leveraging metadata as evidence and avoiding inadvertent...

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Presenting a live 90-minute webinar with interactive Q&A

Leveraging Metadata as Evidence

and Avoiding Inadvertent ESI

Disclosure in Litigation

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, JUNE 7, 2016

Christian E. Dodd, Partner, Hickey Smith, Jacksonville, Fla.

Christina M. Lincoln, Robins Kaplan, Los Angeles

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Leveraging Metadata

as Evidence and

Avoiding Inadvertent

ESI Disclosure in

Litigation

Christian Dodd

Christina Lincoln

Speakers 6

http://www.newmeyeranddillion.com/attorneys-bio.php?id=199

Overview

Metadata Generally

Types of Metadata

Ethical Considerations

Some Nuts and Bolts of Metadata

Tracking Changes

PDF and TIFF Files

Electronic Redaction

Using Metadata in Litigation

Authentication

Substantive Information

Provides Further Understanding

Metadata on the Internet

Metadata in Discovery

7

Metadata Generally

Metadata covers the oodles of additional information that automatically attaches to every electronic document.

As defined by the California Court of Appeal, metadata is “data that provides information about other data, hidden or embedded information that is stored in electronically generated materials, but which is not visible when a document or other materials are printed.” Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 858 n.5 (2013).

In short, metadata is “data about data.”

8

Types of Metadata

Substantive Metadata (also known as

Application Metadata)

System Metadata

Embedded Metadata (also known as Hidden

Metadata)

9

Substantive Metadata

Substantive metadata reflects the “changes made by the user,”

including “prior edits or editorial comments . . . .” Aguilar v.

Immigration and Customs Enforcement Div. of the U.S. Dep’t. of

Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008). It also “instructs

the computer how to display the fonts and spacing.” Id.

Metadata is typically “embedded in the document it describes and

remains with the document when it is moved or copied.” Id.

Examples: track changes in Word.

10

System Metadata

System metadata logs data

relating to “author, date and

time of creation, and the date

a document was modified.”

Aguilar, 255 F.R.D. at 354.

Metadata “may not be

embedded within the file it

described,” but is retrievable

from the operating system

maintaining it. Id.

Examples: Word Document

File Info Properties

Show All Properties.

11

Embedded Metadata

Embedded metadata involves “text, numbers, content, data, or other information . . . [that] is not typically visible to the user . . . .” Aguilar, 255 F.R.D. at 354-55.

Metadata is “embedded” within the document itself. See id.

Examples: spreadsheet formulas, hidden columns in Excel spreadsheets, externally or internally linked files (such as sound files), and hyperlinks.

12

Do we really need to know

about metadata?

13

ABA Model Rule 1.1:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ABA Model Rule 1.1, Comment 8 (emphasis added):

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

ABA Formal Opinion 06-442

Explicitly declines to take a positon as to whether the

sending or producing lawyer has any duty to avoid

inadvertent disclosure of metadata. Id. at n.4.

A receiving lawyer is not prohibited from reviewing

and using metadata contained in documents

received from another party or counsel.

The receiving lawyer may have a duty to promptly notify

the sender. See ABA Model Rule 4.4(b).

15

Florida Opinion 06-2

Sending lawyers must take reasonable steps to

safeguard client confidential information, including

metadata.

A receiving lawyer must not try to obtain from

metadata in an electronic document information that

the recipient knows or should know is not intended for

the recipient.

A receiving lawyer who inadvertently obtains

information from metadata that the recipient knows

or should know was not intended for the recipient

must promptly notify the sender.

16

New York Opinions

When transmitting documents by email, lawyers have

a duty to use reasonable care to prevent the

disclosure of metadata containing client confidences

or secrets. NYSBA Opinion 782 (2004).

A receiving lawyer may not use technology to

“surreptitiously get behind” what is visible on the

computer screen in electronic files. NYSBA Opinion

749 (2001).

See also ABCNY Committee on Prof. Ethics Opinion

2012-1: Obligations Upon Receiving Document Not

Intended For The Recipient.

17

California Opinions

No opinion specifically addressing disclosure of metadata outside the context of discovery.

“Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following . . .

collect responsive ESI in a manner that preserves the integrity of that ESI

produce responsive non-privileged ESI in a recognized and appropriate manner.” Cal. Standing Comm. on Prof’l Resp. Conduct Formal Opinion 2015-193.

“Maintaining learning and skill consistent with an attorney’s duty of competence includes keeping ‘abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’” Id. (citing ABA Model Rule 1.1, cmt. 8).

See also Cal. Standing Comm. on Prof’l Resp. Conduct Formal Opinion 2010-179.

18

Other States

See Metadata Ethics Opinions Around the U.S.

Available at

americanbar.org/groups/departments_offices/legal_tec

hnology_resources/charts_fyis/metadatachart.html

If no opinion in your state, consider how your state

addresses duties with respect to competence,

maintaining client confidences and the handling of

inadvertently disclosed information.

Consider also how closely your state conforms to the

ABA Model Rules.

19

Track Changes - Original 20

Track Changes – All Markup 21

Track Changes –

Reviewing Pane

22

Track Changes –

Comments Off

23

Track Changes –

Comments On

24

Track Changes – Alternative

Accept all redlined changes in document and ensure

all comments have been deleted.

Use the “Compare” feature to create a redline.

In the comparison settings, deselect comments, insert

a blank space in the box to “Label changes with” and

show changes in a new document.

Before transmitting, review revisions in the reviewing

pane with all options selected under the Show Markup

function selected.

25

Track Changes - Alternative 26

Track Changes – Alternative 27

WordPerfect

See Saving WordPerfect Files Without Metadata

Available at

http://www.wordperfect.com/us/pages/items/1500674.h

tml

28

PDF and TIFF Files

TIFF (tagged image file format)

Essentially, a container holding one or more images.

The text of the document is lost when a TIFF is created.

Not searchable unless OCR (optical character recognition) is applied.

But OCR cannot capture the metadata that existed in the original document.

PDF (portable document format)

Combines original text and metadata with a computer-

generated image into a single file.

29

Electronic Redactions

Redactions gone wrong:

New York Times report on leaked NSA documents

U.S. Department of Justice surveillance of Google

HSBC filings in bankruptcy proceedings

Electronic Arts, Inc. v. Zynga Inc., N.D. Cal. Case No. CV

12 4099 SI

30

Electronic Redaction –

What Not To Do

Do not:

Black out text to be redacted in the word processing file

(e.g., MS Word) and then print the file to a .pdf.

Use an older version of an application that does not

delete the text sitting behind a redaction unless you

convert the redacted file to an image file, such as a TIFF.

Fail to consider metadata.

31


Word Processing Files

Possible workflow: Copy and paste the text from the

word processing file into a text file, re-open the text file

in your word processing program to correct all

formatting issues, and then convert to a .pdf file.

For instructions, see

http://www.ganb.uscourts.gov/metadata-redaction-guide

Alternative workflow: Redact text, print to hardcopy

and scan to .pdf.

Note: May need to add OCR and convert to specific

.pdf format (e.g., PDF/A).

32


PDF Files

Review the steps for redacting and removing the redacted text from the .pdf file in the tool you use for redactions.

For example, in pdfDocs you are given a warning that redacted text will be permanently deleted.

See blogs.adobe.com/acrolaw

After redacting, test by copying all text in the document in the .pdf file and pasting it into a word processing file to confirm that no text remains behind a redaction.

Consider running the final document through a metadata scrubber.

33


- Authentication

“[O]ne 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).

Federal: “[T]he proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).

California: “Authentication of a writing means . . . the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” Cal. Evid. Code § 1400.

Florida: “Authentication or identification of evidence is required . . . [and is] satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fla. Stat. Ann. § 90.901.

34


– Authentication Example

Fed. R. Evid. 901(b)(4)

“The following are examples only – not a complete list – of

evidence that satisfies the requirement . . . Distinctive

Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of

the item, taken together with all the circumstances.”

Substantive Metadata + System Metadata = Evidence “sufficient to

support a finding”.

35


– Authentication

WARNING!!!

Using metadata for authentication is not “foolproof.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 548 (D. Md. 2007).

Examples

An unauthorized person may obtain access to an unattended computer.

Network administrators may override an individual password identification number to gain access when necessary.

36


– Substantive Information

Timing of Knowledge Example

Use system metadata

Discover “who knew what when” through creation dates, author,

dates modified, etc.

Example: Chevron Corp. v. Stratus Consulting, Inc., No. 10-CV-00047-

MSK-MEH, 2010 WL 3489922, at *4 (D. Colo. 2010) (employment

lawsuit in which the timing documents were authored “was a critical

issue”).

Thought Process Example

Use substantive metadata

Track an author’s entire thoughts process from start to finish by using

the metadata to provide a thorough record of precise edits made

by the author since creation.

37


– Imputing Knowledge

Metadata may be used to demonstrate that key players were aware, or should have been aware, of important information.

Examples:

Bcc on emails.

Obtain the sender’s copy of the email.

Read receipt on emails.

Audit features on documents stored on a document management system.

File properties on MS Word, MS Excel, etc.

Last accessed by, last modified by

Access audits/queries on databases.

38

Photo Metadata

In digital photos, metadata typically includes the date and time the photo was taken, camera settings, camera manufacturer make and model and, in the case of smartphones, the GPS coordinates of where the photo was taken.

Uses of this information:

Pinpoint the location of a criminal. See U.S. v. Post, 997 F. Supp. 2d 602 (S.D. Tex. 2014).

Provide evidence of when a crime occurred. See Shell v. Pruitt, 2009 U.S. Dist. LEXIS 60655 (W.D. Va. 2009).

Locate stolen property.

Photographers might also embed a copyright notice in the metadata of digital photographs. See, e.g., Kennedy v. Gish, Sherwood & Friends, Inc., 2015 U.S. Dist. LEXIS 150241 (E.D. Mo. 2015).

39

Using Metadata in Litigation –

Other Uses for Metadata

Metadata Provides Further Understanding – Examples

Embedded Metadata: Understand the mathematical formula in an Excel spreadsheet. See, e.g., Aguilar, 255 F.R.D. at 362.

System Metadata: Identify the recipients in a distribution list (e.g., “All Users”). See, e.g., Armstrong v. Exec. Office of the President, Office of Admin., 1 F.3d 1274, 1280 (D.C. Cir. 1993).

Metadata on the Internet – Example

A plaintiff recording company used system metadata from a defendant’s “share folder” on a peer-to-peer file-sharing network to identify the artist and song title for each of the 544 songs the defendant illegally 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.

40

Metadata in Discovery

Is metadata discoverable?

Generally yes, if it is relevant, but courts will not always

order its production.

Courts have referred to requests for metadata as the “new black” in discovery proceedings. Aguilar v. Immigration &

Customs Enforcement Div., 255 F.R.D. 350, 359 (S.D.N.Y. 2008).

Some courts have required the requesting party to show “a particularized need for the metadata” as opposed to a generalized view of its importance. See United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 246 (S.D. Cal. 2015).

Consider relevance, utility and burden.

41

Requesting Metadata

Framing a proper request:

Consider what metadata you want and how it will be useful to you, and then ask for only that metadata.

Include the request for metadata in your initial document request.

Consider also specifying in your request why the metadata is sought.

If the responding party objects, it typically must specify the form or forms of production it intends to use. See, e.g., FRCP 34(a)(2)(D).

Be prepared to explain to the court your particularized need for the metadata sought.

42

The Sedona Principles Addressing

Electronic Document Production, Second

Edition (June, 2007), Principle 12

“Absent party agreement or court order specifying the

form or forms of production, production should be made

in the form or forms in which the information is ordinarily

maintained or in a reasonably useable form, taking into

account the need to produce reasonably accessible

metadata that will enable the receiving party to have the

same ability to access, search, and display the

information as the producing party where appropriate or

necessary in light of the nature of the information and the needs of the case.”

43

Utility of Metadata

Metadata can be useful when conducting searches,

segregating files or piecing together the documents

produced by other parties

File name

Document author

Created and last accessed dates

Email header

44

Preserving Metadata

You cannot produce what you do not have.

“The evidence that must be preserved includes relevant metadata. Metadata is information generated by a computer operating system or other software program that is associated with a particular electronic file. In other words, metadata is information stored in electronic form that concerns other information stored in electronic form. As an example, the substantive content of a MS Word file (e.g., the words on the page if the file is printed) is data. If relevant, this data must be preserved. Information about when the MS Word file was created or last modified is metadata. If relevant, this metadata also must be preserved. To err on the safe side, all metadata that is associated with relevant data should be preserved. If you (or your IT personnel) are unsure how to ensure that relevant metadata is preserved, please let me know.”

45

Producing Metadata

Native file production

Objections:

Bates numbering

Possible modification or corruption of the evidence

Authentication issues

Confidentiality Concerns

Redactions

Alternative: TIFF or PDF file with metadata included in

a load file.

46

QUESTIONS?

Christian E. Dodd

[email protected]

Christina M. Lincoln

[email protected]

47

Additional Resources

Craig Ball, Beyond Data about Data: The Litigator’s

Guide to Metadata

Available at

http://www.craigball.com/metadataguide2011.pdf

The Sedona Conference Commentary on Ethics &

Metadata

48

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