREBY ORDERS that Tribune Publishing’s Motion to Compel (#323) is GRANTED. The court further ORDERS Tribune Publishing to pay the costs of a forensic analysis, not to exceed $10,000, absent a showing of good cause. Seven days after such analysis, Management Planning shall produce the documents in native format that preserves the documents’ integrity.
DATED this 9th day of May, 2007.
See Fed. R. Civ. P. 26(b).
See Fed. R. Civ. P. 34(b)(ii).
See Fed. R. Civ. P. 34 advisory committee notes.
See Williams v. Sprint/United Mgm’t Co., 230 F.R.D. 640, 652-53 (D. Kan. 2005); Barbara J. Rothstein, et al., Federal Judicial Center, Managing Discovery of Electronic Information: A Pocket Guide for Judges 14 (2007).
See Fed. R. Civ. P. 34 advisory committee notes; see also Fed. R. Civ. P. 26 advisory committee notes.
End of Document.