I’m always amused when I’m relaxing over the Sunday paper and see an e-discovery topic in the mainstream media. This Sunday it was metadata, which made its way onto the New York Times Magazine “Meh List.” According to the Times, metadata is not hot. It’s not not. It’s just “meh.”
Really? I suppose I understand the average newspaper reader’s fatigue over metadata. There’s been quite a lot of newspaper ink devoted to the NSA’s project “Prism,” in which the government secretly compiled a database of information about phone calls. The government responded to public objections to the program by noting that the database contains no content of phone call conversations, just metadata about the calls. While I won’t bring politics into our DiscoverReady blog by commenting on Prism, I did find the characterization of metadata as “meh” good fodder for a blog post.
In e-discovery, metadata is anything but “meh.” In fact, sometimes metadata is equally (or more) important than the document or data it accompanies. For example, in patent litigation, when considering information about available prior art, the dates of electronic communications and documents – information that can be found in the metadata of those documents – is just as relevant as the content of the documents. Or, using an example closer to the Prism controversy, in a case where a telemarketing employee claims that she worked outside of regular working hours but did not receive pay for the time worked, information about the times of her outgoing phone calls and the numbers she called is equally relevant as the content of the calls.
A couple months ago Craig Ball wrote a great article about the importance of metadata. Craig explained why metadata is so significant, and he expressed concern that proposed amendments to the federal rules that reign in the scope of discoverable information might have the unintended effect of making it more difficult to obtain discovery of necessary metadata. I agree with Craig’s premise, but I wonder if we can solve the problem by getting rid of the somewhat artificial distinction between “data” and “metadata.” Instead, let’s just focus on the information relevant to the dispute at hand — it’s all just “data,” right? Labels shouldn’t matter.
If a piece of information is relevant, it’s discoverable; if it’s not, it’s not.
In fact, maybe I’ve changed my own mind – metadata really is “meh.” At DiscoverReady, we deal with metadata every day, it’s part of our regular routine. Our document review teams are trained to look at the metadata of documents as well as the content in assessing relevance and privilege. Our technologists processing data follow well-established protocols for handling metadata. Our consultants working with clients to evaluate predictive coding tools understand that different tools handle metadata differently, and they adjust the recommended workflows accordingly. We partner with our clients to develop discovery strategies that focus on the collection, processing, identification, and production of information relevant to their matters – regardless of whether that information is called “data” or “metadata.”
Am I swayed by the NSA’s downplaying of the importance of metadata? Not so much. Oh wait – that expression is just “meh.”
The Meh List
September 8, 2013
By NELSON D. SCHWARTZ
- Central Park South
- Shake Shack
- “Not so much”
- James Franco
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.