Most companies now understand that all sorts of data on their servers is vulnerable to be dragged into court in the event of a lawsuit. But now it’s their metadata that’s under attack, and the change may mean more trouble yet.

What is metadata? It’s the digital information that gets attached to any email or text document that traces who created the document and when, what (if anything) it was based on, who modified it and when, and how it was routed inside and outside the company.

Think, for example, of a lawsuit that turns on the issue of whether a certain document was reviewed by a senior manager. Consider a fired employee who can demand not only confidential personnel files, but who wrote them and when.

The issue came up in a ruling by the Arizona Supreme Court, which reversed a power court decision that ruled that metadata –- in this case included in public records — not being an intrinsic part of the document, could not be demanded by the plaintiffs along with the documents in question. The higher court stated that the hidden metadata was to be made as available as the regular data.

As one legal expert stated:

“Without knowing when something happened, or who was involved, electronic evidence is often useless –- thus, metadata is critical. Because of metadata’s critical nature, it is generally deemed to be part and parcel of the document it describes – if the document is relevant and must be divulged, then so must the metadata.”

What can and should companies do? The temptation might be to erase metadata in advance (there are tools in Microsoft Office that can). But at least one other case is pending where a company may be in hot water for doing this.

As emails including hastily written text messages become ever more interesting to plaintiffs, expect this whole area of metadata to become an ever-bigger issue. For more on metadata, you might want to check out this legally-oriented report.

Tags: e-discovery, metada