The rules governing discovery of electronically stored information, though not fully developed, have matured enough to provide the basic “do’s and don’ts” for attorneys. Frequently, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document’s metadata, the data automatically embedded in an electronic file that contain information about the document, such as its origin and history of revisions. But what are a lawyer’s responsibilities concerning the transmission or receipt of metadata outside of the discovery context? A recent ethics opinion from the State Bar of Texas offers some guidance—and a stern warning: attorneys risk violating state rules of professional conduct if they mishandle metadata.
We’ve all been there. Your friends throw you in the pool with your phone in your pocket. You repeatedly slice your finger on shards of glass from your phone’s shattered screen. Or, maybe you forget your phone isn’t waterproof and dump champagne all over it. For most of us, the worst part of these ordeals is a trip to the Apple Store and the hefty price tag of the latest iPhone. However, if you’re a litigant with text messages that are relevant to pending litigation, the failure to preserve those messages could result in spoliation sanctions or an adverse inference instruction. While case law is unlikely to provide insight on what to do with a champagne-covered, non-waterproof phone, a recent district court decision, Shaffer v. Gaither, provides guidance to litigants on what steps to take to preserve potentially-relevant electronically-stored information (“ESI”) stored on mobile devices.
A common issue in almost any case involving the production of electronically stored information (“ESI”) is the format in which the parties will produce the ESI. Typically, ESI may be produced in one of four formats: native (the format in which it is maintained on the producing party’s system – e.g. a Microsoft Word or Excel file), near-native (files that need to be converted to a different file type for production purposes – e.g. converting emails from a .msg file to a .html file), image (e.g. TIFF images or PDF files), or hard copy. A main difference between these formats is the amount, if any, of metadata that is produced with the file. In layperson terms, metadata is information embedded in the ESI that describes certain characteristics of the electronic file (e.g. how, when and by whom it was received, created, accessed, and/or modified and how it is formatted). The production of native files typically includes most metadata associated with a document; near-native may include some or most; image format does not include metadata but may include a load file that contains certain select fields of metadata; and hard copy paper productions generally do not include any metadata.