Much is written about the increasing burden of regulations faced by organisations, be it specific to a particular industry or cutting across all sectors. But another key challenge faced by organisations is the threat of litigation and one of the fastest growing areas here, in the US at least for now, is that of facing lawsuits related to electronic discovery, also known as e-discovery. E-discovery is the process of producing electronic documents for use as evidence in a lawsuit, which can be information in any format that might be considered relevant to an investigation, with some exceptions, such as information that is considered to be privileged.
Most of those regulations mandate that all information must be recoverable so that it can be handed over to authorities should there be suspicions of non-compliance or illegal activity. And this is also occurring in private cases as well. Electronic discovery (e-discovery) lawsuits are now fairly commonplace in the US and are growing in importance in Europe, particularly in the UK. This means that organisations must be able to produce any documentation that could be relevant to the lawsuit-and in any format, from word processing documents and emails, to product designs on CAD-CAM systems.
An organisation that has taken steps to secure and effectively govern its information may think that it can prevent its information gems, or even dregs, such as derogatory comments made by an employee, from falling into the wrong hands. Or they may think that they are in a good position to answer regulatory or e-discovery demands with the minimum of fuss.
However, there is one common mistake that has scuppered a fair few organisations to date, but which is only just beginning to get the attention that it deserves. That is the failure to consider metadata. Metadata is defined as "data that provides information about other data". This can include information about who created a document and when, and who has made what modifications to it at which point. Essentially it is the digital fingerprint or DNA that identifies all activity related to a document and provides an audit trail of that activity.
Lawsuits demanding the production of metadata along with the documents to which they refer have been brought to court since the mid-1990s and are becoming increasingly common. High profile cases where metadata has been used to provide key evidence include WorldCom, Enron and the Martha Stewart investigations, mainly in the form of emails. In some cases, metadata has been used to reconstruct evidence in disputes over timelines, such as an accusation that someone has backdated documents.
Other gaffes involving metadata have included a report released by the UK Prime Minister's office regarding its contentions that Iraq was amassing weapons of mass destruction. Used by Colin Powell to make the case for war in an address to the United Nations, a search for metadata in the document revealed that parts of it had been copied from work produced the previous year by a graduate student. And pharmaceutical giant Merck suffered embarrassment when metadata revealed that it had deleted a story about the causal relationship between its drug Vioxx and heart attacks.
Although the problems with metadata have long been known about by technologists, today's highly regulated environment and the sensitive nature of much of the information produced by organisations are elevating the issue to the business level. Now more than ever there is a need for organisations to ensure that they have systems in place to control the information that they hold-including metadata that can be used to prove when documents were created, stored, searched and retrieved. In practice, the best defence is a layered strategy, including employee education, technology tools such as metadata cleaning or mining software, and policies defining the responsibilities of staff when handling documents.
For those organisations that have such processes in place, the benefits that they reap may be more than just the avoidance of negative publicity or a large fine. Although less publicised, there are cases where organisations have been able to use metadata attached to business documents to prove that an allegation was false. For example, in one case, an organisation in the UK faced a lawsuit from another firm which claimed that it had certain information at its disposal. Through forensic investigation, however, the organisation facing the lawsuit was able to prove through examination of metadata, including that attached to previously deleted documents, that it had never been party to that information and thus it won its day in court.
Just as fingerprints left at a scene of a crime are regularly used to secure convictions or to prove that a person could not have been there, the digital DNA of documents, or metadata, can be used as evidence of wrongdoing or can be used to prove innocence. The importance of metadata cannot be understated and should be a key consideration in the development of an effective system of information governance.