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7 Colum. Sci. & Tech. L. Rev. 1 (2005-2006)

handle is hein.journals/cstlr7 and id is 1 raw text is: The Columbia
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.
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.


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