A New York state judge confronted the issue of producing system metadata in a medical malpractice case where the plaintiff had to have a foot amputated due to post surgical complications. Vargas v Lee (Sup.Ct.) 2015 NY Slip Op 31048(U), ¶¶ 3-5. The case is direct and thoughtful on the issue of system metadata.
Judge Gloria Dabiri cited to the Aguilar case that explained, “Metadata, often referred to as “data about data,” is electronically stored information (ESI) that describes the “history, tracking or management of an electronic document” and includes the ‘hidden text, formatting, codes, formulae, and other information associated’ with an electronic document.” Vargas, at *3, citing Aguilar v. Immigration & Customs Enforcement Div. of US. Dep’t of Homeland Sec., 255 FRD 350, 352 [SD NY 2008].
The discovery at issue was the hospital audit trail of the Plaintiff’s treatment. The Requesting Party sought the system metadata associated with the already produced Electronic Medical Records on whether the Plaintiff had proper and timely post-surgical treatment. Vargas, at *4.
Metadata has different “flavors,” specifically, substantive, system, and embedded. Vargas, at *3. The Court noted that the audit trail was “system metadata as it is an ‘automated set of chronological records of system activities that may enable the reconstruction and examination of a sequence of events and/or changes in an event.'” Id. As the Court explained, system metadata is not normally produced unless there is good cause. Vargas, at *4, citing Aguilar, 255 FRD at 353.
The Court did not allow the production of the system metadata, because the Requesting Party did not explain why the system metadata would have added anything more than what was contained in the already produced Electronic Medical Records. Id. Moreover, the Court explained that general statements on timing of the Plaintiff’s care were insufficient to order the production of system metadata. Vargas, at *5.
Bow Tie Thoughts
It is important to know there are different types of metadata. Not all types of metadata are relevant to litigation. However, it is a good argument that embedded and substantive metadata are relevant. System metadata is another creature entirely.
Metadata that allows for litigation support databases to be fully populated with objective information such as To, From, Subject, is free document review. No attorney has to type in that objective information into a database. Acquiring that information empowers litigation review platforms to be searchable, so parties can zero in with searches on what is relevant to the case.
Metadata that contains Excel formulas and track changes is also mission critical in understanding how a party created a “document” relevant in litigation.
System metadata is different. Having the file system pathway is necessary for admissibility, so the authenticity of files can be determined. However, parties seeking system metadata best be prepared to explain why it is necessary for the case.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.