Litigation about trade secrets and noncompetes / nonsolicitations frequently involves questions about electronically stored information, like: When was the file created? On what device was it created? When was it edited? When was it last accessed? When was it transferred from one device to another? These questions are not about the content of the files; they are questions about the creation, maintenance, alteration, and deletion of such files. They are questions about metadata.
A partner and I recently won a $20-million-plus judgment on behalf of a client for theft of trade secrets and breach of a noncompete. Much of the case hinged on metadata, on being able to show when certain key documents were created, altered, and destroyed. In another recent matter, I used metadata to establish that my client had done no wrong, and thus persuaded a potential plaintiff not to sue.
In this and three posts to follow, I’ll take you through what I think a prudent employer needs to know about metadata, to use it offensively and defensively. Let’s begin with: What is metadata?
“Metadata” is pieces of information that describe an electronic file. Think of metadata as information about information. Metadata comes in different kinds:
- System metadata is created by the operating system (Windows, OS X, Android, Linux, etc.) of the machine used to access the file. This metadata enables the retrieval, editing, and saving of files. Common system metadata fields are name, size, location, and dates of creation and use. These metadata are stored outside of the file by the operating system.
- Application metadata comes from the software program used to create the file (Microsoft Word, Adobe Photoshop, etc.). It enhances the functionality of the application. There are thousands of kinds of application metadata. Common application metadata would be author, title, and comments within a Microsoft Word document. This metadata is stored within the file.
- Embedded metadata is information within the file that is accessible within (and specific to) the native application. It enables specific features within the program, such as tracked changes in a word processing file, hidden formulas within a spreadsheet, or comments within a presentation file.
The importance of metadata in litigation, actual or threatened, cannot be overstated. Call it the DNA of a document. Think of it as the fingerprint left behind by the person creating, editing, viewing, transferring or deleting a file. Use whatever image works for you – but use it. A prudent company cannot prosecute or defend claims involving trade secrets and noncompetes / nonsolicitations without understanding the power of metadata and how to harness it.
Keep these definitions handy. You’ll need them for the next installment – Metadata as a Shield: How It Can Minimize Potential Liability.
Kevin Yost, a project manager in our practice technologies group, assisted with this article.
*Image By: DARPA (Defense Advanced Research Projects Agency (DARPA)) [Public domain], via Wikimedia Commons