A Primer on Metadata To Scrub or not to Scrub?
By H. Hunter Twiford III and John T. Rouse
Under the 2006 amendments to the Federal Rules of Civil Procedure, there is a strong emphasis on a party’s ability to produce and review files in their “native format,” which is the associated file structure defined by the original application creating the file.
For example, Microsoft Word documents are created as .doc files in their native format, but a printed or scanned version – a .pdf or .tiff image – is no longer in the native format. The concept may be somewhat new territory for many attorneys, but some familiarity with it is important, since it’s in the native format where the metadata is found.
The simple definition of metadata is “information about information.” When a computer document is created, the program being employed automatically generates certain information, such as who created the document, when it was created, how long the user worked on it, the number of words, who has edited the document, when it was last edited, and more. This information is called metadata.
A more precise definition is provided by The Sedona Conference, a legal think tank. It defines metadata, in part, as “information about a particular data set or document which describes how, when and by whom it was collected, created, accessed, modified and how it is formatted.”
Metadata is contained in most documents created on a computer, embedded in the file. It’s invisible to most users, but someone who is technologically proficient can “mine” metadata to discover what could be a gold mine of useful information. The file containing the specific metadata, an OLE (“Object Linking and Embedding”) file, “travels” with the document wherever it goes (in native format), and generally contains such information as the user’s name/initials, the company name, the computer name, the server name, previous authors and revisers, the number of revisions or versions, hidden text, comments and other file properties and summary information.
Metadata might appear relatively harmless, but in the litigation context amidst a vast collection of documents, it can potentially provide the smoking gun. Metadata, in an expert’s hands, can provide the electronic equivalent of a paper trail, identifying each person that laid hands on a particular document and what that person did to it.
A witness, for example, might testify that a document was created and sent on a particular date, or that he or she was the only person who worked on that particular document, while the metadata might reveal another story – including the document’s true origin and its editing history. This could well provide opposing counsel opposite with powerful cross-examination ammunition.
In litigation, concerns regarding metadata primarily arise in one of two contexts: in electronic discovery, and in communications with opposing counsel and/or the client. Neither time nor space permit recounting the horror stories related to inadvertent production of documents containing metadata, but it is worth noting that in the discovery context, the courts will ordinarily require, upon request of the opposing party, production of ESI with metadata intact. On the other hand, in the communications sphere metadata is usually removed.
Thus, there is an important distinction to be drawn between day-to-day transmission of electronically stored information in the corporate setting, both internally and externally, and its production in the litigation context. In the former, in-house and outside counsel should consider attorney-client privilege in all communications, and when appropriate they should “scrub” metadata from documents sent to opposing counsel to avoid potential liability for disclosure. Failure to remove metadata from documents created or revised by an attorney prior to transmission outside his/her company or law firm is a fertile source of future attorney malpractice claims, and may raise ethical considerations.
Conversely, scrubbing metadata from documents produced in litigation, particularly when there is a request to produce it and it’s potentially relevant, may be a violation of the Federal Rules. According to some court decisions it exposes both the offending company and its attorneys to potentially severe sanctions.
Once the distinction between communications and litigation ESI is appreciated, the issues are more easily parsed. Many companies and lawyers use automatic “scrubbing” programs to eliminate metadata from electronic documents sent from their offices. In fact, some commentators posit that it may constitute malpractice not to routinely scrub metadata.
Whichever method of controlling metadata is chosen, there should be a standard scrubbing procedure throughout the organization. In-house attorneys and staff should be trained on the standard protocol, and the process should be automated to the extent possible to avoid the inadvertent transmission of unscrubbed documents.
Although e-discovery is still relatively new, rapidly-developing law requires in-house counsel and outside litigation counsel to be familiar with the concept of e-discovery and ESI production, as well as the company’s internal systems, practices and procedures. Discussions with IT management and familiarity with the technology platforms and protocols are critically important. The trend among the courts is to place the burden of ensuring compliance with litigation holds and discovery orders on the company producing the ESI, and its attorneys. Sanctions and penalties for failing to comply can be substantial. In some cases, they have reached six and even seven-figures.
Corporate counsel need to become familiar with the basics of e-discovery. In particular they may need to talk to IT staff regarding metadata, to make sure any concerns are adequately addressed before litigation arises, and that they know when they need to bring expert ESI consultants or e-discovery counsel on board. Advance preparation will make the pain and expense of ESI battles far more manageable.
H. Hunter Twiford III is a partner and head of the Class Action and the Mississippi Commercial Litigation sections at McGlinchey Stafford PLLC, in the firm’s Jackson, Mississippi office. He is co-founder and co-editor-in-chief of the CAFA Law Blog, which is focused on the Class Action Fairness Act of 2005. He is a frequent writer and national lecturer on CAFA and other class action issues.
John T. Rouse is a senior associate in the Commercial Litigation section of McGlinchey Stafford, in its Jackson, Mississippi office.
