Contemporary Productions And Metadata For 21st Century Disclosures

Tuesday, May 31, 2011 - 00:00

In the following report, Mary Mack, Enterprise Technology Counsel, ZyLAB, offers a summary of a webcast with the above title presented May 3, 2011, which featured expert discussion by Anthony J. Diana, Partner, Mayer Brown LLP, and Craig Ball, forensic technology and eDiscovery expert.

I was privileged to participate in this webcast with Anthony Diana and Craig Ball, both esteemed colleagues and leading experts in eDiscovery. ZyLAB applauds Anthony Diana and Mayer Brown LLP for their dedication to pro bono work, which sets the standard for professional service to non-profit organizations.

The webcast offered a lively and informative discussion of the controversy surrounding a recent ruling by U.S. District Court Judge Shira A. Scheindlin of the Southern District of New York in a Freedom of Information Act (FOIA) case - National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency (NDLON) - involving electronically stored information (ESI) productions and metadata.

Judge Scheindlin's opinion has broad implications for corporate counsel. It will be of particular importance as enforcement of provisions of Dodd-Frank and the Patient Protection and Affordable Care Act (PPACA) gets into high gear. For example, the Dodd-Frank whistleblower provision offers generous cash rewards to whistleblowers and certainly will increase the number of reported incidents leading to litigation.

Corporations must develop, implement and, ultimately, defend internal compliance programs, which will involve an increased demand for eDiscovery productions for litigation and regulatory response. Platforms chosen to support the corporate legal department must be both robust and flexible. Current standards can be changed by the stroke of a pen in a decision like NDLON.

The webcast focused on two main themes. The first explores whether counsel - in any setting, including FOIA, regulatory and employment disputes - can successfully argue that they should not be expected to produce ESI in a form that exceeds their existing production capabilities. Such obligation reaches into the areas of ethical, professional and technological competence and may involve both mandated procedures and, as in NDLON, direct scrutiny by the courts.

The second theme addresses how advances in eDiscovery and information management technology can help corporations establish sound compliance programs, reduce costs and expedite litigation processes from start to finish. The following provides an overview of the topics presented in the webcast, along with commentary on how corporate counsel can maximize technology solutions to manage compliance and, if necessary, to litigate effectively.

In NDLON, Judge Scheindlin outlines how productions should occur and specifies metadata to be included. While NDLON is not the first case addressing metadata, it breaks new ground in addressing the form in which ESI is to be produced and the minimum fields of metadata to be provided in the case of significant productions.

The agency's position in NDLON is problematic for itself and for all other government agencies struggling with FOIA requests and litigation. ICE found itself arguing "technical impossibility" and "irreparable harm" when faced with the same document request production requirements corporate defendants routinely face in DOJ or SEC requests.

The case brings the Freedom of Information Act into the Federal Rules of Civil Procedure, requiring early discussions on format and more cooperation. It will have a huge impact on government agencies and may bring more compassion regarding document productions from the government for those they regulate.

Anthony Diana stated that "government seems to be where many corporate defendants were five to ten years ago in terms of the ability to produce electronic documents. I think the court was shocked at the state of the government's ability to collect and produce electronic documents in the way that Judge Scheindlin perhaps believes should be done - at least in civil litigation. The question is whether the government has to do it in FOIA as well."

During his portion of the presentation, Mr. Diana offered great insight into NDLON, some of which is summarized in the following three paragraphs. For example, the fundamental issues relating more broadly to eDiscovery in this case involve the actual productions and their format, logic and organization. Critical metadata may be missing from productions that consist of redacted PDFs and scanned or unsearchable documents, which may contain references - but not access - to load files or other metadata.

Comprehensive document review requires, for example, the ability to piece together the "parent/child" relationship among a set of emails, ascertain which of them had attachments and understand the temporal flow of complex email threads from beginning to end. When individual emails or attachment files are presented without making these connections clear, parties cannot ingest and analyze information effectively.

Such was the case with NDLON with initial productions and could be the case in any corporate litigation, particularly one involving a government entity. The plaintiff needed to resolve issues of format and production, and submitted its next production request based on standard requests received by Mayer Brown's clients from the SEC and DOJ.

These requests demanded, for example, that the parent/child relationship within email threads be maintained and that Excel spreadsheets remain in native format. The government refused to respond, claiming that the Federal Rules of Civil Procedure do not apply to them and, therefore, that they did not have to produce. At this point, the plaintiff sought assistance from Judge Scheindlin.

At this point in the webcast, we moved to the next presenter and discussion of Judge Scheindlin's opinion. While her opinion takes care to limit its scope to NDLON, it is worth noting how she addresses metadata, as follows: "Whether or not metadata has been specifically requested - which it should be - production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading of the ESI. That is why the Government's previous production - namely, static images stripped of all metadata and lumped together without any indication of where a record begins and ends - was not an acceptable form of production."

Until Judge Scheindlin or another judge rules otherwise, if static images, such as TIFFs or PDFs don't have metadata, they may be deemed unacceptable. Further, her opinion delineated essential metadata fields, though it is not clear if their application is specific to this case.

Craig Ball characterized the specific metadata fields addressed in the opinion as "appropriate core fields," and he noted that "NDLON also breaks ground in its acknowledgement that different forms of ESI implicate different complements of relevant metadata. Metadata is not one 'thing.' Instead, parties must communicate, cooperate and settle upon metadata fields suited to each of the principal forms of information produced, e.g., messaging, scanned documents and productivity files. It's easy, but it's not effortless.

"All of this raises a new and interesting question. Do the rules establish a standard of care and conduct in counsel that must inform their behavior whenever they engage to produce information - not just in civil litigation under the rules of procedure?

"NDLON requires lawyers to re-think outmoded ideas about metadata. Metadata are not 'hidden' data, nor any less evidence simply because we choose to ignore them. Metadata are part and parcel of modern electronic documents. Some essential metadata values are embedded within files, and some are stored outside files.

"Electronically stored information (ESI) has no corporeal existence beyond the systems that store and carry it; consequently, 'system metadata' (such as an item's name, location, timing and origins) are not embedded in files but remain essential adjuncts to the use and integrity of ESI. NDLON suggests we must adapt our evidence handling to the evidence and stop cramming ESI into unsuitable forms, stripped of functionality, searchability and relevant content."

ZyLAB's eDiscovery and information management software products support effective compliance programs and facilitate intelligent preservation and disclosure of ESI. The software automatically extracts metadata - including the metadata fields cited by Judge Scheindlin and dozens more - from the collected files and presents them in a dashboard ready for analysis

Litigation readiness has become a critical goal for corporate legal departments, comprising the need to maximize collaboration between opposing sides, including government entities, and between IT and legal departments. If ESI collection procedures are not specifically geared to preserve essential metadata, then - with virtual certainty - they will result in problems like losing information, such as custodian, path, access and create dates and tracking information across different media.

ZyLAB can help with its modular eDiscovery technology - among few products directly addressing all core nodes of EDRM - that manages all stages of ESI collection, preservation and production. It offers the option to create central repositories to ensure data is preserved completely and in context. Further, the software anticipates the potential impact of Judge Scheindlin's opinion in allowing the capability for users to winnow the data set based on metadata criteria.

Another exclusive capability of this technology is ZyLAB's intelligent auto-redaction, which ensures that confidential information remains private. For corporate counsel, this means reducing risk while still enjoying the cost benefits of automated processing. Users can perform a search on personally identifying information (PII) and batch-redact all hits with custom redactions. Further, the redaction can be transparent so that senior team members can review them first and then permanently burn them in. Likewise, ZyLAB offers FOIA exemption codes - standard, "baked in" codes and custom criteria - that are used in the same manner as privilege codes in traditional eDiscovery.

This case, as it continues to advance through the courts, will shape our production requirements for the entire eDiscovery community. Production requirements will then inform collection and processing requirements. As a company supporting robust, flexible, and groundbreaking eDiscovery software and services, ZyLAB stands ready to help.

To access the slides and audio recording from the webcast, please visit: http://www.zylab.com/ Resources/RecordedWebcasts/ContemporaryProductionsandMetadata.aspx.

Mary Mack is Enterprise Technology Counsel for ZyLAB and an eDiscovery industry leader. She has more than 20 years' experience delivering enterprise-wide e-discovery, managed services and software projects with legal and IT departments in publicly held companies.

ZyLAB's industry-leading eDiscovery and information management technology has been proven in the largest corporate fraud investigations and criminal investigations in U.S. history and in United Nations war crime tribunals.

ZyLAB's feature-rich eDiscovery software is one of few products to address every core node of the Electronic Discovery Reference Model (EDRM) and provides the basis for a defensible methodology. This technology empowers IT and legal departments to efficiently manage the most expensive and tedious elements of litigation in-house with automated tools.

ZyLAB's Pro Bono eDiscovery Services Program supports the pro bono efforts made by law firms, such as those provided by Anthony J. Diana and Mayer Brown LLP as pro bono plaintiff counsel in the subject case of this webcast. To date, ZyLAB has donated more than $250,000 in software and services to war crime tribunals and will continue to partner with law firms and corporate legal departments that are actively engaged in pro bono initiatives. ZyLAB's 2011 Pro Bono eDiscovery Services Program will contribute 1GB of eDiscovery processing services per each 10GB processed for its participating clients.

Anthony J. Diana , Partner, Mayer Brown LLP, focuses his practice on commercial litigation, electronic discovery, internal and regulatory investigations, and bankruptcies. Mr. Diana serves as a co-leader of Mayer Brown's Electronic Discovery and Records Management group.

Craig Ball is a renowned expert in forensic technology and electronic discovery. A prolific contributor to continuing legal and professional education programs throughout the U.S., his award-winning articles frequently appear in the national media.

Please email the presenter at mary.mack@zylab.com with questions about this webcast.