WILLIAMS V. SPRINT/UNITED MANAGEMENT

CO. 230 F.R.D. 640 (D. Kan. 2005)

FACTS Shirley Williams is a former employee of

Sprint/United Management Co. Her employment was terminated during a

Reduction-in- Force (RIF) In April 2003, She filed a suit on behalf of

herself and others in her situation stating that age was a factor in determining termination

Since March of 2005, Due to the highly contentious nature of the ligation the Magistrate Judge held discovery conferences twice a month

FACTS After many conferences and orders the

court ordered that the defendant produce spreadsheets in the matter that they were used in the ordinary course of the day to the plaintiff

The defendant then produced the spreadsheets in excel form

On July 7, 2005 discovery conference, the Plaintiff’s counsel told the court that prior to producing the Excel spreadsheet they had utilized software to scrub the spreadsheet files to remove the metadata

FACTS Plaintiff stated that the metadata contained

information such as file names, dates of files, authors and recipients of files, print out dates, change and modification dates and other information

In addition they stated that they were not provided with a log of what information was scrubbed out

Plaintiff’s counsel also advised the court that the Defendant's counsel locked certain cells and date on the spreadsheet so that the Plaintiff’s could not access them

FACTS Defendant admitted to scrubbing the

metadata and locking the cells Defendant argued that the metadata

was irrelevant and contained privileged information

Defendant also argued that the plaintiff never requested the metadata in the Excel spreadsheets and metadata was not discussed in prior discovery conferences.

FACTS After hearing each sides arguments the court

told the defendant to show cause why it should not be sanctioned for not complying with the courts order to produce the electronic data in the manner in which it was maintained

The court advised the Defendant that if it could show justification for scrubbing the data and locking the cells it would consider it but cautioned if not a clear and convincing argument there would be sanctions which at least would consider producing the information in the format it was maintained

WHAT IS METADATA Commonly described as data about data The Sedona Guidelines Best Practices&

Commentary defines metadata as:Appendix F

Information about a particular data set which describes how when and by whom it was collected creates accessed or modified and how it was formatted

Appendix E All the contextual processing and use

information needed to identify and certify the scope authenticity and integrity of active or archival electronic information or records

WHAT RULES ARE EFFECTED FCRP 34

The rule provides that any party may serve on a any other party a request(1) to provide and permit the party making the request or someone acting on the requestor’s behalf to inspect and copy any designated documents (data compilations included)

A party who produces those documents for inspection shall produce them as they are kept in the usual course of business or shall organized and label them to correspond with the categories of business or shall organize and label them to correspond with the categories in the request

WHAT RULES ARE EFFECTED Rule 34 was ammendment and the

ammendments took effect Dec. 1, 2006 Rule 34(a)

Electronically stored information as a separate category along with any designated documents

Rule 34 (b) If a request for electronic information does

not specify form or forms of the production a responding party must produce the information in a from or forms in which it is ordinarily maintained or in a form or forms that are reasonably used

WHAT RULES ARE EFFECTED The court decided that even with the

modification of the Federal Rules it still not answer the question of whether or not the discovery request included metadata

Also at this point there was no case law that dealt with the issue of metadata

WHAT RULES ARE EFFECTED The court then looked to the Sedona

Conference Guidelines which stated : Principal 9

Absent a showing of special needs and relevance a responding party should not be required to preserve review or produce deleted shadowed fragmented or residual data or documents

Comment 9a Data that can be readily compiled on the screen or

printed on paper is also a document under Rule 34 Cautions that the data hidden and never reveled to

the user in the ordinary course of business should not be presumptively treated as a part of the document although there are circumstances in which the data may be relevant and should be preserved and produced

WHAT RULES ARE EFFECTED

Comment 12.a Although there are exceptions to every rule, especially in

a an evolving area of the law there should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata

It is likely to remain the exceptional situation in which metadata must be produced

Most metadata has no evidentiary value and any time and money spent reviewing it is a waste or resources

A reasonable balance is that unless the producing party is aware or should be reasonably aware that particular metadata is relevant the producing party should have the option of producing all some or none of the metadata

Of course if the producing party know or should know that particular metadata is relevant to the dispute it should be produced

ANALYSIS OF CASE/ISSUES REGARDING E DISCOVERY Issue before the court

Whether under emerging standards of the electronic discovery, the Court’s Order directing Defendant to produce electronic spreadsheets as they are kept in the ordinary course of business requires Defendant to produce those documents with the metadata intact?

Court acknowledges that the Sedona Guidelines are not binding it looked to them for guidance.

9a All metadata ordinarily visible to the user of The Excel

spreadsheet application should presumptively be treated as part of the document and should be discoverable

Therefore all cells on spreadsheet should be viewable(not locked) and are discoverable

ANALYSIS OF CASE/ISSUES REGARDING E DISCOVERY Metadata in General 12 and Comment

12aWhen the party is ordered to produce

documents in the ordinary course of business Producing party shall produce with metadata

intact unless:Timely objections are madeParties agree that the metadata is not

produced orParty request a productive order

Burden is on producing party Producing party has access to the data Producing party is best to determine if

metadata is relevant or needs to be protected (is privileged)

ANALYSIS OF CASES/ISSUES REGARDING EDISCOVERY Defendant maintains:

Relevancy Metadata they removed was not relevant The metadata is not necessary because the titles

of documents can be gleaned from the subject spreadsheets and these titles adequately describe the data included in such spreadsheet

Court agreed that all metadata may not have been relevenant but the defendants should have made an objection to the court prior to erasing the data.

ANALYSIS OF CASES/ISSUES REGARDING EDISCOVERY Reliablity

Defendant argues that the metadata that was removed was inaccurate and therefore not reliable.

Court decided that this argument was not sufficient and if they had concerns they should have communicated to the Court and other party prior to scrubbing the metadata.

ANALYSIS OF CASES/ISSUES REGARDING EDISCOVERY Privilege

Defendant argues that part of the metadata was privileged

Courts states the this should also have been raised prior to erasing the metadata

Also defendant failed to give a list of information that was erased (this could have been done without violating privilege)

ANALYSIS OF CASES/ISSUES REGARDING EDISCOVERY Defendant also argues that Plaintiff

never requested the metadataDefendant states that it has complied with

all other request but metadata was never discussed

Court says that Defendant is correct that metadata was not specifically requested it should have reasonably known tat metadata was part of the requested information

OUTCOME Defendant was ordered to reproduce the

electronic spreadsheets in the manner in which they were used including unlocking any cells and including the metadata.

QUESTIONS Do you believe the sanction was fair? Do you agree with the courts

interpretation of the Sedona Guidelines?