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.