Managing Your Metadata
As Published in LJN’s Legal Journal Newsletter – April 2007
By Judye Carter Reynolds
New amendments to the Federal Rules of Civil Procedure (“FRCP”) identify electronically stored information, tangible and intangible, as discoverable (relevant, non-privileged) information. To ensure compliance, firms are required to adopt policies regarding the preservation, retention, and destruction of all digital data including their metadata. Litigators are pressed todevelop some expertise on the types and locations of document, application and system metadata with the expectation that all metadata may have evidentiary value. The demands are on the IT professionals to deliver a copy or description of all relevant electronic media, their location, and category without delay and be able to substantiate the firm’s retention policies.
Metadata reveals information about your data. Document metadata includes tracked changes, hyperlinks, hidden text,comments, date, time and 70 other details about the document’s production history. Application metadata includes the identifying information about the software application and the third-party tools used to generate, convert, and format the document.
System metadata reveals the operating system, server, and printer names associated with the document. System metadata can also include creation and modification dates, but this information may not corroborate the date and time stamps shown among the document metadata. If documents are relocated from one file system to another, say from Windows 98 to Windows XP and then archived to a CD, the system date stamps will change each time, thereby distorting the lifespan of the document. Review of other document or application metadata can be used to determine a more accurate time period.
Capturing and Managing Metadata
A key stipulation of Rule 34 of the FRCP is the production of data in “a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” Metadata can be preserved and provided in its native format or in another searchable, useable, readily available file format. Third-party products can be used to generate a metadata schema ofdocuments in production. One practical approach to compliance is collecting and preserving the metadata at each rendition or version of the document. The routine should be automated so that the metadata is gathered and categorized efficiently and generated into a schema and the schema preserved for possible review. The schemas provide useable, searchable documents of unaltered metadata and analytics reasonably available for purposes of electronic discovery.
The capture of the metadata and production of the schemas are conducted consistently in the ordinary course of business. The disposal of the metadata schemas should be consistently adhered to according to the firm’s storage and retention schedules to pass the “good faith” test stipulated in Rule 37.
The practice of generating metadata schemas at the conclusion of a version ensures the integrity of the metadata disclosure before metadata corruption occurs during file sharing and collaboration. This routine provides a version-by-version snapshot of visible and functional metadata captured at its earliest opportunity.
Corporate policies surrounding the discovery and production of electronic evidence should be implemented at the pretrial conference. The amended rules now require a “meet-and-confer” session with opposing counsel to set the ground rules for electronic discovery. Parties collaborate and determine the scope, form and format of electronic discovery, location and preservation of discoverable evidence, the search criteria methodology, and accessibility of relevant data. Prior to the conference, gain a full understanding of the client’s infrastructure, technology routines, retention policies, and the cost of searching and reviewing data. A formal assessment by an IT professional or forensics consultant is critical. Electronically stored information from old, legacy systems such as voicemail and backup tapes may be excluded from discovery or the cost of retrieval shifted to the requesting party if it is not “reasonably accessible because of undue burden or cost” provided in Rule 26(b). The existence and location of inaccessible data must be disclosed and the cost of recovery specified.
Retention and destruction protocols for electronic data should be well defined, established in advance of litigation and implemented on a routine and consistent basis. Failure to do so precludes protection afforded by Rule 37, which states that a“court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine,good-faith operation of an electronic information system” absent a litigation hold. Strategic policies are formed by in-house counsel and technology experts.A plan for all enterprise content should be included. Defensible procedures will include audits to assure compliance and good faith efforts to preserve discoverable data from systematic destruction or the recycle bin.