United States: Mysteries Of Metadata: What To Watch Out For In Commercial Litigation Cases

Originally published in NH Bar News

You just sent the client's answer to a 35-page complaint and counterclaims to the court for filing when you notice a new email from opposing counsel.  It's a draft discovery plan.  Upon review, you discover that the other side is demanding that all electronically stored information (ESI) be produced in native format.  In this contract dispute, you know that there will be a significant amount of email and that drafts of the contract will be at issue.  You remember something about "metadata" and the secrets it may hold.  Is this something you need to worry about given that you helped the client with the negotiations?  How will counsel's demand increase the cost to your client? 

The volume of electronic documents and data created on a daily basis is staggering.  With the ever-changing technology and increased use of email on both company-owned and personal devices, it is not surprising that companies are dealing with the complexities of preservation, collection, and production of this electronically stored information (ESI) in litigation.  Producing ESI must be done with caution and care to protect client information and yet in a format agreed upon by the parties.  Documents today can be produced in many formats to accommodate various document review platforms.  Aside from a paper copy or a PDF, the difference in formats mainly relates to the metadata provided.  Managing the risks associated with metadata lurking unseen in documents is a critical component in every commercial litigation case.

Earlier this year, the Business Court considered the issue of the proper format for the production of ESI in a commercial litigation case.  In Mason v. OSR Open Systems, Inc. et al (No. 218-CR-2016-CV-1294)(https://www.courts.state.nh.us/superior/orders/bcdd/Mason-v-OSR.pdf), the plaintiff demanded discovery in an entirely native format, claiming that production in any other format limited the ability to utilize features of plaintiff's discovery review software system.  The defendants objected and moved for a protective order, contending that production in an entirely native format was unduly burdensome due, in large part, to the necessity to review the metadata for privilege before any production and that a native production was not the industry standard.  By motion, the defendants requested that they be allowed to produce ESI in the standard TIFF+ format.  Following two evidentiary hearings and extensive briefing, the Court granted the defendants their relief and denied plaintiff's motion to produce ESI in an entire native format. 

Metadata is information embedded within the digital framework of an electronically stored document.  It is often described as "data about data."  It can be invisible to the naked eye when a document is printed and can pose unique concerns for litigants in business disputes as it may contain privileged or confidential information. 

As the Court in Mason noted, there are two types of metadata – system metadata and application metadataSystem metadata is "information related by the user or by the organization's information management system" automatically.  For example, this would include things like the file name, the identity of the user who created the file, made modifications or last saved the file, and other user profile type information.  Application metadata is created as part of "the application software used to create the document or file."  For example, this would include information about fonts, spacing, and size.  It can also include the history of changes made to a document, modifications, edits, or comments.  This metadata is embedded within the file and travels with the file when it is moved or copied.  In other words, while deleted in the final version, "tracked changes" or comments may still reside within the document and that metadata can only be viewed in its native format.

A native production includes all metadata associated with a document, i.e. both system and application metadata. The issue with a production in native format is that the parties do not control which metadata fields are produced – which could encompass over hundreds of fields of metadata.  The plaintiff argued that only native documents would allow its discovery review platform to properly function.  The defendants countered that a native production may expose the producing party to the risk of revealing potentially privileged, confidential, or irrelevant metadata associated with the native document and that the defendants would need to take the additional step to review the metadata for privilege before any production.  This can be burdensome in terms of both time and cost and pose a challenge due to the unknown number of metadata fields. 

Defendants also contended that a native format is not the industry standard.  Relying on the Second Edition and more pointedly on the Third Edition of The Sedona Principles, recently finalized in October 2017, defendants confirmed the most common way ESI has been produced over the last decade has been to "create a static electronic image in Tagged Image File Format (TIFF) or Adobe Portable Document (PDF) file format, to place the extracted text from the documents into a text file, and to place the selected metadata and other non-apparent data into one or more separate load files."  This form is frequently referred to as "TIFF, Text and Load Files" or "TIFF+".  In this format, parties can agree on the selected metadata fields for the load files to be produced to allow for searches based upon this information.  For example, parties often agree to email metadata fields of "to," "from," "cc," "bcc," "date," "email subject," "filename," etc.   A TIFF+ production can be searched, sorted, or filtered by standard document review platforms.

Under the circumstances in Mason, the Court found significant that a native format production was not necessary in order for the litigation to proceed efficiently.  The Court spent considerable time addressing the features of plaintiff's discovery review software and was guided by the Second and Third Editions of the Sedona Principles and the recognition that to be reasonably usable, ESI need not necessarily be produced in native format.  It further recognized that the TIFF+  production format provided the information needed to establish the facts at issue in the case and the data to allow the plaintiff to "functionally access, cull, analyze, search and display the information produced" on the review platform used by plaintiff's counsel.  Relying on expert testimony offered by the defendants, the Court also found that requiring native format would double the cost of production to defendants because it "may cause difficulties in reviewing the material for responsiveness and for privilege before production," there were challenges with making a record of what was actually produced, and the electronic data could be manipulated in native form.

There are many mysteries of what information is captured by metadata lurking within a document and caution should be given before providing documents in their native format.  Lawyers should keep this decision in mind whenever considering the format of ESI production in their commercial cases. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions