Metadata, the DNA of e-discovery, often holds the key to a litigant’s fate in court
Metadata is data about data. Like fingerprints, it leaves a trail. Like a jigsaw puzzle, it supplies missing pieces. Metadata tells the whole story of a document from its creation to its alteration, deletion or resting spot. It identifies persons who have altered it. It pinpoints what they altered.
Metadata reveals the author’s name, the sender, the visible and blind recipients, the date and time of creation, when it was sent, received and modified. It tracks changes and type of document, and in e-mails, it reveals the subject of the message.
Metadata is an omnipresent aspect of every transaction, or court case or commercial or international dispute that contains electronically stored information. Nowadays that is virtually everything. Most of us who are e-discovery novices see it in the layman term, "Properties," when the Word drop-down item appears.
It is the DNA of e-discovery.
Different types of metadata
Metadata comes in various flavors. System metadata reveals the architecture of a system and information created by the user or the user’s information management system organization. In a typical case, this type of metadata is easily retrieved from the system of the user’s organization. It includes stamps indicating when a file was last modified or accessed, and when it was created. It also shows the path a file took and where it is located on the hard drive or file server.
All of this improves the ability to access and search the desired ESI. System metadata can be very useful to establish the actual sender or receiver of a document. System metadata can be altered, in many ways, however. Simply opening a file changes its “last accessed” metadata. Copying a file changes the “create date.” Using write-protect programs when preserving and collecting ESI can help avoid changes to a system’s metadata.
In a typical document review project, the metadata in common ESI formats, such as documents, spreadsheets and emails, are organized in databases. Fields are assigned to the various kinds of metadata that the review process has captured from the documents. Bank statements, sales records, phone bills, price lists and accounting records are typically stored in databases and are common in commercial litigation.
Great value of databases is not universally appreciated
It is probably safe to say that most lawyers have not yet reached a proper appreciation of the valuable information contained in databases. One good way to appreciate their value is by understanding and exploiting the metadata that databases contain.
“The ESI that is providing the most challenging for attorneys who have already mastered ESI basics involves discovery of databases,” said David Nolte, founder of Fulcrum Inquiry, a litigation consulting firm in Los Angeles. He makes it part of his standard recommendations that litigants and their lawyers increase their appreciation and utilization of databases. The first step is to understand their metadata.
The fingerprints in an electronic file
Another metadata flavor is called file metadata, which is data about a particular file that is recorded with the file. It includes timestamps, authors, edits and revisions, printed dates and times, and anything else that the user includes in the document, such as underlining. All of these can be altered, just as with system metadata. Taking precautions to preserve original metadata goes without saying.
File metadata can be separated into substantive or embedded metadata. The first reflects changes made by the user. It remains with the document when it moves or is copied.
Embedded metadata, by comparison, includes text, numbers, content, data, and other information that a native format does not reveal. Native format is the state of a document in its original format in which it was created, such as an .xls for a Microsoft Excel Spreadsheet. Spreadsheet formulas are an example of embedded metadata that is not plainly visible, but which can immeasurably enhance the value of a document in the resolution of a dispute. With these formulas in hand, there is little an e-discovery specialist will be unable to understand about a spreadsheet. Because formulas are embedded metadata they will invariably be discoverable in litigation.
No uniform rules on production of metadata
There is no standard rule throughout the United States about when metadata must be produced. It is a moving target and varies from jurisdiction to jurisdiction. It also depends on whether a case is between private parties or involves the government.
Federal Judge Shira A. Scheindlin of the Southern District of New York recently ruled that government agencies that produce electronic records in response to requests for public information under the Freedom of Information Act must include metadata in the production.
Methods of data classification
“Metadata provides important methods of data classification. As attorneys learn more about e-discovery, they realize the value of metadata, and more have been requiring that it be produced. Attorneys must, at minimum, ensure that metadata is preserved, and prepare for its production.” says W. Lawrence Wescott, Vice President of E-Discovery Services at Revere Strategies, LLC, a consulting firm in Baltimore.
