Last month’s 14 page In re: Waste Management of Texas, Inc. opinion details an antritrust action between two competing sanitation companies and their lengthy eDiscovery journey. Pertinently:

“In late 2009—in response to an order that compelled the production of various internal business records but reserved for a later decision the question of whether the production must include metadata—[perhaps because neither party understood the importance of metadata] Waste Management produced responsive records in the format of its choice, Adobe portable document format (PDF).” [emphasis added]

Meaning, Waste Management scrubbed metadata before handing over the requested documents.

Three years later, “the trial court ordered Waste Management to produce similar information, but this time in its native, electronic format with all metadata.”

Waste Management petitioned for a writ of mandamus asking the 6th District Court of Appeals of Texas to direct the trial court to withdraw its order. Waste Management was denied and will be required to produce the requested documents in their native formats including metadata.

Waste Management’s claims included 1) that the trial court’s order was overbroad and 2) that having to produce documents in their native formats constituted an undue burden.

First, it is not uncommon for a request for production to result in the production of volumes of electronically stored information (“ESI”). A claim of overbreadth, however, requires more. Chief Justice Morriss noted:

“Waste Management’s remaining overbreadth complaints merely challenge the amount of discovery being ordered. . . . [and] [a]lthough a large amount of electronic discovery has been ordered, that fact does not, by itself, amount to an overly broad discovery order.”

Waste Management also had several undue burden claims. First, Waste Management argued that since the opposing party (“Bray”) failed to request metadata in 2009 the right to request it now was forfeited. The appellate court disagreed.

“The trial court’s decision to postpone any decision concerning metadata does not, by itself, create an undue burden.”

Second, Waste Management claimed that Bray “failed to specify a form for the electronic discovery,” so, “the production in PDF format was reasonable and any “do-over” is an undue burden.”

The facts indicate that Bray “did specify the form of electronic discovery as “reasonable manner.”” The Federal Rules of Civil Procedure require ““a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms.” FED. R. CIV. P. 34(b).”

The court determined that ““reasonable manner” is the functional equivalent of the Federal “reasonably useable form or forms.””

Finally, Waste Management argued that the cost of producing metadata (producing ESI in their native format) is an undue burden. The court did not agree.

Waste Management was on “notice that metadata might be requested in the future.” Yet, they decided to incur the cost “to remove metadata and produce the data in PDF form.” “It is not our role to rescue Waste Management from potentially costly discretionary decisions.”

They have 60 days to comply.

Shannon Allen