Don’t Ask and You May Not Receive–the Wonders of Metadata

Some of us still tend to visualize data as if it were all on paper. E-mails are seen as the equivalent of letters or memos on paper, and electronic records as the functional equivalent of paper files. And, phone calls may not even be considered. Such a view can lead the practitioner to overlook important and helpful information that is stored on an electronic device; information that can authenticate or discount the value of evidence. That overlooked information? Metadata.

“Metadata” is the data that describes data. Even though it resides behind the scenes, metadata reports much that isn’t apparent from just reading email and document text. Metadata can tell when a file was created, when it was last altered, and who created or altered it. In short, it can provide key insights into the evidence in a case.

An illustration: A key employee, Archibald, leaves their current employer (Leach Enterprises) to work for a competitor (Grant Corp.). Leach Enterprises believes that Archibald left with an earlier version of one of their design schematics and pricing spreadsheets. Leach thinks Archibald believed theft of an earlier version would not be noticed. How can metadata help?

First, let’s define the term in a more detailed fashion. While IT professionals have their own method of classifying metadata, in the context of discovery, many courts and commentators refer to the three types of metadata listed in the case of Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008). These three types of metadata are substantive, system, and embedded:

  • Substantive metadata is created by the application (Outlook, Word, etc) that created or modified a file. This information tracks the changes that have been made to a file. When the changes to a document are being tracked, substantive metadata is created.
  • System metadata is information created by the user or the user’s computer. This type of metadata is not in the file itself, but can be retrieved from the operating system. For example, when you create a document, the date and time the document was created, and the name of the user who created it is recorded and stored.
  • Embedded metadata is information, directly or indirectly, inserted by a user.  However, it is not typically visible to the user viewing the file. Examples include spreadsheet formulae, hidden columns, linked files (such as sound files), hyperlinks, references and fields, and database information.

The metadata will reveal the journey of the schematic from Leach Enterprises to Archibald’s USB to Grant Corp—even if the file name has been changed or deleted—along with who made the changes and when. It will also reveal the hidden formulae used in their pricing algorithms.

Is metadata discoverable information? There are no explicit references to metadata in the Federal Rules of Civil Procedure, but the definition of “electronically stored information” in Rule 34—data or data compilations, stored in any medium from which information can be obtained—is broad enough to include metadata. On the other hand, metadata is not automatically included in a request to produce electronically stored information.

In Aguilar, the court noted that the production of metadata will be ordered if it is sought in the initial document request and no documents have already been produced in any form. “On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.” 255 F.R.D. at 357.

More recently, in McSparran v. Pennsylvania, 2016 WL 687992 (M.D. Pa. Feb. 18, 2016), the court had granted the defendant’s motion for production of metadata, but later amended its order so that the metadata did not need to be produced. The court noted that the defendant had failed to make a specific request for metadata in its original document request, and the plaintiff had already produced hard copies of the requested documents. The court found that “it would be unduly burdensome to require Plaintiff to effectively redo document production in response to Defendants’ belated request for metadata.” Id.

There is an adage that “What’s left unsaid says it all.” While that may or may not be true, it is possible that in our Archibald example and possibly in your litigation, what’s left unsaid—metadata—could be very important. Remember to include it in discovery requests, or it will stay unsaid.

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.