Metadata can be a valuable litigation and internal investigation tool, as it can be used to provide key pieces of relevant evidence and information.
Metadata may also help establish or discount elements of a legal claim or defense, and serves to authenticate evidence at trial. Unfortunately, like other forms of ESI, it implicates a variety of new concerns that are not clearly addressed by the Federal Rules of Civil Procedure.1 Despite this lack of guidance, several past court decisions note that metadata may be discoverable and that parties have the same obligation to preserve metadata as with other forms of evidence.
Based on the obligation to preserve evidence, parties must exercise caution to avoid spoliation of metadata or risk facing sanctions. Changes to metadata may occur in several different scenarios, including:
• Accessing files
• Copying (drag and drop)
• Changing creation and last accessed dates
• Burning to CD or DVD
• Losing or truncating original path
• Forwarding e-mail messages
• Moving data between different operating systems
To help prevent metadata spoliation, develop and implement your client’s metadata preservation plan before the data collection begins. If you are unsure which metadata fields should be preserved, collected, reviewed and produced, seek clarification from the opposing party or the court. Counsel should also document all the steps taken to preserve this delicate evidence, in the event the opposing party brings a motion for spoliation sanctions. It is important to remember that spoliation concerns related to metadata may also arise in review and production. Thus, continue the established protocol developed to address metadata throughout the ediscovery process as necessary.
Metadata that is properly preserved can help uncover information about a particular case, and can help authenticate and interpret evidence by providing date and time stamps, network access logs, evidence of simultaneous user activity, version control information and more. Use metadata to your advantage, engaging the services of an expert when needed. An expert can testify about how metadata verifies the credibility of an electronic document, and can also help the judge or jury understand, interpret and evaluate the relationship between a piece of evidence and its associated metadata.
1As noted in Aguilar v. Immigration & Customs Enforcement Divis. of United States Dept. of Homeland Security, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), “[m]etadata is not addressed directly in the Federal Rules of Civil Procedure but is subject to the general rules of discovery.”