2 pages (due by 20 hrs)
daniellecrosby32
Instructions
Choose one of the scenarios below (A or B) to complete the assignment.
Scenario A
You are the business owner of a local small engine repair shop, and you have been thinking about implementing a knowledge management system for your customer service technicians. You are thinking about this because there are times when some of your technicians know how to fix certain engine problems and others do not. Providing a central knowledge repository could help share troubleshooting and repair knowledge among your technicians.
Scenario B
You are the business owner of a local cleaning service, and you have been thinking about implementing a knowledge management system for your cleaning technicians, especially for those who troubleshoot and solve cleaning problems, such as removing certain carpet and water stains, addressing mold, and selecting the proper tools and products to use for other types of cleaning issues. You are thinking about this because there are times when some of your cleaning technicians know how to properly clean carpets and others do not. Providing a central knowledge repository could help share cleaning knowledge among your cleaning technicians.
After you chose your scenario (A or B), compose a paper that addresses the elements listed below.
- Explain the role of knowledge management systems.
- Explain what is meant by expert systems.
- Explain what is meant by content management systems.
- Discuss how the business in the selected scenario could benefit from an expert system and a content management system, and provide two examples for each type of system.
- Discuss how the business in the selected scenario could benefit from business intelligence, and provide two examples of these benefits.
- Discuss how the business in the selected scenario can use social media to not only obtain information and knowledge but to share it as well, and provide two examples of how the business might use social media information systems.
Your paper must be at least two pages in length (not counting the title and reference pages), and you must also use at least two scholarly sources, one of which must come from the CSU Online Library. Any information from a source must be cited and referenced in APA format, and your paper must be formatted in accordance to APA guidelines.
Here is one of the readings to use for the unit V assignment.
I sent study guide too..............................
Report Information from ProQuest
October 28 2020 00:36COLUMBIA SOUTHERN UNIVERSITY LIBRARY
Table of contents
1. The Importance of Metadata in Digital Evidence for Legal PractitionersBibliography
Document 1 of 1
The Importance of Metadata in Digital Evidence for Legal Practitioners
Author: Hannon, Michael J11 Associate Director for Access Services & Digital Initiatives at the University of Minnesota Law Library and a member of The Missouri Bar
Publication info: Computer and Internet Lawyer ; Frederick Vol. 34, Iss. 10, (Oct 2017): 1-19.
Abstract:
According to Hobbs, the government was obligated to produce the metadata from the thumb drive upon which his statement to a Philadelphia police detective was stored, both because the metadata was Brady material and because Federal Rule of Criminal Procedure 16 requires the metadata's production. Comment 6 to Rule 2.9 emphasizes, "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic." [...]when the court is presented with electronically created or stored information, the judge must know whether the submitted evidence includes only that information visible on the surface of the document, or whether metadata is included. [...]Plaintiffs disagree, arguing both that backup tapes are equally discoverable and that this data's inaccessibility is due to Defendants 'intentional[ ] alter[ing] the format of its data so as to make it such relevant discovery inaccessible.' Defendant does not offer the affidavit to prove the contents of the original photographs, but to explain the use of the photographs in the investigation. [...]the Court finds that the affidavit does not violate the best evidence rule."); Michael Bandler, MB & Co. Ltd., dba Michael Bandler and Company, Plaintiffs-Counter Defendants-Counter Claimants-Appellants-Cross-Appellees, v. BPCM NYC, Ltd., BPCM Worldwide, Ltd., BPCM LA, Ltd., Blue Stripe, Ltd., Carrie Ellen Phillips, Vanessa Von Bismarck, Ali Froley, Laura Woodward, Defendants-Counter ClaimantsCounter Defendants- Appelle es-Cross- Appellants., 2015 WL 4064938, 15-16 (2nd Cir. 2015) (Appellate Brief) ("Bandler testified that he drafted the purported subsequent contracts on his home computer.
Full text:
Editor's Note: This article is part of a series of articles by Mr. Hannon focusing on metadata.
The vast increase in the creation, storage, and communication of digital information is impacting all aspects of human activity. The exponential growth of digital information means digital evidence is now prevalent in both the criminal1 and civil justice systems.2 The legal field is increasingly reliant on digital systems. The vast increase in digital evidence presents numerous challenges and opportunities to legal practitioners. Digital evidence often contains a hidden component in the form of metadata that legal practitioners must have knowledge about.3 Every digital file has numerous types of metadata.4 Every communication sent over digital networks, such as email and social media messages, contains metadata.5 Metadata from communications such as social media can be recovered from the smartphones and computers of participants in an online conversation.6
The increasing importance of digital evidence and metadata requires legal practitioners to acquire knowledge about this form of evidence. Digital evidence also is known as electronically stored information (ESI), a phrase added to the Federal Rules of Civil Procedure in 2006 to explicitly recognize that ESI is discoverable. Metadata often is an important form of ESI.7 This article uses the terms digital evidence and ESI interchangeably.
This series of articles explores the categories of metadata and their purposes, and some of the important issues involving metadata that arise when digital evidence is used in criminal and civil practice. Issues beyond the scope of this series include the collection of bulk metadata by the National Security Agency (NSA), recovery of costs for metadata in e-discovery, and the ethical issues involved when confidential information is inadvertently transmitted in metadata outside of civil discovery.
Background and Importance of Metadata to Practitioners
The Oxford dictionary defines metadata as "data that describes and gives information about other data."8 According to Black's Law Dictionary, metadata is "[s]econdary data that organize, manage, and facilitate the use and understanding of primary data."9 The term metadata is actually plural, as is the term "data," but this series of articles often uses the term metadata as a singular as most sources do.10Various courts and secondary legal sources have described or defined metadata. One court defined metadata as:
"[A] set of data that describes and gives information about other data" or "information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)." It includes all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records. Some examples of metadata for electronic documents include: a file's name, a file's location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.11
Basically, metadata is just about any information about a digital file besides the file's actual content.12 The distinction between the content of a digital file or electronic communication and its associated metadata is made in several legal areas.13 For example, the Stored Communications Act (SCA), the federal law providing statutory privacy for account holders of Internet Service Providers (ISPs), makes a clear distinction between the contents of stored communications such as email messages and non-content metadata.14 The SCA also applies to cellular phone networks.15 The distinction between the contents of a file or a communication and associated metadata can be legally significant.16 The contents of an email message are easy to understand-it is the actual message that the sender created using a computer or phone. The subject line also is content,17 although a few sources classify the subject line as a form of metadata.18 Any information about an email message besides its actual content could be considered metadata.19 There can be hundreds of metadata fields associated with an email message.20 Metadata indicates which email messages have been opened.21 Easily understood email metadata include the email addresses of the sender and receiver and the dates and times the message was sent and received.22
Email metadata such as routing and addressing information is needed to ensure the message is transmitted across the Internet. The email servers that route messages to their intended destinations and store email messages for each email account generate metadata about each message. Some of this routing metadata, such as the sender and recipient email addresses, is visible. Most email metadata is hidden unless some steps are taken to reveal it. An important type of hidden metadata is the message headers.23 Email headers contain information about the email servers that handled a particular message during transit from sender to receiver, the message ID (a unique number identifying that particular email message) stamped by the first email server to handle the message, Internet protocol (IP) addresses used to route the message, and time stamps.24 Each email message ID is unique.25 The IP address is an important part of the TCP (Transmission Control Protocol) for addressing and routing Internet communications. Thus, IP addresses are an important part of email headers,26 although email headers and what they contain can vary depending on the email provider. For example, Gmail does not include the sender's IP address in outgoing messages.27 Log files of the email servers that handled the message also will contain various metadata records. Metadata is a part of the underlying infrastructure of Internet communications and a record of an email message's journey from sender to receiver.
Analogies can be made to the US Postal system-a mailing address on an envelope (recipient name, street address, city, state, and zip code) is a form of metadata. This addressing metadata information is required to ensure proper delivery, but is not part of the actual content of the letter. This metadata is vital to ensuring the letter reaches its intended destination. The addressing information on a paper envelope serves the same purpose as the addressing metadata and message headers in an email message. An email message without metadata cannot be sent to the intended recipient. The addressing and routing metadata is required so email servers and Internet routers can properly transmit and route each email message. Email metadata can be legally significant because it is a record of the route the email took from sender to receiver.28 Consideration should be given to email metadata in civil discovery.29 Such evidence can be important in criminal investigations. During the investigation of the rape and murder of 15-year-old Ashley Parks, a friend of the girl's mother sent detectives copies of emails he received from the victim about a month before her murder. A detective contacted Yahoo, which assisted the detective to obtain:
the IP address of the computer from which Parks accessed her Yahoo account and sent the emails to Donaldson. Once he knew the IP address of the computer Parks used, Detective Hamilton went on-line and learned that the IP address belonged to a Comcast subscriber. Detective Hamilton faxed a search warrant to Comcast, who identified Kaufman as the account holder for that IP address. Comcast also provided Kaufman's home address and email address. Using this information, police obtained a search warrant authorizing them to seize Kaufman's computer and related equipment.30
In the context of authenticating email evidence, a source recommends:
At a minimum, defense counsel should insist on production of e-mail messages in native format with metadata intact, particularly message headers. Metadata can sometimes be used to identify the Internet Protocol (IP) address and therefore the location from which a particular e-mail message was sent. Furthermore, message headers are integral in verifying the authenticity of an e-mail message. Message routing information and cryptographic signatures often embedded in message headers can be used in the authentication process. In addition, webmail providers like Google,Yahoo, and Microsoft retain login records that reveal the IP address that a consumer used to log in to his or her e-mail. In some cases, the metadata will reveal whether the e-mail account was accessed from a mobile device or other computer equipment. Metadata is also relevant to authentication in that it provides important context for e-mail messages. For example, the metadata indicates whether and when an e-mail message was opened, whether it was replied to or forwarded, whether the message was flagged for further action, the names of identified recipients and those who received blind copies, the presence of attachments, and the name of the folder in which the e-mail appeared. The metadata associated with the e-mail attachment includes additional data concerning the creator of the attachment, the computer on which it was created, the last written and last accessed dates, and history concerning modifi cations made to the file.31
Why Metadata Is Important to Legal Practitioners
The growing importance of ESI in civil litigation requires knowledge and skills that were not needed in a world of paper.32 Gaining knowledge about metadata is important because metadata is a fundamental component of digital evidence. Metadata is created automatically as part of the processes in which computers, phones, and other digital devices generate, store, and communicate digital information. Metadata is not merely the byproduct of the creation and storage of digital files; it actually is a potential form of evidence:
If evidence is anything that tends to prove or refute an assertion as fact, then clearly metadata is evidence. Metadata sheds light on the origins, context, authenticity, reliability and distribution of electronic evidence, as well as provides clues to human behavior. It's the electronic equivalent of DNA, ballistics and fi ngerprint evidence, with a comparable power to exonerate and incriminate.33
The fundamental importance of metadata to electronic files was illustrated in a decision on whether metadata is subject to disclosure under public records laws:
The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page. Arizona's public records law requires that the requestor be allowed to review a copy of the "real record." It would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record. We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law.34
Metadata can be used in some cases to impute knowledge.35 Metadata evidence can exist even if associated files have been deleted.36 It also can corroborate other evidence.37 More and more criminal defendants are raising defenses and appeals based in part on metadata evidence.38 Defendants may argue ineffective assistance of counsel based on how defense counsel handled metadata evidence.39 A defendant was convicted and sentenced to 30 years in prison for producing child pornography based in part on metadata evidence that showed the dates and times that digital photos of the victim were taken. On appeal he argued that:
the government did not timely provide him with the date-and-time-related content of the metadata. He contends that he requested this information, but it was not revealed until the eve of trial. But it was incumbent on Mr. Gutierrez to take affirmative steps to gather further information if he needed it to prepare his defense ... . Furthermore, it is undisputed that the defense had access to the metadata from the beginning of the prosecution, albeit only at the FBI office. Notwithstanding this access, Mr. Gutierrez argues that the FBI refused to provide any analysis of the metadata. But he has cited no authority requiring the government to interpret the metadata for him.40
Defendants facing charges based on digital evidence sometimes request discovery of metadata. A defendant might base a defense on the lack of metadata.41 Defense attorneys will need to have knowledge about various types of metadata and whether such evidence can be exculpatory and considered discoverable under Brady.42 A defense attorney may have to justify the need for metadata if the government objects:
Hobbs argues that the District Court erred in refusing to order disclosure of the metadata associated with the electronic transcription of a statement he gave to the police while in custody. According to Hobbs, the government was obligated to produce the metadata from the thumb drive upon which his statement to a Philadelphia police detective was stored, both because the metadata was Brady material and because Federal Rule of Criminal Procedure 16 requires the metadata's production. But Hobbs has failed to show that he is entitled to the information. He requested the metadata because he thought it could lead to impeachment information, even though he admitted he had no idea what that impeachment information might be, and despite his having a copy of the statement, which he did not allege to be inauthentic or inaccurate. In other words, Hobbs speculates that there is some unknown possibility that the metadata could potentially be helpful in some unknown way. That is far from sufficient to establish a violation of either Brady or Federal Rule of Criminal Procedure 16.43
Metadata creates numerous challenges for legal practitioners because some of the concepts are technically complex, can be confusing, and require applying existing legal reasoning to this type of evidence that is relatively new to some practitioners.44 Metadata appears to be a consistent source of confusion in legal practice.45 Metadata can be perplexing because it is largely hidden from view and many people are not aware of its existence.46 ESI metadata is one of the reasons that modern law practice is different from practicing in the print era.47 Any typewritten or handwritten words on a paper document are clearly visible on the face of the document.48 In contrast, most metadata in ESI is hidden from casual view:
Some metadata included in a Word document, for example, consists of information like how many words are in the document or when the document was prepared. In many instances, that information will have very little significance to anyone. But some metadata may not be so benign. The worst culprit is the "track changes" feature that, when enabled, records who, when, and what changes were made to a document; it also tracks multiple "undo's," [sic] which allows the recipient to repeatedly "undo" changes to a document and see the edits made over time. Imagine a draft settlement agreement that originally proposed offering $100,000 to settle the case, but was revised to reflect a $50,000 initial offer. The recipient may be able to "undo" the changes or "track" them to see that the original offer was intended to be much higher. This can obviously have real-world impact.49
Some litigants in civil discovery misunderstand metadata or are unaware of its potential importance or even its existence.50 Juries might find metadata evidence confusing.51 The invisible nature of most metadata can lead to problems.52 Metadata evidence can be overlooked, which can have legal implications.53
Judges increasingly are grappling with complex digital evidence issues including those involving metadata.54 One court noted that digital evidence raises "a great number of potential questions" and it wanted to "alert the bench and bar of concern as the nature of adjudicative evidence shifts from one-dimensional paper to multi-dimensional electronic documents."55 For example, when some "form of electronic information is introduced- say an electronic document-questions may arise whether they contain metadata. If so, is metadata being admitted along with the information on the face of the document? Knowing the answer will be important to lawyers, who must 'provide competent representation to a client.'"56 The court raised an interesting observation about digital evidence:
Judges also will increasingly be called on to know and understand the depth of evidence used in judicial proceedings ... . The present case demonstrates the importance of monitoring electronic evidence in jury trials, where a verdict could be reversed if non-admitted evidence reaches the jury room. Knowing and understanding the quantum of evidence before the court also will be important to judges considering dispositive motions supported by electronic documents or who are presiding over a bench trial where proof is offered through electronically stored information. Judges are prohibited from conducting independent investigations. N.D. Code Jud. Conduct Rule 2.9(C) ("Except as otherwise provided by law, a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed."). Comment 6 to Rule 2.9 emphasizes, "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic." Therefore, when the court is presented with electronically created or stored information, the judge must know whether the submitted evidence includes only that information visible on the surface of the document, or whether metadata is included. The distinction is critical, both on an ethical and adjudicative basis.57
Other legal practitioners have raised the unresolved issue of how metadata should be viewed in the context of the best evidence (or original writing) rule.58 Courts have applied the best evidence rule to various types of digital evidence.59 But court rulings on ESI and the best evidence rule have not focused on the underlying metadata:
To date, the courts that have considered the original writing rule as it applies to the admissibility of ESI/digital evidence have tended to view the "original" as the "top-level view" of "what the record normally shows to people who view it on a screen and also upon printing out the record onto paper." Disputes about metadata have tended to focus on its discoverability, or its utility in authenticating a digital document. Whether they will continue to do so, or begin to expand their view of whether the original is to include the "hidden" or unseen digital components of a computer-generated or stored document remains to be seen. However, it may be predicted that for the foreseeable future they will continue to treat the "original" as the portion that is viewed when the digital document is opened or printed from a computer because that is the portion that is "readable by sight" as stated in Rule 1001(3), and because that is the component of the digital document that tends to be the version that is used or disseminated by its author, and hence most likely to be the legally operative version that figures into a future legal dispute.60
How the best evidence rule applies to metadata also has been raised in trials.61
Despite the potential complexities, metadata also presents opportunities for legal practitioners because it can provide compelling evidence of when a particular item of digital evidence was created, modified, or deleted, and perhaps who was at the keyboard when such activity took place. It can be used to record computer activity for numerous purposes.62
Sometimes metadata is as important as or even more important than an actual item of ESI.63 Metadata can be critical if there are questions about the authenticity of the ESI.64 Metadata can be used to establish when a document was created, deleted, or modified, or when a particular email or text message was sent or received.65 Without metadata, some ESI is not much more than electronically stored versions of paper documents such as those that lawyers, judges, and litigants used before computers replaced typewriters.66 It is metadata that, "unlocks the truth behind what appears on the surface of the evidence."67 Metadata is required for computer systems to generate and store digital information.68
Metadata exists because it performs some useful function. Understanding the purpose and utility of metadata can help illustrate how and why it is created and facilitate understanding of the different types or categories. As one source states "the primary function of metadata is utilitarian: It is designed to help users revise, organize, and access electronically created files."69 Some types of metadata are required by the file systems on computers, phones, and other digital devices to organize and keep track of everything stored on the system. This includes files, folders, software programs, and a wide variety of other information such as user profiles, accounts, settings, preferences, and more.
There are innumerable legal situations in civil and criminal practice that will involve digital evidence.70 The importance of metadata varies depending on what is at issue.71 Sometimes metadata is not as important as one party asserts,72 or a party may try to downplay the significance of metadata.73 Metadata can be irrelevant to a civil or criminal case or it can be crucial:
"Metadata may be totally innocuous, such as formatting instructions and margin determinations, but sometimes metadata provides crucial evidence that is not available in a paper document ... . Metadata may reveal who worked on a document, the name of the organization that created or worked on it, information about prior versions of the document, recent revisions, and comments inserted in the document during drafting or editing ... . The hidden text may reflect editorial comments, strategy considerations, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer." Metadata may provide information that a paper document would not provide or information that differs from a paper document. Metadata may also reveal that a document has been changed or backdated. "A litigation attorney today who produces electronic documents but does not understand metadata is potentially committing malpractice."74
The legal significance of electronic communication metadata can surpass the importance of the underlying message in some situations.75 Communication metadata usually is afforded less privacy protection than the underlying messages under privacy statutes.76 The difference between content and non-content metadata can be fundamentally important under the Fourth Amendment.77
Metadata-Wherever Digital Evidence Is Found
There are hundreds of ways to show how digital technologies have affected legal practice. Metadata is potentially important in any legal issue where digital evidence is relevant because metadata is present in or associated with every digital file.78 A few examples show the wide variety of legal issues that potentially involve metadata. Preservation of metadata is explicitly mentioned in a Texas statute governing temporary restraining orders after a suit for dissolution of a marriage has been filed. Pursuant to the statute, a court may grant a temporary restraining order to the adverse party for the preservation of property including prohibiting one or both parties from:
Among other things, modifying, changing, or altering the native format or metadata of any electronic data or electronically stored information relevant to the subject matter of the suit for dissolution of marriage, regardless of whether the information is stored on a hard drive, in a removable storage device, in cloud storage, or in another electronic storage medium.79
A lawyer representing a spouse involved in this type of dispute in Texas would need to have some knowledge about metadata to properly advise his or her client.
Metadata was important in a whistleblower retaliation trial in which a company's former general counsel claimed he was fi red because he investigated and reported a potential violation of a foreign bribery law.80 The company claimed that he was fired for performance. There was no documentation of poor performance; furthermore, his 2012 performance review mostly was positive. But during discovery the defendants produced a separate review dated April 2013 that the plaintiff never received. The plaintiff's attorneys dug through the metadata of this document:
According to the metadata- ... that can determine a document's file type, its creation date and who accessed it-the worker review dated April 2013 actually was created in July 2013, a full month after Wadler was fired. The jury focused on the metadata in one of its two questions to the court. Less than three hours after deliberations began, the jury had its verdict.81
The plaintiff was awarded $2.9 million in back pay and stock compensation and $5 million in punitive damages. The award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.82
Metadata can bolster a claim that activities on a computer or phone took place at a certain time.83 Many employers are becoming aware that safeguarding company data is important and are concerned when an employee departs to work for a competitor. Metadata evidence can help establish whether a departing employee accessed proprietary company data just prior to leaving.84
Metadata can be critical for establishing when communications such as email, text messages, or social media messages were sent.85 Evidence of metadata manipulation can show that a party engaged in deception by intentionally changing metadata. Metadata undermined a claim by a music composer who brought a copyright infringement action against rap artists and record companies over a copyrighted instrumental rhythm line (beat). During discovery, the plaintiff produced a computer on which he:
claimed to have saved an original copy of the beat on its hard drive and pointed to a file on that computer "dated" August 28, 2001, as proof of authenticity and date of creation. But an expert established that the computer file had actually been created in 2006 and backdated (Apple Macintosh files are numbered sequentially when they are saved and the files saved immediately before and after this one were all dated September 2006). An expert also established that the computer was manufactured in 2003 and the hard drive storing those files was manufactured in 2005.86
Courts are becoming aware of the importance of metadata in criminal investigations and trials.87 In a case involving a video recording of an interrogation, a judge concurred in the decision but warned:
a prosecutorial or law enforcement agency that does not have protocols in place to preserve the metadata of digital audio, video and documentary evidence, is courting disaster. While this Court has not addressed the issue yet, metadata is discoverable in the federal courts ... . In my view, metadata would, likewise, be discoverable under 46-15- 322, MCA, Montana's criminal discovery rules, especially where such information is arguably exculpatory. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Some offenses are, by their nature, heavily dependent upon digital evidence. I suggest that the rule will eventually be that the preservation of digital evidence includes the preservation of the associated metadata. To the extent that they have not already done so, prosecutors and law enforcement would be well-advised to proactively prepare and to beat the imposition of this discovery rule in a criminal case where it actually matters.88
Many modern vehicles are equipped with digital technology systems that may contain important digital evidence recorded prior to or during an accident. This digital technology is sometimes referred to as Event Data Recorders (EDR).89 These systems can record important information prior to and during an accident.90 Metadata is an integral part of this type of evidence.91
In addition to EDR evidence, modern vehicles also may record a wide variety of other digital information. This has led some companies to specialize in obtaining potential evidence from vehicle digital systems. Berla s iVe Vehicle System Forensics allows the acquisition and analysis of a wide variety of digital information from vehicles including metadata.92 The tractor-trailer industry relies more and more on digital technology and thus ESI will become more relevant after accidents involving those vehicles.93
In a high-profile murder case in Australia, a husband charged with murdering his wife claimed that he went to bed at 10 p.m. on April 19, 2012, the night his wife disappeared, because he was sick.94 However, metadata in a file stored on his iPhone showed he connected his phone to a power charger at 1:48 a.m. on April 20, 2012. Furthermore, metadata gathered from previous nights showed that he consistently plugged his phone into a charger at around 10 or 11 p.m. each night, except the night his wife disappeared.
A defendant was convicted of murdering the mother of his child based on witness testimony and because his palm print was found on a piece of duct tape recovered from the victim's body.95 A digital image of the developed latent print was introduced at trial. The defense elected not to do independent testing of the tape. He later appealed and argued that the tape evidence was no longer available because it had been stored in a warehouse partially submerged in flood water by Hurricane Sandy. On appeal the court noted, "[e]vidence of Hamilton's palm prints on duct tape used to tie the victim's ankles together was properly created, manipulated, compared, preserved, and authenticated by a modern digital system instead of traditional photography. Digital images of petitioner's palm print left on duct tape used to tie up the victim before she was shot, plus testimony, proved defendant guilty."96 The defendant argued that the government was withholding the original digital photo of the fingerprint. But the court found that the testimony of the NYPD criminalist who originally developed the latent print from the duct tape was credible.
The argument that an "original photograph" or camera file is allegedly missing has no merit. Jean, through detailed and credible testimony, explained that there is no phantom "original photograph." She thoroughly described how she used a digital camera to capture an image of the developed latent palm print. That digital image was directly uploaded onto the "More Hits" program, which stored the image, the accompanying metadata, and tracked any changes made. Jean then used Photoshop, opened through the "More Hits" program, to digitally apply certain enhancements to the print image, in accordance with appropriate NYPD practice. A record of these enhancements is included in the image's metadata file. As credibly confirmed by Jean at the hearing, "there is no photograph independent of what we have through material introduced into the computer"97
Attorneys need knowledge about ESI in civil discovery and in criminal cases to provide adequate counsel and guidance to their clients.98 Clients rely on their attorneys to prevent problems and manage problems that arise. Attorneys have an ethical obligation to possess the knowledge needed to competently represent their clients.99 Courts are increasingly aware of metadata and will evaluate parties' claims or motions about this type of evidence.100 There are numerous well-established authorities on digital evidence and e-discovery including metadata. One important source practitioners can use for gaining knowledge about e-discovery including metadata is the Sedona Conference, a legal think tank.101 Sedona Conference publications are often cited as persuasive secondary authority.102 The Sedona Conference emphasizes the importance of lawyers being knowledgeable about metadata: "The duty of competence means a lawyer must understand metadata (and the different types of metadata), including having sufficient knowledge for the lawyer to adhere to the lawyer's duties of confidentiality and preservation as applied to metadata."103 Another authoritative source is Craig Ball, who provides information about various e-discovery issues including metadata on his Web site104 and blog.105
Sidebar
Any information about an email message besides its actual content could be considered metadata. Easily understood email metadata include the email addresses of the sender and receiver and the dates and times the message was sent and received.
Defense attorneys will need to have knowledge about various types of metadata and whether such evidence can be exculpatory and considered discoverable under Brady.
Metadata presents opportunities for legal practitioners because it can provide compelling evidence of when a particular item of digital evidence was created, modified, or deleted, and perhaps who was at the keyboard when such activity took place. It can be used to record computer activity for numerous purposes.
Attorneys need knowledge about ESI in civil discovery and in criminal cases to provide adequate counsel and guidance to their clients.
Footnote
Notes
1. State v. Stein, 225 N.J. 582, 596-597, 139 A.3d 1174, 1182 (2016) ("The recordings from a patrol car's dashboard camera that depict the interactions between a DWI suspect and police officers or the sobriety tests performed by the suspect are clearly relevant, and if the recordings contradict an officer's testimony, such evidence has vital impeachment value to the defense. A video recording of a Breathalyzer test or a defendant's appearance, behavior, and motor skills at police headquarters is also relevant because it may have 'a tendency in reason to prove or disprove' that the defendant was under the influence. See N.J.R.E. 401. To ensure the availability of such relevant evidence, a defendant should give written notice to the municipal prosecutor to preserve pertinent videotapes pursuant to Rule 7:7-7. Although the defense carries this obligation, the State also has a duty to preserve evidence that it knows is relevant to a DWI prosecution."); State v. Cooper, 747 S.E.2d 398, 413 (N.C. Ct. App. 2013) (Husband charged with first degree murder for killing his wife: "[t]he sole physical evidence linking Defendant to Ms. Cooper's murder was the alleged Google Map search, conducted on Defendant's laptop, of the exact area where Ms. Cooper's body was discovered."); Federal Bureau of Investigation, Digital Evidence Field Guide: What Every Peace Officer Must Know, 2 ("Every crime scene is a digital evidence crime scene."), available at https://www.rcfl.gov/downioads/ documents/digital-evidence-field-guide.
2. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 160 (3d Cir. 2012) ("the ease with which ESI is created, distributed, duplicated, and stored has resulted in exponentially greater volumes of data that must be assembled, analyzed, and produced in litigation."); Steven C. Bennett, "E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology," 30 J. Marshall J. Info. Tech. & Privacy L. 433, 450 (2014) ("Today, in virtually every case, e-discovery is discovery."); Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 339 (D.N.J. 2004) ("The duty to preserve potentially relevant evidence is an affirmative obligation that a party may not shirk. When the duty to preserve is triggered, it cannot be a defense to a spoliation claim that the party inadvertently failed to place a 'litigation hold' or 'off switch' on its document retention policy to stop the destruction of that evidence. As discoverable information becomes progressively digital, e-discovery, including e-mails and other electronic documents, plays a larger, more crucial role in litigation."); U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 228-229 (S.D. Cal. 2015) ("Plaintiffs' demands for three discrete subsets of ESI-databases archived on backup tapes ('Backup Databases'), active emails ('Active Emails'), and this ESI's assorted metadata ('Metadata')-have precipitated the Parties' present disputes, effectively three in number. First, every iota of data on the backup tapes, Defendants insist, must be deemed inaccessible, and the cost associated with recovery and generation in any format, whether Native or TIFF, should be borne by Plaintiffs. Naturally, Plaintiffs disagree, arguing both that backup tapes are equally discoverable and that this data's inaccessibility is due to Defendants 'intentional[ ] alter[ing] the format of its data so as to make it such relevant discovery inaccessible.' Second, Plaintiffs have insisted that those emails not on backup tapes, i.e. active ESI, be provided in Native; Defendants prefer TIFF. Finally, though it is a disagreement buried within the latter in the Parties' Papers, Plaintiffs have also made clear their desire for the entirety of this ESI's metadata. Thus, in urging this Court to compel Native production, Plaintiffs emphasize that ESI in this format is cheaper to produce, retains otherwise discoverable metadata, and is easier to use, search, and sort.").
3. Matthew S. Adams, "The Argument for Metadata as a Matter of Procedural Due Process," Legaltech News (Dec. 5, 2016) ("the seemingly simple constitutional requirement that defendants be provided the evidence to be used against them can wreak havoc in settings involving electronic evidence. This is largely a product of the fact that electronic evidence has a hidden, powerful component that is baked into the evidence, but is widely misunderstood: metadata."), available at http://legaltechnews.com/id = 1202773860929/The-Argument-forMetadata-as-a-Matter-of-Procedural-Due-Process?mcode=120261556 4567&slreturn=20161109082839; Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 559 (N.D. Ill. 2008) ("ADC clearly did not specify that it wanted metadata as a part of Autotech's document production. ... There was not mention of it in the earlier motions to compel. The court order certainly did not require it to be produced. From ADC's brief, it would appear that the first thought ADC gave to metadata came shortly after Autotech produced a paper version of the file structure document. It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format. Ordinarily, courts will not compel the production of metadata when a party did not make that a part of its request." (internal citations omitted).
4. Evan R. Kime, "Electronic Discovery of Electronically Stored Information and the Future of Civil Discovery," 2014-SEP W. Va. Law. 34, 36 (July-September 2014) ("Every file contains 'metadata,' which is electronic information that a computer keeps about a file, such as its owner, creator and when it was saved, altered or deleted.").
5. Elizabeth Dwoskin, "In a Single Tweet, as Many Pieces of Metadata as There Are Characters," Wall St. J.: Digits (June 6, 2014, 4:46 p.m.), http://blogs.wsj.com/digits/2014/06/06/in-asingle-tweet-as-many-pieces-of-metadata-as-there-are-characters/ (Citing research by a software company that there are "150 separate points of so-called metadata" in a single 140-character Tweet).
6. State v. Burns, No. M201400357CCAR3CD, 2015 WL 2105543, at ·3 (Tenn. Crim. App. May 5, 2015) (Defendant was convicted of several charges of sexual exploitation of a minor. "When Detective Kniss received the victim's laptop from Detective Foster, he examined the hard drive for evidence of chats and photos that were allegedly sent by the Defendant. Detective Kniss explained that a Facebook chat can be sent between users who are already 'Facebook friends' and operates like an instant message, allowing users to communicate in real time via the Facebook server. Chats can be 'cleared' by the user and deleted off their Facebook page. Once the chats are deleted, the user cannot access the chats via their Facebook account. However, Detective Kniss was able to retrieve evidence of the chats from the hard drive of K.P.'s computer. Along with the content of the chat, Detective Kniss recovered the user ID numbers for the Facebook accounts, the sender and receiver of each chat message, and the date and time each chat message was sent. Detective Kniss copied all of the chats between K.P. and a Facebook account bearing the Defendant's name into an Excel spreadsheet so they could be organized chronologically.").
7. U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 235 (S.D. Cal. 2015) ("metadata is actually a distinct form of ESI ... ."); Philips Elecs. N. Am. Corp. v. BC Tech., 773 F. Supp. 2d 1149, 1184 (D. Utah 2011) (Competitor sued for misappropriation of trade secrets and other allegations. "Norberg, Philips' computer forensics expert, uncovered deletions from Sokolowski's BCT laptop. Norberg's examination of Sokolowski's computer data revealed that Sokolowski's BCT computer was loaded with many Philips/ADAC-originated files, as demonstrated not only by file names, but also by the files' metadata. Norberg identified at least 324 files from Sokolowski's computer, for which the metadata identifies the originating 'company name' as Philips or ADAC. All 324 of these files were deleted from Sokolowski's computer. Metadata is unavailable for numerous additional files that were deleted and overwritten.").
8. OED Online, Oxford University Press, March 2016.
9. Metadata, Black's Law Dictionary (10th ed. 2014).
10. Introduction to Metadata, Second Edition (2008) ("ReaderS Note: The editor and authors of this publication are aware that the noun 'metadata' (like the noun 'data') is plural and, therefore, should take a plural verb form. However, in order to avoid awkward locutions, it has been treated here throughout as singular.").
11. Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 557 (N.D. Ill. 2008).
12. Morgan Hill Concerned Parents Ass'n v. California Dep't of Educ., No. 2:11-CV-3471 KJM AC, 2017 WL 445722, at ·2 (E.D. Cal. Feb. 2, 2017) ("Metadata is information about the ESI, as opposed to its contents."); The Sedona Conference, Glossary: E-Discovery & Digital Information Management, 4th edition, at 29 (April 2014) ("Metadata: The generic term used to describe the structural information of a file that contains data about the file, as opposed to describing the content of a file."); U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 228 (S.D. Cal. 2015) ("A generic term, 'metadata,' colloquially known as 'data about data,' encompasses the structural information of a file that contains data about it as opposed to describing its actual substantive content. Often hidden and embedded within the original file, metadata does not normally appear on a printed page ... .").
13. Purzel Video GmbH v. Ramsey, No. 13-CV-02079-WYDMEH, 2014 WL 2050614, at ·5 (D. Colo. May 16, 2014) (Plaintiff employed Copyright Defenders to investigate copyright infringement on the BitTorrent peer-to-peer network. Copyright Defenders "obtained the IP address of each user offering the file for download.. the investigator downloaded or recorded for each file downloaded: (a) the time and date at which the file or a part of the file was distributed by the user; (b) the IP address assigned to each user at the time of copying; (c) the ISP for each user; and, in some cases, (d) the video file's metadata (digital data about the file) such as title and file size, that is not part of the actual video content, but that is attached to the digital file and helps identify the content of the file, (e) the BitTorrent client application used by each user, (f) the global unique identifier for each file downloaded by each user, and (g) the location of most users (by state) at the time of download as determined by geolocation technology. Copyright Defenders then created evidence logs for each user and stored the information in a database."); Omer Tene, "A New Harm Matrix for Cybersecurity Surveillance," 12 Colo. Tech. LJ. 391, 393 (2014) ("The distinction between content and non-content (metadata) pervades surveillance law at both the constitutional and statutory levels.").
14. Sys. Prod. & Sols., Inc. v. Scramlin, No. 13-CV-14947, 2014 WL 3894385, at ·8 (E.D. Mich. Aug. 8, 2014) ("Metadata associated with electronic communications, however, are not considered to be content protected by the SCA. In fact, the SCA expressly permits the disclosure of such data. 18 U.S.C. 2702(c)(6) (an electronic communication service provider 'may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . ) . to any person other than a government entity.'). This allowance includes a subscriber's name, address, records of session times and durations, telephone or instrument number, or other subscriber number or identity.") (internal citations omitted); United States v. Polizzi, 549 F Supp. 2d 308, 388 (E.D.N.Y. 2008) ("In general, the ECPA grants the government broad liberty to search online materials by defining electronic privacy narrowly. It allows the government to obtain IP addresses through the use of administrative subpoenas; no warrant is required. A warrant is necessary, however, to obtain the contents of an electronic communication.").
15. Carlos Aguilar, "Privy or Private: A New Age Look at Old School Privacy Laws," 53 Cal. W L. Rev. 85, 104 (2016) ("Within the SCA, the government may access cell site location data under 18 U.S.C. 2703(c). Section 2703(c) treats cell site location data as a non-content communication record. In essence, cell site location data is treated as metadata information. Given that cell site location data constitutes non-content information, the SCA does not require a warrant.").
16. Nervik v. State Dep't of Licensing, 171 Wash. App. 1033 (2012) (The Public Records Act "'is a strongly worded mandate for broad disclosure of public records.' Agencies must disclose public records requested, unless records fall within a specific, enumerated exemption. Metadata associated with a public record is subject to disclosure under the PRA. But a government agency is not required to provide metadata associated with a requested public record unless the metadata is specifically requested. A request for e-mail does not inherently and clearly include a request for metadata.") (internal citations omitted).
17. Lucas v. Jolin, No. 1:15-CV-108, 2016 WL 2853576, at ·6 (S.D. Ohio May 16, 2016) ("The 'subject' field of an email also reveals the 'contents' of a communication. However, non-content related metadata may be disclosed without violating the SCA.").
18. Paff v. Galloway Twp., 444 NJ. Super. 495, 504, 134 A.3d 42, 48 (App. Div. 2016) ("the sender, recipient, date, and subject of emails sent by government personnel-is itself metadata ...").
19. Brad Turner, "When Big Data Meets Big Brother: Why Courts Should Apply United States v. Jones to Protect People's Data," 16 N.C. J. L. & Tech. 377, 398-399 (2015) ("Data can, arguably, be divided into two types: the content of a person's communications on the one hand and the non-content information about the person's communications on the other. The content of a person's communications is the message itself-the speech, the picture, the text, the email, etc. Metadata is information about the communication minus the message itself. Metadata answers questions like, when did the person send the message? To whom? From what account? How? From what geographic location? How many characters was the text? Did the email include a picture? How big was the picture? Did the picture include any information about who created it?").
20. Greg Johnson, "Dealing with E-Data: Using Encase in E-Discovery," 21 No. 12 Law. PC 1 (2004) ("E-mail can contain as many as 800 metadata tags; each metadata tag reveals specific information about that e-mail correspondence. These informational items include routing (the complete history of where the electronic mail came from and the route it took) and the sender and recipients (who sent the message and who received it, to include blind copies).").
21. Anderson v. Bd. of Sch. Directors of Millcreek Twp. Sch. Dist., No. 1:07-CV-111-SJM, 2013 WL 4455496, at ·22 (W.D. Pa. Aug. 16, 2013) ("The metadata from these emails indicates that both were opened by someone having access to Plaintiff's user identification and password, presumably Plaintiff herself. Although computer forensics cannot conclusively establish that the opened emails were read by Plaintiff, such an inference is reasonable.").
22. Ben Minegar, "Forging A Balanced Presumption in Favor of Metadata Disclosure Under the Freedom of Information Act," 16 U Pitt. J. Tech. L. Pol'y 23, 27 (2015) ("metadata associated with email may include user address information and the dates and times at which the email was sent, received, replied to, forwarded, or carbon-copied."); Sekisui Am. Corp. v. Hart, 945 F Supp. 2d 494, 506 (S.D.N.Y. 2013) ("The MIT Media Lab recently developed a tool demonstrating the significance of email metadata. The tool analyzes the metadata from the user's Gmail account and visualizes that data, revealing who the user talked to, how often, and when, among other things. See immersion: a people-centric view of your email life, http://immersion.media.mit.edu (last visited July 31, 2013). Printing paper copies of emails and permanently deleting the electronic data, then, deprives those emails of a significant amount of their evidentiary value."); Kleppinger v. Texas Dep't of Transportation, No. CV L-10-124, 2012 WL 12893654, at ·9 (S.D. Tex. Aug. 23, 2012) ("Regarding the issue of metadata, the Court notes that metadata could show whether Plaintiff sent e-mails from his TxDOT e-mail account to his personal e-mail account, actions which allegedly prompted Defendant TxDOT to terminate Plaintiff. Moreover, upon review of a sample metadata page provided by Mr. Wagner, it appears to the Court that metadata provides significant detail regarding (1) who were the recipients of the email, (2) when a recipient read the e-mail, (3) if the recipient responded to the sender of the e-mail, and (4) if the recipient forwarded the e-mail to anyone else. Thus, metadata in e-mails could be of particular significance to Plaintiff's claims in this matter. Furthermore, at the April 25th hearing, Mr. Wagner stated that it would not be difficult to produce all responsive, non-privileged e-mails with metadata (if any) to Plaintiff on a compact disk. As such, the Court concludes that Plaintiff is entitled to production of e-mails without redaction of metadata.").
23. Bile v. RREMC, LLC, No. 3:15CV051, 2016 WL 4487864, at ·4 (E.D. Va. Aug. 24, 2016) ("Melczer also testified that the header information in the email demonstrated that the email authentically came from Yahoo's servers, meaning that: (1) the email actually came from [email protected] and was sent by someone with access to the ubomlawgroup@yahoo. com account; (2) nothing about the email's header information would have alerted Oshinowo that the email was sent by from someone other than Ubom or the Ubom Law Group; and (3) industry-standard email security filters would not have alerted Oshinowo to be wary of this email. The Court finds Melczer's expert opinions to be reliable and credible.").
24. Michael W. Price, "Rethinking Privacy: Fourth Amendment 'Papers' and the Third-Party Doctrine," 8 J. Nat'l Security L. & Poly 247, 274 (2016) ("Every email contains a 'header' full of metadata about how, when, and where the message is transmitted."); Todd G. Shipley and Art Bowker, "Investigating Internet Crimes: An Introduction to Solving Crimes in Cyberspace," 181 (2013) ("Every email sent through an SMTP server is assigned a unique ID by the originating SMTP email server. This Message-ID can identify the originating SMTP server ... .").
25. Cory Simmons-Edler, "Show Me the Metadata: The Case to Standardize Automatic Metadata Production for E-Mail Communications," 19 J. Tech. L. & Poly 157, 180 (2014) ("Message-ID can be valuable when the authenticity of a document is in doubt, as no two are ever alike."); Hon. Peter M. Lauriat, et at., 7:9. Electronic discovery-Issues regarding metadata, 49 Mass. Prac., Discovery 7:9 ("The 'messageid' field records a single unique message identifier, which is machine readable 'and not necessarily meaningful to humans.' Revisions to the message each receive their own message identifiers. Thus, examination of this metadata may be useful if there is some question about whether a message has been 'tampered with.' These examples, as well as the other fields identified in RFC 2822, highlight types of metadata that may be associated with any email.").
26. United States v. Coca, No. 14-262, 2016 WL 7013037, at ·3 (W.D. Pa. Dec. 1, 2016) (In a child pornography investigation, "A review of the source header details associated with e-mails sent by '[email protected]' revealed they were sent from Internet Protocol (IP) address: 24.23.101.21.28. An administrative subpoena issued to Comcast in regards to IP address 24.23.101.21 identified Ramon Coca, 600 3rd Avenue E, Beaver Falls, PA 15010-4836 as the account holder. An administrative subpoena was then issued to Yahoo in regards to the e-mail account '[email protected].' A review of the results revealed the account was created on 03/05/2012 from IP address 24.23.101.21 (the same IP address as above). Further, a review of recent logins to the account, from 09/18/2012 through 10/11/2012, revealed they were also made from IP address 24.23.101.21. The account was then deactivated on 10/11/2012."); Nicole B. Cásarez, "The Synergy of Privacy and Speech," 18 U. Pa.J. Const. L. 813, 843 (2016) ("Email metadata includes information that appears on the 'to,' 'from,' 'cc,' and 'bcc' (although not the 'subject') lines, plus the Internet-protocol (IP) address of the computer from which an email was sent, IP address of routers and servers that handled the email transmission, plus login and inbox information if a user accesses a web-based email account.").
27. Steven M. Bellovin, Matt Blaze, Susan Landau and Stephanie K. Pell, "It's Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance Law," 30 Harv. J.L. & Tech. 1, 74 (2016) ("Nor is it simple to draw up lists of content versus metadata email headers; many mail systems have their own private header fields; there is no way to know, a priori, how these fields behave. For that matter, different implementations of 'Received:' have different formats; Google's Gmail service, for example, does not include the sender's IP address in the headers of outgoing messages from Gmail users.").
28. Saliga v. Chemtura Corp., No. 3:12CV832 RNC, 2013 WL 6182227, at ·1 (D. Conn. Nov. 25, 2013) ("'Metadata for email will include the email address and/or names of the senders and recipients, the subject line, the date and time, and information regarding the email's Internet journey if it originated outside the organization.' Anne Kershaw & Joe Howie, Judges' Guide to CostEffective E-Discovery at 2 (eDiscovery Institute 2010)"); Order to Produce Metadata, United States v. Hatfield, No. 06-CR-0550 (E.D.N.Y. Apr. 7, 2010) (Court ruled that the act of production privilege does not apply to a party ordered to produce metadata to determine the authenticity of an email that his attorney submitted in an attempt to discredit a government witness.).
29. Cory Simmons-Edler, "Show Me the Metadata: The Case to Standardize Automatic Metadata Production for E-Mail Communications," 19 J. Tech. L. & PoVy 157, 175 (2014) ("The metadata in an e-mail simply gives context to the textual content of the e-mail, and thus provides a much fuller picture of the meaning of the communication. No reason exists from the standpoint of informational integrity to exclude such basic and helpful data as the 'From,' 'To,' 'CC (and BCC),' 'Timestamp,' 'Subject,' and the 'Internet Message-ID.' ").
30. State v. Kaufman, 2005 WL 2746676 (Wash. Ct. App. 2005) (Kaufman was convicted of rape and murder).
31. Patrick A. Casey and Donna A. Walsh, "Electronic Evidence: The Ever-Expanding Frontier," 2013 WL 5757948, at ·4 (2013).
32. Lake Wright Hosp., LLC v. Holiday Hosp. Franchising, Inc., No. CIV.A. 2:07CV530, 2009 WL 4841017, at ·8 (E.D.Va. Oct. 23, 2009) ("Litigation technology support requires considerable specialized knowledge and training above and beyond the education or background generally needed for information technology and database administration positions in other sectors of the economy. Such a position requires, among other things, experience with the procedures and complexities of electronic data collection, processing, and production, familiarity with a myriad of in-house and vendor-provided data organization and review programs (such as Concordance), and knowledge of the intricacies of metadata."); Adaptix, Inc. v. Alcatel-lucent USA, Inc., No. 6:12-CV-22 LEAD CASE, 2016 WL 6915309, at ·4 (E.D, Tex. Mar. 18, 2016) ("Having carefully considered and rejected each of Adaptix's arguments, the Court finds that Adaptix's manner of litigating the case regarding the conception date, and specifically its failure to produce metadata concerning the critical documents, warrants a finding of exceptionality. Because of the unique circumstances here, small changes in the conception date had a substantial effect on the course of the litigation. Defendants specifically requested documents related to the conception date multiple times from Adaptix. Adaptix claimed, until five days before trial, that the metadata was irrecoverably lost and that the conception date was the filing date of the patent application. Based on those representations, the parties engaged in many rounds of briefing concerning defenses that assumed a conception date as the filing date of the application, at significant expense to the parties and to the Court. The metadata production rendered the majority of that effort useless. Further, once the metadata was produced, both parties-on the morning of jury selection- recognized that the documents were so crucial that simply excluding them was not a viable option and therefore moved to continue the trial. During the continuance, the parties submitted additional briefing concerning defenses related to the conception date and the Court held a full-day evidentiary hearing on the matter.").
33. Craig Ball, Beyond Data About Data: The Litigator's Guide to Metadata, at 2 (2011), available at http://www.craigball.com.
34. Lake v. City of Phoenix, 222 Ariz. 547, 550-551, 218 P.3d 1004, 1007-1008 (2009) (internal citations omitted).
35. United States v. McKinley, No. 201000120, 2013 WL 1314186, at ·2 (N-M. Ct. Crim. App. Feb. 28, 2013) ("At trial, the principal issue in controversy was whether the appellant 'knowingly received child pornography' and knew that the material was child pornography. The primary evidence of knowledge presented by the Government was the appellant's pretrial statement, video data files and metadata [filenames] extracted from the subject computer, and expert testimony."); United States v. Yammine, 67 MJ. 717, 733 (N-M. Ct. Crim. App. 2009), aff'd in part, rev'd in part, 69 MJ. 70 (C.A.A.F 2010) ("the majority invokes the 'metadata' discussed by the expert.. .as revealing the actual content of the files and, therefore, the appellant's intent in obtaining the files. As the majority notes, however, metadata are not apparent to the casual user, so unless there is some indication that the appellant is a sophisticated computer programmer (and there are indications to the contrary in the record), it is difficult to attribute to the appellant the knowledge that the original poster labeled the files as containing child pornography.").
36. State v. Garbaccio, 151 Wash. App. 716, 723, 214 P,3d 168, 171 (2009) ("Detective Timothy Luckie, a forensic computer analyst with ICAC, later examined the computer hardware seized from Garbaccio's home. He could not find any files containing viewable images of child pornography on the seized equipment. By examining the metadata of deleted files, however, he was able to determine that, at some point, the known video file that had initially raised Detective Bergmann's suspicion and the other 21 files with titles strongly suggestive of child pornography listed in the warrant application affidavit had been stored on Garbaccio's computer. Garbaccio was subsequently charged by information with one count of possessing depictions of minors engaged in sexually explicit conduct.").
37. Commonwealth of Pennsylvania, Appellee v. Charles Kenneth Steele, Appellant, No. 1016 MDA 2016, 2017 WL 2130326, at ·6 (Pa. Super. Ct. May 16, 2017) ("co-Defendant testified regarding Appellant's direction of and involvement in the breakin. The cellular metadata demonstrated a corroborating phone call by Appellant to co-Defendant at approximately 5:00 A.M. on the morning of the break-in, placed by Appellant from the vicinity ofVictim's business. T-Mobile's business records demonstrated that Appellant and co-Defendant communicated by voice and text message numerous times between June 06, 2015, the evening before the break-in, and June 12, 2015, the day coDefendant participated in a police interview concerning the theft, following which all Communications between the two ceased. It would be reasonable for the jury to infer Appellant's involvement in the crimes, reviewing that information in the light most favorable to the Commonwealth.").
38. People v. Colbert, No. B247634, 2014 WL 4243576, at ·1 (Cal. Ct. App. Aug. 28, 2014) ("On appeal, defendant contends the timestamp on some of those videos (those that most clearly depicted the events) was inadmissible, because it was not properly authenticated, was hearsay, and violated his right to confront the witnesses against him; defendant characterizes the timestamp as 'testimonial.'"); State v. Johnson, No. E201600334CCAR3CD, 2016 WL 7468207, at ·6 (Tenn. Crim. App. Dec. 28, 2016) (Defendant convicted of child pornography "asserts that the evidence was insufficient to support his convictions because the State failed to establish that the images were downloaded by the defendant. He claims that because the times and dates of the internet searches recovered by Detective Price did not align with the date and time stamps on the images, it was impossible for the jury to conclude that the defendant, rather than Ms. Emerson, had downloaded the images.").
39. State v. Kolanowski, No. 73703-1-I, 2017 WL 401389, at ·2 (Wash. Ct. App. Jan. 30, 2017) ("The issue is whether counsel's failure to secure a witness to authenticate the time stamp on a March 2015 screenshot of a Facebook page was objectively unreasonable."); Mallory v. State, 159 Idaho 715, 720, 366 P.3d 637, 642 (Ct. App. 2015) ("Mallory alleges that his counsel was ineffective for failing to adequately argue the motion to suppress. At the hearing on the motion to suppress, Mallory's counsel noted that the time stamp on the video jumped from 1:01:15 to 1:01:34, leaving a nineteen-second gap in the video recording. Counsel argued that, during the missing nineteen seconds, Mallory requested an attorney and that the officers continued to question him after his request. The state presented testimony from the questioning officer that Mallory did not ask for an attorney during that nineteen-second period. In addition, the state provided testimony from an assistant who was unable to explain the gap in the time stamp but explained that, when there is no movement in the room, the equipment ceases to record. The trial court found that Mallory did not ask for an attorney during the nineteen seconds but asked for an attorney at 1:34:32 o[f] the video. Ultimately, the trial court held that the portion of the video the state sought to introduce was before Mallory's request for an attorney recorded at 1:34:32 of the video and denied the motion to suppress."); Gillespie v. Uhler, 652 F App'x 61, 63 (2d Cir. 2016) ("Because complainant testified that she placed a call to 911 during the attack, and the police record of this call was time stamped at 11:46 PM, Gillespie argues defense counsel's misstatement regarding the time stamp on the surveillance footage supported the prosecutor's timeline: that Gillespie had time to exit the store, forcibly grab the complainant, and sexually assault her.").
40. United States v. Gutierrez, 625 F App'x 888, 891 (10th Cir. 2015).
41. Singleton v. State, 151 So. 3d 1046, 1050 (Miss. Ct. App. 2014) ("Singleton sought to sever the possession-of-child-pornography counts from the sexual-battery and gratification-of-lust counts. Singleton contended that the photographs allegedly depicting child pornography lacked date and time stamps. Thus, Singleton argued, the State could not prove Singleton took the photographs contemporaneously to the alleged occurrences of abuse." But trial court denied the motion to sever even though the counts spanned a period of approximately seven years because the State proffered a likely time period for photographs of only one or two years, and the court determined that similar acts with same victim over several years established a common scheme or plan.).
42. United States v. Baker, No. 3:15-CR-30002-MGM, 2015 WL 8216041, at ·5 (D. Mass. Dec. 8, 2015) ("The government represents that metadata and other information bearing on the creation of the reports, to the extent it exists, is not exculpatory. Unless a defendant has very specific information calling such an assertion into question, which is not the case here, 'the prosecutor's decision on disclosure is final.' Nor does it appear that this information would meet the Brady materiality test.").
43. United States v. Hobbs, 612 F App'x 94, 97 (3d Cir. 2015).
44. Jenna M. Bedsole and John Mallery, "Controlling Costs in E-Discovery," 72 Ala. Law. 134, 135 (2011) ("One of the most confusing terms that lawyers will encounter as they begin to address electronically stored information in the discovery process is 'metadata.' Costly discovery disputes have arisen over a lack of understanding of the term. Metadata is not visible to the reader of a hard copy of a document-it is embedded data in the electronic form of the document."); David Paul Horowitz, "On the Audit Trail," 88-AUG N.Y St. B.J. 16 (July/ Aug. 2016) ("How many of you have some nagging (or major league) uncertainty about metadata, notwithstanding the fact that you bandy it about in conversation, or even refer to it in court proceedings? With whatever level of understanding of metadata you may have, is it clear to you what metadata contains, or how it can be used in litigation?"); Craig Ball, Beyond Data about Data: The Litigator's Guide to Metadata, at 2 (2011) ("Metadata is probably the most misunderstood topic in electronic discovery today. All too frequently, lawyers for requesting parties demand discovery of the metadata without specifying what metadata is sought, and lawyers for producing parties fail to act to preserve metadata of genuine value and relevance."); Cory Simmons-Edler, "Show Me the Metadata: The Case to Standardize Automatic Metadata Production for E-Mail Communications," 19 J. Tech. L. & Pol'y 157, 163 (2014) ("Quite notably, unlike paper documents, electronic documents generally have metadata attached to them. Often, this information is not readily apparent to the viewer. Numerous characteristics are encompassed within the meaning of the word metadata, and the term is often misunderstood."); Katherine W Dandy, Esq., "Metadata: What Lawyers Need to Know," 41 Westchester B.J. 7 (2016) ("Because it is mostly hidden from view, but can contain important information that is not always easily accessible, metadata is a particularly complex technological concept of which lawyers must have a working knowledge.").
45.Zachary Rosenberg, "Returning to Plato's Cave: Metadata's Shadows in the Courtroom," 48 Ariz. St. L.J. 439 (2016) ("There are many misconceptions about what information are metadata."); Altman v. New Rochelle Pub. Sch. Dist., No. 13 CIV, 3253 (NSR), 2017 WL 66326, at ·13 (S.D.N.Y. Jan. 6, 2017) ("the battle of the metadata between Defendant and Plaintiff, without more information, is unlikely to positively or negatively impact Plaintiff's credibility-but it is significantly likely to lead to juror confusion and cause undue delay. Defendant's own confusion reinforces this conclusion."); Lake v. City of Phoenix, 222 Ariz. 547, 548, 218 P,3d 1004, 1005 (2009) ("Arizona law provides that '[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.' Ariz.Rev. Stat. ('A.R.S.') 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws."); O'Neill v. City of Shoreline, 170 Wash. 2d 138, 147-148 240 P,3d 1149, 1153-1154 (2010) ("This is an issue of first impression that has been examined previously by only one court. ... We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure. There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed.").
46. Manual for Complex Litigation (4th) 11.446 (Metadata "includes the information embedded in a routine computer file reflecting the file creation date, when it was last accessed or edited, by whom, and sometimes previous versions or editorial changes. This information is not apparent on a screen or in a normal printout of the file, and it is often generated and maintained without the knowledge of the file user."); Thomas Y. Allman, "Managing Preservation Obligations After the 2006 Federal E-Discovery Amendments," 13 Rich. J.L. & Tech. 9 (2007) ("since some types of ESI not ordinarily visible to a user (such as metadata or embedded data) may be ultimately necessary in a case, attention must be paid to the risk of corrupting the data, intentionally or not, in the preservation process."); Joshua Brunty, Katherine Helenek, and Larry Miller, Social Media Investigation for Law Enforcement, at 64-65 (2013) ("Metadata is merely embedded information that provides additional information about a particular file, web page, video or image (Bargmeyer and Gillman, 1998). In many cases, this metadata is hidden from the user and is mainly used for underlying processing functions. In the case of Twitter, what normally is only shown as 140 characters to the creator and readers of Twitter posts actually contains a plethora of underlying metadata such as a tweet's unique ID, tweet creation date, the screenname and user ID of the tweet author, and even the timezone and the author's URL (Krickorian, 2012). All of these artifacts can play a huge role to investigators not only in establishing the ID of the author of a particular Twitter 'tweet,' but also in providing information for search warrant applications to the particular social media service providers.").
47. Cory Simmons-Edler, "Show Me the Metadata: The Case to Standardize Automatic Metadata Production for E-Mail Communications," 19 J. Tech. L. & Poly 157, 159 (2014) ("One of the main differences between ESI and conventionally stored information is the fact that ESI includes certain data points demonstrably outside of the text or document itself. These data points are called metadata.").
48. Panel Discussion Judicial Records Forum, 83 Fordham L. Rev. 1735, 1762 (2015) ("When we had paper-based forms, the metadata was obvious-it is on a piece of paper and this is written in blue ink and that's pretty obvious.").
49. David Hricik, "Bringing A World of Light to Technology and Judicial Ethics," 27 Regent U L. Rev. 1, 11 (2015); Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges, 3 (2nd ed. 2012) (Some aspects of ESI have no counterpart in print media, metadata being the most obvious example. Metadata, which most computer users never see, provide information about an electronic file, such as the date it was created, its author, when and by whom it was edited, what edits were made, and, in the case of email, the history of its transmission.).
50. Kleppinger v. Texas Dep't of Transportation, No. CV L-10-124, 2012 WL 12894139, at ·1 (S.D, Tex. July 5, 2012) ("Plaintiff asks the Court to strike, or alternatively, disregard paragraph 4 of Mr. Wagner's affidavit for lack of credibility. Paragraph 4 of Mr. Wagner's affidavit states, '[a]ll of the e-mails that are produced from the live e-mail accounts at TXDOT are produced in their native format. In other words, e-mails are already in the native format when they are printed from the live e-mail accounts at TXDOT.' Here, it seems to the Court that Mr. Wagner may not realize that Plaintiff is not just requesting production of e-mails, but also production of metadata, a type of information that usually does not appear in a production of e-mails as paper printouts.") (internal citations omitted).
51. Robocast, Inc. v. Microsoft Corp., No. CV 10-1055-RGA, 2014 WL 129800, at ·1 (D. Del. Jan. 13, 2014) ("Before the Court is Defendants' Motion to Exclude Testimony of Forensics Expert, Mr. Andrew Reisman ... . The Court heard oral argument regarding this motion on January 8, 2014. Mr. Reisman is a computer forensics expert, and offers testimony within his area of expertise. Defendants' argument for excluding his testimony, as explained at oral argument, is that he does not tie his theories to the facts of the case, and that therefore his testimony is not helpful to the jury. However, many jurors may indeed be confused by the concept of metadata, and Mr. Reisman's testimony may be helpful.") (internal citations omitted).
52. The Sedona Conference: Commentary on Ethics & Metadata, at 21 (2013) ("Too often awareness of metadata follows the old saying: Out of sight, out of mind. And therein lies the risk of malpractice and sanctions."); Cont'l Grp., Inc. v. KW Prop. Mgmt., LLC, 622 F Supp. 2d 1357, 1373 (S.D, Fla. 2009) ("Although not all of Defendant Kravit's testimony is fully credible, her testimony regarding her lack of knowledge that accessing files would destroy metadata embedded within documents on her portable devices is credible. Such metadata evidence is not obvious to non-computer professionals.").
53. United States v. Scully, No. 10-CR-593-DAE, 2014 WL 6674090, at ·1-5 (W.D. Tex. Nov. 24, 2014) (At a status conference, "the Government stated that it had begun a review of metadata on documents contained in files in Defendant's hard drive and that it believed this information might be used at trial. According to Defendant, the Government stated that Defendant's counsel had been put in an 'ethical box in proceeding to trial, as a cloud now existed over Defendant's introduction of any business record, as well as any witness examination conducted by Defendant's counsel' . . Defendant contends that the Government's delay on account of the metadata evidence was unreasonable. In support, Defendant points to the fact that the review of the metadata did not yield a significant cache of new information. Additionally, Defendant argues that this review constituted unreasonable delay because the Government had previously reviewed the metadata on Defendant's computer. Defendant argues that because the Government was wrong that there was additional metadata evidence, the continuance was unnecessary. However, Defendant's argument ignores the fact that the Government had a reasonable belief based on its review that there would be additional metadata evidence in the files. Additionally, although Defendant argues that the Government had previously reviewed the metadata, the Government contends that on March 19, 2014, an agent noticed that there was metadata in 'letter .doc' that indicated that certain exhibits may not be entirely as they appear. The Government argues that it had a duty to bring this to Defense counsel's attention, which led to the continuance. The Court will not dismiss a prosecution because the Government and [sic] fulfilled its ethical obligations to this Court and pursued a reasonable theory that could have had significant implications in the case.").
54. Gary Craig Kessler, "Judges' Awareness, Understanding, and Application of Digital Evidence," 4 Ph.D. Thesis, Nova Southeastern University (2010) ("Metadata in a Microsoft Word document include the name of the person who ostensibly registered the product. Unless that information is deliberately deleted or altered, the name will appear in every document generated by the Office application. A judge might erroneously conclude that the metadata in a given document conclusively proves that the named person is the actual author.").
55. State v. Ratliff, 2014 ND 156, ¶ 43, 849 N.W,2d 183, 196, reh'g denied (Aug. 28, 2014).
56. Id. at ¶ 41, 195 (citing N.D.R. Prof. Conduct 1.1.).
57. Id. at ¶ 41, 195-196.
58. Concurrent Session: Restoring and Saving Electronic Data in Bankruptcy, 080416 ABI-CLE 195 (August 4-6, 2016) ("Original Writing Rule: An unresolved issue given the existence of metadata, what is the 'original' of a digital writing, recording, or photograph? Is it only the 'readable' portion on the computer screen when the digital document is open? Or does the 'original' include all the underlying metadata? Probable resolution: The 'top view' version (or the version that is customarily viewed) constitutes the 'original.' The underlying metadata is likely not required."); Hon. Paul W. Grimm et al., "Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information," 42 Akron L. Rev. 357, 416 (2009) ("To date, courts have not had to resolve the relationship that metadata has to the screen-readable version of a document in the context of the original writing rule. Expressed differently, is the metadata part of the 'original' of the document under Rule 1001(3), or only the portion that is 'readable by sight' when the document first is opened?").
59. Dalton v. Com., 64Va. App. 512, 523, 769 S.E.2d 698, 703-704 (2015) ("it is readily apparent that text messages fall within Rule 2:1001(1)'s broad definition as they consist of letters, words, and numbers set down by electronic recording. Notably, other state and federal courts, applying similar rules of evidence, have also determined that text messages constitute writings for the purposes of the best evidence rule.").
60. Hon. Paul W. Grimm et al., "Back to the Future: Lorraine v Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information," 42 Akron L. Rev. 357, 417 (2009).
61. Hudson v. Leavenworth Cty. Sheriff's Office, No. 14-CV-02065-JAR, 2015 WL 6738681, at ·1 (D. Kan. Nov. 4, 2015) ("Plaintiff objects to the affidavit of Major Jeff Dedeke, which states that Major Dedeke used metadata from photographs taken on February 27, 2013 in the investigation of Plaintiff. Plaintiff argues that the affidavit and the photographs with metadata violate the best evidence rule, but does not provide a basis for application of the rule. Major Dedeke describes the metadata in his affidavit and how he used the metadata in his investigation. Defendant does not offer the affidavit to prove the contents of the original photographs, but to explain the use of the photographs in the investigation. Thus, the Court finds that the affidavit does not violate the best evidence rule."); Michael Bandler, MB & Co. Ltd., dba Michael Bandler and Company, Plaintiffs-Counter Defendants-Counter Claimants-Appellants-Cross-Appellees, v. BPCM NYC, Ltd., BPCM Worldwide, Ltd., BPCM LA, Ltd., Blue Stripe, Ltd., Carrie Ellen Phillips, Vanessa Von Bismarck, Ali Froley, Laura Woodward, Defendants-Counter ClaimantsCounter Defendants- Appelle es-Cross- Appellants., 2015 WL 4064938, 15-16 (2nd Cir. 2015) (Appellate Brief) ("Bandler testified that he drafted the purported subsequent contracts on his home computer. Bandler destroyed the versions he drafted, having failed to produce a copy of either of the purported subsequent agreements (including the Purported Agreement) from his home computer. (Bandler testifies that the Purported Agreement no longer exists on his computer); (Bandler responds to request for metadata of the Purported Agreement by objecting to form and stating he has none); To be clear, the Purported Agreement never existed. But to the extent it did exist, by Bandlers admission, he destroyed the only copy of it, and permanently deleted the metadata from his home computer. Thus, Bandler's claims should also be precluded by the Best Evidence Rule.") (internal citations omitted); In the Matter of Madonna Constantine, PetitionerAppellant, v. Teachers College and the Trustees of Teachers College of Columbia University, Respondent-Respondents., 2011 WL 12464557, 21-22 (N.YA.D 1 Dept. 2011) (Appellate Brief) ("Respondents-Respondents' attempt to dismiss Dr. Constantine's best evidence rule argument fails. As this was a plagiarism controversy, Teachers College should have been exploring who authored their works first from the very beginning of the controversy. Since the Accusers used computers to create their works, the best evidence of creation dates was in the Word metadata reposed on the computers used by the Accusers. Neither HHR nor FAC cited to any metadata from the Accusers' works to establish when they were created. The HIR Report admits that Dr. Constantine was not given any evidence of the time of creation of the Accusers' works. It was arbitrary and capricious to ignore that HIR failed to present any electronic evidence of the time of creation of the Accusers' works. It was also arbitrary and capricious for Teachers College and the FAC to ignore the repeated requests by Dr. Constantine to see the electronic evidence of when the Accusers authored their works, since priority of authorship was the most important issue in the plagiarism controversy.").
62.Russell v. Citigroup, Inc., No. CV 12-16-DLB-JGW, 2015 WL 9424144, at ·3 (E.D. Ky. Dec. 22, 2015) (In response to claims that Citi failed to compensate phone representatives for preshift work "began phasing in the Collections Time Tracking System ... which tracked when a phone representative hit control/alt/delete on their computer keyboard and fed that time stamp into NATA [North American Time and Attendance]. Citi maintains that it did not alter its position on the definition of work-related activities or the importance of recording all time worked. It simply sought to re-train employees and managers in appropriate timekeeping practices and enhance the accuracy of the data collected.").
63. Andrew Guthrie Ferguson, "The Internet of Things and the Fourth Amendment of Effects," 104 Cal. L. Rev. 805, 873 (2016) ("in the context of the Internet of Things, the contacts-content distinction largely blurs. First, the line between data and metadata in the context of billions of connected things becomes vanishingly thin. Metadata can reveal personal information just like content.. in many ways the Internet of Things is really the 'internet of metadata' with the collection of data trails being so ubiquitous and constant that their creation maps our lives."); Omer Tene, "A New Harm Matrix for Cybersecurity Surveillance," 12 Colo. Tech. LJ. 391, 392 (2014) ("Legal distinctions between communications content and metadata; interception and access to stored information; and foreign intelligence and domestic law enforcement do not necessarily reflect the existing state of play of the Internet, where metadata may be more revealing than content, storage more harmful than interception, and foreign and domestic intelligence inseparable.").
64. Liang v. AWG Remarketing, Inc., No. 2:14-CV-0099, 2015 WL 8958884, at ·9 (S.D, Ohio Dec. 16, 2015) ("The Court also considers Evidence Code 412, which provides that, 'If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfying evidence, the evidence offered should be viewed with distrust.' By the simple expedient of providing metadata for the documents in question, Plaintiff could conclusively have put to rest the dispute about their date of creation. Instead, notwithstanding that the Plaintiff was well aware of Defendants' pointed attacks on the provenance of these documents, Plaintiff elected to rely solely on the wholly unreliable record, including contradictory testimony under oath. The Court rejects any contention that the metadata is protected by the attorney-client privilege. Plaintiff's attorney Mr. Goodman provided a sworn declaration to the Court testifying as to the creation of these documents. The moment he did so, any attorney-client privilege specifically pertaining to the creation of those documents was waived.").
65. Linnebur v. United Tel. Ass'n, Inc., No. 10-1379-RDR, 2011 WL 3490022, at ·2 (D, Kan. Aug. 10, 2011) ("Defendant maintains producing many of these documents in PDF format is sufficient and that Plaintiff is charged with explaining why she requires production of the ESI in native format. Plaintiff, however, has done so: She contends the timing of her termination is a key issue in this case and the metadata in the requested documents contains vital information about the author, creation date, and history of each. She argues this information is central to establishing the timeline of events that led up to her termination and is not present in the PDFs produced by Defendant. . Plaintiff's motion to compel is granted with respect to the requested ESI.").
66. Hon. Peter M. Lauriat, et at., 7:9. Electronic discovery-Issues regarding metadata, 49 Mass. Prac., Discovery 7:9 ("Inclusion of metadata is one of the primary ways in which production of ESI differs from hard
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