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7 Colum. Sci. & Tech. L. Rev. 1 (2006)

handle is hein.journals/cstlr7 and id is 1 raw text is: The Columbia SCIENCE AND TECHNOLOGY LAW REVIEW www.stlr.org PRODUCTION, PRESERVATION, AND DISCLOSURE OF METADATA J. Brian Beckham As the use of information technology increasingly pervades every facet of our personal and professional life, legal practitioners are taking increasing notice of the effect that metadata can have on their practice. In particular, the prevalence of metadata threatens to have a dramatic effect on discovery issues, such as document retention and production. This article endeavors to define and discuss the concept of metadata, and then explore how this new category of information will apply to traditional notions of waiver and privilege. It will then highlight several proposals for the discoverability of metadata, and will conclude with a discussion of the ethical implications for counsel in dealing with electronically transmitted documents. I. INTRODUCTION Recently there has been a significant amount of commentary, both in case law and in scholarly articles, on the topic of electronic discovery. For example, the Southern District of New York only just decided the infamous Zublake series of cases,' in which the parties were sanctioned because their counsel did not communicate to their respective information technology (IT) directors that they must preserve metadata (i.e., hidden information in electronic documents about the document), in the face of pending lawsuits.2 Most of the discussion to date, however, has focused on discovery issues, such as document production, retention, sanctions, and resulting The John Marshall Law School, J.D. 2005; LL.M. in Information Technology with honors 2005. For additional information, see http://www.evolutlon.com (last visited Dec. 1, 2005). Soli Deo Gloria. I Zublake v. UBS Warburg LLC, 382 F. Supp. 2d 536 (S.D.N.Y. 2005). 2 See Zublake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), where the court summarized the scope of a party's preservation obligation as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes . . . On the other hand, if backup tapes are accessible . . . then such tapes would likely be subject to the litigation hold. 1

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