Internet Newsletter for Lawyers
September/October 2003, by Delia Venables

Metadata and Email - Disclosure Issues in an Electronic Age

This is a report by Delia Venables of two talks on Metadata and Email, given at a Society for Computers & Law Meeting held on 29th July at Herbert Smith.

The two talks were as follows:

The meeting presented two complementary views of the topic. In this brief report, I am covering just some of the points they made.

Nick Gardner

Metadata is “data about data” and, in this context, is generally taken to mean the embedded data within a document or email that may not be visible in normal circumstances. However, the information can be uncovered, often very easily, and may have relevance to general professional issues as well as specific issues of disclosure.

Depending on the version of Microsoft Word used and how it has been set up, the following may well be available for scrutiny:

If sending a document, there are some products now available which can remove metadata from a document. The document can also be taken through a text version and then returned to Word, although of course all formatting will then be lost as well. Probably, a pdf version of the document is safe but then the recipient is not able to amend the text (assuming that you want them to).

If receiving a document, there are issues of legal privilege which may mean that any exciting discoveries cannot in fact be used in court. Law Society Guidance says that you should send it back in these circumstances. The Computer Misuse Act 1990 has wording intended to refer to hackers but which might apply to someone extracting metadata.

Apparently, there are no English authorities relating to metadata at the moment (apart from some on metatags in web pages, which is really a different topic).

Email Nick Gardner.

Adrian Palmer

Some statistics for 2002: By now, probably 98% of corporate documents are produced electronically.

All this leads to a massive quantity of data which might need to be considered and sorted through, in a disclosure.

For example, 1 million unsorted documents in a shipping container would take weeks to check and sort through - with the right computer software in can take just minutes.

Email is often used informally and as such is likely to lead to careless talk. One email can make or break a case, as was shown with the Microsoft anti-trust case where an email essentially said “Let’s use Internet Explorer’s integration with Windows to overtake Netscape”.

Email can be centralised, on the firm’s network, kept locally on individual’s PC (possibly at home or on a notebook computer or PDA) or even retained on internet mail services like Yahoo and Hotmail.

Corporate email is almost impossible for the employee to destroy, since there will be multiple copies in the firm’s own back-up system as well as copies on the ISP’s system, the recipient’s ISP’s system and the recipient’s own network.

A typical disclosure process is:

  1. documents start life electronically
  2. they are printed out for disclosure
  3. the other side scans them in to a computer
  4. they are printed out for court bundles
Every time the documents go through a paper stage, they use massive paper resources and also add a possibility of error, particularly in scanning processes. Far better to keep them electronic and do the whole process by computer!

The programs for this purpose can filter for relevance, sort by any desired field, classify either for inclusion or exclusion, and create the disclosure list.

Email Adrian Palmer.

(Kroll Ontrack provides consultancy in disclosure and computer forensics as well as providing software for these types of tasks).

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