Examining Metadata: Its Role in E-Discovery and the Future of Records Managers: Recent Developments in Law, Standards, and Technology Suggest That Metadata Will Play an Important Part in the Evolution of Electronic Records Management

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The need to produce metadata for e-discovery, the emergence of international best practices regarding metadata management, and the development of metadata repositories all suggest that records managers need to prepare themselves for a new role.

Metadata and E-Discovery

Aguilar v. Immigration and Customs Enforcement was a class action suit alleging unlawful searches and seizures of plaintiffs' homes. At first, Aguilar did not ask for metadata, but after Immigration and Customs Enforcement (ICE) had completed its e-discovery, Aguilar asked for e-mail and other electronically stored information with corresponding load files, which contain metadata fields and extracted text.

ICE replied that the request was burdensome and said it would produce metadata only for documents where the plaintiffs could demonstrate its relevance to their claims. After much research, the court ordered ICE to produce metadata for email, Word, PowerPoint, and Excel files, but it shifted some of the cost to the plaintiff.

Aguilar v. Immigration and Customs Enforcement is interesting to lawyers because the court compelled the production of metadata after initial discovery--in effect, allowing Aguilar to "double-dip" with its e-discovery request. But more interesting are the steps the court took to reach its decision because they show an increasing knowledge and sophistication regarding metadata.

First, the court defined three kinds of metadata (see sidebar on page 30).

1. Substantive metadata is application-based and may contain modifications, edits, comments, etc., that were not necessarily intended for adversaries to see. Much has been written about the ethics of examining substantive metadata if it has been supplied inadvertently.

2. System-based metadata includes information automatically captured by the computer system, such as author, date, time of creation, and date of modification.

3. Embedded metadata consists of text, numbers, and content that is directly input but not necessarily visible on output, such as spreadsheet formulas or hyperlinks.

In Aguilar, the court consulted three sources: The Federal Rules of Civil Procedure (FRCP), the Sedona Principles, and case law. Although metadata is not directly addressed in the FRCP, it is subject to the rules of general discovery if it is relevant to the legal matter and is not considered privileged. The FRCP's balancing test also applies to metadata, namely, it asks if the probative value of the metadata is worth the cost to produce it, and if so, who should bear the cost.

The Sedona Conference's[R] Sedona Principles for Electronic Document Production offer two primary considerations regarding metadata in evidence production:

1) Is metadata relevant?

2) Does it enhance the utility of the documents, including the ability to search them?

Note that principle 12, which concerns metadata, has changed from the 2004 version published in The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, which stated, "Unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court."

In the 2007 version published in The Sedona Principles: Addressing Electronic Document Production, 2d ed., principle 12 states that the form of production should take into ac count "the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case."

Finally, case law provides precedents for compelling metadata production. In Williams v. Sprint (D. Kan. 2005), the court ruled that presumption is in favor of producing metadata unless the producing party objects, the parties agree otherwise, or the court issues a protective order. …

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