Rules 26b and 34 of the Federal Rules of the Federal Rules of Civil Procedure instruct that information stored on computers is discoverable under the same rules that apply to tangible, written materials.[1]
According to Principle 12 of The Sedona Principles:[2]
Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
Native Format
Digital documents must be produced “in the manner in which they were kept in the ordinary course of business.” [3] If there is no agreement as to what format a digital file must be produced, the federal and state rules require “native format” or “native files.” Native format is the file structure of an electronic document as defined by the original creating application. In other words, Word files must be produced as Word files, Excel files must be produced as Excel files, etc. If a Word or Excel file is converted into another electronic format, such as a pdf, the resultant production is no longer in native format.
Metadata
E-discovery also includes the production of metadata. Metadata is information about a file that a computer automatically stores and is often not visible to the user, including but not limited to creation and modification dates, authorship, past edits.[4] The presumption is in favor of producing metadata unless the producing party objects, the parties agree otherwise, or the court issues a protective order.[5] However, metadata is often inadvertently altered or deleted. For example, opening or previewing documents will alter their last access date. Oftentimes electronic files will be transferred to a flash drive to provide to opposing counsel. When the files are “dragged and dropped,” some systems will replace the creation date with the date the file was copied, and all other metadata will be deleted.
Managing Data
When managing data and electronic files, firms and agencies have a number of issues to consider. Data management requires appropriately trained staff to avoid the metadata issues mentioned above, otherwise financial penalties can be assessed. In addition a cost benefit analysis is required to determine the necessity of staffing. Security is also a major issue – no firm is immune; law firms are targets; high security is needed when storing information in-house. Data management also requires time management. There are always deadline of when documents need to be produced and it is easy to underestimate the volume of documents and the impact that has on the time to collect, process, cull, or review. The hardware or software requirements needed will depend on the size of data and type of culling or review. All these factors add cost to the overall data management.
Storage
This simplest solution for storage is to keep everything in-house on a network or hard drive. As long as this meets the firm’s culling/searching needs, and documents can be authenticated, this is usually okay is metadata is not important. If metadata needs to be preserved, programs like Summation and Concordance are better for small and medium sized cases, while Relativity is better for larger cases. Another option is to use hosted review. Using hosted review, some (but not all) liability is shifted, and this alleviates many staffing, security, and software/hardware issues since storage and data management responsibilities are under a third party.
Total Data Management
With the increasing regulations and issues in preserving metadata, many companies are turning towards a Total Data Management Solution. Companies hire third parties who specialize in data management to handle large data sets, identify relevant data and develop a plan, collect evidence and preserve, process and search data, cull, and review to produce the final product. This option has the benefit of hosted review, project management, and lower costs through tools for Early Data Assessment and Predictive Coding (a refined searching method which uses relevant files to find other relevant files).
This is still a developing area of the law. Things like metadata are not relevant in every case, so it is important to meet and confer with opposing counsel to discuss whether metadata and native files are needed.
References:
[1] Williams v. Sprint/United Management Co. (D. Kan. 2005) 230 F.R.D. 640
[2] A Project of The Sedona Conference Working Group on Electronic Document Retention & Production (WG1). The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production. June 2007. www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ ed_607.pdf
[3] Williams, 230 F.R.D. at 640.
[4] See SEDONA PRINCIPLES, supra note 1, at 5 (“Metadata is information about the document or file that is recorded by the computer to assist the computer and often the user in storing and retrieving the document or file at a later date. The information may also be useful for system administration as it reflects data regarding the generation, handling, transfer, and storage of the data within the computer system. Much metadata is not normally accessible by the computer user.”); see also Williams, 230 F.R.D. at 646 (providing various ways of defining metadata)
[5] Id. at 652