With metadata or without?

Metadata is forensics, and therefore "inaccessible".

The first time I heard that argument, I admit, I thought the IP attorney making it had been staring too long into the patent database.

Now, the Sedona Principles for Electronic Document Production, breathe life into arguments that metadata is not necessary absent special circumstances.

Principle 12 "Unless it is material to resolving the resolution of a dispute, there is no obligation to preserve or produce metadata absent agreement of the parties or order of the court."

Be careful taking this argument too far, especially when producing native files. The judge in Kansas was not amused when the responding party scrubbed metadata from a native spreadsheet production. Williams, et al. v. Sprint/United Management Co., 2005 WL 2401626 (D.Kan. Sept. 29, 2005). Interesting discussion on producing native spreadsheets with a link to the opinion by the Preston Gates folks here.

Be careful in preservation and collection not to limit your options. Make sure you make metadata production part of your early agreements with the requesting party. Be aware of possible followon lawsuits where this can become problematic. There are readily available file transfer tools which can preserve metadata at the relatively low cost of training on a new way to use them.

While Sedona Principle 12 indicates that metadata need not be produced to the requesting party absent a special showing, it is still critical to consider the impact of losing metadata. For example, it is common practice to negotiate date ranges. If the file date metadata is triggered to be the current date, that could make a material difference regarding whether a particular document falls within a date range. This area of law is developing and while there are arguments to be made that metadata is “inaccessible” and “forensic” similar arguments were made regarding a convenient interpretation of whether email should be considered a document. Pick your fights and jurisdictions wisely.

If you chose a course of action which will alter metadata, be prepared with reasons why that needed to occur. Disclose clearly that the metadata is not to be relied upon, lest you be stuck answering the other side’s depiction about what metadata means to a judge or jury. Make sure you don’t need the dates, for example, in an intellectual property case where the file creation date properly authenticated could help your case.

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