“Spotlight on the Judiciary” highlights the body of work of a judge who has made a significant impact on the development of e-discovery law. This month, we recognize the Honorable Frank Maas, a magistrate judge in the Southern District of New York and a noted jurist in the field of e-discovery. Judge Maas received his Bachelor’s degree from Harpur College at the State University of New York at Binghamton and his Juris Doctor degree from New York University School of Law. He ascended to the bench in 1999.  

According to the Honorable Loretta A. Preska, Chief Judge of the Southern District of New York, Judge Maas is one of a growing number of judges in the Southern District who has “developed [an] expertise” in the complex — and costly — area of e-discovery. Hon. Loretta A. Preska: Chief Judge of the “Mother Court”, METRO. CORP. COUNSEL, Oct. 4, 2009, at 56. Judge Maas has provided useful guidance in various areas of e-discovery and has been particularly influential on issues surrounding the production of “metadata.” Judge Maas’s opinions have also consistently encouraged litigators to develop their knowledge of e-discovery issues to foster the more efficient and amicable resolution of e-discovery disputes.  

Destruction of USB Drive Leads to Sanctions

In his most recent engagement with the subject, Judge Maas considered whether to impose sanctions for the defendants’ failure to make copies of an Excel spreadsheet stored on a USB flash drive which subsequently “failed.” Wilson v. Thorn Energy, LLC, 2010 WL 1712236, at *2 (S.D.N.Y. Mar. 15, 2010). The plaintiffs, equity and debt holders in three limited liability companies (“LLCs”), brought suit against the LLCs and their managing member seeking an accounting of the use of the plaintiffs’ funds. Id. at *1. After agreeing to provide the plaintiffs with an accounting, the defendants failed to produce responsive documents, ignoring court-imposed deadlines to do so and then informing the court that a “computer failure” resulted in the loss of “a significant amount of information.” Id. After two more deadlines lapsed, the plaintiffs deposed a records custodian proffered by the defendants who testified that all records concerning the plaintiffs’ money were kept on a USB flash drive that had failed, preventing access to the relevant Excel spreadsheet. Id. at *2. The plaintiffs subsequently moved for an order finding the defendants in contempt and for the imposition of sanctions pursuant to Federal Rule of Civil Procedure 37(b). Id. at *1.  

After noting that Federal Rule 37(b) grants courts “considerable discretion in deciding whether to sanction a party for failing to comply with its discovery orders,” Judge Maas utilized the standard delineated by Judge Shira Scheindlin in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 463-470 (S.D.N.Y. 2010), in order to determine whether the defendants acted with a degree of scienter sufficient to justify the imposition of sanctions for spoliation. Wilson, 2010 WL 1712236, at *2-3. Judge Maas held that the failure to copy the files on the USB drive, resulting in the loss of relevant evidence, “was at least grossly negligent” and that the defendants’ failure to collect relevant evidence in a timely manner from a “key witness” such as the records custodian constituted “gross negligence or willfulness.” Id. at *3. Judge Maas also rejected the defendants’ contention that they were entitled to the “safe harbor” provision of Federal Rule 37(e), holding that the provision did not apply because “the data on the flash drive was not overridden or erased as part of a standard protocol; rather, it was lost because the Defendants failed to make a copy.” Id.

Accordingly, Judge Maas granted the plaintiffs’ motion for sanctions, awarding costs and attorneys’ fees incurred in filing the motion and precluding the defendants from offering any evidence at trial concerning the financial records allegedly contained on the USB drive. Id. at *4. Judge Maas’s ruling in Wilson illustrates clearly that the price of failing to understand and comply with e-discovery requirements is high and that litigators should strive to understand their professional obligations and ensure clients’ compliance with discovery preservation rules.

Metadata: What Is it and Under What Conditions Must it be Produced?

Nowhere has Judge Maas’s influence on the e-discovery field been more pronounced than on the topic of metadata. According to Judge Maas, metadata has become “‘the new black,’ with parties increasingly seeking its production in every case, regardless of size or complexity.” Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 359 (S.D.N.Y. 2008). In Aguilar, a class of Latino plaintiffs brought an action against the Immigration and Customs Enforcement (“ICE”) Division of the United States Department of Homeland Security and certain of its employees alleging that they were subjected to unconstitutional searches of their homes during an ICE operation. Id. at 352. During discovery, a dispute arose regarding the form in which the defendants were required to produce requested electronically stored information (“ESI”). Id. at 353.  

Before addressing the particular dispute presented, Judge Maas provided an invaluable discussion of metadata and its relation to different forms of ESI production. 255 F.R.D. at 353-54. Judge Maas defined metadata as “electronicallystored evidence that describes the history, tracking, or management of an electronic document . . . [and] includes the hidden text, formatting codes, formulae, and other information associated with an electronic document.” Id. at 354. Judge Maas then divided metadata into three distinct types: (1) substantive metadata; (2) system metadata; and (3) embedded metadata. Id. In defining and explaining the three types of metadata, Judge Maas looked for guidance to the Working Group on Electronic Document Retention and Production for The Sedona Conference, a non-partisan law-and-policy think tank, which, in 2007, published The Sedona Principles, Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production.  

The first type, substantive or “application” metadata, is “created as a function of the application software used to create the document or file and reflects substantive changes made by the user” such as prior edits or editorial comments. 255 F.R.D. at 354. This type of metadata is embedded in the document and remains with the document when it is moved or copied. Id.  

The second type, system metadata, “reflects information created by the user or by the organization’s information management system” and is not generally embedded in the file itself, but may be retrieved from the operating system used to create the document. Id. System metadata includes information concerning the creator of the document and the date and time it was created or modified. Id. It is generally relevant when the authenticity, timeline, or authorship of the document is at issue in the case. Id.  

The third type, embedded metadata, consists of text, data and other information inputted into a native file which is not generally visible to someone viewing the native file’s output. Id. at 354-55. Examples of embedded metadata include spreadsheet formulas, hidden columns, externally or internally linked files, hyperlinks and database information. Id. at 355. Judge Maas stated that “[t]his type of metadata is often crucial to understanding an electronic document” and is generally discoverable. Id.  

In addressing the parties’ dispute in Aguilar, Judge Maas also explained the relationship between metadata and different forms of ESI production. The defendants in Aguilar produced their ESI in static image form, i.e., a mirror image of the electronic document, id. at 353, “such as TIFF or PDF, [which] can be Bates numbered and redacted, but entails the loss of metadata and involves significant processing time.” Id. at 356. The plaintiffs, on the other hand, wanted the ESI in either native format, which “gives the receiving party access to the same information and functionality available to the producing party” but which cannot be Bates numbered or redacted easily, or in TIFF format with a corresponding “load file,” an “ancillary file[] that may contain . . . relevant system metadata.” Id. The defendants objected to this on the grounds that such metadata was irrelevant to the plaintiffs’ claims, that its production would impose an undue burden, and that their prior production of the ESI in the form of text-searchable PDF documents was adequate. Id. at 355.

In determining whether to compel production of the metadata in question, Judge Maas adopted the “‘general rule of thumb’” that “‘the more interactive the application, the more important the metadata is to understanding the application’s output.’” Id. at 353 (quoting Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005)). Judge Maas concluded that, while “metadata may add little to one’s comprehension of a word processing document, it is often critical to understanding a database application,” whereas “‘a spreadsheet application lies somewhere in the middle.’” Id. at 354 (quoting Williams, 230 F.R.D. at 647).  

Additionally, Judge Maas’s opinion in Aguilar makes clear that when it comes to metadata production, timing is crucial. Under Federal Rule 34, “a requesting party may specify a form of production and request metadata.” Aguilar, 255 F.R.D. at 355. If no specific form of ESI is requested, the responding party must “state the form or forms it intends to use” for its production of ESI and “produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Federal Rule 34(b) (2)(D), (E)(ii). Judge Maas noted that, “[c]ourts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” Aguilar, 255 F.R.D. at 357. However, “if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests . . . .” Id. According to Judge Maas, “if a party wants metadata, it should ask for it. Up front. Otherwise, if the party asks too late or has already received the document in another form, it may be out of luck.” Id. at 357 (citation and internal quotation marks omitted). Judge Maas has stressed that Federal Rule 26(f) requires the parties to develop an initial discovery plan which discusses “‘any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.’’” Aguilar, 255 F.R.D. at 358 (quoting Federal Rule 26(f)(3)(C)) (alteration and emphasis in original). Therefore, “at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate.” Aguilar, 255 F.R.D. at 358.  

In Aguilar, the first discovery conference was held on January 18, 2008 and the first discovery request was made by the plaintiffs on February 15, 2008. Id. at 359. Nonetheless, the plaintiffs neither requested that the ESI be produced in a particular form nor mentioned their desire for metadata until March 18, 2008 and did not submit a formal request until March 22, 2008. Id. By that time, the defendants had nearly completed their document collection and had already produced many responsive documents in PDF form without accompanying load files containing metadata. Id. Due to the plaintiffs’ delay in requesting that the ESI be produced in a form preserving metadata and the fact that the defendants had already begun their production, Judge Maas imposed a “heightened burden” on the plaintiffs and stated that they “face[d] an uphill battle in their efforts to compel the Defendants to make a second production of their ESI.” Id.  

Judge Maas deemed the metadata associated with the word processing documents and PowerPoint presentations “marginally relevant,” but nonetheless ordered its production only on the condition that the plaintiffs would bear the cost of its production. Id. at 361-62. Although he acknowledged that the metadata accompanying the emails produced also may have been relevant because of its inclusion of information about who was “blind copied” on the emails, Judge Maas did not require the defendants to reproduce the emails with the missing metadata, emphasizing that the plaintiffs “delayed for a considerable period of time.” Id. at 360. Judge Maas stated that “[h]ad the Plaintiffs made a formal request for metadata before the process of harvesting the emails was largely complete, I certainly would have entertained [it].” Id. at 360.  

Judge Maas has also emphasized, outside of the metadata context, that the timeliness of e-discovery requests is crucial. For example, in Cook v. Deloitte & Touche, LLP, Judge Maas considered a plaintiff’s Federal Rule 56(f) motion, which sought additional e-discovery before the court ruled on the defendant’s motion for summary judgment, specifically asking the court to order the production of emails from the defendant’s archives. 2005 WL 2429422, at *16 (S.D.N.Y. Sep. 30, 2005). In considering the motion,  

Judge Maas applied the standard provided in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 317‑18 (S.D.N.Y. 2003), which requires the court to balance the probative value of the proposed e-discovery against its potential burden on the producing party. Id. Emphasizing the lateness of the request — the plaintiff requested the emails two months after the discovery deadline — Judge Maas held that the plaintiff failed to demonstrate that the discovery’s probative value justified the burden imposed and, because the plaintiff did not offer to pay the cost of production, denied the motion. Id.

It is apparent from Judge Maas’s opinions that the timeliness of discovery requests, especially those for metadata, is crucial, and that in order to make specific and effective metadata requests promptly, it is vital for litigators to understand both the relevance of different types of metadata to their case and the forms of production in which that metadata is preserved. Fortunately, Judge Maas has provided invaluable guidance; his opinion in Aguilar has been hailed as “a tour de force exposition of the proper application of the Federal Rules of Civil Procedure regarding metadata” and a “‘must’ read” for attorneys to understand their professional e-discovery obligations. Anthony E. Davis, Professional Responsibility Year-End Roundup: Disqualifying Counsel, Sanctioning Lawyers and Metadata, N.Y. L.J., Jan. 5, 2009, available at 1/5/2009 N.Y.L.J. 3 (Westlaw).  

Cooperation in Resolving E-Discovery Disputes

In addition to his contribution to the discourse on spoliation and metadata, Judge Maas has also been a steadfast advocate for greater cooperation between parties in resolving e-discovery disputes without resorting to the courts. In 2008, The Sedona Conference issued “The Cooperation Proclamation,” which seeks to encourage cooperation between parties in pre-trial discovery of ESI and reduce “[t]he costs associated with adversarial conduct in pretrial discovery.” The Sedona Conference, The Sedona Conference Cooperation Proclamation 2 (2008), available at http://www.thesedonaconference.org/content/ tsc_cooperation_proclamation/proclamation.pdf. As of this writing, the Cooperation Proclamation had been cited with approval in sixteen opinions, two of which were authored by Judge Maas, Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44 (S.D.N.Y. 2009), and Aguilar, 255 F.R.D. at 353- 56, 358-59, 362. In Aguilar, Judge Maas stressed that “[t]he Federal Rules of Civil Procedure, case law, and the Sedona Principles all . . . emphasize that electronic discovery should be a party-driven process” and “mandate that counsel act cooperatively in resolving discovery disputes.” 255 F.R.D. at 358. He also noted that if the parties had conferred and discussed metadata issues at the outset of the litigation as required by Federal Rule 26(f), “the parties might have been able to workout many, if not all, of their differences without court involvement or additional expense.” Id. at 364. The parties’ failure to do so “bogged down [the proceedings] in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits” of the plaintiffs’ claims. Id. Similarly, in Capitol Records, 261 F.R.D. at 47-50, Judge Maas noted that defense counsel’s decision to perform a unilateral search of emails using search terms of his own choosing did not exemplify the cooperation called for during e-discovery and that many of the parties’ disputes could have been resolved without involvement of the court “[h]ad the parties focused their attention on discussing their differences, rather than drafting dueling epistles for submission to the Court.” These opinions demonstrate that by making good-faith efforts to reach a resolution or compromise on e-discovery disputes before turning to the court, litigators will not only resolve many disputes more efficiently, but may also gain favor with the court if its involvement is ultimately necessary.  

Conclusion

According to Judge Maas, the key to ending costly and inefficient e-discovery disputes is for “counsel in future cases [to] become more knowledgeable about ESI issues.” Capitol Records, 261 F.R.D. at 47-50. As litigators and their clients attempt to answer Judge Maas’s call and familiarize themselves with the variety of issues presented by e-discovery, the insight and guidance provided by the judiciary will continue to prove invaluable. Judge Maas, in addition to being a steadfast advocate for increased cooperation and efficient resolution of e-discovery disputes between parties, has provided crucial guidance on metadata and its discoverability. We are, therefore, pleased to highlight the work of Judge Frank Maas.