E-discovery: Collect metadata to avoid ESI headaches

Useful metadata is highly valuable to an attorney trying to establish context

Note to readers: This is the third in a series of articles that will cover the different phases of e-discovery.

Context is important in many fields. An ancient ceramic pot found in the living room of a suburban house is just an ancient ceramic pot. But in the undisturbed tomb of an Egyptian pharaoh, that pot now informs an archeologist about the state of a civilization at that point in time. Context is important in police work as well. A shell casing found at the scene of the crime? That’s damning evidence—but once it is removed from the scene, that contextual information is lost.

Even if any of the above statements are true in a given case, outside counsel should hold their own lawyers accountable for collecting the additional digital “hooks” that are available with the metadata. The ability to sort and search on filenames, on file creation or modified dates can provide at least helpful guidance to the investigation. Why wouldn’t you want to have that option from the very beginning? Even if the opponent does not want this information, these additional fields in the e-discovery set allow for better, faster and more accurate searching, which can reduce costs and improve the work product. At the same time, not collecting this type of information from the other side in the e-discovery process will tend to make your own review of their data more expensive and less efficient than it would be with full access to the metadata.

Some extra attention to the mechanics of how, when and where your ESI is collected, including preserving metadata, and the condition in which it is then forwarded to outside counsel, yield positive benefits to the quality and cost of the work product generated from that data. As with most ESI issues, reciprocity is a likely outcome: If you insist on getting metadata or at least an agreed portion of the available metadata, be prepared to provide that information yourself. I suggest that both sides agree early on what metadata to collect and cooperate on collecting ESI with intact metadata. In the long run, more energy will be directed to resolving the actual dispute and less time will be spent trying to figure out in what file that anonymous, undated note really belongs. 

Contributing Author

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Gregory Schodde

Gregory C. Schodde is a shareholder at Chicago-based IP boutique McAndrews, Held & Malloy.  He has 20 years of patent litigation experience and formerly worked...

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