eDiscovery Daily Blog

• February 5, 2013

In the case In Re: Waste Management of Texas, Inc., No. 06-12-00097-CV (Tex: Court of Appeals, Sixth Dist., Jan. 18, 2013), a Texas appeals court refused to grant Waste Management’s petition for writ of mandamus asks us to direct the trial court to withdraw its order to produce native, electronic format with all metadata.

This antitrust case between competing sanitation companies in Texas has had a lengthy discovery phase.  As noted in the opinion issued by Chief Justice Josh R. Morriss, III:

“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—Waste Management produced responsive records in the format of its choice, Adobe portable document format an explicit exception in the order, the 2009 production excluded the records’ metadata. In September 2012, the trial court ordered Waste Management to produce similar information, but this time in its native, electronic format with all metadata.”

As a result, 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, claiming that :

• “the 2012 discovery order requires disclosure of ‘trade secrets and proprietary, confidential information, to a direct competitor.’”;
• “the order requires production of data outside the relevant geographic area and is thus an overbroad ‘fishing expedition.’”;
• “(a) that the order is a ‘do over’ that requires Waste Management to review and redact the data a second time, (b) that it requires the production of metadata after metadata was relinquished earlier, (c) that it insufficiently specifies the form in which the data is to be produced, (d) that production in native format makes redaction impossible, and (e) that producing metadata in native format is more costly.”;
• “the order contradicts an agreed scheduling order entered ten weeks before…to provide data for a time period of only September 1, 2005, through October 31, 2010”; and
• the opposing party “should be responsible for the costs because a ‘do-over’ is an “extraordinary step”.

The court found that Waste Management “failed to introduce any such evidence” that the discovery order will disclose trade secrets and rejected their various claims, including undue burden claims.  With regard to the claim that the order is a ‘do-over’ and that the opposing party had not previously requested metadata, the court noted previous requests that contained the following instruction “Any and all data or information which is in electronic or magnetic form should be produced in a reasonable manner”.  Citing FED. R. CIV. P. 34(b) which requires “a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms”, the court stated “We conclude Bray’s original instruction that the electronic discovery must be produced in a ‘reasonable manner is the functional equivalent of the Federal ‘reasonably useable form or forms.’”.

So, what do you think?  Was it appropriate to require production of metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

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