By Associate Tech Editor Hayley Mohr
“If you have it, you should not show it to others. If you receive it, you cannot look at it.” The previous statement is not a riddle, rather; it’s a paraphrase of Arizona’s Ethics Opinion on the use of metadata. Contrast this outlook with Oregon’s, among other states, which allows attorneys to use it if they do not use a”special software” to view the data – in other words, if you can find it without looking too hard, it’s yours! So, what is metadata, and why does the permissiveness of its use and transmission vary so widely from state to state?
Metadata, which exists in several different types but is often termed “data about data”, has become a near-minefield to parties to litigation and the attorneys that represent them. A common example of metadata is a word processor file that contains information about when the file was created, and when it was last edited. It becomes dangerous quickly, when one considers the vast features available in a standard word processing program: documents can contain “erased” sentences and information –after all, in order for the “undo” button to work, the file has to “remember” what the previous version contained.
One of the most changing and varied areas of law at the moment is the proper use of metadata: both when it accompanies documents produced in response to a discovery request and outside of formal discovery. Contrary to the “show no metadata, see no metadata” approach of many states, one of the earliest and cases to deal with the proper use of metadata, Williams v. Sprint, held that the defendant in an age discrimination suit violated the discovery order by “scrubbing” metadata from a table of employees produced to the plaintiff. The court held that documents maintained in the regular course of business should be produced in the same format, and that the scrubbed metadata was relevant to the case.
Certainly, many lawyers are excited by the prospect of following a digital treasure hunt to examine the motives and concealed actions of defendants, and other parties are terrified at the prospect of having their comment and mistakes revealed – if metadata is likely to lead to reliable and useful evidence, why prohibit it from being used? Many are concerned about the ability of commercial software to fully “scrub” these documents, the cost of doing so, and the fact that the technology becomes more and more sophisticated.
Ultimately, there are no hard-and-fast rules to follow when it comes to producing, using, or cleaning files of metadata. What is right in one state is, literally, wrong in another. (See the ABA’s chart for a helpful overview of the ethics standards by jurisdiction.) It will be interesting to observe over the next decade what internal changes and innovations companies will make in order to avoid the metadata minefield altogether .