Change to the Civil Procedure Rules brings issue of
metadata to the fore
Almost a year after the Commercial Court first addressed e-disclosure, the Civil Procedure Rules have been amended to tackle the issue in civil matters. In most respects, the new supplement to the practice direction for Part 31 (effective from 1 October 2005) mirrors the Commercial Court Guide:
- It confirms that the definition of a document in Part 31.4 includes email and other electronic communications, word processed documents and databases and, importantly, metadata.
- It requires parties to discuss searches for and preservation of electronic documents prior to the first Case Management Conference, including the format for producing for inspection.
- It sets out what will constitute a reasonable search of electronic sources for standard disclosure.
Eagle-eyed practitioners will however spot that the statement included in the Commercial Court Guide – “in most cases metadata is unlikely to be relevant” – has been omitted from PD31. This is already causing discussion in the profession amid concern that the difference, whether a deliberate decision or accidental omission, will lead to disputes amongst parties as to whether metadata is or is not disclosed.
There ought not to be any confusion - given most cases will turn on what a document says, not who wrote it or who has seen it, metadata will normally not be disclosable. However, practitioners and judicial case managers need to recognise that while it may not be necessary to explicitly disclose metadata, removing that metadata from the documents that are provided by way of inspection can have significant time and cost implications. With metadata, millions of documents may be searched in seconds. Without metadata, the bulk of search functionality is lost, meaning the same review can take many, many more hours and cost far more, which is surely not in keeping with the CPR imperative that cases be dealt with expeditiously and fairly.
As such, an argument for removal is more likely to be a tactical device than anything to do with relevance and proportionality, particularly given capturing and producing metadata will usually incur no additional expense:
- Native format – metadata is an embedded part of an electronic document so excluding it will take more time and cost than leaving it in if files are to be disclosed in native format.
- TIFF – TIFF images need ancillary load files that recreate the metadata and text in order to make them searchable. If a law firm has used a TIFF-based review solution then it will already have load files that can be provided to the other side to facilitate their own expeditious inspection.
- PDF – e-disclosure solutions that use PDF capture the metadata within the PDF, at no extra cost.
And for those that say that disclosing irrelevant metadata exposes their client to a risk that the other side may find something prejudicial in the metadata, the answer of course is that if it is prejudicial then it was disclosable in the first place.
