This blog was written by Seth H. Row, an independent legal consultant to Smarsh, and a litigator and electronic discovery consultant in Portland, Oregon.
The importance of original, intact metadata in litigation — for email, meaning content such as the real to, from, sent date, and path information — was highlighted in two recent decisions from the Supreme Courts of Washington and Arizona. In both cases, the courts held that the public has a right not only to the body content of electronic documents created by public officials but also to the critical computer-generated information that resides in the metadata of every electronic document, including email. These rulings are yet another nail in the coffin of the antiquated idea that metadata is not subject to discovery in litigation.
In the Washington case, O’Neill v. City of Shoreline, the plaintiff was accused of having sent an inflammatory email about the city council that wound up in the hands of a deputy mayor. The email had been circulated among several people using “bcc” and the deputy mayor had deleted sender information when printing it out. Ms. O’Neill demanded not just the email itself but all of the tracking information in the metadata, on the basis that the embedded information might reveal where the email had originated. The Supreme Court held that if the original metadata had been lost, the city would likely have violated the public records act.
In the Arizona case, Lake v. City of Phoenix, a police officer sought the original electronic version of notes that his former supervisor had made, suspecting that they had been backdated to provide a justification for his termination. The Supreme Court held that the metadata could not be separated from the “visible” portion of the notes, and so was part of the public record: “The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the documents as much as the words on the page.”
These cases have significance beyond the public records issue. They mark the first time that the highest court of any jurisdiction has recognized the critical role of intact, unaltered metadata in litigation involving electronic records — giving a boost to those academics, trial court judges and think tanks like The Sedona Conference that have been making the same point for years. Too many lawyers, companies and public entities have been laboring under the misapprehension that they can alter critical metadata when searching for and collecting documents required for legal purposes because the metadata itself is irrelevant, or that they can just print out the records.
When confronted with a demand for email, companies routinely permit their employees to “self-collect” from their own email stores, which may alter important embedded information. Worse, to circumvent limits on email storage capacity, employees may create their own email archives, which the company may or may not administrate (or even know about). Companies and public agencies need to come to grips with the need to create systems by which email can be archived systematically and automatically, and retrieved without altering its metadata.
These court decisions make it clear that the “old way” — print it out, and then you’re done — is dead.
Seth H. Row is an independent legal consultant to Smarsh, and a litigator and electronic discovery consultant in Portland, Oregon. Seth has over ten years of experience handling business, employment, and insurance recovery disputes. He is currently Of Counsel to Parsons Farnell & Grein LLP. Previously he was affiliated with Holland & Knight LLP, an AmLaw 100 firm, and was a law clerk to a federal trial judge. He is a frequent speaker and author on electronic discovery and federal practice and procedure.
Founded in 2001, Smarsh helps more than 20,000 organizations meet regulatory compliance, e-discovery and record retention requirements. The company is headquartered in Portland, Ore. with offices in New York City, Atlanta, Boston, Los Angeles, and London.
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