Don't Forget the Metadata!
Many of you reading this may be in law school now, but it is important to think about the kinds of things you will encounter when you are in practice. Though this post is mostly practical, and some of it will be out of date by the time you practice law, the principles should remain useful for years to come.
When it comes to today's litigation, paper documents are likely to represent only a tiny fraction of the materials that get generated prior to litigation and get requested in discovery. More often the documents found in discovery as a result of requests to produce documents, are almost entirely electronic. This process is called e-discovery. The e-discovery business is huge; in 2009 it was a 2.8 billion dollar business.
Electronic documents can often tell a tale that no paper document ever could. These types of documents have "metadata" embedded within them. This type of data can change simply by browsing the document, during the discovery process.
How do we define metadata? It is data that describes other data. Metadata can apply to a wide range of items, from documents to both internal and external hard drives. A common example you might have experience with would be Word documents, where there is hidden information about the who, what, where, and when of your file. This metadata often looks something like this:
The market for e-discovery of metadata is not a single segment market. There are separate segments for software, for services, and for hardware, but each element of the market is important and different.
In the software market, there have long been e-discovery products available. Many of them have a feature called "write blocking," which is a method to prevent spoliation of evidence. Write blocking stops metadata from changing when the document is opened, preserving the original information. Some of the software products you may encounter are:
The most expensive segment of this industry is the service side. As the e-discovery process can be extremely complicated, often the hard drives, flash drives, and CDs get shipped out to costly vendors and experts. Kroll Ontrack is a leading, though pricey, legal technology provider of e-discovery services.
The hardware segment of the market is changing, with more compact, yet more powerful devices to assist in the e-discovery process. For example, a recent review covered a new piece of hardware that makes quick access to metadata convenient and relatively inexpensive in the form of a thumb drive. The thumb drive allows you to view documents on a machine in their original form, without disturbing the metadata.
If you are interested in learning more about e-discovery and metadata, an excellent resource is the Electronic Data Discovery website, which is a joint project of Law.com and Legal Technology News, and helps to sort all of this out.
Metadata hidden behind documents is more important than you may have imagined. Finding metadata while preserving it to use as evidence is one aspect of its importance. Controlling your own metadata and counseling others to do the same is another aspect. Remember: don't forget the metadata!