The ghost of Sir Alec Guinness just rolled his eyes.
Metadata, the hidden information embedded in electronic files, can do amazing things:
“In the same way that e-discovery allows attorneys to find that needle-in-a-haystack document, the use of forensic analysis of the metadata associated with those documents can show who put the needle there, when it was placed and who knew ahead of time.”
– John Birchfield, 3 Rules for Using Metadata in Litigation
Metadata can save your case. Assuming you know where to look for it. Oh, and once you find it, you need to understand it.
But that’s what technology consultants and eDiscovery companies are for, right?
Wrong. Failure to appreciate and understand metadata could result in you accidentally divulging client confidences, unknowingly producing damaging information in discovery (for which you have no answer during trial), or accidentally provide opposing counsel with your work product.
Taking the time to understand metadata, on the other hand, could save your case.
What is “Metadata”?
Metadata is created by basically all electronic documents. It’s the “other data” that makes your document what it is, like how large a picture is, when it was created, the color scheme, and its resolution. Text files contain metadata for the original length of the document, the date it was created, and the original author.
Frequently, metadata will contain the standard properties of the electronic file. Properties which can be adjusted by the user, such as the author, title of the file, and any keywords or tags applied. It also contains more static information, such as file size/length, saving and processing time, and the number of pages.
Different types of files have different kinds of useful metadata.
Some Useful Metadata in Common Electronic Files:
- Name, author, creation date;
- Security information (encryption and passwords);
- Annotations and comments (including hidden information);
- Markup tips and any tracked changes (including hidden information);
- Linked references (e.g. between Excel worksheets or PowerPoint slides);
- Other hidden text.
- Name, author, creation date, dates edited;
- Source program (was the PDF created from Word, Excel, Adobe?);
- Other metadata created by plugins or the source program.
- Date and time the photo was taken;
- Camera settings (aperture/shutter speed);
- Camera manufacturer and serial number;
- Geotags (the exact latitude and longitude of the camera when the photo was taken);
- Note: Facebook and Twitter strip photos of metadata when uploaded.
- Name (or at least, email address) of sender and recipient;
- IP Addresses of sender and recipient(s) (this can allow geolocating of your exact location);
- Date sent and received.
Social Media Pages:
- Type of item (wall post, news item, photo, etc.);
- Recipients of messages (by name and user ID);
- Application used to post to Facebook (iPhone, social media client, etc.)
- ID of a poster/author of the Facebook item;
- Date post created/revised/updated.
- ID of composer of a Tweet;
- Timestamp from creation of a Tweet;
- Geolocation of Tweet (if enabled by user);
- Geolocation of where Twee sent;
- Username of all users who retweeted;
- Name and ID of all Direct Message senders.
Snapchat (didn’t expect to see this one, did you?)
- User email address;
- User phone number;
- Log of past 200 snaps that have been sent and received.
How Does Metadata Affect Lawyers?
As you can see, there is a lot of information contained in those digital files. Some of it would be very valuable to your case, some would be valuable to your opponent. One way or another, all of it can get you in trouble with your state bar.
Metadata can be an incredibly valuable part of your discovery requests. You should always request that any electronically stored information (ESI) be produced together with any corresponding metadata. However, before “mining” electronic documents for metadata, find out your state bar’s position on the practice.
By analyzing the metadata of the documents you’ve received, you’ll be able to put precise dates on those emails, clearly identify when spreadsheets were created, or call BS when something has been altered.
On the other hand, when producing documents, you have to be careful to avoid producing documents that might carry confidential information in the metadata. For example, do you use documents originally created for a different matter as a “form”? If so, you might be inadvertently sending confidential information from that old case without realizing it!
Additionally, you can’t be overzealous. Destruction of metadata that was responsive to opposing counsel’s requests, and not privileged, is the kind of thing sanctions and ethics opinions are made of.
With Your Clients:
You have an ethical obligation to provide competent representation, and part of that duty is making sure that you advise your clients effectively and completely. Make sure that your clients are informed about how they can limit damaging metadata in their documents (by removing metadata for edits and track changes, among other things) before litigation is an issue.
However, also make sure to remember your ethical rules about preservation of evidence! Instructing or allowing your client to remove metadata from files subject to a duty to preserve is likely a violation.
Having trouble authenticating that electronic file? Information in the file’s metadata may be the answer.
You know, the Federal Rules of Evidence (and most of the state rules that use the FRE as a model) don’t require proof that something is absolutely authentic. As the 2nd Circuit stated in United States vs. Vayner, 2014 WL 4942227 (C.A. 2 (N.Y.)), authenticity requires only the testimony of the examiner who preserved the evidence, along with “circumstantial indicia of authenticity (such as the dates and web addresses)” of the posts.
Metadata provides all the “circumstantial indicia” you’ll need.
Or how about this? You never received discovery requests from opposing counsel, but he emails you insisting that you did. He then emails copies of the discovery he allegedly sent, including a signed certificate of service, dated three months ago. How can metadata help you?
If you’re this lawyer, by proving that the signed certificate of service wasn’t created three months ago, but rather one week ago. Sanctions, courtesy of metadata!
If you’ve located and preserved it correctly…