While previous posts looking into the Electronic Discovery Reference Model, or EDRM, have taken a look at each of the nine stages of the EDRM, we would like to take this post to look more closely into an often-overlooked aspect of Preservation: metadata preservation.
Loosely defined as “data about data,” metadata has traditionally been considered just a few basic details like date created or modified, author, website url, or time sent. It can also include complex details like Excel spreadsheet formulas or other data that does not easily print out or appear in converted TIFF or PDF formats.
Since the smallest details are often the key to proving relevance and importance of electronic information, it’s essential to know the best practices for metadata preservation.
Best Practice: Reserve Unchanged Files
The most important best practice to follow for metadata production and preservation is to always reserve an original, unchanged set of the files, and only process from copies.
Any failure to preserve this important data right from the beginning could end in the loss of information that could prove key to the case later on.
Once gone, it will be difficult or impossible to replicate. You’ll also want to be sure that these original copies are securely stored in properly named file folders where you can find them easily if needed.
Best Practice: Make No Assumptions on What is Included
Do not produce files until you know for sure what metadata will be shared. The metadata may only include a few details like date and time created and by whom, or could include more detailed and potentially privileged information that should not be shared with another party unless required.
There may be other cases in which including metadata would involve producing certain privileged information, and in that case metadata may end up withheld. A meet and confer session between the two parties would be an ideal place to discuss any need to withhold certain metadata and why, especially if privileged information is involved.
Best Practice: Don’t Write PDFs or TIFF Formats Off Entirely
Often, those who have had a bad experience with converting to TIFF or PDF become wary of ever utilizing those formats again.
Converting to PDF or TIFF could result in the altering of content, or even the total failure to include the original creation date or strip out all “unseen content” (like those Excel formulas). This could slow things down if the requestors then demand native production with metadata intact. However, it’s important not to write off TIFF and PDF as acceptable formats entirely. Created and modified dates are not always relevant, so in many cases TIFF and PDF being used is perfectly acceptable.
Best Practice: Don’t Assume Privilege Information
In some cases, involved parties may feel the need to withhold data on the suspicion of it potentially including privileged information. Suspicion is not enough to justify withholding metadata.
Take the time to be absolutely clear on what is included in the metadata and to communicate whether or not it involves information that needs to be and can be legally withheld.
Best Practice: Check for Formulas and Hiding Cells
In the case of producing spreadsheets, the elimination of formulas and hiding of cells could spoil the data, since those formulas are essential to maintaining the integrity of the document.
There is plenty of case law that supports the production of financial spreadsheets in their native format whenever possible, and any decision to utilize other formats should only be done after careful discussion and consideration of potential results.
Best Practices: Document the Necessity of Retaining Metadata
The fact that metadata preservation can have a serious impact in certain cases is still not as widely understood as it should be. The court may simply not grant a request for metadata production without enough evidence to prove its necessity.
Be sure to request specific metadata as it relates to different formats (Microsoft Word documents, emails, text messages, etc) and provide evidence for why it is needed.
Using this focused approach helps to cut production costs and helps reduce the time required to gather all of the information together.
Best Practice: Discuss Metadata As Soon As Possible
Which metadata may be needed for which documents and why it should be discussed up front during a meet and confer session. If it is not discussed, the other party involved may be able to claim “spoliation” or request a re-production, dragging out timelines and running up potential costs.
Metadata should be included as a basic aspect of discussions in the earliest stages of any litigation proceeding, to ensure that trial preparation continues smoothly and efficiently and that all the required information is available when it is needed.
Looking to Learn More About Metadata Preservation? Legal Eagle is Here to Help
As times change, what is needed in the courtroom changes, too. Our own Adam Shirley is available to provide free Lunch and Learn presentations on the subject of EDRM and best practices for eDiscovery and ESI production.
Lunch is included in these presentations, and you’ll have a greater understanding of how document preservation has changed and how you can stay ahead of the times.
To schedule your Lunch and Learn presentation or request a consultation, give us a call at (864) 467-1373 or contact us online at any time.