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<b><i>Practice Tip:</b></i> Managing Your Metadata
New amendments to the Federal Rules of Civil Procedure ('FRCP') identify electronically stored information, tangible and intangible, as discoverable (relevant, non-privileged) information.
This altered landscape, which took shape when the existing rules were amended and the amended rules took effect in December, is one that e-commerce enterprises must size up and become familiar with.
To ensure compliance, firms are required to adopt policies regarding the preservation, retention and destruction of all digital data, including metadata. Litigators are pressed to develop some expertise on the types and locations of document, application and system metadata, with the expectation that all metadata may have evidentiary value. The demands will press IT professionals to deliver a copy or description of all relevant electronic media, their location and category, without delay, and to be able to substantiate the firm's retention policies.
Metadata
Metadata reveals information about data. Document metadata includes:
- Tracked changes;
- Hyperlinks;
- Hidden text;
- Comments
- Date;
- Time; and
- Seventy other details about the document's production history.
Application metadata includes the identifying information about the software application and the third-party tools used to generate, convert and format the document.
System Metadata
This information reveals the operating system, server and printer names associated with the document. System metadata can also include creation and modification dates, but this information might not corroborate the date and time stamps shown among the document metadata. If documents are relocated from one file system to another, say from Windows 98 to Windows XP, and then archived to a CD, then the system date stamps will change each time, distorting the document's apparent lifespan. Review of other document or application metadata can be used to determine a more accurate time period.
Capturing and Managing Metadata
A key stipulation of Rule 34 of the FRCP is the production of data in 'a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.' Metadata can be preserved and provided in native format or in another searchable, useable, readily available file format. Third-party products can be used to generate a metadata schema of documents in production. One practical approach to compliance is collecting and preserving the metadata at each rendition or version of the document. The routine should be automated so that the metadata is gathered and categorized efficiently and generated into a schema, and the schema preserved for possible review. The schemas provide useable, searchable documents of unaltered metadata and analytics reasonably available for purposes of electronic discovery.
The capture of the metadata and production of the schemas are conducted consistently in the ordinary course of business. The disposal of the metadata schemas should be consistently adhered to according to the firm's storage and retention schedules to pass the 'good faith' test stipulated in Rule 37.
The practice of generating metadata schemas at the conclusion of a version ensures the integrity of the metadata disclosure before metadata corruption occurs during file sharing and collaboration. This routine provides a version-by-version snapshot of visible and functional metadata captured at the earliest opportunity.
Corporate policies surrounding the discovery and production of electronic evidence should be implemented at the pretrial conference. The amended rules require a 'meet-and-confer' session with opposing counsel to set the ground rules for e-discovery. Parties collaborate and determine the scope, form and format of electronic discovery, location and preservation of discoverable evidence, the search criteria methodology, and accessibility of relevant data. Prior to the conference, gain a full understanding of the client's infrastructure, technology routines, retention policies, and the cost of searching and reviewing data. A formal assessment by an IT professional or forensics consultant is critical. Electronically stored information from old, legacy systems such as voicemail and backup tapes might be excluded from discovery or the cost of retrieval shifted to the requesting party if it's not 'reasonably accessible because of undue burden or cost' as provided for in Rule 26(b). The existence and location of inaccessible data must be disclosed and the cost of recovery specified.
Retention and destruction protocols for electronic data should be well defined, established prior to litigation, and implemented on a routine and consistent basis. Failure to do so precludes the protection afforded by Rule 37, which states that a 'court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system' absent a litigation hold. Strategic policies are formed by in-house counsel and technology experts. A plan for all enterprise content should be included. Defensible procedures will include audits to ensure compliance and good-faith efforts to preserve discoverable data from systematic destruction or the recycle bin.
Judye Carter Reynolds has 25 years of experience in various training roles spanning customer training, technical support and software-implementation services for small to large law firms. She frequently consults with law firms on their training staff, education and 'train the trainer' scenarios. She is Vice President of Client Experiences for Esquire Innovations Inc., a CA-based provider of Microsoft Office integration-software services and legal-market applications.
New amendments to the Federal Rules of Civil Procedure ('FRCP') identify electronically stored information, tangible and intangible, as discoverable (relevant, non-privileged) information.
This altered landscape, which took shape when the existing rules were amended and the amended rules took effect in December, is one that e-commerce enterprises must size up and become familiar with.
To ensure compliance, firms are required to adopt policies regarding the preservation, retention and destruction of all digital data, including metadata. Litigators are pressed to develop some expertise on the types and locations of document, application and system metadata, with the expectation that all metadata may have evidentiary value. The demands will press IT professionals to deliver a copy or description of all relevant electronic media, their location and category, without delay, and to be able to substantiate the firm's retention policies.
Metadata
Metadata reveals information about data. Document metadata includes:
- Tracked changes;
- Hyperlinks;
- Hidden text;
- Comments
- Date;
- Time; and
- Seventy other details about the document's production history.
Application metadata includes the identifying information about the software application and the third-party tools used to generate, convert and format the document.
System Metadata
This information reveals the operating system, server and printer names associated with the document. System metadata can also include creation and modification dates, but this information might not corroborate the date and time stamps shown among the document metadata. If documents are relocated from one file system to another, say from Windows 98 to Windows XP, and then archived to a CD, then the system date stamps will change each time, distorting the document's apparent lifespan. Review of other document or application metadata can be used to determine a more accurate time period.
Capturing and Managing Metadata
A key stipulation of Rule 34 of the FRCP is the production of data in 'a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.' Metadata can be preserved and provided in native format or in another searchable, useable, readily available file format. Third-party products can be used to generate a metadata schema of documents in production. One practical approach to compliance is collecting and preserving the metadata at each rendition or version of the document. The routine should be automated so that the metadata is gathered and categorized efficiently and generated into a schema, and the schema preserved for possible review. The schemas provide useable, searchable documents of unaltered metadata and analytics reasonably available for purposes of electronic discovery.
The capture of the metadata and production of the schemas are conducted consistently in the ordinary course of business. The disposal of the metadata schemas should be consistently adhered to according to the firm's storage and retention schedules to pass the 'good faith' test stipulated in Rule 37.
The practice of generating metadata schemas at the conclusion of a version ensures the integrity of the metadata disclosure before metadata corruption occurs during file sharing and collaboration. This routine provides a version-by-version snapshot of visible and functional metadata captured at the earliest opportunity.
Corporate policies surrounding the discovery and production of electronic evidence should be implemented at the pretrial conference. The amended rules require a 'meet-and-confer' session with opposing counsel to set the ground rules for e-discovery. Parties collaborate and determine the scope, form and format of electronic discovery, location and preservation of discoverable evidence, the search criteria methodology, and accessibility of relevant data. Prior to the conference, gain a full understanding of the client's infrastructure, technology routines, retention policies, and the cost of searching and reviewing data. A formal assessment by an IT professional or forensics consultant is critical. Electronically stored information from old, legacy systems such as voicemail and backup tapes might be excluded from discovery or the cost of retrieval shifted to the requesting party if it's not 'reasonably accessible because of undue burden or cost' as provided for in Rule 26(b). The existence and location of inaccessible data must be disclosed and the cost of recovery specified.
Retention and destruction protocols for electronic data should be well defined, established prior to litigation, and implemented on a routine and consistent basis. Failure to do so precludes the protection afforded by Rule 37, which states that a 'court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system' absent a litigation hold. Strategic policies are formed by in-house counsel and technology experts. A plan for all enterprise content should be included. Defensible procedures will include audits to ensure compliance and good-faith efforts to preserve discoverable data from systematic destruction or the recycle bin.
Judye Carter Reynolds has 25 years of experience in various training roles spanning customer training, technical support and software-implementation services for small to large law firms. She frequently consults with law firms on their training staff, education and 'train the trainer' scenarios. She is Vice President of Client Experiences for Esquire Innovations Inc., a CA-based provider of
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