Simply put, metadata is evidence.
Metadata has received considerable media attention recently as the Australian Senate recently passed Metadata Retention laws, allowing 85 security agencies access to two years’ worth of any individual’s phone and internet metadata. This emphasises the increasing importance of metadata as evidence. However, the importance of metadata is nothing new. Many people will remember the unfortunate circumstance in 2004 where an embarrassed Mark Latham was forced to defend a leaked draft version of his first major address as Labour leader. The ‘tracked changes’ contained in the metadata were alleged to show a hidden agenda by Labour.
Preserving a paper document as evidence is relatively simple: take a copy and place the original into storage. In the absence of any fires, floods or malicious tampering, that document will remain in the same state. However, more than 90 per cent of information is stored electronically and preservation of ESI poses unique challenges. Metadata can easily be inadvertently altered. Even copying a file from a computer to a CD can significantly alter the metadata; the computer file system allocates three slots to date metadata (created, accessed, and modified) while the CD file system only allocates one. A Microsoft Exchange email has obvious metadata; sender, recipient or subject, but in total 26 pieces of metadata attach to a single email.
There is considerable global debate on whether metadata should be disclosed with electronic documents. In the US, only limited metadata is exchanged but more often than not, Courts grant any request for metadata where it has potential evidential value.
The Federal Court of Australia adopted a slightly different approach in its August 2011 Practice Note CM6. The Practice Note suggests that documents be exchanged as “Searchable Images” which removes any original metadata. However, it sets out a table of “Document Descriptions” that contains particular information extracted from the metadata to be exchanged between the parties. This default standard is useful as a starting point for practitioners to discuss exactly which metadata may have evidential value in the case.
Metadata can be used to great advantage. For example, in a matter involving a large corporate entity with millions of electronic records and email communications between hundreds of employees, using metadata can limit the documents to only the relevant time period and the individuals involved. Suddenly the task of reviewing the documents is not as daunting.
While the amount of data continues to grow, today’s legal practitioners need to be prepared to manage the data about data. We will soon start seeing cases where metadata has been incorrectly handled and the Courts are likely to order reprocessing of the data. This can be time-consuming and will no doubt prove costly to clients.
To ensure electronic data is handled correctly, lawyers may choose to seek expert advice.
Law In Order offers a range of technical solutions to assist in reducing costs and streamlining the discovery process in a defensible manner, ensuring data is processed correctly the first time so that you can focus on the matter at hand. For further information get in touch with one of our solutions consultants at firstname.lastname@example.org
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