eDiscovery Webinar

Albert Barsocchini

The Growing Importance of Senior Director and Assistant

Metadata Preservation in eDiscovery

General Counsel,

Guidance Software, Inc.

eDiscovery Processes that do not alter Metadata

Jeffrey Judd

Partner ,

Howrey LLP
© 2009 Guidance Software, Inc. All Rights Reserved.
Agenda
S L I D E 2

 Introduction of Panelists
 Metadata: Overview and Context
 Top 10 Best Practices for Handling Metadata Issues
 Questions and Answers

© 2009 Guidance Software, Inc. All Rights Reserved.

 S L I D E 3

Metadata:
Overview and Context

© 2009 Guidance Software, Inc. All Rights Reserved.

 What is Metadata
S L I D E 4

 Metadata is “data about data”

 Describes the “history, tracking, or management of an electronic
document”
 Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D.
Kan. 2005)
 Includes “hidden text, formatting codes, formulae, and other
information associated” with an electronic document
 The Sedona Principles: Second Edition Best Practices
Recommendations and Principles for Addressing Electronic
Document Production, Cmt. 12a (2007)
 See also, Sedona Guidelines - Best Practice Guidelines &
Commentary for Managing Information & Records in the
Electronic Age, Appendix F and Technical Appendix E definitions
© 2009 Guidance Software, Inc. All Rights Reserved.
Types of Metadata
S L I D E 5

 System – Reflects information created by the

user or by the organization’s information
management system, e.g., File Creation Date
and Time Stamps, File Location, Author or
User Identification, etc.
 Application / Embedded - Not typically
visible to the user viewing the output display,
e.g., Document Properties, Versions,
Company Name, Word and Character Count,
Spreadsheet Formulas, Hyperlinks, Database
Information, Document Statistics, Total
Editing Time, etc.
 Substantive / User Created – History,
Tracked Changes, Comments, Highlighting,
etc.

© 2009 Guidance Software, Inc. All Rights Reserved.

 Why Metadata is Important
S L I D E 6

 Searching For Relevant

Documents
 Depending upon the case, most
system (and substantive) metadata
lacks evidentiary value because it
is not relevant” -,Aguilar, et al. v.
Immigration & Customs
Enforcement Div’n of the U.S.
Dept. of Homeland Security, 2008
U.S. Dist. LEXIS 97018 (S.D.N.Y.
Nov. 20, 2008) However, it can be
very useful for searches based on
date ranges or author.
 Authentication Of Relevant
Documents
 Lorraine v. Markel American Ins.
Co. D.Md.,2007. Presumption that
metadata not hearsay and is prima
facie evidence of authenticity

© 2009 Guidance Software, Inc. All Rights Reserved.

Why Metadata is Important Cont’d
S L I D E 7

 Providing Context To Relevant Documents

 Embedded metadata is often crucial to understanding an electronic document and
generally discoverable and should be produced as a matter of course (id.)

 Metadata can be important records

 See, e.g., Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.
Cir. 1993) (in challenge to government’s proposed destruction of email
communications, court held that substantive email communications constitute
"records" under the Federal Records Act: "important information present in the e-
mail system, such as who sent a document, who received it, and when that person
received it, will not always appear on the computer screen and so will not be
preserved on the paper print-out.“)

See USDC, D. Md. Suggested Protocol of Discovery of Electronically Stored

Information 27http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf

© 2009 Guidance Software, Inc. All Rights Reserved.

How Attorneys Use Metadata
S L I D E 8

 Establish And Defend Against

 Allegations Of Fraud/Forgery
 Allegations Of Infringement
 Allegations Of Spoliation
 Motions For Sanctions and Adverse Inferences

 Create Timelines (Who Knew What When)

 When Document Created and Modified
 Who Created Document
 When Document Was Sent

© 2009 Guidance Software, Inc. All Rights Reserved.

 S L I D E 9

Top 10 Best Practices

for Handling Metadata Issues

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 10
S L I D E 10

 Before litigation is reasonably likely: Assess your document

retention practices as they relate to metadata
 Develop, implement, and enforce practices that expressly pertain to
metadata outside of the context of litigation
— What metadata are created in the normal course of business
— What metadata are destroyed/preserved in the normal course
of business
— What operational, regulatory, or statutory imperatives pertain
to metadata
 Do your systems allow you to create effective litigation holds
on ESI, including metadata?
 Does your exposure to/frequency of litigation or regulatory inquiry warrant
technology, systems, or practice changes?
 What changes should be made?

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 9
S L I D E 11

 At the inception of litigation (or when you reasonably anticipate it):

Impose a litigation hold that preserves potentially relevant ESI,
including metadata
 You must preserve potentially relevant metadata, Zubulake
 A proper litigation hold eliminates risk of spoliation sanction or adverse
presumption order

See, e.g., Krumwiede v. Brighton Associates, LLC, 2006 WL 1308629 (N.D.

Ill. May 8, 2006) (plaintiff’s alteration and deletion of files destroyed
metadata, which prevented him from being able to authenticate ESI
essential to his defense against defendant’s counterclaim; default
judgment entered in defendant’s favor)

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 8
S L I D E 12

 At the inception of litigation (or when you reasonably anticipate it):

Discuss with your client the kinds of metadata that are
associated with potentially relevant electronic documents and
devise an approach/protocol to propose to litigation adversaries
 You must understand your client’s ESI universe and practices to fulfill
your e-discovery obligations, including with respect to metadata, Zubulake
 Vetting these issues early will
— REDUCE likelihood of mistakes and cost of complying with e-
discovery obligations and
— INCREASE your credibility with the court and ability to minimize the
impact of the inevitable mistakes that will occur
 Should include an assessment of No. 7 (infra)

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 7
S L I D E 13

 Shortly after inception of the litigation: Identify and enlist expert

assistance to oversee and be prepared to testify about the
scope of your ESI resources, and the methods you used to
preserve, collect, and produce ESI, including metadata
 Likely sources of appropriate expert assistance
— Your client’s organization (e.g., IT personnel)
— Outside experts (law firms and/or e-discovery vendors)
— Some combination of the above
 Uses of experts
— Design/review/approve protocols
— Oversee execution of protocols
— Testify to authenticate documents,
defend against allegations of spoliation, etc.

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 6
S L I D E 14

 At the Rule 26(f) meet-and-confer session (or initial CMC): Disclose

your intentions regarding ESI, including metadata, as they
relate to propounding and responding to discovery
 FRCP, Rule 26(f)(3)(C) requires parties to discuss, while preparing a
discovery plan “any issues about the disclosure or discovery of
electronically stored information, including the form or forms in which it
should be produced”
 “ . . . at the outset of any litigation, the parties should discuss whether
the production of metadata is appropriate and attempt to resolve the
issue without court intervention.”
Aguilar v. Immigration & Customs Div’n, at p. 19; see also Scotts Co. LLC v.
Liberty Mut. Ins. Co., 2007 WL 1723509, at *4 (S.D. Oh. June 12, 2007)
(refusing to decide whether metadata need be produced because it was not
clear that parties had exhausted meet-and-confer efforts to resolve without
court intervention); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car Auto
Racing, 2006 WL 5097354, at *8 (E.D. Ky. Dec. 18, 2006) (“metadata . . .
should be addressed by the parties in a Rule 26(f) conference”)

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 5
S L I D E 15

 During the litigation: If you think metadata might be relevant

and/or useful to your case, request it as early as possible
 A propounding party is “the master of its production requests; it must be
satisfied with what it asked for”
Autotech Techs, Ltd. P’ship v. AutomationDirect .com, Inc., 248 F.R.D. 556, 560
(N.D. Ill. 2008)
 Delay in requesting production of metadata may cause court to deny
motion to compel or shift cost of production to discovery proponent
Id. (denying motion to compel metadata due to proponent’s delay); Aguilar
(same); Kingsway Financial Services, Inc., et al. v. PriceWaterhouse-Coopers
LLP, 2008 WL 5423316 (S.D. NY December 31, 2008) (same); D’Onofrio v.
Sfx Sports Group, Inc., 2008 U.S. Dist. LEXIS 4252 (D. D.C. Jan. 23, 2008)
(to obtain metadata, propounding party should specifically ask for it); Wyeth v.
Impax Laboratories, Inc., 2006 U.S. Dist. LEXIS 79761 (D. Del. Oct. 26, 2006)
(because parties never agreed to format of production, respondent satisfied
its obligation with production of TIFF (image) files; motion to compel
production of metadata denied).

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 4
S L I D E 16

 During the litigation: In the role of discovery

respondent, implement systems to ensure that
e-discovery protocols are being followed
 It is not sufficient for counsel to issue a litigation hold, he/she must
ensure that it is being followed
Zubulake

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 3
S L I D E 17

 During the litigation: Develop a defensible evidentiary record that

can demonstrate your adherence to discovery protocols
 It is not enough to follow the protocols you have established, you must
be able to prove with admissible evidence that the protocols have been
followed (or that reasonable systems were in place to ensure compliance
with protocols)
— To defend against discovery respondent’s
 Allegations of spoliation
 Motions to compel
 Motions for sanctions, adverse inference
— You must offer the testimony of a competent witness who, on the
basis of personal knowledge and reference to business records,
among other things, can testify about preservation, collection, and
production efforts

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 2
S L I D E 18

 During the litigation: Be prepared to authenticate (or challenge or

defend authenticity of) ESI, including metadata, that you intend
to offer as evidence at trial or in support of dispositive motion
 Discovery of ESI is expensive and time-consuming, you must do what is
necessary to make it admissible
— Relevant
— Authentic
— Not hearsay (or subject to exception)
Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007)
(cross-motions regarding the enforcement of arbitration award both
denied because of failure to authenticate email documents offered to
prove the scope of the arbitration agreement)

© 2009 Guidance Software, Inc. All Rights Reserved.

Top 10 Best Practices for Handling
Metadata Issues – No. 1
S L I D E 19

 During the litigation: Practice AGGRESSIVE TRANSPARENCY

 Promptly advise your adversary (and/or the court, as applicable) of any
— Change to your discovery protocol
— Error in execution of protocol
— Late discovery of new sources of ESI
— Other issues that could affect your obligation to produce metadata or
the court’s perception of your good faith in discharging your e-
discovery obligation

© 2009 Guidance Software, Inc. All Rights Reserved.

Summary of Top 10 Best Practices
for Handling Metadata Issues
S L I D E 20

10. Before the litigation: Assess your document retention practices as they pertain to
metadata.
11. At the inception of litigation (or when you reasonably anticipate it): Impose a litigation
hold that preserves all potentially relevant ESI, including metadata (whether or not
you think metadata are likely to be discovery targets).
12. At the inception of litigation (or when you reasonably anticipate it): Discuss with your
client the kinds of metadata that are associated with potentially relevant ESI and
devise a protocol to propose to litigation adversaries.
13. Shortly after inception of litigation: Identify and enlist expert assistance to oversee
and be prepared to testify about the scope of your client’s ESI resources, and the
methods you used to preserve, collect, and produce ESI, including metadata.
14. At the Rule 26 meet-and-confer (or initial CMC): Disclose your client’s intentions
regarding ESI, including metadata specifically (both with respect to propounding and
responding to discovery).
15. During the litigation: If you think metadata might be relevant and/or useful to your
case, request it as early as possible.

© 2009 Guidance Software, Inc. All Rights Reserved.

Summary of Top 10 Best Practices
for Handling Metadata Issues
S L I D E 21

4. During the litigation: In your role of discovery respondent, implement systems to

ensure that your discovery protocols are being followed.
5. During the litigation: Develop a defensible evidentiary record that demonstrates your
adherence to the discovery protocols you disclosed, as a matter of SOP.
6. During the litigation: Be prepared to authenticate (challenge/defend the authenticity
of) ESI, including metadata, that you intend to offer as evidence at trial or in support
of dispositive motions.
7. During the litigation: Practice AGGRESSIVE TRANSPARENCY
 Promptly advise your adversary (and/or the court, as applicable) of any
 Change in discovery protocol
 Error in implementation of protocol
 Discovery of new sources of ESI
 Other issues that could affect your obligation to produce metadata or the
court’s perception of your good faith in discharging your e-discovery
obligations

© 2009 Guidance Software, Inc. All Rights Reserved.

Questions from the audience?
S L I D E 22

© 2009 Guidance Software, Inc. All Rights Reserved.

Contact Us
S L I D E 23

Albert Barsocchini Jeffrey Judd

Senior Director and Assistant Partner,

General Counsel, Howrey LLP

Guidance Software, Inc.

JuddJ@howrey.com

albert.barsocchini@guidancesoftware.com

© 2009 Guidance Software, Inc. All Rights Reserved.