E-discovery isn’t easy. On top of all that organizations are now expected to do in regard to preserving, producing and authenticating their electronic records, courts now expect companies to produce metadata associated with electronically stored information (ESI) as well. According to this article:
Guidance Software (NASDAQ: GUID) issued an alert today saying that in a recent court case (Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec.), a U.S. District Court ruled that metadata associated with e-mails and electronic files must be preserved, maintained and produced in the course of legal discovery, particularly when sought by the requesting party in its initial request.
The ruling opens up another area where companies could be hit with steep fines for failing to produce electronic documents in court cases — and could mean more business for e-discovery vendors.
The Aguilar decision and recent guidance from the Sedona Conference emphasize the importance of metadata preservation in the course of e-discovery, said Guidance Chief Strategy Officer John Patzakis, who said metadata can be used for authentication, search and analysis while also offering evidentiary value such as when the file was created or accessed.
Concerns about preserving and authenticating metadata aren’t new to us. The largest challenge organizations (and their legal counsel) face with respect to metadata preservation and authentication is that the metadata of every electronic record can be changed when a third-party opens the file. Whenever a native file, such as Microsoft Word, is opened, the metadata associated with that electronic record is changed to reflect the time that file was opened and by whom. Technically, the file was altered, and based on the Federal Rules of Evidence, may not be legally admissible.
Another problem emerges when considering long-term electronic records archiving. During its retention period and throughout its chain of custody, a native electronic record may be handled and managed by several people, and must withstand several technology upgrades to the electronic record archive system infrastructure in which it is retained. During this period, it is likely that a given record and/or its metadata were altered, either inadvertently or maliciously. Companies must be able to prove that throughout a record’s chain-of-custody, its intended content and metadata are pristine.
Manual metadata preservation is no easy feat. We’re working with an increasing number of companies that integrate Surety’s AbsoluteProof service into their overall electronic record management process to ensure that their native electronic files are “litigation-ready”