39OCTOBER 2015www.ocbar.org

by CHRISTINA LINCOLN

LEVERAGING METADATA IN ELECTRONIC DISCOVERY

How many times has the modern lawyer been informed, and even warned, of his or her obligation to preserve clients’ electronically stored information (ESI)? Countless. In this day and age, every lawyer has heard of the latest Sedona Principles, Rules of Civil Procedure, and Rules of Professional Conduct pertaining to ESI—not to mention the eminent Zubulake opinions that jumpstarted it all. See The Sedona Principles—Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production, The Sedona Conference Working Group Series (June 2007), www.thesedonaconference.org; Cal. Civ. Proce. Code §§ 2019.040, 2031.030, 2031.280; Fed. R. Civ. Proc. 26, 34; Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I); Zubulake

v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V).

As emphasized by one court, “[I]gnorance of technology is simply an inadequate excuse for failure to properly carry out discovery obligations.” Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507, *29 (D. Nev. Aug. 18, 2014). Because of this, we have been conditioned to simply worry about our ESI obligations. We shouldn’t. Rather, we should turn our focus toward the opportunities it provides, namely, with ESI metadata.

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Types of MetadataMetadata covers the oodles of additional

information that automatically attach to electronic documents; officially, it is “data that provides information about other data, ‘hidden’ or ‘embedded’ information that is stored in electronically generated materi-als, but which is not visible when a docu-ment or other materials are printed.” Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 859 n.5 (2013). Simply put, meta-data is “data about data.” Id. For this reason, when compared to electronic documents, hard copies rise to the level of “amputated paper print-outs”—“akin to traditional memoranda with the ‘to’ and ‘from’ cut off and even the ‘received’ stamp pruned away.” Armstrong v. Exec. Office of the President, Office of Admin., 1 F.3d 1274, 1285 (D.C. Cir. 1993). Hard copies, thus, are no more than “kissing cousins” (and distant ones at that) with electronic versions of the same document, not “copies” (i.e., identical twins). See id. at 1283.

Despite the rules and ethical obligations governing ESI, the discovery process should not be viewed as only a negative obligation lawyers need to fulfill to avoid sanctions. See, e.g., Krumwiede v. Brighton Assocs., L.L.C., No. 05 C 3003, 2006 WL 1308629, at *10 (N.D. Ill. 2006) (sanctioning former employee for his “egregious attempt to ‘hide the ball’” with ESI stored on his laptop). It should be embraced as a goldmine of new information, providing extra details never before available. However, to effectively leverage this new source of information in litigation proceedings, one first must under-stand the different types of metadata.

As described in the seminal Aguilar decision, three types of metadata exist: (1) substantive, (2) system, and (3) embed-ded. Aguilar v. Immigration and Customs Enforcement Div. of the U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 354-55 (S.D.N.Y. 2008). “Substantive (or applica-tion) metadata” reflects “changes made by the user,” including “prior edits or edito-rial comments . . . .” Id. at 354. It also “instructs the computer how to display the fonts and spacing.” Id. Substantive metadata is typically “embedded in the document it describes and remains with the document when it is moved or copied.” Id.

Next, “system metadata” logs data relat-ing to “author, date and time of creation, and the date a document was modified.” Id. It “may not be embedded within the file it describe[d],” but is retrievable from the oper-

ating system maintaining it. Id.Finally, “embedded metadata” (also

known as hidden metadata) involves “text, numbers, content, data, or other informa-tion . . . [that] is not typically visible to the user . . . .” Id. at 354-55 (internal quotation marks omitted). Examples include “spread-sheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information.” Id. at 355. Like substantive metadata, embedded metadata is “embedded” within the document itself. See id. at 354-55.

These definitions raise the question: How can lawyers leverage these different types of metadata in litigation? Before jumping into this, practitioners need to remember that case law on metadata “is a new and largely undeveloped area of the law.” Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 656 (D. Kan. 2005). Because “[t]here is little California case law regarding discovery of electronically stored information . . . ,” we are required to turn to federal decisions as a “persuasive” reference. Ellis, 218 Cal. App. 4th at 862 n.6.

Metadata as a Means of AuthenticationWith that, one must consider the first

and obvious use for metadata: authenti-cation of the underlying document. Like paper records, “one must demonstrate that the record . . . is the same as the record that was originally placed into the file.” In re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th Cir. 2005) (considering metadata as foundation for business records). Both California and federal standards require evidence that is sufficient to uphold a finding that the writ-ing is what it purports to be. See Cal. Evid. Code § 1400 (“evidence sufficient to sustain a finding”); Fed. R. Evid. 901 (“support a

finding”). The Federal Rules of Evidence expressly allow for authentication through “distinctive characteristics,” which substan-tive and system metadata can provide with dates, times, and identity of the creator, along with edits made to the document since inception. See Fed. R. Evid. 901(b)(4); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 547-48 (D. Md. 2007) (analyzing use of metadata to authenticate evidence under Rule 901(b)(4)). Though the California Evidence Code does not contain the same provision, it does acknowledge that “[n]othing . . . shall be construed to limit the means by which a writing may be authen-ticated or proved.” Cal. Evid. Code § 1410.

Unfortunately, using metadata to authen-ticate ESI is not “foolproof.” Lorraine, 241 F.R.D. at 548. “An unauthorized person may . . . obtain access to an unattended computer . . . [,] persons on the network . . . may modify it . . . [and] network adminis-trators . . . [may] override an individual pass-word identification number to gain access when necessary.” Id. Regardless, “metadata certainly is [still] a useful tool for authenti-cating electronic records . . . .” Id.

Metadata as a Source of Substantive Information

But metadata’s utility is not limited to authenticating documents. It also is a source for substantive information. The key is find-ing the right type of metadata to support an ultimate fact in your case. For example, in a lawsuit in which an employer is imputed with the knowledge of its employees, indi-vidual employee knowledge of certain facts will be critical. As such, by analyzing the system metadata for key email correspon-dences, anyone could confirm whether or not employees were blind copied (bcc’d). See, e.g., Aguilar, 255 F.R.D. at 359 (plain-tiffs seeking metadata to show that defen-dants were bcc’d on core emails, and, thus, condoned a pattern and practice of uncon-stitutional home searches). This information could have a substantial impact on trial and settlement negotiations with the employer, as knowledge of bcc’d employees is now imputed to the employer.

Another example involves actions in which an author’s intent is at issue with respect to certain Microsoft Word documents. Like emails, system metadata can track “who knew what when” through creation dates, author, and dates modified. Id. at 361; see, e.g., Chevron Corp. v. Stratus Consulting, Inc., No. 10-cv-00047-MSK-MEH, 2010 WL

Embedded metadata involves text,

numbers, content, data, or other

information that is not typically

visible to the user.

41OCTOBER 2015www.ocbar.org

3489922, at *4 (D. Colo. Aug. 31, 2010) (employment lawsuit in which the timing documents were authored “was a critical issue”). But more importantly, substantive metadata will provide a thorough record of precise edits made by the author since creation. Id. Once again, this is powerful information in the hands of any litigator, as his or her discovery of information is no longer limited to the visible words on the page. Counsel now has a thorough record of the author’s thought process from start to finish. This same data also can confirm whether anything was “fraudu-lently modified after the fact . . . .” Aguilar, 255 F.R.D. at 362.

As a final example, in the instance of a criminal defendant providing an alibi, he or she could introduce system metadata of digi-tal photographs taken at the time in question. See, e.g., People v. Marian, No. G045620, 2013 WL 325341, at *3-4, *7 (Cal. Ct. App. 2013) (considering photographic metadata). The metadata not only can confirm the date and time of each photograph, but also can identify which camera took them. See id. at *3-4. This information is then coupled with content from the photographs to establish an irrefutable alibi (e.g., a defendant stand-ing in front of an identifiable location).

Metadata Provides Further Understanding

In addition to having substantive and authenticating qualities, metadata also serves the practical purpose of providing the reader a “thorough understanding” of the underlying document. Aguilar, 255 F.R.D. at 362. For example, embedded metadata in Excel spreadsheets can reveal the math-ematical formula used in each field. See id. Though not particularly helpful with basic inputs or hard numbers, it may be critical for complex calculations. See, e.g., id. Likewise, system metadata for emails may be necessary to identify the name of sender(s) and recipient(s), especially in the instance of directories and distribution lists. Armstrong, 1 F.3d at 1280. “For example, if a note is sent to individuals on a distribu-tion list already in the computer, the hard copy may well include only a generic refer-ence to [a] distribution list (e.g., ‘List A’) . . . .” Id. Individual email addresses would not be “reproduced when users print out the information . . . .” Id.

Metadata and the InternetFinally, despite the focus of the above

discussion, metadata is not confined to elec-

tronic documents. It exists in other elec-tronic sources as well, including Internet websites. A helpful example is from the Fifth Circuit Court of Appeals, where a plaintiff recording company used system metadata from the defendant’s “share folder” on a peer-to-peer file-sharing network to iden-tify the artist and song title for each of the 544 songs the defendant ille-gally downloaded. Maverick Recording Co. v. Harper, 598 F.3d 193, 194 (5th Cir. 2010). By cross-referencing the metadata, the plaintiff quickly identified which of the 544 songs infringed its copyright. Id.

Practice TipsAt the end of the day, it is obvious

why metadata has become “the new black” in discovery proceedings; unfortunately, enthusiasm has increased to the point where parties are starting to seek its production in every case, regardless of size or complexity. See U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 246 (S.D. Cal. 2015). To avoid some common pitfalls, it is impor-tant for the modern practitioner to keep in mind several tips when requesting or producing metadata.

First, when seeking metadata, ask for it upfront. Id. As explained by the United States District Court for the Southern District of California, “courts have generally only ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” Id. at 245.

Second, when making requests, the requesting party should be prepared to show “a particularized need for the metadata,” not simply a generalized view of its importance (e.g., assistance with searching). Id. at 246.

Third, metadata also should be requested alongside demands under the Freedom of Information Act or California Public Records Act, given that “metadata forms part of the document as much as the words on the page.” Lake v. City of Phx., 218 P.3d 1004, 1007-08 (Ariz. 2009) (any public record maintained in electronic format is subject to disclosure); see also 5 U.S.C. § 552 (FOIA); Cal. Gov. Code §§ 6250-6276.48 (PRA); Irwin v. Onondaga Cnty. Res. Recovery Agency, 72 A.D.3d 314, 322 (N.Y. App. Div. 2010) (metadata for photographs); O’Neill v. City of Shoreline, 240 P.3d 1149,

1157 (Wash. 2010) (email metadata).Fourth, from the production side, it is

important to produce ESI and correspond-ing metadata in the form in which it is “ordi-narily maintained” or “reasonably usable.” Cal. Code Civ. Proc. § 2031.280; Fed. R. Civ. Proc. 34. Common methods for doing

this are by producing documents: (i) in “native format,” or (ii) in

a tagged image file format (“TIFF”) or portable docu-ment file (“PDF”) format with an accompanying “load file” for metadata. See Irwin, 72 A.D.3d at 321. The former is a live

document that still has the metadata intact, whereas the

latter “is basically a ‘picture’ or ‘static’ form,” making a separate

load file necessary. Id. Fifth, because all electronic documents

generate metadata—whether we like it or not—consider scrubbing (or removing) metadata from all letters or other documents containing privileged or work-product infor-mation. Software is available to assist with this. Digitally converting a Word document into a PDF is not sufficient; some metadata will still survive and will be accessible to opposing counsel.

Much is to be gained by attorneys who understand and respect metadata for what it is, knowing it is not foolproof, but realizing it can be leveraged to create a much needed layer of “accountability in recordkeeping.” Williams, 230 F.R.D. at 656. Metadata is the new frontier for information, available to those pioneers with the creativity and fore-sight to start using it in our California courts.

Christina Lincoln is a business litigation associate with the law firm of Newmeyer & Dillion LLP in Newport Beach, California. She can be reached at christina.lincoln@ndlf.com.

This article first appeared in Orange County Lawyer, October 2015 (Vol. 57 No. 10), p. 39. The views expressed herein are those of the Author. They do not necessarily represent the views of Orange County Lawyer magazine, the Orange County Bar Association, the Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.

ON TOPIC

System metadata logs data relating to author,

date and time of creation, and the date a document

was modified.