The ethics issues on inadvertent production are more complex and somewhat different than the FRCP form of production and clawback provisions. Among other things, note that some state bar associations have different ethics rules with respect to the inadvertent production of metadata -- these rules differ state to state and they may differ substantially from the ABA on the topic. It's a pretty nuanced subject, all in all. Litigators in general aren't excited about using the clawback provision, and its likely application is only when something goes wrong. You can return the docs, but you can't clear the mind.
On modifying the form to prevent access of metadata or reference data, there have been several cases where a party modified the form so that the Excel formulas in the cells, for example, weren't visible when the docs were produced (in PDF for example). A PDF report from a structured business application wouldn't include the date/time stamps of when the data was posted in the database either ... you can see how that thread can unwind.
I think one of the stickiest issues for the coming year or two will be the issue of relevance and metadata -- the test for producing information is its likely "relevance" to the issue at hand. Most judges will say that file date/time stamp is rarely relevant ... so must metadata be preserved, collected, and produced, even if it's not relevant? Stay tuned for much more case law on this!
Deidre
--------------------------------------
PSS Systems
Atlas Legal Holds & Retention Management Software
www.pss-systems.com
www.cgocouncil.com
________________________________
From: Records Management Program on behalf of Larry Medina
Sent: Wed 12/13/2006 7:56 AM
To: [log in to unmask]
Subject: Re: [RM] American Bar Association position on ethics of metadata use & clawbacks
On 12/12/06, Maureen cusack <[log in to unmask]> wrote:
>
> Does anyone want to talk about this:
>
> American Bar Association released their opinion about the ethics of
> adversarial use of metadata -that is when producing party's counsel hands
> over electronic records with metadata and annotations (which they call
> collectively "embedded" data) to opposing counsel without realizing it,
> and
> then opposing counsel uses that metadata against producing party. Then
> producing party makes privilege claims to get it back (a clawback). ABA's
> position is basically that ignorance of the structure of electronic
> records
> and information systems is no excuse - if you produce it for opposing
> counsel they can use it. Then in the article ABA does a lot of
> spoon-feeding
> about what metadata is and how you can scrub it. (There's no use of the
> term
> "native file format" anywhere in the 5 page opinion)
>
> http://www.pdfforlawyers.com/files/06_442.pdf
This was a pretty interesting read, however, it does predate the formal
acceptance of the changes to the FRCP. They mention the proposed changes in
the article, but the "clawback" provision is pretty clearly defined in the
FRCP, so I think it will stand as issued.
As for the comments about producing in a form that negates metadata as a way
of disguising (or ignoring) it, that also becomes a moot point with the rule
changes. In the initial meeting, a decision has to be made about
form/format for production, and it needs to be agreed upon by both parties.
Once someone KNOWS it exists in electronic form, it's pretty unlikely
they'll accept in in paper/printed form.
There is also a provision that requires individuals with knowledge of the
hardware used for storage and communications and the applications used by an
organization to be involved in these early meetings, so the "...ignorance of
the structure of electronic records and information systems..." the ABA
mentions shouldn't come into play.
And I found it interesting that the ABA paper would even suggest that
someone may go in and alter the metadata to attempt to make it less
valuable... if that were to take place, the changes (and the date/time made)
would be recorded against the file, unless the system clocks were set back
on a machine to match a "more preferable" time frame for each document as
it's altered.
If that ain't evidence tampering, I don't know WHAT it!
Overall, I must say I was a bit surprised at the lack of understandiong of
the changes to the FRCP and the tone of this article, especially with it
coming from the ABA... is it just me??
Larry
--
Larry Medina
Danville, CA
RIM Professional since 1972
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