Form of Production, Metadata and Embedded |
Rule 34 provides for discovery and production of all types of electronically stored information – whether visible content, embedded data or metadata
- but the Rule does not regulate the extent, if any, that metadata and embedded data must be produced in any particular case.
The focus in Rule 34 is on the form or forms of production of the electronically stored information is sought in discovery.
While this necessarily implicates issues about metadata and embedded data, it is not synonymous with it.
Electronically stored information is created and stored in a “native” file format which uniquely reflects the software application operating in conjunction with a computer’s file system.
This “native” format contains information apparent to the user, but also may carry embedded data and metadata accessible only to the application that created it.
While some information (e.g., file name, size and date information) is routinely furnished in discovery, other types of metadata and embedded data are rarely relevant and present significant functional and practical drawbacks when produced as part of a native file format.
The production of metadata and embedded data also raises potential ethical and practical issues which may complicate privilege review.
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