If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.
Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence.
The excuse, if such be needed, for a webinar on this subject, is the recent Decision and Order by US Magistrate Judge Frank Maas in Adriana Aguilar et al. v Us Department of Homeland Security (my link is to a copy on Ralph Losey’s blog). Almost the whole of the 17 page Order relates to the importance of metadata, with enough definitions and citations to amount by itself to a treatise on the subject. What is not about metadata is about (yet again) parties raising late in the day a subject which ought to have been at the top of the case management agenda from the outset, and apparent foot-dragging (that old chestnut about the edisclosure consultant being unavailable) all clocking up costs and obscuring a perfectly sensible debate about privilege. The judge concludes wearily by saying:
This lawsuit demonstrates why it is so important that parties fully discuss their ESI early in the evolution of a case. Had that been done, the Defendants might not have opposed the Plaintiffs’ requests for certain metadata. Moreover, the parties might have been able to work out many, if not all, of their differences without court involvement or additional expense, thereby furthering the “just, speedy, and inexpensive determination” of this case. See Fed.R.Civ.P. 1. Instead, these proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiffs’ …. claims. Hopefully, as counsel in future cases become more knowledgeable about ESI issues, the frequency of such skirmishes will diminish.
There are echoes here of US Magistrate Judge John Facciola’s “Christmas Eve opinion” in Covad Communications v Revonet. His subject was the form of production rather than the manner of collection, but the approach is the same. He said:
it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
A much more fruitful use of the broad powers I unquestionably have to supervise discovery is to focus on the quickest and cheapest solution to the problem presented.
The “just, speedy and inexpensive determination of every action” referred to by both judges begins, like all good stories, at the beginning, with the manner in which data and documents are collected. It continues with co-operation, enforced if necessary by active management by the court backed, in the US at least, by the power to sanction those who want to play tactical games, or who do not have a clue (it is hard, sometimes, to work out which of these forces is at play).
We do not, in the UK, have the same attachment to metadata as they do in the US. There are various reasons for this. We do not often indulge in pre-trial battles about admissibility or preservation and, when we do, we look to the 1988 case Logicrose v Southend Football Club for authority rather than to any case from the post-electronic age. The courts frown on satellite litigation and prefer to postpone arguments about admissibility until the (rarely reached) trial. The Commercial Court Guide Para E3.11a sweeps the whole subject of metadata aside (“in most cases metadata is unlikely to be relevant” – that’s the way, lads: if you don’t understand something, dismiss it it as unimportant and move on the next subject). Paragraph 2A.2 of our Practice Direction to Part 31 CPR does refer in grudging terms to the potential for metadata to be relevant.
The proper way to approach metadata lies somewhere between the US obsession with the stuff and our apparent indifference to it. It is important when it is important and, since you generally cannot tell at the outset of litigation what is going to be important, it pays to collect what you can whilst it is in your grasp. You do not need the threat of sanctions (which we do not have in the UK) when you could lose the case, face an adverse inference, clock up unnecessary costs (and be made to pay them) or just look and feel unprepared against a better-placed opponent.
There was an article in the paper last week about a 30 year-old conviction which is set to be overturned because DNA evidence not then available showed that the alleged (indeed, self-confessed) perpetrator could not have been the murderer. A policeman at the forensics centre was quoted as saying that they never throw anything away which has been collected as evidence because they do not know what scientific advances may turn today’s junk into tomorrow’s vital clue. Much the same may be said of the often significant quantities of information which lies in and around every document.
I was talking about this recently with John Turner, CTO at Anacomp, Inc. Anacomp owns CaseLogistix, a document review application with more ability than most of its peers to capture and use a wide range of metadata. It was Anacomp who first drew my attention to Aguilar. CaseLogistix was ahead of others in promoting (and being able to handle) documents data in its native format as opposed to tiff images or PDFs, a subject which gets a lucid outing in the Aguilar Decision. John Turner observed that indexing metadata can produce unexpected results. I recall my first demo of the then-new Office 2007, which captures more information about the context from which a document came than did its predecessors. You could, I observed, draw conclusions about the server topology from this metadata which may point to gaps in your own or your opponents’ disclosure.
None of this is an argument (from me, at any rate) for making the analysis of metadata a battleground at UK Case Management Conferences in front of a judge whose official guide to procedure tells him that “metadata is unlikely to be relevant”. It is, however, an argument for knowing something about metadata, how it should be collected, and what it might reveal if you couple a proper collection with a review application which can make use of what is found. As with the police forensics expert, you never know what might emerge as time goes by which makes it more important than at first appeared. If you couple that understanding with an idea of the costs implications, you are in a position to make snap judgements (and collections decisions often are snap judgements) as to the balance between cost and benefit which UK courts, to an extent even greater than the US courts, require of parties to litigation.
The Guidance Software webinar on 24 March is a painless way to get an understanding of these issues. The registration page is here.