Usually, the metadata have a form of hidden data which describes the visible data (e.g., name of the author of a Word document). Therefore, the metadata are crucial not only for winning or losing a legal case, but also for a proper compliance risk management within any corporation. Anyone who is emailing the office document should be aware of the complexity of this issue. Metadata discloses basic information like who, what and when behind a document’s creation and modification.
Metadata in e-discovery under US jurisdiction usually opens very important question. One may ask if the obligation to preserve electronic stored information includes metadata as well? According to decision in Williams v. Sprint United Management Co., 230 F.R.D. 640, 652 (D. Kan. 2005) “produc[ing] electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order.” In other words, individuals/corporations gathering documents in response to litigation or anticipated litigation, whether in the civil, criminal, or regulatory context, has an obligation to not scrub or destroy metadata. Failure to preserve a document—including the metadata—after receiving a subpoena (or merely becoming aware of the possibility of a subpoena’s being issued) could result in serious consequences. Whether such metadata needs to be stored before “the hold” or produced, however, is another question.
In the case In re Seroquel Products Liability Litigation,13 2007 U.S. Dist. LEXIS 61287 (M.D. Fl. August 21, 2007), the defendant in a multi-district pharmaceutical products liability litigation was found by the court to have turned over electronic stored information in unreadable formats. The court ruled that “defendant has been ‘purposely sluggish’ in making effective production to Plaintiffs. … It is undisputed that the [completed production] … had load file, metadata, page break and key word search problems, making the 10 million pages of documents unaccessible, unsearchable, and unusable as contemplated under the Rules." As a result, the court sanctioned the defendants, allowing the plaintiffs a further hearing to present evidence on their damages caused by defective production by the defendant.
Therefore, it is strongly advised to avoid altering metadata included in litigation holds to avoid the possible consequences. Management of metadata must be in place and each party has to have an option to check (read) and evaluate the metadata of electronic stored information. Also, parties should determine whether they might want to scrub metadata, and then, when conferencing with their adversaries after the inception of litigation, attempt to agree on what metadata will or will not be produced.