An article by Cicayda’s Aaron Vick asks the question “What is metadata?”. Those in the UK who might hope that the question is irrelevant to them might first count the number of times the word “metadata” turns up in the practice direction which governs electronic disclosure.

Many years ago, as I was about to open a half-day talk to judges about eDisclosure, a representative of one of the Big 4 consulting firms leaned across and hissed at me “For God’s sake don’t try and tell them about metadata”. That session ended, four hours later, with a judge asking “What exactly is electronic disclosure?”, and I have wondered ever since whether a greater emphasis on metadata might have been more or less helpful.

Aaron Vick of Cicayda writes straightforward articles about the nuts and bolts of electronic discovery. One of them is called simply What is metadata? giving in the sub-heading the answer “Metadata is simply the properties associated with a piece of electronic data”. Aaron opens with a simple and obvious parallel with library cards which store information about an item including information as to where to find it.

Aaron’s article explains the difference between descriptive, structural and administrative metadata and between automatically-generated metadata, footprints and user-created metadata. He goes on to explain the various standards which govern the creation of metadata and which allow material to be found, grouped together and exchanged between systems.

Why does any of this matter to lawyers and to Judges, whether in the US, the UK or anywhere else? Well, for UK lawyers, quite apart from anything else, the word “metadata” turns up 17 times in UK Practice Direction 31B. You you would not, I’m sure, skip past any other word in a rule or practice direction without understanding its meaning.

Fortunately, the practice direction itself is helpful on the subject (I should hope so, not least because I helped draft it). In the definitions section in paragraph 5, the definition of “electronic document” says that it “includes metadata and other embedded data which is not typically visible on screen or a printout”.

Paragraph 7 gives an abbreviated explanation of some of the things covered in Aaron Vick’s article. It makes the point that this embedded information about the document “is not readily accessible once the native electronic document has been converted into an electronic image or paper document”, thus paving the way for the requirement (in paragraph 33) that that documents be disclosed in native format.

A distinction is drawn between the more obvious forms of metadata like the document date, author and recipient, and “additional metadata” which might be appropriate in, for example, a dispute concerning authenticity. There are provisions relating to “the alteration or suspicious oppression of metadata”.

The Electronic Documents Questionnaire which forms part of PD31B invites parties to consider whether the other party should disclose all available metadata for certain documents or categories of documents.

Metadata was important when I first started talking about it in 2008, and it is more so now. I have been preparing for a panel session in which I am participating at the EDI Leadership Summit in New Orleans in October. The panel’s title is “From the black box to GPS: employee monitoring in the age of Big Data”, and I have been digging out the material which I intend to use for my part of that panel; it it includes a couple of articles of mine about the geolocation data concealed in photographs and other data created automatically by the use of smart phones, tablets and a host of other devices (you can find those articles here and here). The strong suggestion in both of them is that some lawyers are going to find themselves in trouble pretty soon for failing to ask their own clients for their opponents about this kind of automatically created metadata.

As in the UK Practice Direction 31B, the a requirement for such metadata should be accompanied by an explanation as to why it is necessary and proportionate to provide it. Before you can address that question, you need to know whether the extraction of metadata will add significantly to the cost and burden of discovery. The answer generally is that there are modern software tools around which make it relatively easy to access this kind of metadata and knowing that such tools exist is, or should be, part of the default knowledgebase of modern litigator.

Aaron Vick’s article is a timely reminder of the significance of this easily overlooked component of a document.

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