Metadata is a word that evokes a visceral reaction among many lawyers. Indeed, a discussion of the various types and locations of “data” alone —along with its sheer volume—can be daunting at times. Adding “meta” to the mix is enough to make some run for cover. But that need not be the case. Lawyers do not have to be technologically savvy to acquire a basic understanding of metadata. The following is intended to provide a brief overview of the basics of metadata for lawyers.
What is metadata?
Metadata is information generated by a computer operating system or other software program that is associated with a particular electronic file. Simply put, metadata is data about other data. Two main types of metadata are:
- System metadata (also referred to as directory level metadata) is data about an electronic file supplied by the computer’s operating system (e.g., Microsoft Windows). Examples of system metadata include the “Created”, “Modified” and “Accessed” dates for a Microsoft Word file. These timestamps are derived from the clock settings of the operating system.
- Application metadata (also referred to as file-level metadata) is information about a specific electronic file that is created by the application itself. Examples of application metadata in a Microsoft Word file include user name, comments and document revisions. Different applications create different types of application metadata. Thus, the application metadata created by Microsoft Word is not the same as the application metadata created by Microsoft Outlook.
Where is metadata stored?
Metadata is often stored internally (i.e., embedded) in the electronic file itself. When stored internally, the metadata travels with the data to which it relates. Thus, when a copy of an electronic file is made (such as when a copy of a file is attached to an email), the internal metadata associated with the original file is included with the copy.
In some instances, metadata is detached from the main data and stored in a repository, such as a database. One example of detached metadata occurs in litigation when an email message is converted from its original message format to an image. When this image is produced (typically in the form of a TIFF file), a database file is also produced along with it, which contains some of the metadata associated with the original email message.
Under some circumstances (though not necessarily in the preceding example), detaching the metadata from the main data content can facilitate more efficient searching and data management.
What should I do about metadata?
- Be aware of metadata. In-house and outside counsel alike should, at a minimum, have a basic understanding of metadata. All lawyers do not have to be experts on the various types of system and application metadata associated with each file type. However, being cognizant that metadata exists, and understanding the ways that it might be inadvertently shared with others, is a starting point to employing best practices with respect to metadata.
- Learn how to remove metadata from electronic files. There are numerous metadata scrubbing software applications, many of which integrate with email and other software programs. Counsel must consider whether documents to be filed and/or served electronically contain metadata that should be scrubbed (e.g., confidential or client information hidden behind the scenes). Along these lines, in many jurisdictions the e-filing portal contains a warning reminder that it is the responsibility of the e-filer to strip metadata from the electronic file before submitting it through the portal. For similar reasons, Deal documents that are undergoing numerous rounds of revision and exchange between parties in an arms-length transaction might also be good candidates for data scrubbing. In some instances, counsel might even scrub the metadata from a file before forwarding it to the client. There are numerous ways in which a properly utilized metadata scrubbing application might save counsel from an embarrassing situation, a breach of the duty of confidentiality, or worse.
- Preserve metadata when necessary. Metadata is increasingly becoming the subject of discovery once litigation ensues. In many instances, metadata is not relevant to the issues in dispute, but in other instances it is. For example, in some circumstances the contents of an electronic file may not be as important as when the file was created and who created it. If sufficient precautions are not taken when the duty to preserve information arises (typically, when litigation can be reasonably anticipated), relevant and discoverable metadata could be altered or lost. This could result in sanctions.
- Negotiate the types of metadata that will be preserved and produced in discovery (if any). Rather than allowing metadata to be a trap for the unwary or a costly sideshow to more substantive document discovery, counsel should proactively discuss and attempt to agree upon which types of metadata might be meaningful in a particular dispute. By reaching agreement on these issues at the outset of litigation, parties might avoid the unnecessary effort and expense associated with preserving and producing irrelevant metadata.
See, that wasn’t that bad at all, was it? Hopefully no one ran for cover.