By: George J. Taylor

klsBrinkleyMorgan_Portraits2015-GeorgeTaylor2_smallIt is very unlikely that the final version of document looks the same as the first draft because numerous changes were made, and things may have been deleted—including sensitive information that was not intended for others to see.  But that information, while seemingly invisible on the face of the document, may still be there.  If you do not want anyone to see that invisible information, called metadata, it must be stripped from the document; however, if you are involved in a lawsuit there may be circumstances when metadata cannot be stripped because it would violate the discovery rules or the rules of professional conduct for attorneys.

In Part I of this three part series on e-discovery, an introduction to the concept of e-discovery was provided along with some of the technical terms that are commonly used.  The purpose of Part II is to familiarize the reader with metadata—data about data—and the three types of metadata: substantive metadata, system metadata, and embedded metadata.

Substantive Metadata

The software that is used to create documents or files is the source of this type of metadata.  For example, the edits or editorial comments made to a Microsoft Word document would fall into this category.  Additionally, instructions from the software on how to display a particular document or file are also included in this category.  This information is embedded within document and stays with it when it is moved or copied.

System Metadata

Think of this as the “who and when” category of metadata that is created by either the user or the user’s management information system.  This information includes: author, date and time of creation, and the date the document was modified and who modified it.  System metadata can be very important when the authenticity of a document is in question, and when an issue arises regarding whether a document was received.

Embedded Metadata

Finally, embedded metadata falls into the “what” category and generally represents hidden information that is directly or indirectly inputted into a document or file by a user.  Common examples include: spreadsheet formulas, hidden columns, and hyperlinks.  Some courts have ruled that embedded metadata is discoverable and should be produced because of its importance in understanding the electronic document.

After reading this article, your take away should be this: there is more than meets the eye when it comes to documents and files, and what you can’t see may hurt you—especially when what you can’t see is sensitive information.  Stripping metadata is possible, but may not be appropriate in every circumstance.  And one last thing—just because a document was saved as a PDF does not mean that all metadata was stripped away.

I will conclude this article as I always do by providing sound legal advice—seek the counsel of an attorney if you have any questions about e-discovery.  Failure to do so could be costly.

The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you.  With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice.  Articles may not be reprinted without the express permission of Brinkley Morgan. 

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