Point & Glick

I men­tioned the ABA EDDE Case Digest I received by email in my last post. Since train­ing at work is over and I only have 3 finals left, I took some time to look over the digest.

In gen­eral, the cases cited sim­ply rein­force the notion that attor­neys must be savvy enough to know what to ask for dur­ing dis­cov­ery and that if you don’t request it, you don’t get it. One thing that stuck out at me, though, is the list of types of meta­data in the Sedona Principles:

“a. Sub­stan­tive Metadata”

“Sub­stan­tive meta­data, also known as appli­ca­tion meta­data, is “cre­ated as a
func­tion of the appli­ca­tion soft­ware used to cre­ate the doc­u­ment or file“
and reflects sub­stan­tive changes made by the user. Sedona Prin­ci­ples 2d Cmt.
12a; Md. Pro­to­col 26. This cat­e­gory of meta­data reflects mod­i­fi­ca­tions 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.
Sedona Prin­ci­ples 2d Cmt. 12a. Sub­stan­tive meta­data is embed­ded in the
doc­u­ment it describes and remains with the doc­u­ment when it is moved or
copied. Id. A work­ing group in the Dis­trict of Mary­land has con­cluded that
sub­stan­tive meta­data “need not be rou­tinely pro­duced” unless the request­ing
party shows good cause. Md. Pro­to­col 26. ”

“b. Sys­tem Metadata”

” Sys­tem meta­data “reflects infor­ma­tion cre­ated by the user or by the
organization’s infor­ma­tion man­age­ment sys­tem.” Sedona Prin­ci­ples 2d Cmt.
12a. This data may not be embed­ded within the file it describes, but can
usu­ally be eas­ily retrieved from what­ever oper­at­ing sys­tem is in use. See
id. Exam­ples of sys­tem meta­data include data con­cern­ing “the author, date
and time of cre­ation, and the date a doc­u­ment was mod­i­fied.” Md. Pro­to­col
26. Courts have com­mented that most sys­tem (and sub­stan­tive) meta­data lacks
evi­den­tiary value because it is not rel­e­vant. See Mich. First Credit Union
v. Cumis Ins. Soc’y, Inc., No. Civ. 05–74423, 2007 WL 4098213, at *2
(E.D.Mich. Nov. 16, 2007); Ky. Speed­way, LLC v. Nat’l Assoc. of Stock Car
Auto Rac­ing, No. Civ. 05–138, 2006 WL 5097354, at *8 (E.D.Ky. Dec. 18,
2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). 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 defenses of a party. See Hagen­buch v. 3B6 Sis­temi
Elet­tron­ici Indus­tri­ali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3
(N.D.Ill. Mar. 8, 2006). This type of meta­data also makes elec­tronic
doc­u­ments more func­tional because it sig­nif­i­cantly improves a party’s
abil­ity to access, search, and sort large num­bers of doc­u­ments effi­ciently.
Sedona Prin­ci­ples 2d Cmt. 12a.”

“c. Embed­ded Metadata”

“Embed­ded meta­data con­sists of “text, num­bers, con­tent, data, or other
infor­ma­tion that is directly or indi­rectly inputted into a [n]ative [f]ile
by a user and which is not typ­i­cally vis­i­ble to the user view­ing the out­put
dis­play” of the native file. Md. Pro­to­col 27. Exam­ples include spread­sheet
for­mu­las, hid­den columns, exter­nally or inter­nally linked files (such as
sound files), hyper­links, ref­er­ences and fields, and data­base infor­ma­tion.
Id. This type of meta­data is often cru­cial to under­stand­ing an elec­tronic
doc­u­ment. For instance, a com­pli­cated spread­sheet may be dif­fi­cult to
com­pre­hend with­out the abil­ity to view the for­mu­las under­ly­ing the out­put in
each cell. For this rea­son, the Dis­trict of Mary­land work­ing group con­cluded
that embed­ded meta­data is “gen­er­ally dis­cov­er­able” and “should be pro­duced
as a mat­ter of course.” Id. at 27–28.”

It’s a start, but I think the prin­ci­ples are going about this the wrong way. Some of these dis­tinc­tions are arti­fi­cially cre­ated for the pur­pose of the list. Take the new MS Word file for­mat — the files are now xml based. That means that embed­ded within the file there can be sub­stan­tive meta­data as well as sys­tem meta­data. What do you demand? You can’t expect the oppos­ing side to parse through the code in a plain text edi­tor and weed out the impor­tant stuff; instead they’ll claim that it’s not nec­es­sary to pro­duce any of it.

So what can we do? We can treat meta­data like we treat any other type of data or infor­ma­tion or doc­u­ment that exists; don’t pre­tend that meta­data is special.

DISCLAIMER:  When I say “we” I mean “you”. I’m only a lowly law stu­dent who had J. Grimm for Evidence.