Why Metadata Matters

Metadata is old hat to IT, which has used it for years to classify and store data. But general lawyers are not so certain about what metadata is or how they should use it in the e-discovery process. Guidance Software has come out with a pretty good list of metadata best practices in terms of e-discovery. Below is my commentary on a few of the important points as they relate to the intersection of IT and the legal department.

Point 1 -- Know what metadata is and how IT is using it. Metadata is a linchpin of document retention, which is founded on knowing the creation and modification dates of a piece of data. There are other metadata attached to files as well, such as creators, document types, and respondents and attachments in the case of email. Lawyers should work with IT to understand the nature of metadata and how to use it and preserve it. In the case of IT, they should be using software tools that classify electronically stored information (ESI) by metadata.

Point 2 -- Preserve all metadata with ESI and produce as requested. In Bray & Gillespie v. Lexington, B&G had correctly preserved metadata with its large ESI collection -- hundreds of thousands of emails, files, and attachments. But then B&G's lawyers took it upon themselves to strip the metadata from the collection and produce it as graphic images, even though the Lexington lawyers had requested native files in the meet-and-confer. This left the large collection completely unsearchable. Opposing counsel bitterly complained, and the judge agreed. This resulted in serious sanctions on both the offending law firm and its individual lawyers.

Point 3 -- Track everything so you can prove the methods you used to collect preserve and produce ESI, including metadata. The more automated you can make this process the happier you will be and the better defensible evidentiary record you will have. Most e-discovery classification software will track and report on actions -- just make sure that a) your tool can do it before you buy it, and b) you are using the feature. (You'd be surprised)

Point 4 -- At meet-and-confer, attorneys should already know the method that IT is using to preserve ESI with metadata, and should be prepared to intelligently propound or respond. All too often metadata is a fuzzy concept in lawyerly minds. It is IT's place to educate them, and to use the software tools that classify, preserve, and produce metadata along with files.Point 5 -- IT and the attorneys should understand each other. OK, OK, this is a loaded gun of a statement. But really -- before the meet-and-confer the lawyers should communicate the dangers of spoliation and what metadata they may have to request or produce. IT should communicate how metadata works and how they can and will support the e-discovery process, preferably using e-discovery technology to improve and automate the process.

– Christine Taylor, an analyst with the Taneja Group, has more than a decade of experience in covering the IT and communications industries. She has written extensively on the role of technology in e-discovery, compliance and governance, and information management.

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