Litigation Support and Electronic Disclosure

Documents, Disclosure Data and Metadata

You would not think it necessary to define any of these terms, but none of them is as clear and unambiguous as you might think.

Once you know that, in litigation support terms, a server might be a "document", that "Disclosure data" is a term of art and not just a loose expression, and that "metadata" has at least three relevant meanings, you might think some definitions worth having.

You might also, I suppose, think back to the good old days when a "document" was one or more pieces of paper filed with others in a ring binder, when the "data" about them was a typed list of documents in the form laid down in the 1965 White Book, and when "metadata" was a mystery which you were content to leave with botanists, geographers and librarians.

The primary purpose of this article is to summarise how all this stuff gets in to the system. I am going to duck, for now, what sort of systems I am talking of, but I should pause for a moment on what "this stuff" is.

Documents

Superficially this seems easy. Part 31 of the CPR defines a "document" as "anything in which information of any description is recorded". So - a piece of paper, a Microsoft Word file, an e-mail message perhaps? Indeed, but a lap-top computer is equally (in dictionary terms) something "in which information of any description is recorded". See my article Sources of Disclosure Documents for a wider comment on this and in particular for the observation that whilst you MUST ask every client, at the outset of every piece of litigation for a list of everything "in which information of any description is recorded", this imposes no new obligations, merely clarifies what has always been true.

For the most part you will know a document when you see one.

Disclosure Data

At one level, this is just an elevated name for a list of documents - factual or descriptive information about documents. In the context of electronic Disclosure, the only extant definition comes from LiST (The Litigation Support Technology Group) who says it is:

Electronic data which identifies Disclosure Documents, including for example the type of Document, the date of the Document, the names of the author/sender and the recipient, and the party disclosing the Document.

The key differentiator between the old and the new definitions is the word "electronic". Electronic Disclosure data can be searched, indexed, refined - and exchanged with others.

Metadata

When the experts start chattering at each other in dog Greek, you know they want to exclude you. Metadata means "information about data" and generally has three sub-classes - descriptive metadata (generally appearing on its face, such as its date), administrative metadata (often not visible e.g. where it came from) and structural metadata (e.g. the instructions for using it).

Used in the context of electronic Disclosure, these distinctions are blurred into one and "metadata" is generally taken to refer to the information which is hidden behind electronic documents.

Such metadata can be extracted from a Word file or a mail message and can often be very revealing - I particularly cherish the commercial agreement drawn up by Large Firm A apparently using a precedent whose metadata showed that it belonged to Large Firm B which was unconnected with the transaction.

In some disputes this can matter very much - how interesting that this spreadsheet was last saved by the MD (who has hitherto denied all knowledge of it) in the office at 02:30 on the Sunday morning when he said he was in bed, in Bradford, with Mandy from Marketing. Whether he is your own client (in which case you may want to take him through his draft affidavit one more time), or the opponent (when you might save it for cross-examination) metadata can occasionally be revealing.

Most of it, however, most of the time, is a waste of good processing time and adds nothing to what you see on the face of the documents. It is another example of the propensity of the experts unwittingly to frighten off the novices by asserting claims for an aspect of Disclosure which is irrelevant to most cases and not particularly frightening when you find it.

I routinely save about 30 items of metadata about an Outlook message and its attachments. This is less than half of what could be extracted, and I generally throw away most of what I do extract. But it is there if needed.

If it is needed, it is empowering and may give you an edge over opponents or, indeed, over your own client. If it is not (and usually it is not) forget about it and do not let its existence put you off the use of electronic disclosure.

Part of the purpose of this site and of my business is to remove some of the layers of mystery and to make electronic disclosure accessible to users with little or no experience of it.

This is one of a series of articles aimed at demystifying the processes of e-Disclosure. The series includes:

Introductory

e-Disclosure for Everyman

e-Disclosure - the basics

Getting started

Detail

The sources of Disclosure Documents

Documents, Disclosure Data and Metadata

Choosing litigation software

Litigation Support Providers

If, meanwhile, you think that I might be able to help you, please contact me.

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