judd law - metadata presentation

© 2009 Guidance Software, Inc. All Rights Reserved.

eDiscovery Webinar

The Growing Importance ofMetadata Preservation in eDiscoveryeDiscovery Processes that do not alter Metadata

Albert Barsocchini

Senior Director and Assistant

General Counsel,

Guidance Software, Inc.

Jeffrey Judd

Partner ,

Howrey LLP


S L I D E 2

Agenda

Introduction of Panelists

Metadata: Overview and Context

Top 10 Best Practices for Handling Metadata Issues

Questions and Answers


S L I D E 3

Metadata:

Overview and Context


S L I D E 4

What is Metadata

Metadata is “data about data”

Describes the “history, tracking, or management of an electronic document”

Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005)

Includes “hidden text, formatting codes, formulae, and other information associated” with an electronic document

The Sedona Principles: Second Edition Best Practices Recommendations and Principles for Addressing Electronic Document Production, Cmt. 12a (2007)

See also, Sedona Guidelines - Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, Appendix F and Technical Appendix E definitions


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Types of Metadata

System – Reflects information created by the

user or by the organization’s information management system, e.g., File Creation Date and Time Stamps, File Location, Author or User Identification, etc.

Application / Embedded - Not typically visible to the user viewing the output display, e.g., Document Properties, Versions, Company Name, Word and Character Count, Spreadsheet Formulas, Hyperlinks, Database Information, Document Statistics, Total Editing Time, etc.

Substantive / User Created – History, Tracked Changes, Comments, Highlighting, etc.


S L I D E 6

Why Metadata is Important

Searching For Relevant Documents Depending upon the case, most

system (and substantive) metadata lacks evidentiary value because it is not relevant” -,Aguilar, et al. v. Immigration & Customs Enforcement Div’n of the U.S. Dept. of Homeland Security, 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) However, it can be very useful for searches based on date ranges or author.

Authentication Of Relevant Documents Lorraine v. Markel American Ins.

Co. D.Md.,2007. Presumption that metadata not hearsay and is prima facie evidence of authenticity


S L I D E 7

Why Metadata is Important Cont’d

Providing Context To Relevant Documents Embedded metadata is often crucial to understanding an electronic document and

generally discoverable and should be produced as a matter of course (id.)

Metadata can be important records See, e.g., Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.

Cir. 1993) (in challenge to government’s proposed destruction of email communications, court held that substantive email communications constitute "records" under the Federal Records Act: "important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out.“)

See USDC, D. Md. Suggested Protocol of Discovery of Electronically Stored Information 27http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf


S L I D E 8

How Attorneys Use Metadata

Establish And Defend Against

Allegations Of Fraud/Forgery

Allegations Of Infringement

Allegations Of Spoliation

Motions For Sanctions and Adverse Inferences

Create Timelines (Who Knew What When)

When Document Created and Modified

Who Created Document

When Document Was Sent


S L I D E 9

Top 10 Best Practices

for Handling Metadata Issues


S L I D E 10

Top 10 Best Practices for Handling Metadata Issues – No. 10

Before litigation is reasonably likely: Assess your document retention practices as they relate to metadata Develop, implement, and enforce practices that expressly pertain to

metadata outside of the context of litigation— What metadata are created in the normal course of business— What metadata are destroyed/preserved in the normal course

of business— What operational, regulatory, or statutory imperatives pertain

to metadata

Do your systems allow you to create effective litigation holds

on ESI, including metadata?

Does your exposure to/frequency of litigation or regulatory inquiry warrant technology, systems, or practice changes?

What changes should be made?


S L I D E 11


At the inception of litigation (or when you reasonably anticipate it): Impose a litigation hold that preserves potentially relevant ESI, including metadata You must preserve potentially relevant metadata, Zubulake

A proper litigation hold eliminates risk of spoliation sanction or adverse presumption order

See, e.g., Krumwiede v. Brighton Associates, LLC, 2006 WL 1308629 (N.D. Ill. May 8, 2006) (plaintiff’s alteration and deletion of files destroyed metadata, which prevented him from being able to authenticate ESI essential to his defense against defendant’s counterclaim; default judgment entered in defendant’s favor)


S L I D E 12


At the inception of litigation (or when you reasonably anticipate it): Discuss with your client the kinds of metadata that are associated with potentially relevant electronic documents and devise an approach/protocol to propose to litigation adversaries You must understand your client’s ESI universe and practices to fulfill

your e-discovery obligations, including with respect to metadata, Zubulake

Vetting these issues early will— REDUCE likelihood of mistakes and cost of complying with

e-discovery obligations and— INCREASE your credibility with the court and ability to minimize the

impact of the inevitable mistakes that will occur

Should include an assessment of No. 7 (infra)


S L I D E 13


Shortly after inception of the litigation: Identify and enlist expert assistance to oversee and be prepared to testify about the scope of your ESI resources, and the methods you used to preserve, collect, and produce ESI, including metadata Likely sources of appropriate expert assistance

— Your client’s organization (e.g., IT personnel)— Outside experts (law firms and/or e-discovery vendors)— Some combination of the above

Uses of experts— Design/review/approve protocols— Oversee execution of protocols— Testify to authenticate documents,

defend against allegations of spoliation, etc.


S L I D E 14


At the Rule 26(f) meet-and-confer session (or initial CMC): Disclose your intentions regarding ESI, including metadata, as they relate to propounding and responding to discovery FRCP, Rule 26(f)(3)(C) requires parties to discuss, while preparing a

discovery plan “any issues about the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced”

“ . . . at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention.”

Aguilar v. Immigration & Customs Div’n, at p. 19; see also Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509, at *4 (S.D. Oh. June 12, 2007) (refusing to decide whether metadata need be produced because it was not clear that parties had exhausted meet-and-confer efforts to resolve without court intervention); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car Auto Racing, 2006 WL 5097354, at *8 (E.D. Ky. Dec. 18, 2006) (“metadata . . . should be addressed by the parties in a Rule 26(f) conference”)


S L I D E 15


During the litigation: If you think metadata might be relevant and/or useful to your case, request it as early as possible A propounding party is “the master of its production requests; it must be

satisfied with what it asked for”Autotech Techs, Ltd. P’ship v. AutomationDirect .com, Inc., 248 F.R.D. 556, 560

(N.D. Ill. 2008)

Delay in requesting production of metadata may cause court to deny motion to compel or shift cost of production to discovery proponent

Id. (denying motion to compel metadata due to proponent’s delay); Aguilar (same); Kingsway Financial Services, Inc., et al. v. PriceWaterhouse-Coopers LLP, 2008 WL 5423316 (S.D. NY December 31, 2008) (same); D’Onofrio v. Sfx Sports Group, Inc., 2008 U.S. Dist. LEXIS 4252 (D. D.C. Jan. 23, 2008) (to obtain metadata, propounding party should specifically ask for it); Wyeth v. Impax Laboratories, Inc., 2006 U.S. Dist. LEXIS 79761 (D. Del. Oct. 26, 2006) (because parties never agreed to format of production, respondent satisfied its obligation with production of TIFF (image) files; motion to compel production of metadata denied).


S L I D E 16


During the litigation: In the role of discovery respondent, implement systems to ensure that e-discovery protocols are being followed It is not sufficient for counsel to issue a litigation hold, he/she must

ensure that it is being followed

Zubulake


S L I D E 17


During the litigation: Develop a defensible evidentiary record that can demonstrate your adherence to discovery protocols It is not enough to follow the protocols you have established, you must

be able to prove with admissible evidence that the protocols have been followed (or that reasonable systems were in place to ensure compliance with protocols)

— To defend against discovery respondent’s Allegations of spoliation Motions to compel Motions for sanctions, adverse inference

— You must offer the testimony of a competent witness who, on the basis of personal knowledge and reference to business records, among other things, can testify about preservation, collection, and production efforts


S L I D E 18


During the litigation: Be prepared to authenticate (or challenge or defend authenticity of) ESI, including metadata, that you intend to offer as evidence at trial or in support of dispositive motion Discovery of ESI is expensive and time-consuming, you must do what is

necessary to make it admissible— Relevant— Authentic— Not hearsay (or subject to exception)

Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007) (cross-motions regarding the enforcement of arbitration award both denied because of failure to authenticate email documents offered to prove the scope of the arbitration agreement)


S L I D E 19


During the litigation: Practice AGGRESSIVE TRANSPARENCY Promptly advise your adversary (and/or the court, as applicable) of any

— Change to your discovery protocol— Error in execution of protocol— Late discovery of new sources of ESI— Other issues that could affect your obligation to produce metadata or

the court’s perception of your good faith in discharging your e-discovery obligation


S L I D E 20

Summary of Top 10 Best Practices for Handling Metadata Issues

10. Before the litigation: Assess your document retention practices as they pertain to metadata.

11. At the inception of litigation (or when you reasonably anticipate it): Impose a litigation hold that preserves all potentially relevant ESI, including metadata (whether or not you think metadata are likely to be discovery targets).

12. At the inception of litigation (or when you reasonably anticipate it): Discuss with your client the kinds of metadata that are associated with potentially relevant ESI and devise a protocol to propose to litigation adversaries.

13. Shortly after inception of litigation: Identify and enlist expert assistance to oversee and be prepared to testify about the scope of your client’s ESI resources, and the methods you used to preserve, collect, and produce ESI, including metadata.

14. At the Rule 26 meet-and-confer (or initial CMC): Disclose your client’s intentions regarding ESI, including metadata specifically (both with respect to propounding and responding to discovery).

15. During the litigation: If you think metadata might be relevant and/or useful to your case, request it as early as possible.


S L I D E 21

Summary of Top 10 Best Practices for Handling Metadata Issues

4. During the litigation: In your role of discovery respondent, implement systems to ensure that your discovery protocols are being followed.

5. During the litigation: Develop a defensible evidentiary record that demonstrates your adherence to the discovery protocols you disclosed, as a matter of SOP.

6. During the litigation: Be prepared to authenticate (challenge/defend the authenticity of) ESI, including metadata, that you intend to offer as evidence at trial or in support of dispositive motions.

7. During the litigation: Practice AGGRESSIVE TRANSPARENCY

Promptly advise your adversary (and/or the court, as applicable) of any Change in discovery protocol Error in implementation of protocol Discovery of new sources of ESI Other issues that could affect your obligation to produce metadata or the

court’s perception of your good faith in discharging your e-discovery obligations


S L I D E 22

Questions from the audience?


S L I D E 23

Contact Us

Albert Barsocchini

Senior Director and Assistant

General Counsel,

Guidance Software, Inc.

[email protected]

Jeffrey Judd

Partner,

Howrey LLP

[email protected]