Electronic documents have been a key component of discovery actions for several years, but the amendments to the Federal Rules of Civil Procedure (FRCP) that took effect on December 1, 2006 significantly increased the risk for any organization that is involved in discovery actions by elevating the importance of electronically stored information (ESI).
While organizations had been using electronic information in discovery actions for some time, the amendments essentially codified this practice. As a result, the metadata contained within electronic documents raises several important issues:
Metadata must be managed
Metadata must be managed in a coordinated fashion throughout the lifecycle of all electronic documents. Organizations must establish policies about how metadata is created, managed, archived and deleted for all electronic document types.
Court submissions
It is critical that the metadata in documents exchanged outside the organization is managed correctly. This includes documents being emailed and uploaded to network locations.
The occurrence of metadata in documents is common. In an effort to educate users, the U.S. District Court for the Western District of Pennsylvania issued a warning in February 2010 about the metadata in PDF documents being uploaded to its servers:
"It has come to the attention of the Court that Metadata (AKA Hidden Data) within Microsoft Office Word is not being removed from some documents prior to their conversion to PDF format for uploading to the Court CM/ECF server. Please be advised that Hidden Data can be retrieved from PDF documents if the data is not cleaned from the Microsoft Word document prior to conversion.” February, 2010
If you have not read FRCP and Metadata: Avoiding the Lurking e-Discovery Disaster by Dennis Kennedy I encourage you to download it.
In my next post we will review metadata best practices and how you can protect your documents from revealing proprietary information.