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Computer Forensics / Electronic Discovery

METADATA PRIMER FOR LAWYERS

November 2005
Library Sections:
 Increasingly, lawyers are asked to review and produce metadata (also known as "embedded data") in response to legal discovery requests.  Courts throughout the U.S. have recognized the additional information that metadata provides, and have fairly consistently ordered parties to produce metadata when the issue has been raised.   

Metadata is a component of files that contains the who, what, when and how of an electronic document.  Metadata can tell the story about a particular file's origin, including each date & time that a file is created, accessed, and modified.     

Metadata is created without the user doing anything special to create it.  That's why it can be so useful.  Literally, metadata means "data about data."  Metadata is not a separate document but is an integral part of a file.   

What is in Metadata? 

Metadata will vary based on the file type.  For example, metadata in a Microsoft Word, Excel and PowerPoint file includes the following: 

E-mail programs like Microsoft Outlook can create hundreds of pieces of metadata information, such as folders where messages are stored, whether messages were forwarded, whether recipients opened a message, all recipients of the email (including bcc's), and the actual email addresses of each (not just the "friendly" or group distribution name).   

More recent versions of Microsoft programs allow automatic storage of the details of each individual change that was made to a file. 

How Can Lawyers Use this Stuff? 

Metadata is another reason why it is important to obtain files in their native format.  Lawyers sometimes think they are engaging in electronic discovery when they accept images of documents, but these images lose all of the metadata that was contained in the original file.   

Metadata can provide information that can help resolve a dispute.  Here is just the start of how metadata can be useful to lawyers: 

  1. Reviewing deleted text, and who added text, can be helpful in understanding the path of negotiations and what was intended by the parties. 

  2. Metadata can help resolve issues regarding (i) the authenticity of a file, or (ii) the timing of documents and the events they describe. 

  3. Knowing who obtained a file can assist determining whether legal privileges have been waived. 

  4. Metadata may indicate that a file was based on another older file or was authored by another person, thus calling into question how much additional work was involved in the new document or author.   

  5. Parties sharing drafts through word processing files could easily be embarrassed (or worse) by the history of what was created and deleted in the exchanged draft.  (When issues of document spoliation do not exist, programs, including an option in Microsoft's 2004 versions, can eliminate the metadata and drafting history.)    

Fulcrum Inquiry assists lawyers with electronic discovery and financial investigations.