Have you recently sent an email to opposing counsel or electronically filed a document with the Clerk of the Court?
If you answered yes (you most likely did), the document contained metadata. In short, metadata is the information about the information contained within these documents. This information allows various programs to work with the different file formats and provide us a means to locate the file later.
We would not be able to share information across the Internet and complete these tasks (email, web pages, electronic filing) without metadata. The ability to send/receive correspondence electronically through the Internet results in a significant ease at which we complete many of the routine functions of our daily work. However, this benefit possesses one significant liability. Confidentiality.
Metadata may contain confidential client/attorney information which may not be in the best interests to unknowingly release to third parties or the opposing counsel.
TechTerms provides the following definition:
- Metadata describes other data. It provides information about a certain item's content. For example, an image may include metadata that describes how large the picture is, the color depth, the image resolution, when the image was created, and other data. A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.
- Web pages often include metadata in the form of meta tags. Description and keywords meta tags are commonly used to describe the Web page's content. Most search engines use this data when adding pages to their search index.
It seems reasonable to conclude care must be taken to ensure the metadata does not contain any information which might be useful to another person/party. For example, revision dates or notes which would be useful to opposing counsel in their preparation for mediation or discovery process (E-Discovery) prior to advancing to court.
The Federal Rules of Civil Procedure governing E-Discovery (effective December 1, 2006), indicated documents should be provided in the native format (with all metadata intact). “Scrubbing” or removing the "electronically stored information" (ESI), would be in violation of this rule. How do legal professionals avoid inadvertently releasing information within the metadata which might be harmful to the representation of a client without destroying information required to be preserved?
One possible solution to this quandary is advanced within the 2006 Amendments to the Federal Rules of Civil Procedure for Electronic Discovery suggesting attorneys develop a discovery plan described as, ..“ a plan ready to implement as soon as litigation is anticipated or a case has been filed.
- An attorney should attempt to identify the claims and client personnel who may be involved in the dispute to gauge what types of ESI future discovery requests may include.
- At the same time an attorney should advise its client to suspend the deletion of emails, customer data, voice mails, and other potentially relevant ESI, as well as suspend the recycling of backup tapes.
- After identifying possibly relevant ESI and custodians, a litigation hold should be implemented. This will allow a client's information systems to resume its routine operation, but at the same time suspend deletion and begin the preservation of potentially relevant data.”
Scrubbing the metadata (electronically stored information) appears to be a viable solution so long as all parties agree. This agreement would likely best established in the early phases of discovery before any information is collected which might be subject to the Rules of Discovery.