Metadata is hidden information embedded in electronic files that notes the standard properties of the electronic file - providing you with data about data. Used for Discovery, archival and organisational purposes, Metadata can provide essential, nonessential and contextual information about a case.
In a discovery and litigation context, forensic analysis of metadata can assist in providing authenticity, integrity and additional information to an electronic file, similar to the cross examination of a witness.
The use of metadata in examining social media evidence can provide an extra dimension of information beyond the text in a post or visuals in an image; as the context of when, how, where something was posted could be more indicative and probative than the face value of the content itself.
When metadata in a document contains questionable evidence, regardless of an order for discovery has been made, it may deter the admissibility of the ESI itself and the authenticity of documents may be called into question.
Federal Rules of Civil Procedure
Rule 34(b)(1)(c) of the Federal Rules of Civil Procedure require ESI to be produced in native format, with metadata attached. This amendment makes metadata routinely discoverable, intending this secure provision of evidence to be more commonplace. Yet without the proper utilisation of technology and resources, both the file and metadata must be unaltered during collection. If this occurs then a sanction of Spoliation of evidence may be brought against the party. A party may negotiate a confidentiality or nondisclosure agreement to exclude this content from produced documents - but without agreement to that effect, litigators must comply with these standards or risk spoliation sanctions.
Not only is the standard breakdown of information provided by metadata useful in analysing online content – details regarding the modification of evidence can be shown in during litigation and in post-discovery requests.
Lawyer's Ethical Duties
For attorneys, a weighty ethical obligation rests with them to balance competent representation with due diligence to prevent spoliation of evidence. In addition to preserving ESI, there is an obligation on attorneys, to preserve the metadata in support of ESI, indicating times, dates, edits, etc. One must therefore ensure clients are informed about limiting damaging metadata (by removing metadata for edits and track changes) before litigation ensues and also that allowing your client to remove metadata from files is likely to be in conflict with a duty to preserve.
Unknowingly or unwittingly altering metadata within a file can have a domino effect on the discovery process and outcome of a case. If a motion for discovery involves a certain timeframe and one party alters the dates within the metadata of documents requested then there may be serious inaccuracies and repercussions on all other evidence.
The Role of WebPreserver
WebPreserver technology creates authenticated, evidentiary standard snapshots from content on social media, blogs and websites for use in litigation. With the simple, efficient use of a Plug-in and single-click capture technology, snapshots are created and saved in digitally signed PDF and WARC formats, with all original metadata not contained in printouts, to archive and share with clients and colleagues and use in litigation.
Authentication is ensured by way of an automated Digital signature and timestamp on each Snapshot, in compliance with the E-Sign Act, Federal Rules of Evidence and other standards of regulatory compliance. Metadata versions of content are also saved and secured for additional circumstantial evidence in support of your digital content.
This simplified, secure technology is suitable for litigation support, legal professionals, law enforcement authorities, digital forensic experts and more. Additional features include the option to download or save your digital content on our user-friendly online platform. Organise in folders, with the use of keyword tagging or make available to those involved in your case or company.
The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.