Law Times

PAGE 12 FOCUS may 9, 2011 • Law Times Metadata in e-discovery: What's all the fuss with this confusing concept? BY JANA SCHILDER For Law Times I f there's one concept that's confusing in e-discovery, it's metadata. A street defi nition of meta- data is data about data, but the term can encompass hidden text, formatting codes, for- mulas, and other information associated with an electronic document. seen by users. Other metadata can be hidden or embedded and unavailable to computer users who aren't technically adept. Th ere are three types of metadata. In Aguilar v. Immi- gration and Customs Enforce- ment Division of the United States Department of Homeland Security, U.S. Magistrate Judge Frank Maas described the three types: substantive, system, and embedded. modifi cations to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. . . . Substantive metadata is em- bedded in the document it describes and remains with the document when it is moved or copied." System metadata, he noted in reference to the Sedona Substantive metadata, also known as application metadata, is 'created as a function of the application software used to create the document or fi le' and refl ects substantive changes made by the user. Certain types of metadata de- scribe the characteristics of elec- tronically stored information, such as how, when, and by whom it was collected, created, accessed, modifi ed, and formatted. Some metadata, such as fi le dates and sizes, can easily be "Substantive metadata, also known as application meta- data, is 'created as a function of the application software used to create the document or fi le' and refl ects substantive chan- ges made by the user. . . . Th is category of metadata refl ects principles, "'refl ects informa- tion created by the user or by the organization's information management system.' . . . Th is data may not be embedded within the fi le it describes, but can usually be easily retrieved from whatever operating system is in use. Examples of system metadata include data concerning 'the author, date and time of creation, and the date a document was modi- fi ed.' Courts have commented that most system (and substan- tive) metadata lacks evidentiary value because it is not relevant. System metadata is relevant, however, if the authenticity of a document is questioned or if establishing 'who received what information and when' is important to the claims or de- fenses of a party. Th is type of metadata also makes electronic documents more functional because it signifi cantly im- proves a party's ability to access, search, and sort large numbers of documents effi ciently." Maas went on to describe embedded metadata as con- sisting of "'text, numbers, content, data, or other infor- mation that is directly or in- directly inputted into a native fi le by a user and which is not typically visible to the user O'BRIEN'S ENCYCLOPEDIA OF FORMS, ELEVENTH EDITION COMPUTERS AND INFORMATION TECHNOLOGY, DIVISION X Editor: Louis H. Milrad O'Brien's Encyclopedia of Forms, Eleventh Edition is a comprehensive collection of forms and precedents covering a broad range of legal subjects. It provides, both in looseleaf and electronic formats, thousands of documents which can be easily customized to suit your individual needs. Each topical division includes authored commentary. O'Brien's — Computers and Information Technology, Division X is compiled by one of the country's leading IT practitioners. This service delivers all of the appropriate and up-to-date forms of agreements to help you conduct your IT business. 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Examples in- clude spreadsheet formulas, hidden columns, externally or internally linked fi les (such as sound fi les), hyperlinks, refer- ences and fi elds, and database information." Th is type of metadata, Maas added, "is often crucial to under- standing an electronic document. For instance, a complicated spreadsheet may be diffi cult to comprehend without the ability to view the formulas underlying the output in each cell." Why do lawyers want meta- data as part of e-discovery? Th ey want it because it can be used to show things not evident from the document's content alone. For example, in a case where there's a separate Internet header that lists the route the message took between sender and receiver, metadata is valu- able because it can be used to show contextual, processing, and use information associated with a document. It can also illustrate the document's chain of custody, storage locations, ac- cess history, and versions, all of which are useful when you need to authenticate a document. Metadata is useful but fra- gile. It can be altered inten- tionally or inadvertently. Sim- ply forwarding a message to another recipient, which has been done occasionally dur- ing collection, can change the e-mail header detailing the sender, receiver, date, and time so that it can no longer be used for searching. Opening or previewing docu- ments will alter the last access date. In some systems, copying a fi le changes the creation date on the copy to the date it was copied. Saving a fi le can alter its last modifi ed date. Some appli- cations carry the original auth- or's name even if another person copies the fi le and modifi es it. Some antivirus applications ac- tually touch every fi le. If there's a chance that meta- data will be needed for litiga- tion, it's critical not to peek just to see what exists because do- ing so will alter the metadata. Instead, ensure technicians use forensically sound processes for preservation and collection. Lastly, comparing a docu- ment's system metadata and substantive metadata may be used to show that a document was tampered with. A related issue is the ethics of examining substantive metadata if it has been supplied inadvertently. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image. CANADA LAW BOOK® www.lawtimesnews.com CLB - O'Briens Forms.indd 1 4/14/11 10:41:15 AM For further discussion, see Th e Sedona Guidelines: Best Prac- tice Guidelines & Commen- tary for Managing Informa- tion & Records in the Elec- tronic Age.

• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery