Published on Jun 23, 2020 Courts have required the preservation and production of relevant metadata for electronically stored information (ESI) now for over 15 years. The Federal Rules of Civil Procedure (FRCP) have likewise mandated that parties produce relevant metadata since the 2006 eDiscovery amendments. The Sedona Principles have also provided related guidance during this time, emphasizing that relevant metadata should be produced to ensure ESI can be quickly searched and analyzed.
Against this backdrop, one might reasonably question whether a discovery order requiring the production of “filepath” metadata is worthy of note. However, the recent case of Javo Beverage v. California Extraction Ventures[1]—involving a metadata production order—is significant. Javo Beverage highlights the ongoing importance of metadata and the need to ensure the disclosure of such information in discovery. In addition, Javo Beverage spotlights the value of having an eDiscovery expert provide a declaration to educate courts regarding these and other complex technical and procedural issues.
A Dispute Over Filepath Metadata
In Javo Beverage, the parties’ efforts to negotiate an ESI protocol stalled over the production of “filepath” metadata. While the parties generally agreed to produce load files containing metadata in connection with their production of responsive documents, Javo objected to the production of filepath information.
Metadata reflecting filepath information generally “contains the original location of the email or file path where the document was originally stored from whom it was collected.” It is regularly included in the production of ESI.
Javo—relying on a declaration from its counsel—principally argued that producing the filepath information corresponding to its ESI would be unduly burdensome. Javo asserted it could not automate the extraction of filepath metadata during the collection process as it would for all other metadata it agreed to produce. Instead, Javo maintained it would be forced to manually extract the filepath information from each electronic document in the production. Javo argued that proceeding “document-by-document” to determine whether it could manually extract the metadata would ultimately be too expensive under the circumstances.
In response, defendants argued that plaintiff should produce the filepath information given the relevance of such metadata to Javo’s trade secret claims. Defendants also sought to refute Javo’s burden argument. Relying on a declaration from an experienced electronic discovery expert, defendants asserted that filepath information—like all other metadata—“will automatically be included in the metadata that the parties extract from the documents” as part of the processing of ESI. Contrary to the arguments of Javo’s counsel, defendants’ expert testified that: “No additional steps need to be taken in order to produce the [filepath] metadata field.”
The Filepath Information for Plaintiffs’ Documents is Relevant
After reviewing the parties’ respective arguments, the court held the ESI protocol should include a requirement that the parties produce relevant filepath information corresponding to their respective ESI. In reaching this determination, the court observed that various cases had found metadata to be relevant under the FRCP. Building on this general proposition, the court cited authorities for the notion that metadata which is relevant and that is the subject of a “‘precise and detailed’ discovery request” is “discoverable and producible.”
With these principles in mind, the court found the requested filepath information to be relevant for two distinct reasons. First, FRCP 34 requires parties to produce ESI in “a form or forms in which it is ordinarily maintained.”[2] Because the form of Javo’s ESI ordinarily includes filepath information, the court reasoned that Javo needed to produce the ESI with that metadata. Second, and more importantly, the filepath information was relevant to ascertaining “the location and manner” in which Javo maintained its ESI, which could help determine whether Javo took reasonable measures to safeguard its alleged trade secrets.
Producing Filepath Information is Not Unduly Burdensome
In making these findings, the court rejected Javo’s argument that producing ESI filepath information would be unduly burdensome. The court was unconvinced by the assertions from Javo’s counsel, criticizing the declaration for failing to explain:
why the filepath information, unlike other metadata underlying Javo’s ESI, would not be automatically populated and readily producible nor why a document-by-document analysis is required in contrast to the productions Javo intends to make.[3]
In contrast, the court found defendants’ expert declaration “far more convincing” because the declarant established “sufficient factual context as to how metadata, including filepath information, is created and stored and how it may be potentially altered.” Indeed, the court emphasized that its resolution of the parties’ metadata dispute turned in substantial part on the testimony of defendants’ expert and the “very dearth of an actual expert declaration” from Javo.
Metadata Matters . . . and So Do Experts
While it may easy to presume that parties will routinely produce relevant metadata, Javo Beverage teaches that parties may at times resist the production of certain metadata. As a result, lawyers should not take metadata productions for granted or lightly. Instead, they should confer with their eDiscovery providers to determine which fields are standard in production and which fields are critical for conducting effective searches through ESI in accordance with Rule 34.
Javo Beverage also spotlights the importance of using eDiscovery experts to obtain favorable results in discovery motion practice. Whether used for demonstrating, e.g., the defensibility of preservation measures, search methodologies, or production practices, eDiscovery experts provide an added measure of expertise and authority that can help turn the court’s determination of a discovery dispute.
[1]Javo Beverage Co. Inc. v. California Extraction Ventures, Inc., No. 19-CV-1859-CAB-WVG, 2020 WL 2062146 (S.D. Cal. Apr. 29, 2020).
[2] The court mistakenly applied FRCP 34(b)(2)(E)(i)’s “usual course of business ” requirement to ESI. See id. at *7-8. That provision applies only to paper documents. The “forms in which it is ordinarily maintained” requirement of FRCP 34(b)(2)(E)(ii) applies to ESI and can be used in lieu of the “usual course of business” language the court mistakenly employed in the Javo Beverage case. See The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 182–84 (2018).
[3]Javo Beverage, 2020 WL 2062146 at *8 (emphasis added).
