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As the use of electronic-communication and data-storage technologies has swelled, in-house counsel have had to respond to the growth of electronic-discovery techniques. More often than not, information vital to a legal action may be contained in an e-mail, spreadsheet, or text document stored on a server, personal computer, hand-held device, or backup media. In addition, equally critical data detailing the authorship, timing, and circulation of these materials are buried in hidden software code — and often must also be produced. This category of hidden information — data about data, in other words — is called metadata. It creates an audit trail that allows attorneys and the courts to establish who knew what and when. This, in turn, may allow attorneys to defend the actions of corporate executives and employees, or expose a smoking gun in cases where their company has been wronged. NEW DEMANDS E-discovery and the critical nature of metadata have completely recast the environment in which in-house counsel work. No longer can they simply identify a list of contracts, documents, or agreements that need to be printed, photocopied, and turned over to opposing counsel or the court. Instead they frequently must be able to produce both the content and metadata relevant to electronic records. This has required that they become fluent in the language of technology. Metadata is stored within a computer as a “fingerprint” identifying all activity and within individual documents as an audit trail; in other words, it allows viewers to identify all actions that affected a document. Briefly put, it serves as the record of the automated lifestyle we now live. Metadata reveals when and upon which computer a document was created — whether as text, spreadsheet, or image. The computer creates the audit trail, filling it with metadata that is not apparent to end users, including all events in the life of that document, such as: • Who may have opened the file; • On what dates and at what times relevant parties accessed the file; • At what point modifications like additions, deletions, or revisions were made to the file; and • To whom files were distributed or forwarded. In most cases the computer itself creates the metadata automatically with time, date, and user stamps, for example. But users can add layers of metadata. When using the “track changes” feature on a computer, for instance, an editor identifies his or her fingerprint on the document and leaves evidence of every character added or deleted. Additionally, metadata can also be inferred through the relationships documents have with one another — portions of documents cut, copied, and pasted into other materials, for instance. Metadata is seldom evident to computer users, both because it is generated automatically and because it typically does not appear on the screen or printed page. And this is often where it becomes most valuable — or damaging — during e-discovery. For instance, metadata can corroborate an executive’s claim that he was unaware of questionable business practices if it reveals that suspicious documents were never present on the officer’s computer nor forwarded to him through business or personal e-mail servers. Conversely, it can incriminate an employee whose e-mail logs prove he communicated with competitors during the time sensitive new products were being developed. TRENDS IN METADATA In the past 10 years e-discovery and metadata have played a key role in a number of legal cases, including the following: • E-mail metadata tracked through a scientist with Merck & Co. indicated the drug manufacturer knew its painkiller Vioxx might cause heart problems — two years before it went on sale. A Texas Superior Court jury returned a $250 million verdict against the pharmaceutical giant. • During an age-discrimination and reduction-in-force lawsuit ( Williams v. Sprint/United Management Co.) the judge made it clear that when parties are required to produce documents maintained in the course of business, these documents must be provided with metadata intact. • Similarly, a ruling from a securities class action filed in the U.S. District Court for the District of Connecticut against Priceline.com stated that even when data are produced in formats other than the originating software causing the metadata to be altered or lost (for example, a contract is supplied as a PDF instead of as the original Word document), a searchable database of relevant metadata must also be provided. The bottom line? Metadata’s role as a “key witness” in corporate litigation is here to stay. Precedence indicates that metadata is unquestionably discoverable and that in-house counsel must produce metadata concurrently with other documents unless the opposing party or the courts rule that it is not relevant to the case. Because metadata’s influence has grown so rapidly, legal experts are attempting to define reasonable parameters governing its discoverability. Primary among these are The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information and Records in the Electronic Age and the Federal Rules of Civil Procedure (with emphasis on Rule 34). Both documents classify the significance of issue, but the Sedona Guidelines are credited with outlining more precisely future directions regarding the discoverability of metadata. In part, they note that metadata should not “presumptively be treated as part of the document.” But, the guidelines continue, “there are circumstances in which the data may be relevant and should be preserved and produced.” THE IMPACT IN-HOUSE For many corporate attorneys the implications of being required to produce metadata with company documents during litigation are overwhelming. To begin with, most in-house lawyers are stunned when they grasp the sheer volume of information that is affected. Companies today archive more information than ever before in response to government regulations requiring them to archive data for varying retention periods — and because electronic-storage media is relatively cheap and takes up virtually no expensive floor space. This means, however, that every version of every saved document contains metadata that ultimately may be discoverable, and every gigabyte of electronic material represents 75,000 paper pages. Compounding this realization is the recognition that the vernacular of information technology is vastly different from that of the legal profession. Nevertheless, it is vital for in-house counsel to understand what systems are in place and whether they adequately and appropriately preserve base documents as well as the underlying metadata. As a result, corporate attorneys have determined they need to improve the way they can produce necessary materials, complete with metadata, in the event of litigation. Experts recommend that businesses follow a four-step process to ensure they are prepared. 1. Conduct an in-house audit to determine what files are being archived and what files that currently are not being stored should be. 2. Research and become familiar with the types of technology that are available to support reasonable efforts to maintain electronic files and accompanying metadata. 3. Develop collaborative relationships with the company’s information technology staff to assess and enhance the systems and software used to manage business communications and files. 4. Create outreach partnerships with external counsel and metadata experts for assistance and advice as electronic resources are fine-tuned — and to be available if the corporation must respond to or initiate legal action. In addition, in-house counsel must establish systems and safeguards to ensure that the corporation stays abreast of legal trends, changing requirements, and evolving technology. For instance, businesses need to look beyond their central databases and desktop networks. Many corporate executives now use smart phones that are synchronized to their computers. The synchronization process pulls text messages and call logs from the portable device, creating records of conversations and contacts. Although these messages may not have been created on a PC or laptop, the content and metadata are ultimately transferred to the hard drive when the device is synchronized, creating a discoverable e-document. In this technological environment it is vital that in-house attorneys seek out methods and partners to support them as they develop reliable methods to preserve metadata. With this preparation they can be confident that their corporate employers will be able to produce documents that comply with the evolving requirements of digital discovery.
Chuck Bokath is vice president of software development for Atlanta-based eMag Solutions, an electronic-discovery company specializing in accessing data from a variety of archived sources.

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