Welcome top Module 3-M.
Metadata, Objections as to Form of Production, Golf and Metadata, and Metadata Bloopers.
Introduction to Metadata
What is the emerging standard of metadata production? This Module addresses the issue of metadata production, and cases where it is compelled or prohibited. This is important to understand. So many lawyers mess this up. They are actually afraid of metadata. It is the boogie man of e-discovery. In fact, metadata is usually quite boring, once understood, and it is a waste of time and money to argue about it with opposing counsel. This module examines metadata thorough a few of the top legal opinions in this area and even tell you how to use golf as an analogy for this topic. The module closes by examining one of the most famous mistakes in metadata disclosure, one made by our supposedly smart CIA spy types. This will help you to understand the basis of the widespread fear of metadata. The assignment at the end includes a different, but related, issue of cyber security and the now infamous Wikileaks.
First of all, what is metadata? Literally it means “data about data”. Many courts define the term by referring to the Sedona Glossary of Commonly Used Terms for E-Discovery and Digital Information Management, which defines “metadata” as:
. . . information about a particular data set or document which describes how, when and by whom it was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Can be extracted when native files are converted to image. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed.
All computer files have metadata associated or within them that provides information about the files. For instance, email software includes information in email files about its author, creation date, attachments, and identities of all recipients, including those who received a cc or bcc. Metadata even tells you if an email has been opened by a recipient. The printout of an email, which is essentially a TIFF version of the email, may not show the blind copies, and certainly will not tell you if it has been read or not. The metadata of an email will also maintain the history of the email, its conversation thread, such as who replied and who forwarded. Also, unless it is an Outlook email stripped out of its PST file into a MSG file, it will tell you in what folder the email was filed by its custodian.
Some programs include information within the contents of files that is hidden until you instruct the software to reveal the information. This is called “embedded” information, and courts frequently refer to such information as metadata. Technically, it is not true “metadata” because it is not “data about data.” It is not information about the file itself. Instead, it is information within a file, but hidden for some reason. It is information that the user has created, but is not visible without a command. A good example of this is the “Comments” feature in Word. Comments can be inserted into a Word document that are not visible until you use the View Command to show them. The comments are embedded into the file itself. Another example is the formula that a user can place in an Excel or other spreadsheet to calculate values within a cell. The math used to calculate the value of a spreadsheet cell is embedded in the file. Although technically “embedded data” is not “metadata,” for purposes of legal analysis “embedded data” is treated as a form or type of “metdadata” because most courts, and the legal profession at large, do not grasp the distinction.
The key case on metadata is Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D. Kan. 2005). Here, terminated employees brought a class action and sought Excel spreadsheets with all metadata intact, including embedded formulae. The court held that under “emerging standards of electronic discovery”, metadata ordinarily visible to users of Excel spreadsheets “should presumptively be treated as part of the ‘document’ and should thus be discoverable.” Id. at 652.
The court reviewed case law, the pending new rules and commentary and the Sedona Principles for Electronic Document Production, especially Principle 12, which provides that “[u]nless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.” The commentary to this principle opined that “most of the metadata has no evidentiary value, and any time (and money) spent reviewing it is a waste of resources.” The commentary also set forth an important caveat to its principle 12: “Of course, if the producing party knows or should reasonably know that particular metadata is relevant to the dispute, it should be produced.”
The court accepted the Sedona Principle 12, with commentary, as an important part of the “emerging standard”, but rejected Sprint’s argument that this meant the Excel spreadsheets’ metadata should not be produced. Instead, the court found that the Excel metadata was material to the dispute, Sprint United should have known that and should have produced it. The actual holding then goes even further to state:
Based on these emerging standards, the Court holds that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. The initial burden with regard to the disclosure of the metadata would therefore be placed on the party to whom the request or order to produce is directed. The burden to object to the disclosure of metadata is appropriately placed on the party ordered to produce its electronic documents as they are ordinarily maintained because that party already has access to the metadata and is in the best position to determine whether producing it is objectionable. Placing the burden on the producing party is further supported by the fact that metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document.
Several cases, along with a sequel to Williams itself, have, however, shown that the exact nature of the emerging standard is still in doubt. First the sequel, Williams v. Sprint/United Management Company, 2006 WL 3691604 (D.Kan. Dec. 12, 2006) (Williams II). The spreadsheets in question in Williams I were produced in native format as the court ordered, but the plaintiffs wanted more. They returned to the court a year later to try to compel production in native format of all 11,000 emails produced that transmitted spreadsheets. (The Judge here used a golf analogy for “native” format of “Play it like it lies.”) The plaintiffs argued that the original native format of the emails was needed in order for them to determine which emails transmitted which spreadsheets. The defendant had the burden to show why this native production should not be done, that it was permissible for it to have “improved their lie.”
Defendant met this burden and the motion to compel was denied, primarily because the emails had already been produced in paper without objection, and a second reproduction at this date would be very burdensome, especially since the emails contained many attorney-client privileged materials. Actually, Plaintiffs had originally objected to paper production of the email, but had withdrawn their objection during one of many discovery hearings based on defendant’s assurances that they would provide Spreadsheet Reports that “would match up the transmittal e-mails with their respective attachments.” Defendant argued it had done so as agreed, but the plaintiffs complained that the Spreadsheet Reports were deficient, and they were unable to match them up. The Court disagreed that the Spreadsheet Reports were deficient, noted the apparent impossibility to redact privileged materials from native files, and held that since the plaintiffs had already received production in one format (paper), the new rules protected defendant from having to produce them again in another format (native). To continue the golf analogy, the court in effect applied new rule 34(b)(iii) to prevent plaintiff from receiving a “mulligan,” a second request. The exact wording of the court is instructive, and to a certain extent, explains and clarifies Williams I:
Federal Rule of Civil Procedure 34(b)(iii), as amended on December 1, 2006, provides that “[u]nless the parties otherwise agree, or the court otherwise orders, … a party need not produce the same electronically stored information in more than one form.” In this case, Defendant has already produced the transmittal e-mails, as well as all the attachments to those e-mails. Defendant has further created Spreadsheet Reports to correlate the transmittal e-mails to the attachments they transmitted. The Court therefore finds that under Rule 34(b)(iii), Defendant need not re-produce the its RIF-related transmittal e-mails together with their attachments in native format, as requested by Plaintiffs.
Defendant raises legitimate concerns about producing the transmittal e-mails with their attachments in their native format, including whether production in native format would permit the redaction or removal of privileged information in the transmittal e-mail or the attachment.
Moreover, even assuming that Defendant could produce the transmittal e-mails together with their attachments in native format with the privileged information redacted, Plaintiffs have not sufficiently explained why they need the transmittal e-mails in their native format. Previously, this Court has ordered Defendant to produce the Excel RIF spreadsheets in native format, but in that instance Plaintiffs provided valid reasons for the spreadsheets to be produced in their native format. Namely, that the contents of the spreadsheet cells could not otherwise be viewed as the cells contained formulas. Also, in many instances, the column width of the cells prevented viewing of the entire content of the cells. Here, other than arguing that ordering Defendant to reproduce the transmittal e-mails together with their attachments in native format would be more helpful to Plaintiffs in matching up the transmittal e-mails with their respective attachments, Plaintiffs fail to provide any other reason why they need the transmittal e-mails produced in their native format. For these reasons, the Court denies Plaintiffs’ request for Defendant to produce all its RIF-related transmittal e-mails in native format with all attachments in native format and attached to the transmittal e-mails.
The Williams II court did, however, state that plaintiffs could pose specific interrogatories to defendant as necessary to decipher the Spreadsheet Reports and determine which emails matched with a particular spreadsheet.
Another court quoted Williams I, but reached an opposite result disallowing production of native format. Wyeth v. Impax Laboratories, Inc., 2006 WL 3091331, 2006 U.S. Dist. LEXIS 79761 (D.Del. Oct. 26, 2006). The facts behind the decision are similar to those of Williams II. Wyeth declined to require metadata production relying primarily on the failure to request metadata before the production, and a local rule making TIFF and JPEG the default format of production. In effect, the court was relying on the “one format” production limitation of revised Rule 34(b), although the new rule is not mentioned in the opinion, and had not yet gone into effect. The Wyeth court explained its ruling as follows:
Since the parties have never agreed that electronic documents would be produced in any particular format, Wyeth complied with its discovery obligation by producing image files. Further, neither party has argued that the need for accessing metadata was foreseeable or generally necessary. Finally, Impax has not demonstrated a particularized need for the metadata or database production it has requested. Therefore, this part of Impax’s Motion is denied.
Wyeth apparently tries to buttress the decision with a quote from Williams I, that the “emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata.” The Court correctly quotes Williams I, but does not point out that this was a summary of the defendant’s position which Williams I rejected. (Williams II had not yet been decided.)
A better reasoned case in Kentucky district court explicitly rejects Williams I. Kentucky Speedway, LLC v. NASCAR, 2006 U.S. Dist. LEXIS 92028 (E.D. Ky. Dec. 18, 2006). This is an antitrust action against NASCAR where the defendants had already spent over $3 million in 5 months responding to e-discovery requests. Then, with that background, the plaintiff for the first time asks for production of all metadata in documents already produced. (Again, note the similarities with Williams II, which had not yet been decided.) The plaintiff relied upon Williams I to try to justify this late request, but failed to make “any showing of a particularized need for the metadata.” The Kentucky Speedway court rejected Williams I in this context and instead followed Wyeth, holding that:
In the rapidly evolving world of electronic discovery, the holding of the Williams case is not persuasive. Having the benefit of the newly amended rules, advisory notes, and commentary of scholars, I respectfully disagree with its conclusion that a producing party “should produce the electronic documents with their metadata intact, unless that party timely objects …, the parties agree that the metadata should not be produced, or the producing party requests a protective order.”
Here, the parties clearly had no agreement that the electronic files would be produced in any particular format. Plaintiff did not notify defendant ISC that it sought metadata until seven months after ISC had produced both hard copy and electronic copies of its documents. . . .
To the extent that plaintiff seeks metadata for a specific document or documents where date and authorship information is unknown but relevant, plaintiff should identify that document or documents by Bates Number or by other reasonably identifying features. Responding to a request for additional information concerning specific documents would be far less burdensome to defendant and far more likely to produce relevant information.
The opinion in Kentucky Speedway does not answer the question of whether it would have reached the same result if the plaintiff had made the request for metadata from the beginning, and not waited until after the defendants had already spent millions of dollars to produce the same documents without metadata.
It is, however, clear from Kentucky Speedway that whenever a metadata production will create a substantial burden on the producing party (here it would have cost NASCAR another $500,000), then the requesting party will have to provide good cause. The plaintiff’s reliance on Williams I to support the production of metadata in all circumstances, and without a good cause showing, was misplaced and distorts its actual holding of Williams I (as shown for instance by Williams II). Instead Williams stands for the proposition that the producing party must object and show undue burden, and then the burden shifts to the requesting party to prove good cause. The argument on metadata production is essentially the same as the inaccessibility argument under Rule 26(b)(2)(B). If you can show a real need to see the metadata, as the plaintiffs did in Williams I (but not Williams II), it may be possible to compel the production in spite of burden on the producing party. It will be a balancing test dependent upon the circumstances, and following something like the seven factors recommended by the Rules Committee for 26(b)(2)(B) analysis, and earlier in Zubulake I for cost shifting, but with the added dimension of the debatable feasibility at this time of redacting privileged materials from native files.
IN RE PAYMENT
The next word in this controversy of “emerging standards”comes out of a consolidated group of class action cases styled In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D. NY. January 12, 2007). As in Kentucky Speedway, Wyeth and Williams II, the defendants here sought the production of the metadata for documents already produced without metadata. (Actually, defendants never filed a motion to compel, they just raised the issue at a conference, and that was part of the problem.) In addition, the defendants wanted the plaintiffs to produce all metadata on documents they had not yet produced.
As to the previously produced documents, the holding here follows Kentucky Speedway, Wyeth and Williams II. In Re Payment holds that the defendants waited too long to complain of the metadata-stripped production, and implied that there had been a waiver. The lesson here is that in order to obtain metadata you may need, you should specifically ask for that metadata to begin with, and if the production is later stripped of the metadata requested, you should immediately and vigorously object.
In Re Payment also followed Williams I to a certain extent, in that it ordered all future productions by plaintiffs to include metadata. The Court explained its reasons for requiring full metadata production:
The defendants object to Individual Plaintiffs’ production protocol on the grounds that, by failing to supply meta-data, it does not comply with amended Rule 34. The Advisory Committee on Civil Rules, in its notes to the 2006 amendment to Rule 34, wrote that a party responding to a discovery request may elect to produce a “reasonably usable” form of electronic data rather than produce the information as kept in the ordinary course of business. Fed. R. Civ. P.34(b), 2006 Amendment, Advisory Committee’s Note. That is precisely what the Individual Plaintiffs have done. By making that choice, however, they have run afoul of the Advisory Committee’s proviso that data ordinarily kept in electronically searchable form “should not be produced in a form that removes or significantly degrades this feature.” Id.
However, the same cannot be said of prospective discovery, meaning the electronic documents that the Individual Plaintiffs have not yet substantially prepared for production as searchable TIFF images. Now that the Individual Plaintiffs are aware of the defendants’ objections, their argument of undue burden is weaker; indeed, they have conceded that their concerns about the burdens of producing electronic documents in native format largely disappear with respect to the documents they have not yet processed for production.
Thus this metadata case, like Williams I and II, supports the proposition that the emerging standard requires metadata production when requested and not objected to, but at the same time emphasizes the need for early, clear requests, and prompt objections if the metadata is not provided.
Objections to Native Production
I am often asked for a list of the most common objections to requests for production in Native format. Of course, this is the format where you are likely to receive the most original metadata. I say “most,” and not “all,” because metadata about a particular file that resides outside of the file itself, such as metadata maintained and stored in operating system files, would not necessarily be included in a production of that file in native format, or any other format for that matter. You would have to request production of the applicable operating files for that. The same holds true for the metadata of the folder structure for Outlook emails in a PST file. That information is only contained in the packing file that holds all of a user’s emails, the PST file, and is not contained in the individual email file itself.
Production in “native” format means production of the computer files, or ESI, in the format in which they were originally created and maintained. Williams v. Sprint/United, 2006 WL 3691604 (D.Kan. 2006) (“Williams II“). Most of the time this means files are produced in the format of the software application used to create the ESI. Thus, for example, if you produce a file created by Microsoft Word, this typically means production in the Microsoft Word format, wherein the file ends with the .DOC extension. This is not necessarily always the case, however, because you can also use Microsoft Word software to save your documents in other formats, say for instance, HTML format. Some people might do that, say for instance to facilitate posting the document on the web.
The fundamental metadata case, Williams v. Sprint/United, 230 F.R.D. 640 (D.Kan. 2005) (Williams I), mentions the four most popular objections to native file production. The fact that these objections all failed in Williams I is testament only to their weak inapplicability to the facts and circumstances of the particular motion presented, and the opinion of Magistrate Judge Waxse. The arguments and objections were good, and this is where any practitioner would want to begin their analysis. These same arguments may succeed with other facts, or even in similar facts with a different judge. See Bolton v. Sprint/United, 2007 WL 756644 (D. Kan. March 8, 2007).
So, without further ado, presented in the order in which they were summarized in Bolton, here are the four basic objections to native format production (with my short comments in italics):
1. Native production destroys metadata. When you access native files you change their metadata. (This is true, it is also true that there are usually ways to guard against that.)
2. Native production can reveal privileges hidden in metadata, both attorney-client and work product. Metadata can for instance show such work product as when files were gathered, last opened, printed, etc., as opposed to the metadata existent pre-litigation during the relevant time period of the dispute. (This could be true if counsel was not careful to preserve the original files, and again, there are usually ways to protect against this.) As another example, metadata in the form of hidden comments to a word document could reveal privileged attorney communications. (Again true, but a privilege review of the metadata would show these comments, and so allow them to be withheld.)
3. The metadata in the native files is not relevant to plaintiff’s claims. (This is the strongest argument for objection to production of metadata and is in accord with Sedona Principle 12 commentary, which states that most metadata is useless and a waste of time to review. So, if the requesting party argues for native file format on the basis that it needs the metadata, challenge the relevance of the metadata. Unlike the plaintiffs in Williams I who made a strong showing that they needed the native spreadsheets, the requesting party may be unable to show any particular need for native file production. See Williams II supra, and Wyeth v. Impax Laboratories, Inc., 2006 WL 391331 (D. Del. 2006)).
4. It is difficult to ensure that native files have not been changed after production. (Judge Waxse destroyed that argument in Williams I when he pointed out that hash values guarantee authenticity. Williams I, Supra at 655. Still, if hash is considered, variations of this argument may still be persuasive.)
In addition, by far the best objection you can make, when the facts allow it, is that you have already made production in a non-native format and new 2015 revised Rule 34(b)(2)(E)(iii) protects you from a second production. See eg. Williams II and In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D. N.Y., Jan. 12, 2007).
Another good objection is found in Rule 34(b)(2)(E)(ii), which states if format is not requested, a producing party may produce in either the form in which it is “originally maintained” (in other words, native form), or in a form that is “reasonably useable.” Thus if native is not specified, this allows any other form that is reasonably useable. Typically a format is reasonably usable if it is searchable, and other criteria are met, primarily related to functionality and the circumstances of the case.
Even if native is requested, under some circumstances you can object on the basis of “burdensomeness,” and argue for production in another reasonably useable format that would be less expensive and time consuming for you to accomplish for some reason. An example of this is the difficulty of partial redaction of many native files, or marking them as confidential.
You can, of course, object to the production of the ESI requested in general, at least on a category by category basis, and not just limit your objection to the format. This is what Sprint/United did in Bolton, where they were able to obtain protection against several categories on the grounds that the ESI requested was overly broad, irrelevant and unduly burdensome. These were the grounds that were successful in Bolton, not the four native format objections. In addition, in appropriate circumstances, you can object on the basis of the inaccessibility of the ESI requested under Rule 26(b)(2)(B) because of undue burden or cost to restore or search.
Play It Like It Lies and No Mulligans
Thanks to Judge Lungstrum in Williams v. Sprint/United Management Company, 2006 WL 3691604 (D.Kan. Dec. 12, 2006) (Williams II), a golf analogy has now entered the world of e-discovery. Williams II, just like Williams I, delves into the depths of metadata and the circumstances when it must be produced. Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D. Kan. 2005) (Williams I).
Judge Lungstrum is inclined to a general rule requiring the production of Electronically Stored Information in the same condition in which it is maintained. This means that electronic documents should not be stripped of their metadata before production. In one of several hearings on this issue, Judge Lungstrum used a golf analogy to illustrate this point. He invoked the well known but often ignored rule of golf that requires a golfer to “Play it as it lies.” This rule prohibits a golfer from improving the position of their ball before striking it. A golfer must play their ball as they find it on the course, and not improve the lie of the ball, even if it lands in a divot. Instead, you have to play it as you find it, “as it lies.” Footnote 5 of Williams II (written by Magistrate Waxse) states that Judge Lungstrum made the following comment on the form of production of discovery at the April 26, 2005, hearing:
I think we have to keep in mind that from the defendant’s perspective-to the extent that you’re asking for information that they have got to go chase down, it’s not the defendant’s fault for the purpose of this case that they don’t keep their records in a form that’s more easily discoverable, yet on the other hand, that’s not an excuse not to give it up either if they have got it some place. I mean, it cuts both ways. I mean, we have to play it like it lies. See April 26, 2006 Tr. p. 39.
This may become a popular analogy in this hotly contested area of e-discovery law. Interestingly, although Judge Lungstrum announced the general rule, his Magistrate Waxse applied a “no mulligans allowed” exception of his own creation, and allowed the defendant to improve its lie (so to speak). The defendant’s production of 11,000 emails with all metadata stripped was permitted to stand, and the plaintiff’s call for penalty strokes was rejected. But the short explanation is that the plaintiff did not request metadata in the original request, and now wanted defendants to redo the entire production. The plaintiff essentially wanted a mulligan, and the Magistrate would not allow it, citing Rule 34(iii) that only requires a production in one form.
Metadata Mistake by Top Spy Agency
Metadata, the hidden data contained in computer files, makes many people nervous, but especially lawyers. They are uncomfortable with anything hidden, or for that matter anything poorly understood, and metadata qualifies as both. Adding to this discomfort are the horror stories, well known in the profession, of other counsel accidentally producing documents to opposing counsel that contain embarrassing metadata. For instance, a Word document containing secret comments they added, then hid, and then forgot to delete or “scrub” before production.
This can be very serious for attorneys because of the high ethical duty they are under to maintain the secrecy of the confidential information disclosed to them by their clients. For this reason, attorneys, more than most, tend to worry about inadvertently disclosing these secrets by metadata. The concern is magnified for litigation attorneys who have opposing counsel watching their every move for mistakes. That is one of the reasons for the advent of “clawback” agreements and 2005 revised Rule 26(b)(5)(B). If a privileged communication in a computer file is accidentally disclosed, say because it was contained in metadata that they did not see, they want to get it back, and prevent a waiver.
For these reasons it is especially troubling to lawyers to hear that even the best professionals at secret keeping, our country’s top spies, mess up on metadata. If anyone is serious about secrecy, it is spies. Their very lives may be at stake. So if espionage professionals accidentally reveal state secrets because of metadata, then it could happen to anyone.
Metadata is by definition out of sight. And what is out of sight is out of mind, and so easily forgotten. The latest metadata mistake story proves this point in classic “spy versus spy” fashion.
The Office of the Director of National Intelligence (“DNI”) is the highest intelligence agency in the United States. The DNI oversees all federal intelligence agencies, including the CIA. The size of the total US intelligence budget that DNI oversees is one of the government’s most closely guarded secrets.
On May 14, 2007, a Senior Procurement Executive of DNI gave an unclassified presentation to a group of outside contractors in Colorado entitled “Procuring the Future.” Her PowerPoint included a slide with two graphics depicting the trend of award dollars to contractors from 1995 to 2006. Because these figures are highly classified, a scale of the total number of award dollars was omitted from the Y-axis of the bar chart. The government contractors were only shown the graphical bars, and were left to guess what the actual expenditures were that the bars depicted.
Apparently the DNI employee had used this same PowerPoint slide before to make classified presentations to persons with top secret clearance. I presume this because the slide contains metadata revealing the actual amount of the award dollars. It would have been simple to reconfigure the graphic in PowerPoint to display the actual numbers to an audience with clearance.
The metadata revealing the classified information is not visible when the unclassified version of the PowerPoint is shown. But when you open the native file using PowerPoint software, it is easy to make this embedded information visible. All you have to do is double click on the bar chart shown above and a spreadsheet is revealed. It is that easy.
The spreadsheet embedded as metadata in the graphic image controls the appearance of the bar graph. If you change the numbers in the spreadsheet, the columns change. Further, if you change the configuration of the graphic, the numbers will not be revealed at all. This is exactly what they did in the unclassified version of the PowerPoint shown in Colorado. In this way the secret numbers in the graphic were not displayed when the PowerPoint was shown.
So far, so good. The secrecy of the nation’s total intelligence budget was maintained at the conference. The big mistake was made after the conference when someone in the agency posted the PowerPoint file on the Defense Intelligence Agency website in native format. There anyone could (and did) download the PowerPoint file onto their own computers. (Spies are like litigation counsel, they have opposing spies that watch their every move and look for mistakes.) Once the file was downloaded and opened in PowerPoint, the embedded numbers underlying the expenditure graphic were quickly uncovered. One of America’s top secrets was lost due to careless handling of metadata.
The key mistake was to have posted the PowerPoint in its original native format. The file should have been flattened first and posted as an image file. Then the metadata would have been stripped, and the secret would have been safe. Alternatively, the graphic in slide eleven should have had the secret spreadsheet removed. But the top spies forgot to do that. Out of sight, out of mind. Metadata like that is a time bomb waiting to happen.
Do not look for the PowerPoint on the Defense Intelligence Agency website. It was removed as soon as the press reported the error, and reported the once-secret intelligence budget. Still, I had no difficulty finding another copy of it based on later press reports and a quick search on Google. Information in today’s Internet Age is like a cat; once it is out of the bag, you can never get it back in. This is the stuff of nightmares of spies and lawyers alike.
SUPPLEMENTAL READING: Review the cases and webs linked to or cited in this module. Remember, for those of you who wanted to be tested, your general knowledge is tested on the exam essay questions. So, the more you read and understand the better. The modules are the launch pad for further study, not the final destination.
EXERCISE: Search and find the PowerPoint discussed. It’s out there. Find another more recent example in case law or the news regarding a situation where disclosure of metadata was important or, better yet, embarrassing.
Another Exercise: On a related, but separate issue there is the problem of ESI security, secrecy, and history changing phenomena like Wikileaks. What is your view on this? Can information that must be seen by large numbers of people still be kept secret in this day and age? Is Wikileaks itself a good thing or a bad thing? What steps do you think large organizations should take, if any, to try to keep their secrets, secret? This is a good one to speak with your friends about. By the way, do you know who LulzSec is? They and their colleagues could impact your life someday. They may already have and you don’t know it. Another good one to talk about. Check out HackerLaw.org to find out more.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015
Professor Losey tells us that a golf analogy has now entered the world of e-discovery. In a footnote to Williams II, JUdge Lungstrum announced the general rule that actors on the e-discovery stage “have to play it as it lies.”In the same opinion, Magistrate Waxse applied what I would call the “no mulligans corollary.” So I began to wonder whether there are other golf analogies that might fit the discovery settting. In particular, I thought about one of the “winter rules” of golf – especially northern golf- that allows a player in the fairway to “roll the ball over” to where the dormant grass is thicker. And sure enough, amidst the ongoing discovery disputes of Williams II, we find Judge Waxse characterizing the actual production as “a series of rolling productions. These occur, we can suppose, because parties are ever hopeful of getting a better whack at the ball. What are the other golf analogies that might be helpful – or at least amusing. And as the professor would surely say, let’s be creative.