The Litigation of Metadata: Your Devices Are Watching You

By using our smartphones, tablets, and computers, we create and exchange a vast amount of electronic data every day, but what some may not know is that there is a whole other world of information hidden beneath the surface — “metadata.”  In this article, we look into the hidden world of metadata and provide some practical considerations for anticipating and addressing metadata-related issues in litigation.

What is Metadata and Where is it Stored?

Metadata is information that is not readily apparent from the face of an electronic file. [1]  Described broadly, metadata is “data which provides information about other data,” [2] and from a legal standpoint, metadata can be generally defined as, “evidence, typically stored electronically, that describes the characteristics, origins, usage, and validity of other electronic evidence.” [3]  Whenever an electronic file is created (e.g., documents, pictures, videos, music, etc.), metadata automatically attaches to that file and can reveal critical information, including but not limited to: the identity of the author, the type of device it was created on, the date, time, and location of creation, the number and identity of people who viewed the file, and whether any previous versions of the file exist.

Different file formats have different metadata and while some metadata is readily viewable, other metadata may be hidden or even encrypted, making it difficult to retrieve. There are three general categories of metadata: (1) Embedded Metadata, (2) System Metadata, and (3) Application Metadata. Embedded Metadata, as its name implies, is data entered into a file that is not normally visible, such as formulas in an Excel spreadsheet. [4] This data may only be available in a file’s original format, meaning it may not travel with the file if it is copied or converted to a different format such as a PDF. System Metadata refers to a computer’s storage system and is used to identify where files are located on the hard drive as well as the file’s name, size, and usage. [5]  Application Metadata is data created by a specific application and is located within the file itself. [6]  This type of metadata is generally the most useful in litigation because it can include information such as the author’s name; the date and time it was created, edited and/or accessed; and whether any previous versions of the file exist. [7]

In sum, metadata is data that is automatically created and saved when a person generates data on an electronic device or medium, such as a smartphone, tablet, computer, digital camera, CD, or flash drive (among others). This metadata can reveal critical information about an electronic file including, but not limited to, who, what, when, where, and how the electronic file was created, edited, printed, accessed, received, and sent.

Why Does Metadata Matter in Litigation?

Metadata and electronically stored information (“ESI”) have become increasingly important in litigation over the last two decades, especially in commercial litigation, product liability and trademark cases. Consequently, the days of simply preparing and producing a paper file in discovery (i.e., the formal process of exchanging information between parties in preparation for trial) [8] have long since passed. Today, requests for production of metadata and ESI are now commonplace in discovery, which is why attorneys, and their clients, should work together from the outset of a case to (a) determine whether any metadata exists, (b) evaluate whether the metadata is relevant to the pertinent issues in the case, and (c) ensure its preservation for trial.

One of the most important roles metadata can play in litigation is its impact on the credibility of evidence — both a witness’s oral testimony and documentary evidence — as metadata can be used to attack the credibility of a witness or a party’s evidence, or it can be used to positively reinforce proffered evidence. Notably, a very common usage of metadata is to confirm whether a specific document was backdated to appear that it was created at an earlier time. In SPV-LS, LLC v. Transamerica Life Ins. Co., metadata revealed that an agreement “purportedly signed” on one date was not created until nearly a year later — and two days before being presented to the Court, which entirely negated the argument of a party. [9] In North American Medical Corp. v. Axiom Worldwide, Inc. the Court found that North American had demonstrated a likelihood of success on its trademark infringement claims against Axiom due primarily to Axiom’s use of North American’s trademarks in its website metadata, which Axiom had used to enhance its search engine optimization. [10]

In addition to an individual file’s metadata, system metadata contains information about the creation or usage of a file that can also be extremely impactful in a case. Federal Court decisions have identified certain types of system metadata such as geolocation, privacy settings, and cell site location information (“CSLI”) as relevant in specific matters. For example, CSLI is a type of metadata that is automatically created every time a cell phone connects to the nearest cell tower.  Each time a cell phone connects to a cell tower, the time and duration of that connection is recorded by the cell phone service provider, which can provide valuable information about a party that is material to a case. In United States v. Goldstein, the Third Circuit Court found that CSLI can be a relevant and admissible type of metadata as it “can provide a detailed log of an individual’s movements over a period of time.” [11]

In sum, metadata can, and often does, play a significant role in litigation as it can be used to test the veracity of an opponent’s evidence and theory of the case, or it can be used by a party to support its evidence and ultimate position. As a result, it is imperative that parties to litigation work collaboratively with their counsel to identify and preserve metadata that is relevant to their case.

Is Metadata Discoverable and Admissible in Litigation?

Metadata is both discoverable and admissible, however whether it may be admitted into a particular case is subject to analysis on a case-by-case basis. The Federal Rules of Civil Procedure do recognize the discoverability of metadata, as do many states, and parties to litigation have the ability to request that their opponent produce certain metadata.[12] The hurdles that a party must overcome when requesting the production of metadata are relevancy and proportionality.[13]  Metadata is generally relevant when the process by which a file was created is in issue in the case or if there are questions concerning a file’s authenticity. When assessing proportionality, courts will determine whether the metadata is essential to the issues in the case and will consider the time and the costs associated with its production, which can be burdensome in some instances. As a result, even if a party’s request for production of metadata is granted, the court may require the requesting party to cover the costs associated with such production.[14]

The most common challenge that a party will encounter in the admissibility of metadata involves authentication (i.e., producing evidence that the data is what the party claims it to be).[15] In rare instances, metadata may be self-authenticating, meaning that no additional evidence is required for it to be admitted.[16]  But, the most common ways to authenticate metadata include (a) presenting lay or expert witness testimony, (b) identifying unique characteristics of the metadata, or (c) producing evidence that the application or system output is known to be reliable, such as a time-stamp. However, even when “date and time stamps are deemed authentic, [a party] may still elicit and present evidence regarding metadata reliability and accuracy.”[17]

Conclusion

It is important for attorneys and their clients to recognize that any document created by electronic means can leave a trail of potentially relevant and admissible evidence. Metadata can contain a vast amount of information that has the ability to significantly impact virtually any type of case.  When a party to an existing or impending lawsuit has possession or control over metadata that is relevant to a dispute, the party should consider: (1) its duty to preserve relevant metadata and the costs (or other issues) that might be associated with identifying and preserving metadata for the case; (2) ensuring that its proprietary and privileged information is not contained in the metadata; and (3) potentially negotiating with an opposing party in an effort to limit the types of discoverable metadata in litigation or, if necessary, seeking a protective order from the court. As technologies grow and change, the quantity of metadata for every aspect of electronic information will exponentially develop, and it is critical that litigation counsel and their clients understand the importance of metadata in their cases.

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[1] Susan R. Gering, Electronic Health Records: How to Avoid Digital Disaster, 16 Mich. St. U. J. Med. & L. 297, 306 (2012).

[2] United States v. Wehrle, 985 F.3d 549, 554 (7th Cir. 2021).

[3] Craig Ball, Beyond Data About Data: The Litigator’s Guide to Metadata, at 1 (2005).

[4] 126 Am. Jur. Proof of Facts 3d 281 (Originally published in 2012).

[5] Id.; Jeffrey L. Masor, Electronic Medical Records and E-Discovery:  With New Technology Come New Challenges, 5 Hastings Sci. & Tech. L.J. 245, 252 (2013).

[6] Id.

[7] Id.

[8]  American Bar Association, How Courts Work, at 1 (Nov. 28, 2021) available at: https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/#:~:text=This%20is%20the%20formal%20process,what%20evidence%20may%20be%20presented.

[9] 912 F.3d 1106, 1114 (8th Cir. 2019).

[10] 522 F.3d 1211 (11^th Cir. 2008).

[11]914 F.3d 200, 202 (3rd Cir. 2019).

[12] See Fed. R. Civ. P. R. 34(a).

[13] See Fed. R. Civ. P. R. 26(b)–(c).

[14] For example, in Aguilar v. Immigr. and Customs Enf. Div. of U.S. Dep’t of Homeland Sec. the court required supplemental production of certain non-email documents with metadata but ordered the moving party to bear the costs because the documents had previously been produced in a searchable format. 255 F.R.D. 350, 360–62 (S.D.N.Y. 2008)

[15] Under Rule 901(a) of the Federal Rules of Evidence, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

[16] See Fed. R. of Evid. 902(11).  Rule 902(11) is based upon proof that the evidence has resulted from a regularly conducted business activity, such as recordkeeping.  However, this is limited to situations where the metadata is offered to prove the existence of an electronic record, not its content. See United States v. Hunt, 534 F.Supp.3d 233, 254 (E.D.N.Y. 2021).

[17] Tamares Las Vegas Properties, LLC v. Travelers Indem. Co., 586 F. Supp. 3d 1022, 1030(D. Nev. 2022).