While attorneys have many tools to assist in taking and defending depositions, often underutilized is a file’s metadata. Many attorneys are unfamiliar with metadata, and therefore unable to take advantage of an exhibit’s metadata during offensive and defensive depositions. To best represent a client’s interests, attorneys need to understand metadata and how it may be prepared and used in depositions.

The Federal Rules of Civil Procedure (“FRCP”) and California Code of Civil Procedure (“CCP”) entitle parties to the metadata of produced files. FRCP Rule 26 entitles a party to an inspection of metadata: “[A] party must, without awaiting a discovery request, provide to other parties…a copy—or a description by category and location—all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.”ⁱ Under CCP section 2031.280(a), any “documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.”ⁱⁱ As applied to metadata, CCP section 2031.280(d)(1) states that unless the parties otherwise agree, metadata should be produced in the form which it is ordinarily maintained or in a form that is reasonably usable.ⁱⁱⁱ In practice, documents are often produced as tiff or jpeg images with an accompanying load file that lists each document or file’s corresponding metadata.

Metadata is data that gives information about other data. Metadata is “information stored within a document that is not evident by just looking at the file. It is an electronic ‘fingerprint’ that automatically adds identifying characteristics, such as the creator or author of the file, the name of individuals who have accessed or edited the file, the location from which the file was accessed, and the amount of time spent editing the file.”^iv Each computer or digitally generated file contains self-generating metadata unique to the file. For example, within typical computer applications, such as Microsoft Word, Excel, and PowerPoint, each time a user creates, opens or saves a file using these applications, hidden metadata is created and stored within the document—data that your client may not want the adverse party to recover.^v

Attorneys should be most familiar with two types of metadata: structural and descriptive metadata. Structural metadata is data that indicates how a digital asset is organized. Structural metadata, “indicates whether a particular asset is part of a single collection or multiple collections and facilitates the navigation of information in an electronic source.”^vi Think of page numbers, sections, chapters, or table of contents in a book as examples of structural metadata. Each of these provides details of a part of the book that would help a reader identify specific parts of the book—a chapter, a page or a section of the book. Descriptive metadata can be the most robust of all types of metadata, as it entails any information describing the file or document.^vii The most common examples of descriptive metadata of a produced file are the file’s subject, genre, author, or creation date. Both structural and descriptive metadata can be very helpful to attorneys.

With the abundance of information contained in each file’s structural and descriptive metadata, attorneys are currently using metadata to help streamline civil litigation and investigative document reviews through discovery review platforms, such as Relativity and Concordance. Metadata plays an integral role in these review platforms. Without metadata, documents cannot easily be sorted by sender, author, etc., and Technology-Assisted-Review would not provide the enhanced searching, processing, and production capabilities that electronic discovery practitioners have grown to love.^viii While attorneys have long understood the value added by using metadata to assist on document reviews, little has been done to advocate for the usage of metadata throughout additional stages of litigation, specifically for use in depositions.

Within civil litigation, a deposition is a witness’s sworn, out-of-court testimony. FRCP Rule 30(a)(1) entitles a party to depose any party to a matter or a non-party.^ix Within California, CCP section 2025.010 grants the parties the right to obtain discovery by taking the oral deposition of any person, including any party to the matter.^x Once a deposition has been noticed, there are two main types: an offensive deposition and a defensive deposition. In an offensive deposition, an attorney deposes a person or party, while in a defensive deposition requires an attorney to represent the party being deposed. Depending on the type of deposition, an attorney will have different goals. During an offensive deposition, an attorney may seek to establish key facts or witness credibility, lock in the testimony of a deponent, preserve the testimony of a witness that may be unavailable at trial, or lay the groundwork for impeachment. During a defensive deposition, an attorney may seek to establish on the record objections, attack the credibility of evidence, or lay the groundwork to question critical facts. Depending on the type of deposition, exhibit metadata can help advance an attorney’s goals and objectives.

Before exhibit metadata may be used in a deposition, it must be appropriately prepared. To prepare an exhibit’s metadata, an attorney should coordinate with either their litigation support department, case team, or outside vendor to prepare exhibits with corresponding metadata to immediately follow the exhibit for easy access and introduction during a review. Often, successful preparation of an exhibit’s metadata will entail printing and placing the exhibit’s metadata behind an exhibit within the deposition binder for attorney review and use. Once reviewed, attorneys should then integrate the exhibit’s relevant metadata fields within the deposition outline for introduction during the deposition. For anticipated contentious deposition topics, an attorney may have the descriptive metadata listed to eliminate or minimize elusive deponent responses.

Depending on an attorney’s specific deposition goal, an attorney should weave the usage of metadata into their questioning. The following are different objective-driven examples of approaches utilizing an exhibit’s metadata during a deposition:^xi

Example 1: If the goal is to utilize the metadata to establish a record for who may introduce evidence at trial, weave the metadata into the examination.

Q: According to the presentation's metadata, you are the document’s custodian. Now, do you recognize this document?

Example 2: Using evidence’s metadata to establish timelines during a deposition.

Q: The produced document has a last modified date in the metadata of March 8, 2019. Do you agree?

Example 3: Using evidence’s metadata to attack the credibility of presented evidence in a deposition.

Q: You understand what metadata is, correct?
A: Yes.

Q: How metadata tells you who was the last person to edit a document, who drafted a document, when the document was last saved, and so on?
A: Yes.

Q: If the metadata for Exhibit 721 read that you were the author of the document, would you have any reason to question that?
A: No.

Example 4: Using metadata as a concept to attack the credibility of presented evidence in a deposition.

Q: And you agree that a file’s metadata may be rapidly updated, right?
A: Right.

Q: And that includes the metadata for the last accessed field, correct?
A: Correct.

Q: Last accessed field can be sensitive, correct?
A: It is uh – it may be sensitive.

Q: And would you agree that the system-automated processes may update last access times?
A: Yes.

Q: Such as a memory clean-up program?
A: Correct.

As you can see, using evidence’s metadata can only strengthen the presentation of a client’s position during a deposition. To best represent a client’s interests, attorneys must grasp how to utilize metadata and how it may be prepared and used in depositions. If attorneys and case teams are consistently evaluating how metadata may be utilized to advance your client’s position, it will become clear how to use exhibit metadata within depositions properly.