Today it seems that all information eventually finds its way into an electronic form of one kind or another. Thoughts are put into words via word processing programs, numbers are organized in spreadsheets, and slides are generated for presentations. For purposes of this article, all such documents, spreadsheets, slides, and other electronic data will be referred to as "records."
Regardless of how information is put into electronic form as a record, metadata is created with or without input from the users. Metadata weaves its way into all forms of electronic use and, in doing so, creates a trail of information. The North Carolina General Assembly's addition of metadata to the scope of discoverable information means that litigants have, with some limitations, a means to acquire this metadata. However, with the right planning and preparation, businesses may be able to avoid potential litigation-related problems created by this trail of information.
What Exactly Is Metadata?
Trying to find a simple and concrete definition for metadata is tantamount to trying to define pornography. There is certainly a collective concept in the technological community about what metadata is, but even a brief survey of the term returns a multitude of different definitions applicable to different situations. The most commonly accepted general definition appears to be that metadata is "data about data." As un-illuminating as that definition may be to ordinary people, perhaps a more understandable definition is that metadata is electronic information that is either created automatically as part of the electronic process or input manually by the user or creator of the electronic information and which can be used later to locate files containing the record.
Metadata appears in three types:
- Descriptive – Descriptive metadata describes things such as the subjects the record is about, the party to whom the record pertains, or the record's creator;
- Structural (or system) – Structural metadata is the more technical form of metadata and includes such things as data about format, styling, processing, encryption, and authentication; and,
- Administrative – Administrative metadata pertains to data such as ownership, access rights and restrictions, usage history, and even copyrights.
Regardless of the type or kind of metadata, the common theme is that all metadata provides searchable information about the electronic record at issue. This searchable information allows search engines to locate records or items in a database. A very simple example is where an online record storage program requires the creator of a record to disclose the creator's identity before a record is created. Obviously, that identification can be used later to search for and locate that record. In addition, the record can be located based on the date it was created or its particular location in the database, each of which is metadata that may be created and attached to the record electronically or automatically without any direct input from the user.
A slightly more complex example involves searchable information created and stored about the history of a record, such as the date and time of modifications to, or access of, a record and the identity of the person or entity that made the modification or accessed the record (or at least the user whose computer was used to modify or access the record). The clear benefit (or danger) is that the more searchable information is created and linked to a record, the easier it is for a searching party to locate the record quickly and efficiently, regardless of the type of databases.
So, What Is The Problem?
Simply stated, the good comes with the bad. In making electronic information more searchable, a trail of sometimes unwanted or unnecessary metadata is created. As discussed above, this can come about from intentional user input or as just a function of the particular program. A good example involves one of the most common forms of metadata: track changes. This is an incredibly useful feature that appears in nearly all word processing programs and is a regular part of drafting and revising documents. The problem is that each entry, revision, and comment is stored somewhere in the particular document. So, metadata not only keeps track of each and every time that a particular document has been modified or even viewed, and by whom, but metadata can also store the actual changes themselves.
Horror stories abound about users amending documents in track changes and turning the feature off before saving and sending, only to have the recipient open the document and use the document's metadata to see all the changes made. Sometimes this is intended; other times it is not. Other examples involve users making comments on documents that include confidential client or trade secret information. A simple deletion intended to cleanse the document of the comment may leave behind a trail of metadata that could include that very confidential information. Regardless of the form of the trail, the trail exists and businesses should be mindful of it.
How Can A Party Get Another's Metadata?
Parties in litigation frequently engage in a formal exchange of information called "discovery." Discovery requires parties to disclose records, documents, information, and testimony prior to a trial. Discovery was initially intended as a way to encourage pretrial resolution of cases by revealing the strengths and weaknesses of each party's position prior to trial. However, critics lament that discovery has become tedious, time-consuming, and generally excessive in breadth.
The scope of what information must be disclosed, also called "discoverable information," has been relatively broad since the inception of discovery. Discoverable information typically includes things like relevant records and documents, the names and addresses of persons with knowledge of the allegations in the case, and testimony about case events. Effective October 1, 2011, this scope was broadened further in North Carolina to include "electronically stored information." At first glance, one would think that this is a reasonable addition designed to keep the discovery process relevant in the information age. However, the North Carolina General Assembly took it one step further and specifically defined "electronically stored information" to include "reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients." The General Assembly also included a qualifier which states that "[t]he phrase does not include other metadata unless the parties agree otherwise or the court [so] order[s.]"
In other words, adverse litigants can now seek to discover from one another metadata as it has been defined by the General Assembly. The General Assembly's definition offers some guidance on the metadata that is discoverable, but it also leaves many questions unanswered. The definition seems to be limited to typical data associated with creating, sending, and receiving records. In the case of email, this information is obvious. In the case of a record that has not been sent or received, the issue becomes more complicated. For instance, it would seem that a party may request that the producing party hand over the metadata associated with the creation of internal records and documents that have never been emailed or otherwise disclosed. This may or may not have relevance to the matter at hand in litigation. These types of questions will have to be worked out as the new rules are applied by the trial courts and interpreted by the appellate courts. Regardless, the time for businesses to take notice of and address this issue is now.
What Can Be Done?
Enormous amounts of information are input into, and generated by, electronic systems each day. To require that a person or business be able to produce each piece of that information would be utterly unreasonable. Luckily for business owners, the discovery rules pertaining to sanctions for failure to comply with discovery requests were also amended to account for the normal day-to-day use of electronic systems. Specifically, this amendment states that:
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of routine, good-faith operation of an electronic information system.
Since electronically stored information includes reasonably accessible metadata, this amendment would appear to apply to metadata as well. Although nothing is certain at this stage, this amendment may give businesses the ability to customize their electronic programs, data storage, and file management in ways that may minimize the storage of potentially harmful metadata. It is already common for businesses to use programs that cleanse metadata from documents prior to sending. Programs that store less metadata can be purchased, developed, and implemented. Archiving practices can be adopted that could address the storage of metadata. These steps should be evaluated with input from both information technology personnel and attorneys who can provide advice as to the legal benefits and drawbacks. Doing so in advance of litigation will ease the potential hassle and expense of discovery, and the possible negative ramifications of the disclosure of certain information, should litigation ever ensue.
The reach of the addition of electronically stored information to the litigation discovery process extends far beyond the scope of this article. But, it would be folly to overlook the potential pitfalls tied to the metadata that hides in our electronic systems. While no one looks forward to litigation, all business owners must plan for just that possibility and the tedious process of discovery; it is simply an unfortunate reality of modern day life. As is often the case, proper planning before litigation occurs can save significant costs and stress if it ever does. Attorneys will always have various tools to fight the production of information in discovery, but it would be wise to take action to protect oneself or one's business long before those tools ever enter the picture.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.