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WHY METADATA IS A LITIGATOR'S BEST FRIEND



If you are a litigator and have not been formally introduced to metadata, let me introduce you.


When asked what metadata is, attorneys often respond that “its data about data,” without really understanding what that means. As opposed to the content of a file, metadata is valuable information stored electronically that describes the characteristics, usage, and validity of a file. Examples include dates, folder information and subject designations. Keep in mind there is no such thing as “the metadata” of a file or document. Rather, there is a spectrum of metadata that can be relevant depending on the issues of a particular case.


A growing interest in understanding metadata and its uses has followed the exponential growth of electronically stored information (“ESI”). More and more law firms have shifted from the traditional “linear” review of documents, in which documents are reviewed page-by-page, to adopting evolving technologies that allow for a more efficient review of documents. Using the metadata values of documents not only saves you and your clients time and money, but it allows for a much more targeted review process.


Metadata Optimizes the Review of ESI and Can Be Used as Admissible Evidence


Metadata is a crucial part of ESI and should be considered for production in every case. Requesting metadata is key because it allows you to search, filter and really take a deep dive into your data. Instead of performing a linear review of documents, you can efficiently prepare for a deposition, hearing or even motion for summary judgment by quickly sorting through your data to retrieve the data you need. For example, by filtering the data by custodian, you can instantly identify documents relevant to a witness’s deposition. Without requesting metadata values, you are limited to the content of the document as you see it on a computer screen, and you are unable to search or filter the production. Examples of valuable metadata that you should request include custodian, source device, filename, last modified date and time, and originating path (or the file path of the file as it resided in its original environment).


Metadata is also helpful for authenticity and admissibility of electronic evidence. If the origin, use, or integrity of electronic evidence is at issue, preservation of metadata is key. In lieu of authenticity indicia like signatures, handwriting and physical watermarks, metadata allows you to establish that electronic evidence is genuine or that a certain individual created an electronic document.


Not only does metadata help us use and make sense of other information, but it can be evidence admissible at trial.[1] Relevant evidence is evidence that tends to prove or disprove a material fact.[2] Metadata not only reveals the origins, context, authenticity, and distribution of electronic evidence, but it provides clues to human behavior.[3] “It’s the electronic equivalent of DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate.”[4]


Application Metadata vs. System Metadata


One type of metadata is application metadata. Computer programs or applications can store work product in files “native” to them, such as Microsoft Word comments, tracked changes and geolocation data in photos. When you track changes to a word document, for example, those changes are embedded in the file and move with the file when you copy it. Viewing tracked changes in a Word document reveal revisions, inserts and deletions that would otherwise be lost if all you see is the final version of that document. Always exercise caution to avoid inadvertently revealing confidential and privileged information that is embedded in an electronic document.


System metadata, on the other hand, is information about a file which is not embedded within a file but stored apart from it. System metadata tracks file locations and stores demographics about a file, including its name, size, creation, modification, and usage.[5] System metadata is key to e-discovery because it identifies the who, when, where and how of electronic evidence: it helps you identify the custodians of files, the name of a file, when files were created or altered and the folders in which they are stored. Examples of valuable system metadata for e-mail messages that you should request include the To, From, CC, BCC, Subject, Date and Time sent, custodian, attachments, and mail folder path of an e-mail.


Keep in mind that there are various forms of metadata that are presented in different ways. Before you tell opposing counsel that you can provide certain metadata values, you will need to discuss with your e-discovery software provider the system and application metadata values they routinely collect and process for production. Moreover, metadata irrelevant at the beginning of a case can become critical when for example, spoliation allegations emerge. You should continually re-assess the adequacy of preservation and production of metadata and respond accordingly.


Understanding Metadata and its Uses is Critical


Even if you choose not to request metadata, it is important you are able to advise your client about how to find, preserve and produce metadata. Furthermore, you want to understand when to object to its production and discuss agreements with opposing counsel. Without a clear understanding of how metadata works, this will prove to be exceedingly difficult.


Understanding metadata is also critical for proper preservation and collection efforts. Poorly executed collection efforts can corrupt metadata. For example, copying files to new media, printing documents, or forwarding e-mails alters or loses metadata. More importantly, if you fail to preserve metadata when a preservation duty is triggered, you may never be able to replicate the lost data and you may be subject to spoliation sanctions.


By mastering the use of metadata, you can leverage technology to work smarter, not harder. Pretending it does not exist won’t make it go away. Instead, embrace this opportunity to manage data in an efficient manner.





______________ [1] Selectica, Inc. v. Novatus, Inc., 2015 WL 1125051, at *5 (M.D. Fla. Mar. 12, 2015) (metadata is discoverable so long as the relevance test is satisfied). [2] Fla. Stat. 90.401. [3] Craig D. Ball, Electronic Evidence Workbook 2021 (Spring 2021). [4] Id. [5] Id.

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