All Metadata is Not Equal – Court Orders Narrower Request

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

In Heym v. APG Housing, LLC, 2025 WL 1661414 (D. Md. June 11, 2025)(Coulson, J.), the Court applied its Principles for the Discovery of Electronically Stored Information in Civil Cases (“ESI Principles”) to order that a discovering party narrow its request for metadata.

THE DISTRICT OF MARYLAND’S “ESI PRINCIPLES

The development of the District of Maryland’s ESI Principles was described in Alicia Shelton and Michael Berman, “The ESI Principles,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 7. 

Proposed ESI Principles were drafted by a subcommittee of the Federal District Court Bench-Bar Committee working in cooperation with The Hon. Paul W. Grimm (ret.) and the Hon. J. Mark Coulson. Id. at 91-92.¹  The draft was submitted to the Federal Court Committee which in turn submitted the proposal to the Court for its consideration.  The ESI Principles are now posted on the Court’s website.

Appendix 2 of the ESI Principles contains a hybrid production protocol and a native production protocol.  Those protocols provide optional guidelines. The drafting committee was fortunate to have the assistance of Craig Ball, Esq., in preparing those protocols.

            The ESI Principles state in part:

• “Metadata is an important part of ESI and should be considered for production in every case.   The production of metadata should be consistent with the proportionality principles of Fed. R. Civ. P. 26 and Principle 1.03.”
• “Metadata  is  information  that  helps  us  use  and  make  sense  of  other  information.    More particularly, metadata is information, typically stored electronically, that describes the characteristics, origins, usage, structure, alteration, and validity of other electronically stored information (‘ESI’).  Metadata occurs in many forms within and without digital files.  Some is supplied by the user, but most metadata is generated by systems and software.”
• “Parties should discuss how to produce the metadata and/or native files so that ESI maintains its integrity from when it is collected until when it is used in proceedings so that the parties have a method to confirm the integrity of the ESI throughout the litigation.”
• “Parties should discuss the production of metadata at an early practicable stage in the litigation and use proportionality principles in determining the scope of such production.  The fields of metadata to be produced, if any, and the form(s) of production should be addressed by the parties and memorialized in a written agreement.”Appendix 2 of the ESI Principles contains a hybrid production protocol and a native production protocol.  Those protocols provide optional guidelines. The drafting committee was fortunate to have the assistance of Craig Ball, Esq., in preparing those protocols.²

THE HEYM COURT APPLIED “THE ESI PRINCIPLES” TO METADATA

In Heym, two tenants, an Army soldier and spouse, sued their landlord “based on Defendants’ alleged failure to remedy a toxic mold problem in Plaintiffs’ rental home, located at the Aberdeen Proving Ground (‘APG’).”

The defendants asked for a court order that plaintiffs “produce metadata for all photos and emails they have produced thus far.”  Id. at *3.  Defendants asserted that they had requested metadata; however, they claimed that it had not been produced.

Quoting “The ESI Principles” at length, the Court wrote that: “Because metadata is defined so broadly, a blanket request for the production of metadata may be unhelpful. The metadata values associated with a particular file or information item vary according to the nature of the item and its use.”  Id. (emphasis added).  The Court wrote that the relevant metadata in a word processing document may differ from e-mail metadata, for example.

The Court ordered:

With these principles in mind, the Court declines to broadly order Plaintiffs to produce metadata for all photos and emails they have produced thus far. Instead, Defendants should narrow the type of metadata they seek, perhaps with reference to the ESI Principles if useful, and confer with Plaintiffs to determine if an agreement can be reached.

Id.

The Court’s decision does not state whether the plaintiffs followed Fed.R.Civ.P. 34. Rule 34(b)(1)(C) permits a requesting party to “specify the form or forms in which electronically stored information is to be produced.”  The decision states that the requesting party used the District Court form document requests.³ A responding party may then object to the requested form for producing ESI and: “If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.” [Emphasis added].  The decision does not state whether plaintiffs complied.⁴

In several requests for production, “Defendants specifically ask that the Court order Plaintiffs to search for and produce any responsive communications, including but not limited to text messages, WhatsApp messages, and social media posts or messages, and note that Plaintiffs have not yet produced any text or social media messages.”  Defendants motion to compel was granted.

Defendants requested all documents and communications relating to any homes that plaintiffs resided in for the past ten years.  Plaintiffs limited their response to their home at APG.  The Court disagreed: “The records sought could be relevant to establishing whether Plaintiffs were exposed to mold in prior or subsequent housing rentals, a question which goes directly to Defendants’ liability.”

Defendants sought all physical fitness tests for Mr. Heym for the past ten years.  While plaintiff said that there were not any, “Defendants note that individuals, like Mr. Heym, who are enlisted in the army are required to participate in yearly physical fitness tests, and argue the requested records must therefore exist and are relevant to Plaintiffs’ claims for personal injury damages.” 

The Court agreed.  Applying the “practical ability” standard followed in the District of Maryland, it held that the records are in plaintiffs’ possession, custody, or control. Id. at *3.  See The “Practical Ability” Standard for “Control” in Maryland (Dec. 11, 2020); Possession, Custody, or Control of Responsive Information by States Suing Meta (Sep. 12, 2024); Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025); Possession, Custody, or Control – Part II (Oct. 27, 2023); Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024). 

I have asked: Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022). 

The Court also found several interrogatory answers to be insufficient and others sufficient. Id., passim.

Notes

1. I was Committee Chair and Chapter co-author Alicia Shelton was a member of the drafting committee. ↩︎
2. For more on the written agreement, an “ESI Protocol” or “Discovery Plan,” see “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024); Failure to Confer Regarding ESI Protocol Operates Against Failing Party (Dec. 28, 2024); Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024); Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024). ↩︎
3. The Court wrote that: “Defendants state that Plaintiffs have not produced any metadata, and maintain that production of metadata is required by the Uniform Instructions and Definitions for Use in Discovery Requests for the District of Maryland. … The Court has reviewed the referenced Uniform Instructions and Definitions, but does not view them as mandating the production of metadata. In fact, the only reference to metadata appears to be in reference to developing a privilege log. See Loc. R. App. D (D. Md. 2023).” ↩︎
4. Plaintiffs’ counsel withdrew and they were proceeding pro se.  They failed to answer defendants’ motion to compel. The Court wrote: “Notwithstanding that lack of opposition, the Court will consider the motion on its merits, subject to the appropriate analysis under the Federal Rules of Civil Procedure.”  Id. at *2.
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