Metadata and ESI
For those out of the legal loop, metadata is electronically stored information embedded in digital files. This data generally includes logistic information concerning document creation, modification dates, and hidden fields. This “data about the data” provides file context to help lawyers piece together the big picture during e-discovery. Here we will learn more about metadata and ESI.
With that definition in mind, it sounds reasonable that metadata should be protected. Open and shut. Unfortunately, things aren’t always that simple. Metadata can be more than just a laundry list of file factoids. Indeed, this data can potentially contain sensitive information, legal strategies, and private correspondence usually protected by attorney-client privilege. The ABA/BNA Lawyers’ Manual on Professional Conduct describes this:
“The hidden text may reflect editorial comments, strategy considerations, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer.” 21 Current Rep. 39 (2004)
Obviously, this isn’t always information you want to send to opposing counsel. In the best-case scenario, you’re giving up valuable strategies that may affect the outcome of the case. In the worst case, you may be transmitting sensitive data that illegally violates client privilege. Given the ramifications of improperly handling this information, do lawyers have an obligation to maintain the integrity of their metadata during e-discovery?
In most cases, preserving metadata falls into the same category as requesting native productions: lawyers choose to do it by default, often without knowing why.
Aside from the legal consequences touched on above, there are certainly other arguments to be made for preserving this information. This is one of the biggest reasons lawyers’ request native productions. Native file conversion to TIFF or PDF can destroy important authenticity and contextual metadata. Although accompanying load files can mitigate this outcome, not every piece of data is transferrable. Native productions keep metadata integrity intact, no questions asked. It’s also important to note that this data can’t be replicated once lost. Many lawyers have used metadata-scrubbing utilities to “clean” their files before discovery, in the interest of privacy and confidentiality. Of course, this practice can backfire when the information you deleted is deemed case-relevant, leaving you open to legal sanctions and penalties.
On the other hand, while file conversion does reduce transparency, consider that metadata fields aren’t always relevant to every case. Prioritizing irrelevant metadata during discoveries that don’t need it can prolong legal review and increase costs, particularly when metadata integrity means receiving native files when TIFF and PDF formats may have been simpler. There is no justification for destroying relevant metadata, but knowing how opposing counsel will view and apply the information you provide can be what makes or breaks your case.
Given that the debate over the necessity of metadata is ongoing, lawyers must begin the discussion early in the discovery process. Metadata concerns should be discussed with opposing counsel during the meet and confer; raising the question after file production begins is already too late.
The question of how to handle metadata is a symptom of a larger concern in the legal world—poor information governance. Lawyers must understand the basics of the data during each case they review and take ownership of the discovery process. Counsel has a responsibility to discuss metadata from the beginning, determine what files fall under the “client confidentiality” umbrella, and produce accordingly. Metadata may not be essential to your particular case, but understanding its value and its drawbacks is a necessary part of effectively representing your client.
Metadata and ESI
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