Metadata and Its Parent Document: Falling Far From the Tree

March 30, 2009

The Court of Appeals of Arizona recently made a significant distinction between the discoverability of metadata and the discoverability of its parent document, holding that the metadata derived from its public document parent was not automatically deemed public itself.

In David Lake v. City of Phoenix, No. 1CA-CV07-0415, 2009 WL 73256, *2 (Ariz. Ct. App. Jan. 13, 2009), Plaintiff, a former police officer, filed an EEOC complaint against his former employer, the City of Phoenix. In conjunction with his lawsuit, Plaintiff filed multiple public records requests, in response to which the City produced some relevant public documents and withheld others on the basis of responsiveness and/or unavailability. Unsatisfied with the City’s limited production, Plaintiff filed a special action in Superior Court requesting that the City be compelled to provide all public records responsive to his requests, but the Superior Court denied Plaintiff’s plea.

On appeal, Plaintiff argued that there were indications that the documents provided by the City — specifically, certain performance evaluations of Plaintiff created by his supervisor — had been “back-dated,” perhaps in response to Plaintiff’s lawsuit. As a result, Plaintiff argued, the metadata from the performance evaluations was crucial to making a determination as to the validity of the documentary evidence by providing information as to how, when, and by whom the performance evaluations had been created, edited, and, perhaps, altered after the fact. The metadata constituted a “public record,” so said Plaintiff, because it and the performance evaluations from which the metadata was created were one and the same document; thus, the metadata should be available for public inspection in the same manner as other public records, including, of course, the parent documents.

In its opinion denying Plaintiff’s request for release of the metadata, the Court refused to recognize that the metadata constituted a public record even though its “parent” documents qualified as such. The Court reasoned that metadata should not be considered a public document because metadata (i) is not required to be kept by the City as the performance evaluations are; (ii) was “created” by a computer and not by a public officer; (iii) did not memorialize an official transaction; and (iv) could “stand alone.”

In a persuasive dissent, Judge Patricia K. Norris argued that metadata was not the “electronic orphan” that the majority seemed to view it as, but was actually a part of the document itself and should be considered a public document so long as its parent document is also deemed to be a public document. This case should serve as a reminder that varying jurisdictions view metadata in strikingly different ways. Attorneys, corporate counsel, and clients alike need to be vigilant in assessing their jurisdiction’s individual treatment of metadata and prepare litigation strategy with an eye towards both views.

For more information please see McGuireWoods’ Discovery Counsel Services.