Metadata is NOT an Excuse to Make Your Lawsuit More Expensive

June 18, 2019
Brandon S. Harter

All digital evidence, whether emails, computer files, or text messages, comes with metadata. Metadata is nothing more than “data about data,” i.e. things your phone or computer keeps track of about a digital file. Some of the most common examples are the “last accessed date” (when a file was last opened) and its “creation date” (when a file was first created).

Great, so metadata exists. So what? I get this question all the time. Particularly from opposing counsel when I’ve demanded that he or she reproduce a set of documents with metadata, usually after he or she has already provided a PDF copy. But I’m not asking for metadata in a fit of gamesmanship or to drive up litigation costs. I do it because metadata can be as valuable as the content itself.

Here are a few examples of when the metadata, not the contents itself, have saved the day:

  • In an employee whistleblower case, a negative performance review was shown to be created in July (after he complained) not in April as claimed by his employer.
  • In an inheritance dispute, the primary residence of the deceased person was established using the metadata in his social media posts which showed where he was when the posts were made.

The metadata can also bolster other testimony. For example, what if two witnesses appear with different “printouts” of the same text message chain? The one who preserved that information with time and date metadata will be much more persuasive in establishing his or her version is the correct one.

I will continue to ask that documents be produced with metadata as expressly authorized by Pennsylvania’s discovery rules. And I will repeat the request even after PDF copies have already been provided. Not because it increases the cost. Because metadata has proven to be a valuable tool in many cases.

Brandon Harter is litigator and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School and advises clients on issues of Civil Litigation & Dispute ResolutionMunicipal Law, and chairs the firm’s Tech Law Group.