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The Sending and Receipt of Metadata
Metadata is everywhere ' in the overwhelming majority of electronically created documents and files. Distinct ethical and legal considerations and duties arise for in-house and for their company's outside counsel, both when sending and receiving electronic documents or files containing metadata. Further, those considerations and duties for in-house counsel and his/her company's outside counsel often differ and/or are dependent upon whether the transmission or receipt of metadata occurs in the context of: 1) discovery (i.e., productions pursuant to a discovery request or subpoena); or 2) non-discovery communications. The sections that follow provide an overview of the ethical and legal considerations in both of those contexts with respect to both the sending and receipt of metadata by in-house counsel and the company's outside counsel.
What Is Metadata?
Metadata is frequently defined, simply, as “data about data.” See Sedona Conference', “Commentary on Ethics & Metadata,” Public Comment Version (March 2012) (Sedona Commentary on Ethics & Metadata) at 1. Electronic documents and files “usually include[] not only the visible text but also hidden text, formatting codes, formulae, and other information associated with the file,” with those various types of information frequently grouped together under the banner of “metadata.” See The Sedona Principles (Second Edition): Best Practices, Recommendations & Principles for Addressing Electronic Document Production (June 2007), at 60. However, “metadata” can be broken down into many distinct categories, including application (or substantive) metadata, system metadata and embedded metadata.
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