© 2017 Akin Gump Strauss Hauer & Feld LLP

Elizabeth Treubert Simon, Esquire Akin Gump Strauss Hauer & Feld LLP

Washington, D.C. May 10, 2017

MASTERING METADATA

What is metadata?

Metadata is data about data, i.e., information describing the history, tracking or management of an electronic document.

- Williams v. Sprint/United Management, 230 F.R.D. 640 (D. Kan. 2005) Metadata means information embedded in a native file that is not ordinarily

viewable or printable from the application that generated, edited, or modified such native file and information generated automatically by the operation of a computer or other information technology when a native file is created, modified, transmitted, deleted or otherwise manipulated by a user or such a system.

- United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information.

Metadata is evidence that describes the characteristics, origins, usage and validity of other electronic evidence.

- Craig Ball, Beyond Data about Data: The Litigator’s Guide to Metadata 1(2005)

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What can you find out from metadata?

Who worked on the file. Who created the file. What revisions were made to the file. When and by whom. Who collected the data. When and where it was collected, created, accessed, formatted and/or

modified.

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Types of metadata

There are hundreds of kinds of metadata. Application metadata

● Application metadata is embedded information created by software. It remains with the document when the document is moved or copied.

Examples –

● Fonts ● Spacing ● Color

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Types of metadata

System metadata ● System metadata is metadata created by the user or by the user’s computer that is

stored in the information management system or server.

Examples – ● Author ● File names ● Extensions ● Creation dates ● Modification dates ● Document titles ● Profile information ● The user ID of the computer that created the document

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Types of metadata

Embedded metadata ● Embedded metadata is information created by the user, but which is not visible to

the user viewing the output display.

Examples – ● Spreadsheet formulas ● Hyperlinks ● References and fields

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Why do we care about metadata?

Aside from the fact that it is everywhere, it can also be important. Litigation considerations

● Duty to preserve and produce

Native File Formats Master Planning and Collection of Metadata Meet and Confer Issues Clawback Provisions Ethical considerations Client confidentiality Competence

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What, exactly, does “everywhere” mean?

Word documents Excel documents Facebook Twitter LinkedIn Mobile devices E-mail Chat logs Instant Messaging Photographs Video Web pages/blogs Telecommunications

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Litigation Considerations

Vioxx litigation (it happened in 2000, but still has important metadata

lessons) ● Metadata revealed that the drug manufacturer Merck edited information regarding

the side effects of Vioxx out of an article for The New England Journal of Medicine (“NEJM”).

● NEJM discovered “tracked changes” (metadata) that showed that details regarding the drug’s link to an increased risk of heart attacks was deleted (only 17 heart attacks out of 20 were reported).

● The edit was discovered NEJM by hovering the cursor over where the edits were made, revealing that the edits were made by Merck.

● Merck was hit with about 7,000 lawsuits. ● Vioxx was withdrawn from the market. ● Merck pays $4.85 billion into a settlement fund to end the lawsuits of approximately

47,000 plaintiffs and over 200 potential class action lawsuits.

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Disclosing metadata in litigation

“[W]hen a party is ordered to produce electronic documents as they are

maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata need not be produced, or the producing party requests a protective order.”

Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)

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Rule 26(b)(1) brings the concept of proportionality to the forefront of the list of considerations in defining the appropriate scope of discovery. It says: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. The Advisory Committee Notes stress that the burden or expense of proposed discovery should be determined in a realistic way. And states that “Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.”

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Duty to preserve and produce metadata

Litigation holds and preservation plans should address metadata preservation and protection.

Opening a file or document for review will alter the metadata, therefore, it is crucial to collect all the key documents and to create a digital record of the original files, before the documents are reviewed for relevance and/or responsiveness to discovery.

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Native file formats

Electronically Stored Information (ESI) must be preserved intact, in native file format, before files are collected and reviewed in order to preserve the metadata.

F.R.C.P. 34(b) allows the requestor to specify the form or forms in which Electronically Stored Information (ESI) is to be produced.

The Federal Rules of Civil Procedure provide for the production of electronic files in “native” format – the format of the application in which the document was created, viewed, modified and ordinarily preserved or in a reasonably usable form or forms.

“Reasonably usable” often means searchable – documents should be produced in a form that is searchable by electronic means

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Master planning and collection of metadata

Analyze what metadata needs to be preserved and where it is, including

items like text messages, back-up files and native files. Address chain of custody needs with regard to the collection and

preservation of metadata. Determine the extent to which metadata will be subject to the litigation hold. Make sure that litigation hold notices provide instructions regarding the

preservation of metadata (this may include the termination of file and/or system maintenance procedures during a hold).

Identify a person who is familiar with any metadata scrubbers used by the client, and learn your client’s policies regarding same.

Have familiarity with metadata recovery programs that can recover “erased” metadata.

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Planning, continued.

Preserve metadata during data collection by duplicating responsive files, e.g., creating a forensic copy or otherwise copying files in a manner that prevents modification.

Talk to opposing counsel about metadata preservation and production, before the meet and confer.

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Collection

Many law firms have their own in-house e-discovery staff who can work with clients to collect, store and review discovery

Many insurance companies maintain preferred vendor lists that include e-discovery vendors

Many eDiscovery platforms and products exist that market to firms of different sizes at different price points

Some products are cloud-based services, others are traditional software. What product to use, and whether to do the project in-house or to hire a

vendor should consider the side of the collection, the resources available for the review, the timing of discovery, the budget of the client and the experience/skill level available for the review.

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Best practices for meet and confer

Be prepared – advance planning is key. A written ESI protocol is very helpful. The protocol should address: ―Whether documents will be produced in native format, or as .tiff or .pdf files. ―If all files are not produced natively, then what metadata fields should be included with the production of files. ―What process should be used for requesting native production of files originally produced in a non-native format. ―What metadata fields should be included with redacted documents, and specifically, what metadata should be provided for documents redacted for privilege or work product. ―A clawback process, in the event that metadata is inadvertently produced.

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Best practices for meet and confer

If the parties do not have a written ESI protocol, then the meet and confer

should include discussion of metadata, including: ―Is metadata relevant to your case? If relevant, should it be discoverable under Rule 26(b)(2)(C)’s cost-benefit factors? Should cost-shifting apply? Is an Order of non-access/non-review of produced metadata appropriate? ―Preservation of ESI during the lawsuit, including the preservation of metadata. ―Methods of review and production by the responding party that does not unacceptably change metadata.

A separate stipulated Protective Order regarding confidentiality should also

be considered.

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Fed. R. Evid. 502 - Attorney-Client Privilege and Work Product; Limitations on Waiver

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

● (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: ■ (1) the waiver is intentional; ■ (2) the disclosed and undisclosed communications or information concern the same subject matter;

and ■ (3) they ought in fairness to be considered together.

● (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: ■ (1) the disclosure is inadvertent; ■ (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and ■ (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following

Federal Rule of Civil Procedure 26 (b)(5)(B). ● (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is

not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

● (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

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Clawback provisions

Under F.R.E. 502, parties can stipulate to non-waiver provisions, and the

return (and non-use) of inadvertently produced documents. A clawback provision contains language such as:

Production of any documents in this proceeding shall not, for purposes of this proceeding or any other proceeding in any other court, constitute a waiver of any privilege applicable to those documents, including the attorney-client privilege.

Cases of note: Brookfield Asset Mgmt., Inc. v. AIG Fin. Prod. Corp., 2013 U.S. Dist. Lexis

29543 (S.D.N.Y. Jan. 7, 2013) (inadvertent production of privileged information in metadata of redacted document – no waiver because of clawback agreement)

Rajala v. McGuire Woods, LLP, 2013 U.S. Dist. Lexis 1761 (D. Kan., Jan. 3, 2013) (denying waiver because of clawback agreement)

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Ethical considerations

The basic duty of competence encompasses knowledge regarding metadata and electronic discovery. If you are going to engage in e-discovery, then you have to know what you are doing.

In litigation, metadata is generally considered discoverable when sent or received in response to discovery requests, unless it is privileged or otherwise immune from discovery.

Outside of litigation/discovery, state ethics rules define whether or not an attorney (or his/her employees) may ethically “mine” for metadata in documents received from other parties.

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Ethical Considerations

Balancing ethical considerations with litigation considerations means that, while you cannot alter evidence, you are obligated to protect client confidences.

So, while you cannot scrub the metadata from litigation documents, you may be able to (and perhaps, should) scrub the metadata from other documents sent to opposing counsel or only send documents in .PDF or by fax.

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Recent opinions and cases

Texas Ethics Opinion 665 (Dec. 2016) – What do you do when the metadata in a settlement draft contains confidential information of the other side relating to on-going settlement negotiations? ● The ethical rules implicated include competence and confidentiality ● Lawyers have a duty to take reasonable measure to avoid the transmission of

confidential information imbedded in electronic documents. (Scrub your metadata) ● Did the lawyer take reasonable measures to avoid the disclosure of confidential

information? The Bar will determine whether charges get filed from this. ● What about the lawyer who received the draft from the other side?

■ Texas does not really have an answer for that one, except to say that you can’t pretend that you did not learn something from the metadata, if you did. You can’t tell the court something that would be true in the absence of reading the metadata, but which would be false or misleading now that you read it.

● The receiving lawyer could also be disqualified, so there is a duty to tell your client the risks and benefits of any intended use of the information.

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State Farm’s metadata litigation

In re State Farm Lloyds, Supreme Court of Texas, No. 15-0903 ● This is an on-going multi-district litigation alleging State Farm defrauded policy

holders by underpaying wind and hailstorm claims. ● State Farm argues that a trial court order requiring it to produce claims data in

native format conflicts with Texas law. It wants to produce the information in a reasonably useful format.

● Plaintiffs argue that they want native files because they contain more relevant information and because it makes the documents more easily searchable. They claim that information was lost when pictures were uploaded to State Farm’s claims database.

● State Farm says that requesting native files is burdensome and intended to inflate the value of claims.

● Plaintiffs’ expert says native format is cheaper to produce. ● Amicus briefs have been filed by the U.S. Chamber of Commerce and the Texas

Association of Business, among others, supporting State Farm. ● The pleadings are on the web, and provide a good example of metadata in action.

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Best practices

Develop a plan before data collection begins. Include discussion of metadata in your litigation planning. Document each step taken to preserve metadata through the collection,

review and production process. Discuss obligations, costs and related metadata issues with your clients. Make sure that confidentiality and protective orders address inadvertently

produced metadata and include provisions addressing clawbacks and non-waiver of applicable privileges.

Make sure that review protocols address hidden metadata, such as track changes or other edits that could reveal legal advice or other privileged information.

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Some metadata resources

United States District Court for the District of Maryland, Principles for the Discovery of Electronically Stored Information in Civil Cases

The Sedona Principles: Second Edition (June 2007) United States District Court for the District of Maryland, Suggested Protocol

for Discovery of Electronically Stored Information (ESI) The Sedona Conference Commentary on Ethics and Metadata (2012) Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005) Brookfield Asset Mgmt., Inc. v. AIG Fin. Prod. Corp., 2013 U.S. Dist. Lexis

29543 (S.D.N.Y. Jan. 7, 2013) Rajala v. McGuire Woods, LLP, 2013 U.S. Dist. Lexis 1761 (D. Kan., Jan. 3,

2013)

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Any questions?

Thank you!

Elizabeth Treubert Simon Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036 esimon@akingump.com

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