http://ow.ly/7a8sz
An article by Gary Wiener posted on his blog Part of the Solution.
This article discusses metadata, and issues the pertain to scrubbing of metadata, and mining of metadata.
The article defines metadata and states, "Metadata, frequently referred to as “data about the data” and specifically referring to electronically stored information (ESI), poses an interesting ethical dilemma for lawyers on two fronts:
Should metadata be purged, or “scrubbed,” from an electronic file before it is produced to opposing counsel; and
Where metadata has not been scrubbed, is it fair game for opposing counsel to attempt to “mine” the metadata for clues to potentially privileged information that the producing party might have missed?"
As the article states, " A technologically proficient user who knows what she is looking for and how to find it can unearth a potential treasure trove of useful information within the metadata."
The article further points out that jurisdictions differ as to what is permissible, and certain jurisdictions have issued no statement regarding proper and ethical handling of metadata.
Though my $0.02 certainly will not solve this complex issue, this is why litigants need to exercise their right and quite possibly consider it a duty to "meet and confer". These issues can and should be worked out. It is unreasonable for parties to have an expectation to every piece of metadata available. Most review platforms will not support all the metadata that one file could yield. Produce as tiff or pdf with selected fields of metadata limited to what is really relevant, and don't sweat the rest. If there is a belief and a reasonable legal argument for access to specific pieces of metadata, then file a motion with the court if the other side won't play nice. As case law continues to evolve around metadata scrubbing and the technology available to "scrub" becomes less effective requiring multiple tools and then forensic verification, I generally advise clients against it, but if they insist and make the request in writing, we do our best to accommodate.
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