In Part II of our series, we continue our discussion regarding the New Jersey Supreme Court’s recent announcement that it will adopt the recommendations made in the September 14, 2015 Report of the Working Group on Ethical Issues Involving Metadata in Electronic Documents.  The amendments will (1) require lawyers to be aware of and safeguard the electronic metadata of third-parties that is inadvertently produced, and (2) specifically address the discoverability of metadata in electronic information in the context of civil litigation.This is a very significant development that should be studied by the New Jersey bar.   To further that effort, Davison, Eastman & Muñoz will be providing the bar with an educational series that explains what metadata is, why lawyers should pay attention to these rule changes, summarizes the changes themselves, and analyzes a variety of related legal and practical issues.  This explanation of what metadata is and why you should care about it is part two of the series.  Part one – the introduction – can be found here.  

What is metadata?

The word “metadata” is used differently to describe both electronic and physical resources.  A traditional example of physical metadata is the library card catalog: each card describes information about a publication, such as its title, author, date of publication, edition, and location in the library. Electronic metadata describes similar types of information, but with respect to electronic documents.  In this post, unless otherwise specified, the term “metadata” will refer to the wide spectrum of electronic data – the “data behind the data” – that is embedded in or associated with the electronic files and information we create and use every day, whether it be on smart phones, tablets, computers, servers, networks, and databases.
You may remember the fight over metadata in the Bridgegate case.  The defendants sought access to the “metadata” associated with the investigating attorneys’ interview memos in order to determine who drafted – and perhaps more interestingly – who edited the content of those memos.  As demonstrated by the prolonged fight over access to metadata in that case, metadata can be both quite informative and very sensitive.
Metadata is a digital fingerprint that can authenticate the complete history of an electronic file by showing how, when, and where it was created, its location, how it was shared, the timing and substance of any revisions, and the individuals and information systems associated with each step in this process.  The importance of this information to litigation and attorneys in general is self-evident and is only increasing.  As our applications and devices become more interactive, metadata becomes more critical to understand and use them.
Although there are many technical subsets of metadata,¹ it can generally be broken down into three categories.  As explained in the seminal case of Aguilar v. Immigration & Customs Enforcement, those categories are:
(1) substantive metadata (also known as application metadata), which is created as a function of the application software that creates a digital file. Substantive metadata reflects the history of changes to a document and provides guidance on how to display things like appropriate fonts and the spacing of paragraphs.  This metadata is embedded in the digital file and describes and moves with it.
(2) system metadata, which reflects information created by the user or by an operating system to track a digital file.   Every active digital file has at least one corresponding block of system metadata.  This may not be embedded within the digital file, but can usually be easily retrieved from whatever operating system is in use.  It stores demographics about the file like name, size, creation, modification, usage, and author.  This type of metadata may be unintelligible when outside of its native environment, so it must be labeled.
(3) embedded metadata, which consists of text, numbers, content, and other information that is input into a digital file directly or indirectly by a user, though it is typically hidden from the user’s view.  This data is crucial to interpreting and understanding a digital file.  Examples of embedded metadata are spreadsheet formulas, hyperlinks, geographical coordinates in a photograph, and hidden columns.²

Why should you care about metadata?

Not only can metadata be central to a case, but it will soon become a potential minefield for attorneys who receive information that may have been inadvertently produced.
If you have not already been confronted with a metadata issue or metadata production request, you soon will.  It is well-settled that metadata is discoverable in civil and criminal litigation. Once NJRPC 4.4(b) is updated, an attorney who reviews inadvertently produced metadata faces the possibility of disqualification or an ethical violation.   To avoid any ethical issues arising out of the receipt of metadata, attorneys should have a working familiarity with metadata: how it is created, how it can be used, how it is transmitted, how to refrain from disclosing it, how (and when) to destroy it, how (and when) to preserve it, how to collect it, review it, and process it, and what to do if it appears to have been inadvertently disclosed.

Is there metadata in the client documents that I create, use, send, and receive?

Yes, absolutely.  You should care about metadata to guard against the possibility of inadvertently disclosing privileged or confidential information.
Each and every electronic document has metadata embedded within and associated with it.  Our law offices create, process, and share electronic documents every day through email, thumb drives, a secure file transfer portal, or in some other manner.  Each of these documents has metadata embedded within it.  This includes confidential metadata that reflects the entire history of an electronic document, all changes to it, the comments embedded within it, deleted comments, the original author, each editor, etc.  To avoid the embarrassment and inevitable business and legal consequences that flow from inadvertently sharing this confidential information with opponents or third parties, best practices recommend the use of a good metadata-scrubbing program that can expunge the metadata before the document is shared outside your firm.  This is particularly useful for drafting transactional documents, when you may not want the opposing side to know who made certain changes or when they were made.
However, the amendments to NJRPC 4.4(b) take this responsibility a step further.  They will require each lawyer practicing in the state to ensure that he or she does not review metadata or other electronic information that the lawyer has reasonable cause to believe was inadvertently disclosed.  Once a lawyer is on notice that a reasonable basis exists, the lawyer must stop reviewing the information, notify the sender, return the information, and, if it is in electronic form, delete it and take reasonable measures to assure the information is inaccessible.   Considering the prevalence of electronic information in today’s society and the manner in which a modern law office functions, the effect of this change to NJRPC 4.4(b) is likely to be far-reaching.

Is metadata relevant to electronic discovery and technology-assisted review?

It sure is.  You should care about metadata because it can assist you in analyzing cases and making strategic decisions.
Metadata plays an integral role in electronic discovery and technology-assisted review (“TAR”).  It is the backbone of these technologies.  Without metadata, you could not sort documents by date, by sender, by author, etc., and TAR would not be able to provide the enhanced searching, processing, and production capabilities that electronic discovery practitioners have grown to love.  This means that in addition to being cognizant of the threat of inadvertently produced metadata, attorneys must also be familiar with how (and when) we and our clients must preserve metadata, as well methodologies for collecting, reviewing, and processing it.
The increasing significance of metadata and electronic information in modern litigation was aptly-described by U.S.D.J. Michael Baylson, who stated, “Ignoring the capabilities upon which ESI allows parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals[.]”³

The fact is that the benefits dramatically outweigh the costs when attorneys and project teams who know what they are doing apply TAR and electronic discovery correctly, in the right type of case.  These benefits enable attorneys to find the proverbial needle in the haystack by expeditiously sifting through tens of thousands if not millions of documents that would have taken months or potentially years to review manually.  In addition, when properly implemented, TAR produces results that are comparable to – if not vastly superior than – the results of an entirely manual review.⁴
Before starting the process, it is wise to evaluate whether TAR is appropriate and cost effective for your case.  To that end, it is worth revisiting the Aguilar decision, which not only provides a worthwhile introduction to the world of metadata, but reflects three electronic discovery principles that practitioners should be guided by when dealing with electronic discovery:
(1) courts have generally ordered the production of metadata when it is sought in the initial document request and before any materials have been produced in any form and, in this setting, it is the burden of the producing party to resist its production;
(2) the producing party ordinarily must consider the need for metadata to make otherwise unintelligible electronic information understandable; and
(3) most importantly, when dealing with electronic information in an adversarial setting, the parties are best served by raising issues concerning metadata and electronic discovery at an early stage.⁵

Like it or not, this is a new way of doing business.  Metadata, electronic discovery, and issues concerning the inadvertent disclosure of electronic information are here to stay.  This conclusion is only reinforced by the announcement of the amendments to New Jersey’s rules governing civil discovery and professional conduct.  The good thing is it’s never too late to learn something new.
Our next post in this series will summarize those rule changes. Stay tuned.
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[1] For a more in specific description of seven different subpart categories of metadata, see The Sedona Conference Glossary: E-Discovery & Digital Information Management, 4th ed. 2014.
[2] 255 F.R.D. 350, 354-55 (S.D.N.Y. 2008)
[3]In re Domestic Drywall Antitrust Litig., 300 F.R.D. 228 (E.D. Pa. 2014).
[4]See Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), which cites to Maura R. Grossman & Gordon v. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 11 (Spring 2011), which is available here, and to Herbert L. Roitblatt, Anne Kershaw & Patrick Oot, Document Categorization in Legal Electronic Discovery: Computer Clarification v. Manual Review, 61 J. Am. Soc’y For Info. Sci. & Tech. 70 (2010)).
[5] See Aguilar, supra, 300 F.R.D. at 355-64.  Although New Jersey Superior Court has a dearth of case law on this subject (both published and unpublished), the reasoning of Aguilar has been applied in the District of New Jersey and the Eastern District of Pennsylvania.  SeeFord Motor Co v. Edgewood Properties, Inc., 257 F.R.D. 418, 425-27 (D.N.J. 2009) and Romero v. Allstate Insurance Co., 271 F.R.D. 96, 105-09 (E.D. Pa. 2010).