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TECH SUPPORT is so useful in sorting and reviewing documents. If you strip it out, [the op- position] in effect doesn't have the same ease of access," says Friedman. Her own proposed rule: when producing an elec- tronic document deemed relevant and not privileged, metadata must be includ- ed unless the parties agree, or the court rules, that it need not be. E-discovery service providers can eas- ily extract metadata and include it in document databases using programs such as Summation from CT Summa- tion Inc., but then complex issues arise regarding costs of producing such da- tabases. In some recent cases, Friedman notes, judges have ordered the party re- ceiving the documents to pay as much as a third of costs involved. "I like that line of thinking," she says. "In fairness, why should the [the other side] get it entirely for free." While metadata is most often used in reviewing electronic documents, it can also be vital evidence. Finding the evi- C CACE's 5 annual conference is being held from September th th 18 – 20 , 2008 at the scenic and popular Fairmont Chateau Le Montebello, Quebec. Speakers from across the country will address emerging issues in their fields of expertise. th For more information on the 2008 conference or becoming a member, please visit our website at www.counseltoemployers.ca. Untitled-2 1 www. C ANADIAN Law ye rmag.com JULY 2008 27 6/6/08 12:33:26 PM dence, though, sometimes requires ad- vanced technical expertise. Some meta- data is readily accessible — you can see the date a file was last modified, for ex- ample, using a detailed list view onscreen. But more is buried in files automatically generated by the operating system or ap- plication program. Rothman worked recently on a medi- cal malpractice case that hinged on ex- amining deeply buried metadata. The surgeon in the case claimed he sent a letter to the patient outlining the risks involved. His lawyer produced a dated electronic version and hired Rothman to authenticate it. In fact, the doctor had written the let- ter long after the surgery. Before typing it, he changed the date in the Windows system clock on his computer so meta- data would appear to show it was written much earlier, and then changed the clock back. Rothman examined the defendant's computer and found a hidden list that Word keeps of files the user has recently edited. In that list, the creation date for the document in question appeared out of sequence, with documents listed be- fore and after having much more recent dates. Rothman also found a file listing changes to the system clock and was able to pinpoint exactly when the fraud was perpetrated. The defendant quickly settled. Two things are clear from this. On the one hand, lawyers cannot expect to know all there is to know about meta- data; it's just too complex. They need experts like Rothman. On the other, they do need to understand as much as they can — most importantly that computers store copious amounts of metadata in many different ways, much of it hidden. And as Friedman says they ignore it at their peril. Gerry Blackwell is a London, Ont.-based freelance writer. He can be reached at gerryblackwell@rogers.com ACE Canadian Association of Counsel to Employers association canadienne des avocats d'employeurs The Canadian Association of Counsel to Employers (CACE) represents over 400 management-side labour and employment lawyers from across Canada. CACE provides a vehicle for advanced level education, input to governments, courts, labour boards and other tribunals with respect to labour policy and legislative reform. CACE invites all labour and employment lawyers who work predominately on behalf of management to become members. Lawyers working in government and in-house counsel whose practices include labour and employment law are also invited to join. 5 Annual Conference Fairmont Chateau Le Montebello, Quebec th September 18 - 20, 2008