Metadata: A New Tool in e-Discovery

The new e-discovery rule amendments to the Federal Rules of Civil Procedure have brought metadata to the forefront of discovery.

In the past, documents were generally produced and reviewed in paper form.  Electronic search of documents is now often a supplement, or even a complete substitution, for manual review. Additionally, the existence of metadata in the electronic version of a document, not apparent from a review of the printed form, has expanded the information potentially available for review by attorneys and use in litigation.   

Search: The New Way to Review Documents

A key feature of e-discovery is the ability of the litigator to electronically search documents.  Before electronic files, a litigator might review (or try to review) substantially all paper documents available through discovery.  This procedure was error-prone, as it was easy for a reviewer to miss something important.  It was also inefficient, as several passes through the available documents might be required as new issues were identified during the course of the case.  Now, many litigators take all documents from whatever source (paper, electronic files) and gather them in electronic form to make them more accessible.  Then, search is used as the primary method to separate the wheat from the chaff.  The trial team may or may not look at every document, depending upon the type of case, the client instructions and the discovery budget.  Search by keywords is the primary tool to for document review. 

An 'electronic search' approach to discovery requires that all documents be converted to an electronically searchable form and that a method of searching across all files is available.  For electronic documents delivered in native file format, search is usually possible in some form or another. This is particularly true for standard Microsoft Office documents. Email presents more difficulties, as email attachments may need to be deconstructed from the electronic file holding the email to be searched.  Paper-based documents must scanned and OCRed to make them searchable as electronic files.  The OCR process inevitably introduces OCR errors, which diminishes the effectiveness of the electronic search, as compared with the search of native files or electronic documents based on native files.  

A 'electronic search' approach also requires that all documents are addressable as a collection from a single search query.   A number of systems are in use today by litigators.  At the high end, litigation document repositories may be established to make all documents accessible and searchable, often between multiple parties in different locations.  These systems may be comprehensive and expensive.  Alternatively, a law firm may make documents searchable from a file server on its local area network, or run LAN-based case management software, which may allow for indexing and searching of litigation files. For a small case, all documents might be stored on a single CD or DVD, or kept on a portable hard drive, and searched from the Windows operating system.   

Metadata: A Smoking Gun in Hiding?

The use of electronic files potentially enables the search of metadata, embedded information within an electronic file that traces the history, access or use of a file. Metadata can be characterized as application metadata or system metadata. Application metadata is information not visible on the printed page, but embedded in the document file, remaining with the file if it is copied. System metadata is not embedded in the file, and instead is stored externally on the computer file system. Application metadata may include important items such as who created or edited a document, and when it was created, edited, saved or printed. Sometimes prior versions, deletions and hidden comments may be retained as application metadata in an electronic file.  The new e-discovery amendments explicitly recognize the existence and discoverability of metadata.  Application metadata, however, can be recovered only from electronic files in native file format, other electronic files that have expressly preserved the metadata.  A paper document that is printed will usually not show any of the metadata.  Similarly, if one prints electronic documents and then rescans them to electronic format (e.g. PDF or TIFF), these rescanned documents will typically not retain application metadata.  Extraction of system metadata required the services of a computer forensics expert.   

Production of metadata has in the past has been the exception in discovery, rather than the rule.  There have been several reasons for this.  One reason has unfortunately been the lack of knowledge of many litigation counsel of how to access and effectively use metadata.  Undoubtedly, outcome changing information has been missed by litigation counsel who has not learned how to find and use metadata.  Other times, an express decision has been made not to look at metadata because of the belief that it would not be cost effective to pursue.  If a computer forensics expert must be brought in to analyze metadata, the discovery bill may mount quickly. For this reason, litigation counsel is often hesitant to pursue metadata evidence.  However, advances in recovery techniques makes extracting and using some metadata more routine and usable at a much lower cost.  A forensics expert can then be brought in only when more specialized forensics services are needed, such as recovering the full range of application metadata or computer system metadata.

The new e-Discovery rules should make use of metadata evidence more common.  The rules provide that electronically stored information (ESI), including metadata, is discoverable. Litigants must preserve and produce ESI and metadata. If ESI or metadata is destroyed, then the courts have tools to impose sanctions for spoliation, including adverse inference instructions to juries, exclusion of evidence, imposition of directed verdicts, criminal sanctions and professional sanctions against attorneys. The rules provide a safe harbor so that courts will not impose sanctions for ESI lost as a result of the routine, good-faith operation of an electronic information system. The party destroying metadata or other ESI would have the burden of proving the applicability of the safe harbor.

How You can Access Metadata in Lexbe Online

Lexbe Online allows users to view metadata as part of views files in native file format (e.g. Microsoft Word, Excel, Powerpoint and emails in MSG or EML format, among other types).  Files in native file format will open and display in a condensed html format within the Lexbe document viewer.  The Lexbe Online application will display document metadata from the opened file at the bottom of the display.  For example, the following metadata fields will display from Microsoft Word if included in the file: document subject, document author, last saved by, document revision number, total editing time, date and time created, and date and time last saved. Similar fields will display if available from other files in native format.