October 28, 2015 Practice Points

Disclosure of Metadata

Four issues for experts and attorneys to consider.

By Victoria Lazear

Electronic discovery raises important issues particularly for production of expert witness work product. Should the original file be modified to include only the most relevant information? Should the file size be reduced either by eliminating extraneous information or by flattening the file? Should the file be produced in a format other than its native format? Another important issue is the redaction of the metadata.

Metadata provide information such as when was the file created, who created it, when was it last modified, and so forth. It is automatically created by the operating system and the application used. Although many times such information seems innocuous, metadata can contain information demonstrating, for example, when data was entered into a database and who entered it. Such information can be critical in product liability cases. Other data, such as modifications to a file just before it was produced, can make a deposition more difficult for an expert witness.

Christian Dodd from Hickey Smith presented a primer for experts and attorneys on metadata that was published on Law 360, "Metadata 101 For Lawyers: A 2-Minute Primer." He recommends four issues that experts and attorneys need to consider.

First, be informed about the metadata that are contained in all files that may be discovered.

Second, understand the ways that metadata can be removed from a file prior to production. However, any modifications made to the file after the metadata are removed introduce new metadata into the file. Thus, the removal process must be repeated after all modifications are made to the file.

Third, if the metadata contain information that is critical to the issues in a case, then preserving the data may be essential. Further, destruction of the information after its importance is understood can potentially lead to sanctions.

Fourth, the safest approach is to resolve as part of discovery negotiations whether metadata can be deleted or must be preserved.

Victoria Lazear is with Cornerstone Research in Menlo Park, California.

Keywords: expert witnesses, litigation, electronic discovery, metadata, Christian Dodd

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