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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