November 2005

Counsel's Duty To Preserve And Produce Brought Forefront In Recent Case

By David H. Schultz

A recent Kansas decision — Williams v. Sprint/United Mgmt Co. — represents one of the most important court opinions on metadata and parties' obligations to produce it in response to a legal discovery request. The plaintiffs requested a "native" production of Microsoft Excel spreadsheets to determine whether there were "any actual other columns or types of information available" on them. After receiving the spreadsheets, the plaintiffs claimed that the defendant "scrubbed" the spreadsheet files to remove metadata without producing a log of the information scrubbed. The plaintiffs also asserted the defendant locked cells and data on the spreadsheets, preventing the plaintiffs from accessing those cells. Although the court did not sanction the defendant, it ordered the defendant to produce the spreadsheets' metadata and to produce "unlocked" versions of those spreadsheets. The court held that "when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order."

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