Litigator's Guide to Metadata - Codemantra.net

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contents are copied back to magnetic media, the operating system re-populates the slots for thethree dates with the single date found on the optical media. Thus, using a CD in this mannerserves to both corrupt and misrepresent the metadata. Similarly, different operating systems andversions of applications maintain different metadata; so, test your processes against alteration,truncation or loss of metadata. Plan for Privilege and Production ReviewThe notion of reviewing metadata for privileged communications may seem odd unless youconsider that application metadata potentially contains deleted content and commentary. Whenthe time comes to review metadata for production and privilege, the risks of spoliation faced inharvest may re-appear during review. Consider:How will you efficiently access metadata?Will the metadata exist in a form you can interpret?Will your examination alter the metadata?How will you flag particular metadata for production?How can you redact privileged or confidential metadata?If a vendor or in-house discovery team has extracted the metadata to a slip-sheet in an imageformat like TIFF or PDF, review is as simple as reading the data. However, if review will takeplace in native format, some metadata fields may be inaccessible, encoded or easily corrupted. Ifthe review set is hosted online, be certain you understand which metadata fields are accessibleand intelligible via the review tool and which are not. Don’t just assume: test.Application Metadata and ReviewMany lawyers deal with metadata in the time-honored way: by pretending that it doesn’t exist.That is, they employ review methods that don’t display application metadata, such as commentsand tracked changes present in native Microsoft Office productivity documents. These lawyersreview only what prints instead of all the information in the document. Rather than adjust theirmethods to the evidence, they refuse to produce ESI with its application metadata intact lest theyunwittingly produce privileged or confidential content.They defend this behavior by claiming that the burden to review application metadata forprivileged or confidential content is greater than the evidentiary value of that content. To insurethat requesting parties cannot access all that metadata the producing counsel ignored, producingparties instead strip away all metadata, either by printing the documents to paper or hiring avendor to convert the ESI to static images (i.e., TIFFs). Doing so successfully removes themetadata, but wrecks the utility and searchability of most electronic evidence.Sometimes, counsel producing TIFF image productions will undertake to reintroduce some of thestripped metadata and searchable text as ancillary productions called ―load files.‖ The productionof document images and load files is a high-cost, low utility, error-prone approach to e-discovery;but, its biggest drawback is that it’s increasingly unable to do justice to the native files it supplants.When produced as images, spreadsheets often become useless and incomprehensible.Multimedia files disappear. Any form of interactive, animated or structured information ceases to16
work. In general, the richer the information in the evidence, the less likely it is to surviveproduction in TIFF.Despite these shortcomings, lawyers cling to cumbersome TIFF productions, driving up e-discovery costs. This is troubling enough, but raises a disturbing question: Why does any lawyerassume he or she is free to unilaterally suppress--without review or proffer of a privilege log—integral parts of discoverable evidence? Stripping away or ignoring metadata that’s an integralpart of the evidence seems little different from erasing handwritten notes in medical recordsbecause you’d rather not decipher the doctor’s handwriting!In Williams v. Sprint/United Mgmt Co., 230 F.R.D. 640 (D. Kan. 2005), concerns aboutprivileged metadata prompted the defendant to strip out metadata from the native-formatspreadsheet files it produced in discovery. The court responded by ordering production of allmetadata as maintained in the ordinary course of business, save only privileged and expresslyprotected metadata.The court was right to recognize that privileged information need not be produced, wiselydistinguishing between surgical redaction and blanket excision. One is redaction followingexamination of content and a reasoned judgment that particular matters are privileged. The otherexcises data in an overbroad and haphazard fashion, grounded only on an often-unwarrantedconcern that the data pared away might contain privileged information. The baby goes out withthe bathwater. Moreover, blanket redaction based on privilege concerns doesn’t relieve a party ofthe obligation to log and disclose such redaction. The defendant in Williams not only failed toexamine or log items redacted, it left it to the plaintiff to figure out that something was missing.The underlying principle is that the requesting party is entitled to themetadata benefits available to the producing party. That is, theproducing party may not vandalize or hobble electronic evidence forproduction without adhering to the same rules attendant to redactionof privileged and confidential information from paper documents.The requesting party isentitled to the metadatabenefits available to theproducing party.Resolve Production IssuesLike other forms of electronic evidence, metadata may be produced in its native and near-nativeformats, as a database or a delimited load file, in an image format, hosted in an online databaseor even furnished as a paper printout. However, metadata presents more daunting productionchallenges than other electronic evidence. One hurdle is that metadata is often unintelligibleoutside its native environment without processing and labeling. How can you tell if an encodedvalue describes the date of creation, modification or last access without both decoding the valueand preserving its significance with labels? Another issue is that metadata isn’t always textual. Itmay consist of no more than a flag in an index entry—just a one or zero—wholly without meaningunless you know what it denotes. A third challenge to producing metadata lies in finding ways topreserve the relationship between metadata and the data it describes and, when obliged to do so,to present both the data and metadata so as to be electronically searchable.When files are separated from their metadata, we lose much of the ability to sort, manage andauthenticate them. Returning to the voice mail example, unless the sound component of the17
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Litigator's Guide to Metadata - Codemantra.net

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