The following is Part VI in a multi-part series on how to draft and leverage an ESI protocol in any litigation. Part I of our series discussed the When, How and Why in planning for and creating your ESI protocol. Part II addressed the Key Components of an ESI Protocol, Part III walked through the Top 10 Situations You Can Avoid with a Protocol, and Part IV discussed Planning for the Production of Social Media. Part V covered the importance of including Manner of Production in your protocols.
In conjunction with this series, eDiscovery Assistant has created a new section in Checklists and Forms titled ESI Protocols that will include new content with each part of this series. That section includes sample ESI protocols, checklists on what to include and a list of metadata fields for inclusion in your protocol.
Two issues drive the complexity of dealing with electronically stored information (ESI): the sheer volume of data available and the various technologies on which the data resides. The volume of data means that you need to be able to filter it, sort it in multiple ways and organize it effectively. Linear review of thousands of documents, not to mention hundreds of thousands or millions, just isn’t practical anymore. New platforms where data resides mean we have to keep learning what is available from them and how to get it — think Slack, Teams, WhatsApp, TikTok, etc. Those platforms have all kinds of metadata to allow you to filter and use the data, but you have to know it’s there, what you can use it for and how to ask for it.
Luckily, the last ten years have been a technological revolution in the legal tech space that provides us with the tools to understand what is in a set of data (whether a production, or data from your client) much more effectively. But to use that technology, you need metadata. The information about the information. Metadata is what allows you to use technology to help you understand what you have in those thousands or millions of documents.
The first step is getting it. That’s what we are talking about today — asking for metadata in your ESI Protocol.
Generally, a request for metadata and a specific listing of metadata fields to be provided is included in either the Form of Production section of your ESI protocol, or as part of an Appendix to the protocol that lays out the specific file types and other issues to be provided as part of the production of ESI. The more complicated the Form of Production, the more often I use an Appendix to set it all out. (We’ll cover Form of Production separately in another installment in our series.) You can, however, include a request for metadata in the instructions with your Requests for Production if you don’t have a protocol in a case.
When requesting metadata there are some key points to make sure are covered:
- Provide that the metadata (and any coded) fields that can be extracted will be provided for each document.
- Include language that says the parties do not need to manually code any of the metadata fields that cannot be extracted, generally with the exception of Begbates, Endbates, BegAttach, EndAttach and Custodian. Those fields are not extracted, but generated by the review platform when you run a production — BegBates is the beginning Bates number of a document, BegAttach is the beginning Bates number of an attachment, etc. Those need to be populated as fields and produced.
- You can also provide delimiters for the metadata file that allows for your review platform to match the data to the same field in your review platform and allow for easy loading. If you don’t know the technical aspects of this, ask your project manager. It varies slightly by review platform.
- Reserve the right to request additional metadata fields as necessary in discovery. This comes in handy if you forgot about a source of ESI that has specific metadata fields like social media (URL, account name, etc.)
- Include a table with the Field Name and Description of each metadata field that will be provided. Here’s an example:
Now I hear your question about the title of this post. Why do I really need metadata in my life? Because you have no idea the wealth of information and relationships you can show between the documents you have using metadata. The AI and concept analytics tools that you know about are based entirely off of metadata (and extracted text). Brainspace, NexLP, Nuix, etc. are all looking at metadata to create relationships between the data that allow you to see how the puzzle pieces that are your documents fit together.
Here are a few examples of how you can use metadata in cases to get to information quickly:
- To get ready for a deposition when you receive a production immediately beforehand, prioritize what you look at by creating a search using Custodian and the To/From/BCC/CC fields for that deponent;
- While reviewing that set of data for a deponent, identify names of attachments or other parties that may have a role, then set up new metadata searches based on what you learn;
- Use date fields to sort documents in date order to review chronologically;
- Tag all the documents you find from the first two sets into a deposition notebook for that deponent, then have them sorted chronologically to create a timeline of the deponent’s involvement;
- Use audit log metadata to determine when a party last accessed a system — this is often used in investigating departed employees or potential theft of trade secrets matters;
- Use specific metadata fields to identify whether a group of people fall into the same class;
- Visualize a diagram of interactions between witnesses and dive into how many documents are exchanged between witnesses, what they say and the dates
I could go on for pages. The truth is that we use metadata to determine scope for meet and confer negotiations, determining preservation and to answer so many questions that come up in litigation. Didn’t preserve a witness? See how many documents are available to/from/cc/bcc to that witness and find out whether you have produced data from that witness, just from a different custodian — e.g. If Mark and Jane talk continuously, and you produce all of Mark’s data but not Jane’s, it’s likely that most of Jane’s data has been produced.
Metadata is my happy place when it comes to knowing what information you have in your documents. And since civil cases are won and lost on the documents, it’s pretty logical that you want metadata in your life.
So go and get it! Then drop me a message and let me know how you use metadata to get answers in your cases.
You’ll find a list of metadata fields to request based on the sources of ESI you need included in our ESI Protocols section of Checklists and Forms in eDiscovery Assistant. In Part VII of our series, we cover why form of production is crucial and what to include.