With so many of our everyday personal and business conversations shifting from oral to written format, the importance of the written word in litigation has never been more important. Of the many forms that the written word can take, email is probably the most important, and prevalent in the context of litigation. In 2012, 2.2 billion people worldwide used email, and sent a total of 144 billion emails every day. In the past fifteen years, an immense amount of case law and scholarship has been generated on the discovery process as it relates to electronically stored information or “e-discovery.” Despite this volume of scholarship, the author can find no articles specifically addressing the unique issues revolving around storing and producing email metadata.
Numerous characteristics are encompassed within the meaning of the word metadata, and the term is often misunderstood. By way of an example, say an individual hires a private detective to eavesdrop on their spouse. That detective might tap the spouse’s phone, bug his office, or open his mail. The result of these activities would be the data—analogous to the text of an email. Alternately, imagine if that same individual hires that detective again to surveil their spouse. The result would be the details of where he went, who he talked to, what he looked at, and how he spent his day. All of this information would be considered metadata.
Metadata in emails includes, among others, such characteristics as the time sent, time received, how the email was routed (indicating location sent from), the time lapse between being sent and received, the formatting macros bundled in the email, the way the email is displayed differently on different hardware and software, and the file format the email is stored or archived in. Email is particularly important not just for its pervasiveness, but for its two-ended nature. Each has both a sender and a receiver who are often different people running different computing systems. An email can be substantively the same, yet the meaning can be altered significantly depending on the way it represents across various hardware and software platforms. While Rules 26 and 34 of the Federal Rules of Civil Procedure govern discovery and the production of electronically stored documents generally, the author seeks to closely examine the particular challenges confronted by courts when balancing the interests of both the producing and requesting parties, along with the limits of technology and the practical concerns of reproduction and management of emails.
As such, the reproduction of email correspondence in the native format (or as close a format to original as technically possible), including all metadata, is the best way to ensure that the original spirit of the Federal Rules of Civil Procedure is preserved in the 21st century.
 Internet 2012 in Numbers, PINGDOM (Jan. 16, 2013), http://royal.pingdom.com/2013/01/16/internet-2012-in-numbers/.
 Bruce Schneier, Metadata Equals Surveillance, Schneier.com (Sept. 23, 2013, 6:21AM), https://www.schneier.com/blog/archives/2013/09/metadata_equals.html.
 FED. R. CIV. P. 26; FED. R. CIV. P. 34.
 Charles R. Ragan, Jonathan M. Redgrave, Lori Ann Wagner, The Sedona Guidelines: Best Practices and Commentary for Managing Information and Records in the Electronic Age (2004), available at https://thesedonaconference.org/download-pub/98.
 655 F. Supp. 2d 146 (D. Mass. 2009).
 879 F. Supp. 2d 787 (M.D. Ten. 2010).
 230 F.R.D. 640 (D. Kan. 2005).