Dana,

Interesting question ...  To answer, I think it's necessary to take a
step back and consider how metadata is being treated in today's
litigation/ediscovery landscape.  The revised FRCP provides a default
preference for producing data in the form that it is normally stored
(i.e., "native") - and also states that the produced data must be
reasonably usable.  For most productions this should not be
controversial - having basic "to" "from" email metadata extracted, for
instance, so that attorneys can use this for searching and sorting in
their litigation support databases for reviewing the documents is common
enough.  (Though there is recent case law where parties do not do this
cooperatively, e.g., a recent decision against the SEC, and get into
trouble.)  However, certain other system metadata may be more involved
in terms of preserving and ultimately producing it.  In those cases the
requesting party may have to demonstrate that this metadata is important
to the case and is ultimately worth the cost.  In short, some metadata
is easy to preserve/produce; other types, not so easy, but potentially
required.

So, if certain system metadata (from the source application), like the
"last edit date" or certain email header or native folder information is
overwritten by declaring a record to an RMS, then that could be a
problem, if it is important to an existing or potential case.  In that
situation, moving documents to an RMS for litigation hold/preservation
purposes could amount to spoliation.   On the other hand, if the data
were declared to an RMS as part of the organization's normal course of
business, i.e., before any reasonable whiff of litigation, then I don't
see why that would be a problem.  (Assuming the organization has no
business or other legal reason for keeping this source application
system metadata intact.)  

Also, since I happen to know that you your former employer is similar to
mine ; ) -- I don't see a problem in re-using prior documents in the
manner you describe - it's done routinely at most law firms.  In those
situations a copy of the source document may be used as a starting point
for a new document.  

I'd be interested in hearing what others think about this ... especially
attorneys.  I am not one (although I do work with them).  


David Eaton
Director of Records Management
McLane, Graf, Raulerson & Middleton
900 Elm Street, P.O. Box 326
Manchester, NH 03105-0326

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