Rabiej on Native File Format and Metadata

Rabiej on Native File Format and Metadata

The 2006 amendments to the Federal Rules of Civil Procedure answered many questions about the discovery of electronically stored information (ESI), but they left to case law development issues arising from the discovery and production of ESI in native file format with original metadata intact. This commentary, written by John Rabiej, Chief of the Rules Committee Support Office that staffs the Judicial Conference's Standing and Advisory Rules Committees and author of several chapters in Moore's Federal Practice and Weinstein's Federal Evidence, analyzes cases and legal periodicals explaining native file format and metadata, the risks of disclosing privileged and confidential information when producing ESI in native file format, and precautions that can be taken to mitigate inadvertent disclosures. He writes:
 
     Producing ESI in its native file format in response to a discovery request is often a matter of convenience. Many lawyers are familiar with word-processing documents generated by Microsoft Word (and Excel and PowerPoint) and Corel WordPerfect. Exchanging electronic files containing Word or WordPerfect documents in their native file formats is a common practice. But lawyers may be unaware that they may be disclosing privileged, confidential, or embarrassing information when they exchange ESI in native file format with metadata intact.
 
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     Unlike file-system metadata, which usually gives a historical account of a document, substantive metadata may reveal a much wider range of privileged, confidential, or embarrassing information. Unless certain computer functions are turned off, substantive metadata revealing edits and changes to a file and other information can be retrieved from the file. Producing documents in native file format has resulted in some well-publicized unintended disclosures of confidential or embarrassing information. . . .
 
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     The requesting party should be prepared to make a showing of particularized need for ESI in its native file format with metadata intact. A request for metadata may be justified if reasonable suspicion is shown that a particular document or data has been altered or if the requested metadata provides information essential to understanding the electronic file, e.g., spreadsheet. A request for ESI in its native file format may be justified if the party needs to run computations using the software application to verify its contents. The requesting party should ensure that it has access to the software programs that generated the ESI in native file format, taking into account any applicable licensing agreements or customized software. Moreover, the party should take prompt steps to ensure that ESI in its native file format is authenticated for future evidentiary purposes.