New Article Explores Metadata

Posted by Gregg Mayer on Friday, April 4th, 2008   

A newly published article offers a comprehensive examination of metadata. The article offers insight into different types of metadata, and discusses case law about it used in court. The article even addresses the first important metadata case:

Perhaps the first case to appreciate the importance of metadata was [the 1993 case of] Armstrong v. Executive Office of the President. In Armstrong, the court decided that paper copies of electronic mail did not qualify as an “extra copy” for purposes of the Federal Records Act, which would allow the originals to be destroyed, “because important information present in the email system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out.” Although not explicitly referring to this type of information as “metadata,” the Armstrong court clearly recognized that its value warranted preservation.

Read the entire article in the Richmond Journal of Law and Technology here.

Company Looks For Sneaky Changes In Metadata

Posted by Gregg Mayer on Tuesday, March 4th, 2008   

One reason parties in litigation seek metadata – the hidden data about data inside ESI – is to look for sneaky modifications to documents.

This is exactly what one company is looking for in an ongoing lawsuit in the state courts of Texas.

In A&W Development, LLC v. Honza, the two sides are involved in a real estate dispute about the wording of a contract assignment for the purchase of land. A&W alleges that the Honzas changed the wording of a contract after the two sides had an agreement. The wrong contract was signed and executed, according to A&W.

Here is how the court explained it:

Under the terms of the partial assignment actually executed, A & W retained “the right to purchase a portion of this property for the construction of a street with an approximate width of 78′ in a North to South direction of approximately 413′.”

However, an earlier draft of this partial assignment makes no reference to such “purchase,” and A & W contends that the consideration the parties negotiated for the partial assignment took into account the consideration the Honzas should receive for the street referenced in the assignment.

In an effort to prove the contract was changed, A&W is seeking metadata off the Honzas’ office computers to compare alleged contract modifications with the diary entries that the Honzas’ kept during the time the parties negotiated:

A & W seeks the metadata from the Honzas’ hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

The Texas Court of Appeals recently affirmed the trial court’s decision to let a third-party consultant take a mirror image of the Honzas’ computer hard drives and look for the metadata.

Although there appear to be no Texas decisions addressing a request for access to an opponent’s computer hard drives, a body of state and federal decisions has emerged and has established a fairly uniform approach for such requests….Federal district courts have consistently held that electronic data stored on computer hard drives, including “deleted” files and related data, is subject to discovery.

Consequently, if there were any improper changes, the metadata will have the answers. Understanding the consequences of metadata is just as important as proper email archiving in today’s business world.

ESI Decision In Washington D.C.: Ask For The Metadata In Discovery

Posted by Gregg Mayer on Wednesday, February 27th, 2008   

In a case in Washington D.C., a federal judge ruled that because the plaintiff in a lawsuit did not specifically ask for metadata when requesting electronically stored information (“ESI”), then the defendant did not have to produce it.

The case adds to the evolving discussion in the legal system about when “metadata” must be disclosed.

The case, D’Onofrio v. SFX Sports Group, Inc., involves employment discrimination. The employee sought a business plan from the company. In the dispute before the judge, the employee wanted a business plan – metadata and all – but the company argued the employee did not specifically ask for the metadata and should not get it.

The employee tried to argue for the metadata using two different parts of Rule 34 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure govern court procedure, including discovery issues involving ESI.

First, the employee argued Rule 34(a) only allowed the company to turn over the business plan without metadata “if necessary.” Here’s the relevant part of Rule 34:

(a)…Any party may serve on any other party a request (1) to produce … electronically stored information … in any medium from which information can be obtained – translated, if necessary, by the respondent into reasonably usable form…”

The judge rejected this argument:

Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request…In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” …Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

In short, Rule 34(a) did not require the company to turn over with the metadata.

Second, the employee argued Rule 34(b) required production of the metadata because, under the Federal Rules of Civil Procedure, the employee could specify the form of the production. Here’s the relevant part of Rule 34(b):

The request [for electronically stored information] may specify the form or forms in which electronically stored information is to be produced.

In court pleadings, this is how the employee asked for the information:

[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.

The judge concluded that this request did not specify that the employer had to disclose the metadata. The judge wrote: “a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata.”

Consequently, the employer did not have to disclose the metadata of the business plan.

In a related matter, the employee alleged the company destroyed some electronically stored information. That issue will be litigated at a later hearing date. Check back to CIOLaw.org for updates.

Following The Trails Of Metadata

Posted by Gregg Mayer on Thursday, February 21st, 2008   

As discussed in an earlier post, metadata is the hidden stuff in electronically stored information (”ESI”), including email. Under the Federal Rules of Civil Procedure, metadata may have to be disclosed to the other side in litigation, although not always.

Once metadata is disclosed, lawyers often start looking for information to use.  Sometimes lawyers start perusing another party’s metadata even if it is unclear whether the metadata was intended to be disclosed.

A recent article on law.com nicely explores the different aspects - and troubles - of metadata:

Metadata, often described as “data about data,” is electronically stored information that generally is not visible from the face of a document that has been printed out, or as first seen on a computer screen. Embedded in the software, metadata gives information about the creation or modification of the document — information which often is mundane but at other times, can be quite significant and perhaps even privileged.

By “mining” the metadata in a document, someone may be able to identify the document’s author, changes made during various stages of its preparation, comments made by others who reviewed the document and other documents embedded within the document.

Read the full article here.

If I Am Sued, Do I Have to Disclose My Metadata?

Posted by Gregg Mayer on Thursday, February 7th, 2008   

Metadata is the hidden stuff. It’s the information stored in electronic files, including email, that may not be apparent to users.  It includes the dates a file was accessed, modified, sent, received, the names of whomever opened and changed it, and even the prior versions of a document. One area of development in the e-Discovery frontier is whether metadata must be disclosed along with the other electronically stored information. The answer is simple: maybe.

No consensus exists that metadata must be disclosed. One reason is the Federal Rules of Civil Procedure do not directly address whether metadata must be disclosed. Instead, this is a matter that is left to the judges.

One thing is clear:  Metadata certainly can be discoverable in litigation (some judges have already decided that), but it is not clear if it always has to be disclosed.

Consider two cases:

In the 2005 Kansas federal case of Williams v. Sprint/United Management Co., the plaintiff sued for age discrimination. She wanted to look at spreadsheets showing the employment history of the company.

When the company turned over the spreadsheets, it blocked out the plaintiff’s ability to see the metadata. The plaintiff complained.

The court decided that the metadata should be available to the plaintiff and ordered the company to reproduce the spreadsheets with the metadata in tact. In fact, the court said metadata should always be produced unless a party objects. In the judge’s words:

…the Court holds that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order.

On the flip side, about a year later in a Kentucky federal court, the judge disagreed with the Kansas judge in the Sprint case. In Kentucky, the judge explained there should not be a default rule of always disclosing metadata. On the contrary, the plaintiff in this case failed to show a need for the metadata and was not allowed to get it. The court stated:

The issue of whether metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a Rule 26(f) conference [the initial meeting of the lawyers to talk about discovery]. Here, the parties clearly had no agreement that the electronic files would be produced in any particular format. Plaintiff did not notify defendant ISC that it sought metadata until seven months after ISC had produced both hard copy and electronic copies of its documents.

Plaintiff has not made any showing of a particularized need for the metadata. Although plaintiff argues generally that it “needs document custodian information for the prosecution of its case”… plaintiff does not identify any specific document or documents for which such information would be relevant…In most cases and for most documents, metadata does not provide relevant information… Depending on the format, the metadata may identify the typist but not the document’s author, or even just a specific computer from which the document originated or was generated.

In short, whether you have to disclose your metadata depends on the facts of your case.