Meta-data or Mega Headache?

Meta-data is an interesting feature of electronic documents.  It refers to "information about information." That is not a terribly helpful definition.

Put another way, meta-data is electronic information our computers generate and keep regarding our computer files. Meta-data can reveal who created a file, when it was last reviewed and how long the file was worked on. It can reveal changes to a document. While such information seems mundane, if not deadly dull, it can have serious consequences. In 2003, British Prime Minister Tony Blair was embarrassed when meta-data in official documents contradicted his position on the war in Iraq. (See http://www.zdnetasia.com/news/software/0,39044164,39191084,00.htm.)In a more ordinary context, imagine opening the Properties file of a document and discovering that your attorney spent 20 minutes drafting it, but charged you for two hours. Worse, a prospective customer used meta-data to discover that you had given a better deal to another customer (who happened to be a particularly good negotiator).

Because meta-data can provide a look "behind the scenes," shrewd litigators will ask for it to be produced during the Discovery process. When responding to a Discovery request, lawyers and IT professionals need to bear in mind that meta-data comes in two types:

• Application meta-data, which is embedded in each file and stays with that file when it is copied;
• System meta-data, which is stored separately in the computer's file system, and which may not be automatically copied.

Consequently, simply copying all the documents on Mr. X's hard drive may not capture all the meta-data and may not comply with the discovery request. Because the extraction is somewhat specialized, the use of a reputable third party vendor is generally recommended.

Of course, meta-data cannot be recovered from documents that have been purged.  However, purging documents after they have been requested will probably cause the court to impose sanctions for destruction of evidence.  Thus organizations need clear procedures to ensure that files, whether paper or electronic, are properly and promptly protected when they become part of of a litigation.

If your lawyers and IT professionals  have not discussed what they will need from one another in the event of a request for electronic documents, they need to do so, before a subpoena arrives.