Now that we have all the legalese behind us (see last month's newsletter below), I must confess that I have not received any questions from any of you during the past two months. As the Great Justin Bieber says, “Is anyone out there?” (Ok, I think he says, “Is she out there,” but I will duke this one out with my daughter later.) But I digress, since I have not heard from you, and I have publication deadlines, I am writing about one of my current favorite topics – Metadata as a Record. For the next installment, please send me questions regarding Cloud Computing, which is another one of my new favorite topics. Contact me at: Jisaza@HiLawGroup.com.
Why should you care about Metadata?
When it comes to declaring electronic records, information governance professionals have been struggling for some time with the issue of what metadata to preserve. Stated simply, metadata is data about data. ARMA International defines metadata as “[s]tructured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource.” ARMA Glossary of Records Management and Information Terms, 3rd Edition (ARMA International 2007). In any event, when it comes to declaring records and their related metadata, it may not be as much of an issue with native files (documents living in their original format or application) so long as they are preserved intact upon creation. Also, when it comes to data stored in various and sometimes sophisticated platforms such as back-up or archival systems, as well as other enterprise systems that may automatically store all metadata in native format, the preservation of metadata may not be as challenging. Native format is, in fact, the preferred mode of production currently advocated by some counsel and courts. Unfortunately, when it comes to preservation of documents generated by common business applications (often unstructured data such as emails, WORD documents, Excel spreadsheets, Power Points and documents on shared drives found in both large and small organizations) for records management purposes, the question becomes more difficult. What metadata fields are considered usable or relevant in determining what to capture at the end of the day if a record is or has been migrated to another format?
Similarly, when it comes to discovery in litigation, organizations struggle with the scope of how much metadata to preserve for pending and anticipated litigation or agency investigations. Organizations now more than ever are being exposed to “spoliation” sanctions for the destruction of documents in litigation. Sanctions could range from financial penalties, to legal instructions that could affect a jury’s outcome, and even to jail. In 2004 and in 2007, the ARMA International Educational Foundation published two articles I wrote dealing with the thorny issue of spoliation. The 2007 article, in particular, addressed the issue of scope of production in the context of what information to put on hold when faced with pending or reasonably anticipated litigation. As of December 2006, the Federal Rules of Civil Procedure (the “FRCP”) had been amended to reflect growing technology and the need to address ESI. Although not specifically mentioned in the revised rules, when it comes to ESI a necessary question arises about how these rules should apply to metadata. How then does an organization avoid spoliation sanctions, considering how relatively easy it is to alter metadata during the day to day operation of any business application, including any business conducted over the Internet?”
Since the page limitations of this column do not afford me the opportunity to address how these issues can be addressed, I urge you to download the recent paper I wrote entitled “Metadata in Court: What RIM, Legal and IT Need to Know.” The paper was released in November 2010, and you can download it for free (yes, I said F-R-E-E) at www.ARMAEdFoundation.org. If nothing else, I am hoping this brief column has raised your awareness about Metadata and why you should care about it. If I have not, try reading the Foundation paper.
John J. Isaza
Howett Isaza Law Group LLP
465 Forest Avenue, Suite H
Laguna Beach, CA 92651
Check out my 7 Steps for Legal Holds book at: http://tinyurl.com/mo722k