Court Orders Producing Party to Bear the Cost of Production but Not Conversion where Documents are Produced as Ordinarily Maintained, Declines to Compel Production of All Metadata

Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009)

In a comprehensive yet brief opinion, the court addressed several issues including the cost of conversion and production of electronically stored information (“ESI”) and the production of metadata, among other things.

Specifically, noting that “courts will rarely shift costs to the requesting party and this is not one of those exceptional circumstances,” the court declined to shift the cost of defendants’ production of electronically stored information (“ESI”) but held that defendants would not have to pay to change the format of their responsive documents and that plaintiffs would bear the cost for such modification, if desired.  In support of its holding, the court reasoned:

Quite logically, Rule 34, which focuses on electronic document production, requires that just as parties must satisfy their costs of producing documents, they need only produce documents "as they are kept in the usual course of business."  Fed.R.Civ.P. 34(b)(2)(E)(i).  Therefore, the PE Firms do not have to alter the format of documents, they need only produce documents as they ordinarily maintain them.  The Shareholders, and not the PE Firms, have to pay:  (1) for scanning and optical character recognition ("OCR") for paper documents; and (2) for OCR for those electronic documents without text search capabilities.

Moreover, while Rule 34 does suggest that a responding party should translate electronically stored information, "if necessary," to make that information "reasonably usable," the Shareholders make no showing that such translation by the PE Firms is necessary to make the documents reasonably usable.  See Fed.R.Civ.P. 34(a)(1)(A).

However, the court held that if the documents to be produced were not reasonably usable as kept in the regular course of business, defendants should translate them prior to production and that should defendants change the format of any documents for their own use, they should provide access to such documents to the plaintiffs.

Addressing plaintiffs’ request for all metadata associated with responsive emails and word documents, the court ruled in favor of defendants, who offered to produce only 12 specific fields.  The court stated:

First, case law shows wariness about metadata’s value in litigation.  Many courts have expressed reservations about the utility of metadata, explaining that it does not lead to admissible evidence and that it can waste parties’ time and money.  Wyeth v. Impax Lab., Inc., 248 F.R.D. 169, 171 (D.Del.2006); Williams v.. Sprint/United Mgmt. Co., 230 F.R.D. 640, 651 (D.Kan.2005).  Second, Rule 34 militates against the broad, open disclosure of metadata that the Shareholders seek.  The Rule 34 Advisory Committee Notes to the 2006 Amendment express concern that producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless. Fed.R.Civ.P. 34 advisory committee’s notes.  Instead, the notes explain that requests should be tailored to each type of program, so only necessary data is produced.

Accordingly, the court directed plaintiffs to “tailor their requests to specific word documents, specific emails or specific sets of emails” and noted defendants’ apparent agreement to comply with such an arrangement.