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What Does Metadata Mean? | Ledjit

May 30, 2010 By Leave a Comment

“What does metadata mean?” is a question we get every day and which is answered by looking at electronic documents properties and explaining different types of metadata. We wish to thank United States Magistrate Judge Frank Maas for sharing his explanations in Adriana Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security:

1. Types of Metadata
Metadata, frequently referred to as “data about data,” is electronically-stored evidence that describes the “history, tracking, or management of an electronic document.” It includes the “hidden text, formatting codes, formulae, and other information associated” with an electronic document. The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf (“Sedona Principles 2d” ); see also Autotech Techs. Ltd. P’Ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 557 n. 1 (N.D.Ill.2008) (Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records”). Although metadata often is lumped into one generic category, there are at least several distinct types, including substantive (or application) metadata, system metadata, and embedded metadata. Sedona Principles 2d Cmt. 12a; see United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 25-28, http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf (“Md.Protocol” ).

a. Substantive Metadata
Substantive metadata, also known as application metadata, is “created as a function of the application software used to create the document or file” and reflects substantive changes made by the user. Sedona Principles 2d Cmt. 12a; Md. Protocol 26. This category of metadata reflects modifications to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the document it describes and remains with the document when it is moved or copied. Id. A working group in the District of Maryland has concluded that substantive metadata “need not be routinely produced” unless the requesting party shows good cause. Md. Protocol 26.

b. System Metadata
System metadata “reflects information created by the user or by the organization’s information management system.” Sedona Principles 2d Cmt. 12a. This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. See id. Examples of system metadata include data concerning “the author, date and time of creation, and the date a document was modified.” Md. Protocol 26. Courts have commented that most system (and substantive) metadata lacks evidentiary value because it is not relevant. See Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., No. Civ. 05-74423, 2007 WL 4098213, at *2 (E.D.Mich. Nov.16, 2007); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car Auto Racing, No. Civ. 05-138, 2006 WL 5097354, at *8 (E.D.Ky. Dec.18, 2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). System metadata is relevant, however, if the authenticity of a document is questioned or if establishing “who received what information and when” is important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3 (N.D.Ill. Mar.8, 2006). This type of metadata also makes electronic documents more functional because it significantly improves a party’s ability to access, search, and sort large numbers of documents efficiently. Sedona Principles 2d Cmt. 12a.

c. Embedded Metadata
Embedded metadata consists of “text, numbers, content, data, or other information *355 that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file. Md. Protocol 27. Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information. Id. This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is “generally discoverable” and “should be produced as a matter of course.” Id. at 27-28.

via Metadata?.

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When Is an E-Discovery Burden an Undue Burden? | Law.com

May 30, 2010 By Leave a Comment

Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York has a basic rule for estimating the cost to discover electronic records in any given trial. “A court should always be skeptical at the first dollar amount thrown out by either party,” she says. “I ask the requesting party to explain their estimate, and then consult the producing party or a court-appointed neutral party until a figure can be agreed on. It almost always seems to be a figure right in the middle between what the two parties initially give.”

Six years ago, Judge Scheindlin wrote a series of five separate rulings in Zubulake v. UBS Warburg, discussing in great detail how to best manage or share the burden of discovery for electronic records. Much of that ruling has been codified in the Federal Rules of Civil Procedure and also incorporated into rules for non-federal jurisdictions. But the problems associated with the cost of e-discovery continues to dog litigators and judges, despite new case law, updated rules, and technology designed specifically to address the issue.

Recently, legal technology vendors have been arguing that technology is solving the problem. They argue that most data is easily accessible since e-discovery tools have automated many processes. For example, Jim McGann, vice president of Information Discovery at Index Engines recently wrote a blog post arguing that the burden argument is disappearing.

Technologists are right that the cost of e-discovery is in fact coming down. The tools to search, identify, and review data are getting more powerful, making it easier to find a particular piece of information. Index Engines claims its technology makes the cost of recovering and reviewing digital backup tapes 75 percent less than it would have cost in 2005. “Technology is solving the problem,” says McGann. “The standard starting argument for many lawyers used to be that discovery was going to be burdensome, no matter what the facts were. Now many lawyers are realizing that you can't just complain that something is too expensive to recover and wait for the judge to rule it inaccessible.”

But judges have a different perspective on the benefits afforded by technology. For them, the question involves more than just a dollar figure. There are too many competing factors to consider believing that computing power alone can solve the problem. “I disagree with that assessment,” says Scheindlin. “There is still an undue burden argument to be made depending on a number of factors, like what type of backup media is involved, whether it is unstructured data, what format it is in. And that's not even considering the facts of a case.”

via Law.com – When Is an E-Discovery Burden an Undue Burden?.

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Documents Show Early Worries About Safety of Rig – NYTimes.com

May 30, 2010 By Leave a Comment

Internal documents from BP show that there were serious problems and safety concerns with the Deepwater Horizon rig far earlier than those the company described to Congress last week.

The problems involved the well casing and the blowout preventer, which are considered critical pieces in the chain of events that led to the disaster on the rig.

The documents show that in March, after several weeks of problems on the rig, BP was struggling with a loss of “well control.” And as far back as 11 months ago, it was concerned about the well casing and the blowout preventer.

On June 22, for example, BP engineers expressed concerns that the metal casing the company wanted to use might collapse under high pressure.

“This would certainly be a worst-case scenario,” Mark E. Hafle, a senior drilling engineer at BP, warned in an internal report. “However, I have seen it happen so know it can occur.”

The company went ahead with the casing, but only after getting special permission from BP colleagues because it violated the company’s safety policies and design standards. The internal reports do not explain why the company allowed for an exception. BP documents released last week to The Times revealed that company officials knew the casing was the riskier of two options.

via Documents Show Early Worries About Safety of Rig – NYTimes.com.

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Florida Man Arrested At Detroit Metro Airport On Child Porn Charges

May 30, 2010 By 1 Comment

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection announced that on Monday a Florida man was had been arrested for traveling with a laptop containing at several hours of child pornography videos.

Stuart Blakesberg, 44, was arrested Sunday at Detroit Metropolitan Airport (DTW) following a return flight from Nagoya, Japan. DTW was the international port of entry for Blakesberg before his connecting flight to his destination Houston, Texas. During the course of a routine CBP inspection, officers searched a laptop that was in Blakesberg’s possession.

“Purveyors of child pornography fuel the appalling international exploitation of innocent children,” said Brian Moskowitz, special agent in charge of ICE’s Office of Investigations in Detroit. “Possession of child pornography is not a victimless crime. Those who engage in this criminal behavior should be forewarned that ICE will use all of its resources to locate and arrest them.”

A secondary inspection revealed videos of child pornography. ICE computer forensic agents were immediately notified to continue the investigation. ICE agents discovered several videos depicting child pornography. A cursory examination of media storage discs revealed similar content.

Blakesberg entered into the United States at Detroit Metropolitan Airport from Manila, Philippines via Delta Airlines Flight 630 from Nagoya, Japan. Blakesberg declared on his U.S. Customs and Border Protection (CBP) Form 60S9B Customs Declaration that he had visited the Philippines, Malaysia, Thailand, Burma, Laos, Cambodia, and China. During subsequent inspection by CBP, officers discovered numerous electronic media in Blakesberg’s possession, including one Apple Laptop computer.

Upon inspecting Blakesberg’s laptop, CBP Officers noted it required a password to access. At the request of the CBP Officers, Blakesberg voluntarily typed the password “snoopy” into the laptop, thereby allowing access to its contents. Upon reviewing the laptop, CBP officers found videos depicting child pornography.

A later preview of Blakesberg’s laptop by a certified ICE Computer Forensics Agent (CFA) revealed one video of approximately forty-seven minutes and eight seconds (47:08) in length, titled “Kelly & Amber & Company [PTHC].mpg”, which depicted a white, juvenile female performing sexual acts on herself and on an adult white male.  This video was located in a file labeled “Frostwire Incomplete.txt.”  Also contained in the “Frostwire Incomplete.txt” folder were approximately thirty-four other videos bearing titles which are indicative of child pornography content.

via Florida Man Arrested At Detroit Metro Airport On Child Porn Charges.

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Google Woes Spread as Oregon Court Demands Wi-Fi Data – BusinessWeek

May 28, 2010 By Leave a Comment

Google Inc. has been ordered to turn over to an Oregon district court by next week data it collected with people’s e-mails, files and digital phone records, according to court documents.

House Judiciary Committee Chairman John Conyers today also requested that Google preserve any information related to its data gathering.

Google sends out cars to photograph streets and houses that people can see with the Street View feature in Google Maps. The vehicles also scanned for Wi-Fi networks used for Internet access and collected private data from the wireless networks of some homes, according to a complaint filed by two people who may have been affected. Google said in a blog earlier this month it mistakenly collected the Wi-Fi data.

Oregon District Court Judge Michael Mosman issued a restraining order this week to stop Google from destroying the data it gathered and to turn over copies of the information, after Google deleted similar data from other countries. Vicki Van Valin and Neil Mertz, who sued Google for invasion of privacy, said that destroying the data would hurt their ability to prove Google’s wrongdoing and assess damages, according to a complaint filed on May 17.

Google, based in Mountain View, California, argued in a filing the district court’s order is unnecessary since it had taken steps to secure the data.

via Google Woes Spread as Oregon Court Demands Wi-Fi Data (Update2) – BusinessWeek.

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Toyota spars in U.S. court over internal documents | Reuters

May 28, 2010 By Leave a Comment

Toyota’s lawyers and class-action attorneys were set to square off in U.S. federal court on Friday over how quickly the automaker must produce documents from previous investigations of complaints about its cars racing out of control.

Attorneys pursuing scores of personal injury and consumer class-action claims against Toyota are seeking immediate possession of roughly 125,000 pages of internal documents already submitted to congressional panels and auto safety regulators.

Except for a relative handful of those papers cited in recent congressional hearings on Toyota’s handling of complaints of sudden, unintended acceleration in its vehicles, the documents in question have remained confidential.

They could prove valuable to plaintiffs' attorneys trying to substantiate their claims of product defects, negligence, fraud and other wrongdoing against Toyota Motor Corp (7203.T).

via RPT-Toyota spars in U.S. court over internal documents | Reuters.

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Minnesota a powerhouse for patent litigation – Finance and Commerce

May 28, 2010 By Leave a Comment

Minnesota is a popular place for patent litigation.

The state stands head and shoulders above its neighbors in the Upper Midwest — and much of the county. The Stanford IP Litigation Clearinghouse says that when it comes to patent litigation in the last decade, the District of Minnesota has been surpassed only by seven other districts — the Northern and Central Districts of California, the Northern District of Illinois, the Eastern District of Texas, the Southern District of New York, and the Districts of Delaware and New Jersey.

Most of the federal districts with a large number of patent cases are located in populous and centers of innovation, according to the clearinghouse. The exceptions are Delaware, which has a lot of filings because it’s where a lot of companies are incorporated, and the Eastern District of Texas, which is a popular destination for patent plaintiffs, Stanford Law School Professor Mark Lemley wrote on the Patently-O patent law blog.

What makes Minnesota such a powerhouse? The state has long been a hub for high-tech and innovative businesses such as medical-device manufacturers, agribusinesses such as Cargill and General Mills and diverse and creative companies such as 3M.

U.S. District Court Judge Joan Ericksen said patent law has become a key component of what the federal bench does in Minnesota: “Any new judge will have to know and love patent law.”

Minneapolis attorney Ron Schutz identified 3M as a local company that is particularly “vigorous” in enforcing its patents. He was not surprised that Minnesota has a ratio of patent litigation substantially above what population alone would indicate.

via Minnesota a powerhouse for patent litigation – Finance and Commerce.

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Obama administration gets tough on business | Mark Brzezinski

May 28, 2010 By Leave a Comment

Among the more underreported developments of the Obama administration is the ramp-up in international “anti-bribery” enforcement. The surge in investigations and prosecutions regarding the Foreign Corrupt Practices Act (FCPA) has produced real buzz that the days of doing business with a wink and a nod are over and that even decisions made years ago may result in serious punishment.

The effort is motivated in part by the principle that business shouldn’t be conducted one way in modern countries and another way in developing nations. In a May 4 speech at the Council on Foreign Relations, Lanny Breuer, chief of the Justice Department Criminal Division, framed the goal as “the creation of a global consensus that corruption is unacceptable, that it harms the least well-off of us the most.” The administration also links corruption with national security challenges such as terrorism and trafficking in people, guns and narcotics.

Ten years ago there were roughly eight federal investigations at any time regarding foreign bribes. Today, the Justice Department has more than 130 open investigations. More FCPA-related indictments were brought in the past year than over the previous seven years combined. Justice’s Criminal Division has set up a task force and has requested additional funding for fiscal 2011 to beef up its workforce. The Securities and Exchange Commission, which enforces accounting provisions of the act, has also set up a task force.

Those charged have included CEOs, CFOs and other senior corporate, sales, marketing and finance executives, intermediaries and, where jurisdiction exists, even some foreign officials. No business is immune; some in Hollywood were prosecuted in September for bribes made in connection with Thailand’s film festival. Charging individuals is part of the strategy. Nothing focuses the mind like personal accountability.

via Mark Brzezinski – Obama administration gets tough on business corruption overseas.

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Keep It Legal: Is it bribery or a commission? | MD Publishing Article

May 28, 2010 By Leave a Comment

Headlines abound with stories of attempted bribery among domestic and international businesses. In fact, one recent news item disclosed that U.S. and U.K. prosecutors are investigating a prominent Canadian businessman for bribery as part of a two-year investigation into Alcoa, Inc. Also, bribery convictions have recently been obtained in connection with a member of Congress, investors, and international trade companies. However, this all comes on the heels of the 25th anniversary of the Foreign Corrupt Practices Act (FCPA), which prohibits bribery and unlawful commissions.

Anti-Bribery Provisions

The FCPA Anti-Bribery Provision covers both direct payments to foreign officials as well as payments made through third parties. Furthermore, the FCPA regulates “domestic concerns.” A domestic concern is defined as a citizen, national or resident of the United States or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization or sole proprietorship based in the United States. Any of the aforementioned entities organized under the laws of a U.S. state or U.S. territory, possession or commonwealth also fits into this category.

To sustain a claim under the Anti-Bribery Provision of the FCPA, each of the following elements must exist:

Who?

It is unlawful for the issuer, officer, director, agent of the corporation, shareholder working on the issuer’s behalf, or domestic concern to make a corrupt payment. A foreign incorporated subsidiary of a U.S. company won’t be subject to the FCPA. However, the parent will be liable if it authorizes, directs or participates in an unlawful payment. Employees of the foreign incorporated subsidiary can be liable if they are domestic concerns.

Recipient

The recipient of the payment must be a foreign official, a foreign political party, party official or a candidate for foreign political office. A foreign official has been defined to include an employee or officer of a foreign government, department or agency, or any person acting in an official capacity. Note: The FCPA doesn’t cover payments made to private citizens. However, payments made to relatives or friends of a foreign official may be construed as if they were made to the foreign official.

Intent

The person making the payment must have a corrupt intent. The history states that “corruptly” means a purpose to “induce the recipient to misuse his official position in order to wrongfully direct business to the payer or his client, or to obtain preferential legislation or a favorable regulation.” It “connotes an evil motive or purpose, an intent to wrongfully influence the recipient.” Bear in mind: It’s not a requirement that the corrupt act succeed in its purpose.

To be prosecuted for payments made to a third party, the payer must “know” that all or a portion of the money given to the third party will be used for a proscribed purpose. A person is deemed to have knowledge if either of two things is true:

• They’re “aware that such person is engaging in conduct, that such circumstances exist, or that such result is substantially certain to occur.”

• They have “a firm belief that such circumstance exists or that such result is substantially certain to occur.”

via MD Publishing Article – Keep It Legal: Is it bribery or a commission?.

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Seventh Circuit’s e-discovery program releases results |Wisconsin Law Journal

May 28, 2010 By Leave a Comment

The first phase of the Seventh Circuit’s Electronic Discovery Pilot Program is complete and the program has resulted in positive feedback from both attorneys and judges.

Launched in May 2009 by Chief Judge James Holderman of the U.S. District Court for the Northern District of Illinois, the program is an attempt to “develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure.”

During the first phase, 13 federal court judges presided over 93 civil cases between October 2009 and March 2010. The judges, and the 285 attorneys involved in the cases, followed a set of principles drafted by the pilot program’s committee members.

Those principles included: recognizing that cooperation with opposing counsel does not compromise zealous advocacy; resolving electronic discovery disputes early, without court intervention; taking reasonable steps to preserve electronically stored information; making electronic discovery demands proportionate to the case; and making a good faith effort to agree on the format for production of electronically stored information.

Participating attorneys and judges evaluated the program by completing a survey, which revealed that 92 percent of the judges agreed that the principles had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement and reach agreements on how to handle the inadvertent disclosure of privileged information or work product.

via Wisconsin Law Journal – Article.

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