The Onondaga County Resource Recovery Agency (OCRRA) sent subscribers an email newsletter containing a photograph of a man dumping leaves at a compost site. This innocuous act led to a Fourth Department decision, Irwin v. OCRRA, 72 AD3d 314 (2010), that will have far-reaching effects on the production of electronic documents in response to Freedom of Information Law requests and in litigation.
John Irwin, the man in the photograph, demanded that OCRRA give him two free compost site access passes — a $20 value — in exchange for using his image. When OCRRA refused, Irwin made a FOIL request for OCRRA’s electronic photograph files and “metadata” showing when the files were created or saved. OCRRA produced some files to Irwin, but did not produce the metadata. Irwin brought an Article 78 proceeding to compel OCRRA to provide more information, including the metadata.
In reviewing Irwin’s demand, the Fourth Department noted that metadata production was an “evolving area of the law” that New York state courts had not previously addressed. The court provided a comprehensive definition of “metadata,” which it summarized as “information not apparent on the face of the document that describes an electronic document’s characteristics, origins and usage” (internal quotation marks omitted).
Metadata can include edits, changes or comments to a document (substantive metadata), information showing when, how and by whom a document was altered (system metadata), and spreadsheet formulas or other hidden information that is only accessible to a person manipulating a document electronically (embedded metadata).
When a party produces an electronic document as a hard copy, or as a “static” image such as a .PDF or .TIFF file, the document’s metadata is lost. To produce a document’s metadata, a party must provide the document in its original (or native) format, or provide the metadata separately in a specially-designated file that can be read by a document review program.
The court ordered OCRRA to produce the creation and saving dates associated with its photograph files, finding that such system metadata constitutes “a ‘record’ subject to disclosure under FOIL.” The court did not decide whether metadata is discoverable under the CPLR. However, two recent Supreme Court decisions have relied on Irwin in holding that metadata typically must be produced if requested under the CPLR.
In Dartnell Enterprises, Inc. v. Hewlett Packard Co., 938 NYS2d 226, 2011 NY Misc LEXIS 4582 (Sup. Ct. Monroe County Sept. 13, 2011) (Stander, J.), Dartnell requested that HP produce various electronic documents in their native format. HP produced the documents as hard copies instead. The court ordered HP to re-produce the documents in their native format. The court reasoned that the documents’ metadata was discoverable under CPLR 3101 because Dartnell had shown that it contained information that was not available in the hard copy versions.
The court also found that CPLR 3122(c), which states that documents shall be produced “as they are kept in the regular course of business,” required HP to produce its electronic documents in native format since HP had not shown that such production would be “unduly difficult or burdensome” (internal quotation marks omitted), see also Tilimbo v. Posimato, 2012 NY Misc LEXIS 4027 (Surrogate’s Ct. Bronx County Aug. 22, 2012) (citing Dartnell Enterprises to hold that “the production of hard copies of information sought does not preclude the production of the [native versions] of the same documents”).
In Hinshaw & Culbertson, LLP v. e-Smart Technologies, Inc., 2012 NY Misc LEXIS 1372 (Sup. Ct. NY County Mar. 27, 2012), both sides produced electronic documents without metadata, and moved to compel each other to produce metadata. Hinshaw & Culbertson argued it was not obligated to produce metadata because e-Smart had not shown that Hinshaw & Culbertson had altered any of its documents. The court ordered both sides to produce all metadata, concluding “there is no authority that any additional showing, that the electronic document has been altered or fabricated, is necessary before the production of meta-data should be ordered.”
Noting that “[m]eta-data is considered part of an electronic document,” the court found that metadata is normally discoverable because “[g]eneral information about the creation of a document, including who authored a document and when it was created, is pedigree information often important for purposes of determining admissibility at trial.”
Together, Irwin, Dartnell and Hinshaw & Culbertson make it relatively easy for courts to resolve disputes over metadata production. Irwin defines and demystifies metadata; Dartnell observes that electronic documents normally should be produced in their native format — which includes their metadata — to comply with CPLR 3122(c)’s “regular course of business” rule; and Hinshaw & Culbertson finds that metadata is generally discoverable without the need for any special showing. Based on these decisions, parties to litigation (and recipients of FOIL requests) should be prepared to produce their electronic documents in a format that preserves their metadata.
Jeremy M. Sher is an associate with the law firm of Leclair Korona Giordano Cole LLP. He concentrates his practice in the areas of commercial, securities and employment litigation. He can be reached at email@example.com or through the firm’s website at www.leclairkorona.com.