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.
And the same is true when collecting documentary evidence. “Who knew what when” is a reoccurring theme in many investigations. Who had a key document and when they had it may be critical information. An undated, unsigned note that is meaningless by itself (“Tell the OR to get ready to operate this afternoon!”) acquires significance only when it is tied to a particular file belonging to a particular patient. It only has meaning in its original context.
Context is easy to understand for paper documents. In the paper world, questions like, “Whose office was this file in?” and instructions such as “Please copy and number the folders, binders and dividers along with the documents,” are well understood and easily answered and addressed. But when you leave the paper world behind and enter into the electronic realm, things are not so simple.
Electronically Stored Information (ESI) has the context information embedded within every file. This is called the metadata, or data about the data. Metadata is the context information for ESI. In many cases, much, maybe even most, of the potentially available metadata is not particularly useful. The 7th Circuit Electronic Discovery Committee Principles Relating to the Discovery of ESI recognizes this, suggesting that “noise” metadata need not be produced. (Principle 2.04(d)). But the metadata that can be used will be beyond helpful for an attorney.
Just a few of the data points every file carries with it includes information about the computer it came from, when it was created, when it was last modified, what the name of the file is and where it was found in the filing system. All of this information is, at a minimum, helpful to the electronic tools that outside counsel use to filter, sort, prioritize and evaluate ESI before producing it. This information can be lost when a document is printed and then scanned or easily altered when it is copied for further processing. Despite this, attorneys may instruct their clients to copy everything to a disk drive in a folder labeled ‘Production’ and send it to them, thus losing the “where” metadata in the process. Or worse, they tell their client to “print the document, scan it as a .pdf, and send it to them that way.” This happens all the time despite the widespread availability of tools that will allow accurate copies of files to be made that do not disturb the original metadata. Because it does take some time and effort to accurately collect the data, some will try to avoid this step in the e-discovery process by arguing, “the rules in this case do not require us to produce metadata,” or “we do not have an agreement so by default, we are not going to collect it” or “if it is an issue, we can always get the original e-file later.”
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.