The Role of Metadata in Modern Discovery

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December 11, 2006

Metadata – information that is embedded within the digital framework of an electronic document and invisible to the untrained eye – poses unique issues for litigants. Is this information discoverable to an opposing party? If so, does a party have to produce it as a matter of course? Or does the requesting party have the initial burden of specifically requesting it and demonstrating its relevance? As courts, and more recently the Federal Rules of Civil Procedure, have attempted to address these questions, litigants must understand what this hidden information is and, more importantly, how to preserve it to avoid potential court sanction.

What Is Metadata?
 “Metadata” is actually the trademarked name for the generic term meta-data, created by the fusion of the ancient Greek prefix “meta” (meaning hidden or after) and the Latin word “data” (meaning factual information). It is commonly described as “data about data” or data that tracks the history of an electronic document. If these descriptions are unsatisfying, it is only so because the different forms metadata can take are numerous. It can be as simple as the “To,” “From” and “Cc” information an email header displays. More commonly, however, metadata includes a file’s name, location (e.g., pathname), format, size and chronological history (e.g., when it was created, modified or last accessed). And though a user can supply metadata, a computer, in running most applications, typically creates it automatically. For example, according to Microsoft’s website, metadata may be stored in documents created in all versions of Word, Excel and PowerPoint.

Some metadata is easy to find; even those who are inept technically can figure out when an email was sent to them. Most metadata, however, will not appear on the document’s face. The importance of metadata to a particular document also varies with different computer applications or programs. In Williams v. Sprint/United Management Co., 230 F.R.D. 640, 647 (D. Kan. Sept. 29, 2005), which includes an extensive discussion of the role metadata plays in modern discovery, the court noted that “[a]s a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application’s output.”

For example, readers can typically understand a Microsoft Word document whether or not they know when it was created or how often the author revised it. A database, however, may be virtually incomprehensible without the metadata that connects, organizes and clarifies the relationship of the various pieces of information that comprise it.

The Value of Metadata in Litigation.
Metadata is the electronic equivalent of DNA — just like DNA, it can make or break a case. For example, it can prove the authenticity of an electronic document in the same way that a signature can authenticate a letter. And it can provide clues to other relevant documents that litigants have yet to produce or discover. Moreover, simply being aware of metadata’s forensic applications may enable litigators to fine-tune the direction of their cases and to prepare for harmful evidence that will come up at trial. Not being aware of such telling, yet invisible, information could result in a “credible” witness being revealed as a liar, or an “authentic” document as one that has been backdated or fabricated.

Metadata Is Discoverable.
Because metadata can assist litigants piece together how an electronic document was created or altered, courts and commentators have determined that such information is subject to the normal discovery process. For example, the 2005 Sedona Principles for Electronic Document Production instruct litigants to pay careful attention to the preservation and production of metadata if they know or should know that certain metadata is relevant. The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age (The Sedona Conference Working Group Series, Sept. 2005 Series, available at

In an early case, Armstrong v. Executive Office of the President, Office of Administration, 1 F.3d 1274, 1285 (D.C. Cir. 1993), rev’d in part on other grounds, 90 F.3d 553 (D.C. Cir. 1996), the court concluded that government agencies violated their preservation obligations under the Federal Records Act by instructing employees to archive only the printed copies of electronic communications. In the court’s opinion, “[w]ithout the [electronic data], the paper print-outs – akin to traditional memoranda with the ‘to’ and ‘from’ cut off and even the ‘received’ stamp pruned away – are dismembered documents indeed.” Id.

And in In re Verisign, Inc. Securities Litigation, No. C 02-02270 (JW), 2004 WL 2445243, at *2 -*3 (N.D. Cal. Mar. 10, 2004), a class action securities case brought against a corporation and its officers, the court upheld a discovery order expressly directing the defendants to produce all electronic evidence in its original format, including metadata.

More recently, the court in Williams concluded that when a party is ordered to produce electronic documents as they are maintained “in the ordinary course of business,” the producing party must produce them with metadata intact. Williams, 230 F.R.D. at 652. The plaintiffs there brought a class action alleging that age was the determining factor in the defendant’s decision to terminate their employment during a reduction in force. The plaintiffs sought electronic spreadsheets containing the names of the other candidates for the reduction in force and objected to the defendant’s production of these spreadsheets in a redacted form, with the metadata “scrubbed” off.

Rejecting the defendant’s argument that there is a presumption against the production of metadata, the court concluded that the requesting party does not have the initial burden of demonstrating the metadata’s relevance; rather, the producing party has the burden to object and show why the metadata should not be produced. Id. Williams underscores the current trend toward requiring litigants, at the very least, to produce metadata in response to specific discovery requests and court orders.

Illustrative of this trend, courts routinely order litigants not only to produce metadata in discovery but to preserve the data itself in its original form for the duration of the litigation. See In re Inc. Securities Litigation, 233 F.R.D. 88, 90-92 (D. Conn. 2005) (court ordered parties to produce searchable metadata databases); In re Vioxx Products Liability Litigation, No. MDL 1657, 2005 WL 756742, at *3 (E.D. La. Feb. 18, 2005) (court included metadata in its discovery order); Jicarilla Apache Nation v. United States, 60 Fed. Cl. 413, 416 (2004) (same).

Acknowledging that metadata is necessary to interpret an electronic document fully, courts have not hesitated to sanction a party for failing to produce metadata after being directed to do so. In In re Telxon Corp. Securities Litigation, No. 5:98-CV-876, 1:01-CV-1078, 2004 WL 3192729, at *36 (N.D. Ohio July 16, 2004), a securities fraud action, the magistrate judge recommended a default judgment as a sanction against the defendant auditor, finding that the auditor had failed to preserve electronic documents, including metadata, in violation of a discovery order. Although the court did not warn the defendant or its attorneys that their failure to preserve electronic documents in their original format could lead to a default judgment, the court found this irrelevant because the defendant had had considerable experience with litigation and the discovery process.

Privilege and Potential Pitfalls.
Of course, not all metadata is discoverable. A party does not have to disclose metadata that relates to information subject to attorney-client privilege or the protections of the attorney work product doctrine. In Williams, for example, the court concluded that the discovery order at issue encompassed the production of metadata that related to the defendant’s reduction in force, but emphasized that this did not require the defendant to produce metadata that corresponded with privileged or otherwise confidential information, such as metadata linked to social security numbers. Williams, 230 F.R.D. at 653-54.

Though protected by traditional forms of privilege, the hidden, or not readily visible, nature of metadata enhances the potential for the inadvertent disclosure of confidential or privileged information. The metadata itself may not be confidential or privileged, yet it could facilitate the discovery of such information. For example, metadata may create a data trail that reveals changes to prior drafts of or edits to documents. Courts have yet to address the extent to which litigants waive these privileges by the inadvertent disclosure of such metadata. Thus, although metadata serves important functions in interpreting electronic documents, it comes with its own hazards that litigants and their attorneys must watch out for. Such hazards extend beyond the privilege arena; they can include more mechanical issues such as changing the date or content of an electronically stored document that has been programmed to update itself whenever it is opened or printed out.

Upcoming Changes to the Federal Rules. The Supreme Court has recently approved amendments to the Federal Rules of Civil Procedure to address electronic discovery and specifically require production of “electronically stored information.” Effective December 1, 2006, these amendments recognize that discovery can no longer be limited to that which is in fixed, tangible form but extends to metadata as well. Defining it as the “history, tracking or management of an electronic file,” the Committee Notes to amended Rule 26 plainly indicate that litigants can seek discovery of metadata.

The amended rules acknowledge, however, that metadata is not run of the mill discoverable information but rather poses unique issues because it “is usually not apparent to the reader.” Committee Notes to Amended Rule 26. Accordingly, amended Rule 26(f) requires litigants to confer and attempt to resolve many of these issues, including how to preserve metadata, produce it, and pay for such production.
And although the amended rules specifically endorse a court’s ability to sanction a litigant for destroying or failing to disclose metadata, amended Rule 37 provides a safe harbor against sanctions where the destruction of metadata is the result of “the routine, good faith operation of an electronic information system.”

Given metadata’s susceptibility to inadvertent disclosure, the amended rules also include several provisions to protect litigants from inadvertently waiving privilege. For example, amended Rule 26(b)(5) will permit a party to retrieve, without penalty of waiver, any privileged metadata it produces simply by notifying the receiving party within a reasonable time (although the receiving party will be permitted to challenge whether the material is privileged and whether there has in fact been a waiver). The Committee Notes to amended Rule 26 also suggest that the parties may voluntarily enter into “clawback”-type agreements, under which the parties stipulate that the inadvertent disclosure of privileged material does not affect a waiver of such privilege.
But like anything trying to capture modern — or constantly evolving — technology, the amended rules cannot address every potential issue. For example, the Committee Notes recognize that “[s]ome electronically stored information may be ordinarily maintained in a form that is not reasonably usable by any party. One example, is ‘legacy’ data that can be used only by superseded systems.” Committee Notes to Amended Rule 34. Whether a party should be required to convert such information — including its original metadata — to a more usable form is a question the amended rules leave for courts and litigants to decide. At the very least, however, they make clear that electronic discovery is to be a collaborative effort, not just between the parties and the court, but among the parties themselves.

The Ethics of Metadata “Mining.”
Apart from the discoverability of metadata, questions have been raised about whether an attorney who receives an electronic document should view or “mine” the metadata associated with that document without the sender’s permission. In December of 2004, the New York State Bar Association Committee on Professional Ethics issued an opinion finding that “a lawyer may not make use of computer software applications to surreptitiously ‘get behind’ visible documents.” Opinion Number 782 (December 2004). However, the Committee also noted that when a lawyer sends a document via e-mail, as with any other type of communication, he must exercise reasonable care not to disclose inadvertently confidential or privileged information.

More recently, the Board of Governors of the Florida Bar issued an advisory opinion on the ethics of “metadata mining.” The proposed advisory opinion states among other things: (1) the sending lawyer has an obligation to take reasonable steps to protect the confidentiality of confidential communications, including information contained in metadata; (2) a recipient lawyer has an obligation to refrain from trying to obtain metadata information relating to the representation of the sender’s client; and (3) if a recipient lawyer inadvertently receives information  (continued on back page) from metadata that he knows he was not intended to receive, that lawyer must “promptly notify the sender.” ( nsf/basic+view/Ethics+-+Proposed+Advi sory+Opinion?opendocument.)

Given the inherent nature of metadata and the growing use of email and other electronic communications, there are bound to be many future disputes and a great deal of “meta litigation” concerning the discovery and use of metadata.

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