Metadata and E-discovery: A Separation Agreement Worth Enforcing

Don’t expose your secrets in your electronic documents

Posted by Dawn Lomer in on July 9th, 2013

E-discovery can provide valuable information that’s crucial to a case, but sometimes the parties in a dispute give away much more than they intend to in their electronic documents. The culprit is metadata, the information embedded in electronic documents that tells the who, what, when, where and how behind each document.

“Metadata became a big issue about eight years ago,” says Christopher Rosetti, CFE, CPA and Partner – Fraud Investigations, BST. With the advent of electronic discovery, when counsel was exchanging documents with the opposing counsel – specifically evidence, electronic reports and electronic documents – they were potentially leaking sensitive data, he explains. Electronic files can contain a history of all the people who have made changes to a file, when they were made and on what computer. Sometimes these details can reveal far more than the document should and could be used by opposing counsel.

Danger of Track Changes

One particularly dangerous practice is to exchange Microsoft Word documents in which “track changes” has been used. Changes that were not accepted are visible in the document. “If you’re exchanging draft portions of reports you can see where changes were made, if you used track changes” says Rosetti. This could include exculpatory evidence.

Notes and comments buried in electronic documents can also reveal far too much. Document creators sometime input extremely confidential information, without thinking that the documents will be exchanged during e-discovery. “Opposing counsel could get that and can use it against them to fortify their case,” says Rosetti.

The Law Catches Up

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Sometimes during e-discovery parties are entitled to get everything so they just copy every document, then find derogatory comments in electronic spreadsheets or PowerPoint documents, points out Rosetti. But even if the comments could be useful, they can’t always be used.

“There have been a lot of federal and state laws passed now that say that if you’ve inadvertently given something that is confidential and unrelated to your case, you have to advise the other counsel and give it back. You can’t use it in the case,” says Rosetti.

Don’t Give Away Secrets

Rosetti provides some best practices to follow when exchanging electronic reports during a case. “Once you have your final draft or report, you print it off, photocopy it, and scan it and destroy the other reports,” he advises.  “And the scanned copy goes in your electronic files as a pdf and there’s no metadata.”

But Let the Criminals Give Away Theirs

The positive side of the metadata issue, as I wrote about last week, is that many fraudsters don’t realize how telling their documents are, be they text files, web pages, invoices or spreadsheets. The savvy investigator can gain a lot of insight, and sometimes damning evidence, if they know how to read between the lines, so to speak.

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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