Follow the Audit Trail: The Impact of Metadata in Litigation.

Author:Hansen, Mark D.
 
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WITH the ever-changing world of technology and its permeation in nearly every aspect of life, the volume of electronic documents and data created on a daily basis is immense. In 2015, the number of emails sent and received per day supposedly totaled over two hundred five billion. That number is expected to grow at an average annual rate of three percent, reaching nearly two hundred forty-six billion by the end of 2019. The invention of smart phones and tablets have not only increased the number of emails, but caused the use of text messages, social media, and collaboration through cloud platforms such as Google Docs, to skyrocket. It is not surprising that this information is beneficial to litigators involved in business, commercial, personal injury, and family law areas, but the role of electronic devices, electronically stored information, and metadata have also become increasingly important in litigation, specifically medical malpractice, automobile and trucking, product liability, trademark cases and criminal prosecutions, to name a few. Consequently, producing records solely from a paper file located on a shelf or filing cabinet is a relic of a bygone era and practitioners, regardless of their practice area, should make a conscious effort early in every case to determine whether discoverable electronic data and, particularly, metadata exist; assess whether it is relevant to the pertinent issues; and ensure its preservation.

  1. What is Metadata?

    Metadata is information that is not readily apparent from the face of an electronic document (1) Metadata is commonly defined as "data about data." (2) "From a legal standpoint metadata is evidence... that describes the characteristics, origins, usage and validity of other electronic evidence." (3) There are two types of metadata: system metadata and application metadata. (4)

    As the name implies, system metadata relates primarily to a computer's storage information. It is used to identify like where files are located on the hard drive, the file name, size, any modifications to the file, and usage. (5)

    Alternatively, application metadata is located within the file itself. (6) Application metadata is oftentimes most useful to litigation because it can include information such as when a document was created, edited and/or accessed, the documents' author(s), and previous versions of the document (7) For example, Microsoft Word documents contain metadata that "includes the author's name, the name of the computer used to create the file, the last time it was saved, the date it was created, and the creator's company name." (8) This type of data is embedded in the file and updated automatically. (9)

    Documents created on computers are not the only medium in which metadata exists. Digital cameras, CDs, flash drives, and other mediums can also contain metadata. With respect to digital cameras, metadata can include the name of the manufacturer, lens setting, date the photos were taken, and lighting conditions. When the photo is uploaded, the computer will then create additional metadata regarding that photo. As for CDs and other mediums containing music, metadata can include the date of production, the artist, genre, copyright, and owner. This type of data can be particularly useful in piracy prosecutions.

    In sum, metadata is data that is automatically created and leaves snippets of information behind which can later reveal when an item was created, edited, revised, printed, accessed, tampered with, or produced. Now that we have a general understanding of what metadata is, we will explore some of the different areas of litigation where it can have an impact. Admittedly, the applications set forth below are limited in number because it can impact nearly every area of the law.

  2. What Role Does Metadata Play in Litigation?

    Without question, one of the most important roles metadata can play in litigation is its impact on the credibility of evidence--both oral testimony and documentary. As previously mentioned, metadata is typically created automatically and therefore in some respects can have the same effect as a videotape to show recorded activities. One example is where a physician testifies he created a note in the medical chart immediately after surgery, however, the relevant metadata suggests the medical record was not created until hours or days after the surgery. A one-time occurrence, especially if the note was created close in temporal proximity, is certainly a minor issue and could be easily explained away due to a faulty memory. However, the impact of metadata can present significant problems when it reveals habitual, fraudulent, or tampering activities. Conversely, metadata also has the reverse effect and can reinforce positive evidence, thus causing a party or witness to gain credibility with the fact finder. All things considered, while metadata can also be used circumstantially, at its core, even circumstantial evidence directly impacts credibility. Consequently, metadata's greatest role in litigation may be to test the veracity of an opponent's evidence and theory of the case.

  3. Types of Metadata Available and Their Limitations

    Almost any case can have metadata associated with email and Microsoft Office products such as Word, Excel, PowerPoint, etc. This is particularly true in business and commercial litigation. However, some cases are more unique and involve less common types of metadata. This section will explore some of those areas.

    1. Medical Malpractice

      In the area of medical malpractice, metadata is often created by audit control systems. These systems can show the use and access of a patient's records and the operation of electronic devices that transmit or maintain records. (10) Typically, audit control systems are not part of a patient's medical records, (11) though these systems can provide a wealth of information that would otherwise be unobtainable through the discovery process. (12) The types of system metadata which may be available include audit trails, pop-ups, and preliminary questions and checkboxes that make up a finalized note. (13)

      1. Audit Trail

        "An audit trail is a record of who, when, where, how and sometimes why a person used a computer program or accessed a patient's medical record." (14) As discussed above, this can be useful in substantiating or invalidating witness testimony, such as the actions of physicians, nurses, or technicians, but it is not without its faults. In a rapidly changing environment, such as an emergency room, maintaining accuracy can be challenging. For instance, if a nurse administered medication at 7 a.m., but did not make the note until 7:30 a.m., the medical record would be time stamped 7:30 a.m. and would not be accurate. Similarly, if medical personnel are rapidly changing locations, mistakes can easily be made in the identification of treaters and services performed. While both issues can be easily remedied by timely charting and good practices, if a chart is littered with these types of inconsistencies, significant credibility concerns can arise and one must carefully analyze the circumstances surrounding the content of the metadata before taking it as the truth.

        One such instance occurred in Karam v. Adirondack Neurosurgical Specialists, P.C. (15) There the plaintiff...

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