[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

MuniCap, Inc. v. Wilson, 2025 WL 3003968 (D. Md. Oct. 24, 2025)(Austin, J.), is the latest decision in the long simmering dispute over document correlation under Fed.R.Civ.P. 32. The dispute centers on whether Subsection E(i) or E(ii) governs production of ESI.

THE RULE 34(b)(2)(E)(i) & (2) DISPUTE

Subsection E(i) states that: “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request….”  That is sometimes called document correlation because each produced document must be correlated to the numbered request asking for its production.

Subsection E(ii) states that: “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms….”  Correlation is not required.

For a history of the issue, please see Document Correlation Under Fed.R.Civ.P. 34(b)(2)(E) (Jul. 29, 2025), discussing the split of authority and disagreeing with the solution in Sievert Elec. Svc. and Sales Co. v. Storako, 2025 WL 2084229 (N.D. Ill. Jul. 24, 2025).

PROPOSED USE OF METADATA AS A “WORK AROUND” TO MOOT THE ISSUE

My proposed solution is to use metadata as a way to work around the correlation issue. Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process? (Jul. 20, 2021). 

I suggest that the MuniCap Court reached a similar, or the same, result.  I suggested that:

If ESI is produced with appropriate metadata, it likely makes no difference whether subsection (E)(i) or (E)(ii) governs.  The produced ESI can be loaded into a litigation review platform, such as Digital War Room, Relativity, Reveal, or others.  At that point, the receiving party will have the information and ability to determine how the documents were kept “in the usual course of business” by sorting by custodian, folder, file path, sender, recipients, or dates.  That eliminates any requirement of document correlation under (E)(i).  Further, those metadata fields will show how the ESI was ordinarily maintained, as required by (E)(ii).  The data will be reasonably usable if produced in native form or searchable static form with appropriate load files.

After a comprehensive review, the MuniCap court wrote: “The Court discerns from these cases that proper preservation of metadata and custodians will, at least in many cases, satisfy Rule 34(b)(2)(E)(i).”  It rejected MuniCap’s “frustration” that the contents did not correlate with a particular RFP.  It wrote: “Context, as in most things, is key.”

MUNICAP: PROPER METADATA WILL SATISIFY RULE 34(b)(2)(E)(i)

In my opinion, while accepting the majority view to the contrary, as a practical matter, the MuniCap Court adopted the suggested approach. 

In MuniCap, a former employer sued a former employee for alleged violation of a non-competition clause, i.e., alleged “poaching.”  In pertinent part, MuniCap filed a “Motions to Compel Categorization of Document Production.”  With the exception of compelling some additional limited information about Excel spreadsheets, the motion was denied.

MuniCap alleged that defendant Wilson must organize his production.  Mr. Wilson refused, asserting that Rule 32(b)(2)(E)(i) did not apply to ESI because metadata had been provided.  In response, “MuniCap’s counsel maintained that searching metadata of these documents would not always reveal their connection to any particular RFP.” Mr. Wilson disagreed. In reply, he offered additional information on the spreadsheets, but maintained that metadata sufficed for the rest.

The production was all from Wilson’s computer and devices, and appeared to exceed 75,000 pages. Except for Excel files, it was produced in searchable .TIFF format.

The MuniCap Court held that it “will not compel ESI categorization in this circumstance where the ESI production is searchable, the production includes metadata, and the producing party identified the relevant custodian of the ESI.”  It reasoned that “regardless of which Rule 34(b)(2)(E) subparts apply, Wilson’s production satisfies the Rule.” [emphasis added].

The Court framed the issue: “There appears to be no serious dispute that the format requirements of 34(b)(2)(E)(ii) apply to ESI. Courts disagree, however, about whether the organizational requirements of 34(b)(2)(e)(i) also apply to ESI.” [emphasis in original].

The Court began its analysis by noting and exhaustively discussing the split of authority.  It wrote: “A minority of courts hold that ESI are governed exclusively by Rule 34(b)(2)(E)(ii).”  Those courts view (E)(ii) as a distinct subsection for ESI and the organizational requirement is not necessary.

The Court then stated that: “In contrast, a majority of courts considering the issue hold that ESI production must satisfy both Rule 34(b)(2)(E)(i)-(ii), emphasizing that when the Advisory Committee rewrote Rule 34, it sought to provide similar protection for both hard copies of documents and ESI.”

The MuniCap Court then wrote:

Regardless of the split as to which subsections apply to ESI, all courts focus on the usability of the ESI—the minority finding that searchable ESI is inherently usable, and the majority placing an extra layer of protection on that usability by requiring compliance with the organizational requirements of Rule 34(b)(2)(E)(i).

It wrote that production with metadata may be “functionally analogous” to correlation, and added:

Mindful that majority view has long been applied by opinions in this circuit, the Court finds that, regardless of approach, Wilson’s production satisfies Rule 34(b)(2)(E), save for the issue with certain spreadsheets.

Analyzing the Rule “in reverse order,” the production of searchable documents with sortable metadata fields met the requirements of (E)(ii).  The Court wrote that: “There is no serious dispute that the production in TIFF format is searchable and preserves metadata. MuniCap challenges the usefulness—rather than the existence—of such data overall, with special emphasis on certain spreadsheets as explained below.”  There, I respectfully disagree.  The TIFF form must be supplemented by a load file that contains the metadata. However, presumably that was done here.

The MuniCap Court then wrote that Subsection (E)(i) is in the disjunctive.  The producing party must either produce as kept in the usual course OR correlate the production to the requests.  It wrote that a producing party need not do both. It wrote:

Mindful of these requirements and their purpose, courts applying Rule 34(b)(2)(E)(i) often find production compliant where the producing party provides searchable ESI that preserves metadata and is organized by custodian.

Here, Mr. Wilson, the sole custodian, had done that for all documents except Excel spreadsheets.

Further, the MuniCap Court held that the production was as the documents were kept in the usual course of business. That is satisfied by a production organized by custodian, dates, file path, and with attachments.  They were ingested into Relativity and that was “sufficient to show production in the usual course here.”  One important fact was that all of the ESI came from a single custodian.

The Excel spreadsheets received a more focused analysis.  Mr. Wilson was ordered to identify the filepath and folder information for them. The Court wrote that:

Notwithstanding the general conclusion that metadata preservation can demonstrate compliance with Rule 34(b)(2)(E)(i), the matter of Wilson’s spreadsheets requires additional discussion.

It found that filepath or source path metadata “might provide additional context for the documents.”

During the hearing, MuniCap’s counsel suggested that because the data in these spreadsheets is client-specific, the spreadsheets need to be connected to specific clients, a fact not necessarily reflected in the contents of the financial models and other information in the spreadsheets.

The Court wrote: “As noted above, a producing party often satisfies the usual course burden by including for non-email ESI the file’s location on the hard drive-directory, subdirectory, and file name.” [cleaned up; citation omitted]. It ordered:

Therefore, with respect to the spreadsheets, the Court finds that it would more efficient and less burdensome for Wilson—as the sole custodian and alleged creator of the spreadsheets—to identify either source information (e.g., filepath and folder location) for the spreadsheets or the specific interrogatories relevant to those documents.

It also rejected a Fed.R.Civ.P. 26(g) challenge and resolved a privilege issue.  MuniCap’s resolution of the document correlation issue is significant.  The issue should be addressed in Rule 26(f) conferences.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.