Record Retention 101: How to Deal with Metadata
The preservation of electronically stored information is becoming a central issue for HR personnel. In this new world, it’s critical to understand what to retain, how to retain it, and how long to retain it. It’s equally important to know how to preserve electronically stored information that may be the subject of future litigation.
Metadata is becoming a key issue in the production of electronically stored information during lawsuits. Although the term “metadata” sounds technologically complex, it’s important to understand what metadata is, how it can be used against you, and how to limit the associated risks.
What is metadata?
Metadata, in its simplest terms, is “data about the data,” including information about who created a file, the date it was created, and when it was last modified. More specifically, metadata is information about a particular data set that describes how, when, and by whom it was collected, created, accessed, or modified and how it’s formatted (including data demographics such as size, location, storage requirements, and media information).
There are two types of metadata. The first, called “system metadata,” contains information stored externally from the file used to track file locations. This type of metadata, otherwise known as “external metadata,” contains information about the file, including file names, dates, path locations, and sizes.
The second type of metadata is “internal metadata,” otherwise known as “application metadata.” This type of metadata contains information imbedded with the file itself, such as track changes, document author, document version, macros, and e-mail “to,” “from,” and “subject” information. Internal metadata moves with the file when it’s copied and often varies depending on the type of file in question.
Although these definitions sound confusing, they’re relatively easy to understand. “Track changes” in Microsoft Word are metadata. Similarly, the properties of a file in Windows Explorer are also metadata. Most of the time, metadata is innocuous, allowing employees to make changes to documents and otherwise track the properties of a document to determine its origin or make sure the most recent version is being used. In those instances, metadata is essential to the day-to-day functioning of the workplace.
Dangers of metadata
In the legal setting, metadata can provide key pieces of relevant evidence and information. It can be fully discoverable in civil litigation (meaning it must be turned over during the pretrial exchange of information and is often included in document requests and preservation letters). When timelines are at issue, metadata can aid in internal investigations and offer clues into the actions of a computer user.
With those thoughts in mind, the preservation and production of metadata becomes a central issue when you are confronted with litigation. If a document is preserved with “track changes,” that information, including the specific track changes that reveal the author’s thought process and strategy, will be discoverable during the course of litigation. Metadata will also reveal information such as the name of the computer, the document’s author, the dates the document was created and modified, and the identity of anyone who accessed and printed the document. That information can become highly relevant in the context of litigation, particularly when the timing of certain events is an issue.
In the absence of a preservation order, litigation hold, or litigation that is reasonably foreseeable, there are a number of ways to deal with metadata. First, you may want to convert your documents to a portable document file (pdf) before giving it to anyone outside the organization. The converted pdf will contain some metadata, but the recipient will be unable to manipulate the text. Alternatively, saving Word files in Rich text format eliminates metadata. Otherwise, metadata can be destroyed through the routine good-faith application of a document-retention plan. If litigation is foreseeable or imminent, you shouldn’t destroy metadata. Instead, you should document all the steps you’ve taken to preserve the metadata and advise the opposing party of your proposed preservation procedures. Be very careful to avoid spoiling any metadata during the review and production process.
Metadata is a key, but somewhat invisible, component of electronically stored information. As with any electronic data, it should be carefully guarded and reviewed before it is disclosed. If there is a pending litigation hold, metadata should be carefully preserved. With careful planning and appropriate policies that provide for the retention of metadata, you’re in a better position to strengthen your case if litigation unfolds.
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