Follow the Audit Trail: The Impact of Metadata in Litigation

[...]producing records solely from a paper file located on a shelf or filing cabinet is a relic of a bygone era and practitioners, regardless of their practice area, should make a conscious effort early in every case to determine whether discoverable electronic data and, particularly, metadata exist; assess whether it is relevant to the pertinent issues; and ensure its preservation. With respect to digital cameras, metadata can include the name of the manufacturer, lens setting, date the photos were taken, and lighting conditions. [...]while metadata can also be used circumstantially, at its core, even circumstantial evidence directly impacts credibility. [...]metadata's greatest role in litigation may be to test the veracity of an opponent's evidence and theory of the case. Audit Trail "An audit trail is a record of who, when, where, how and sometimes why a person used a computer program or accessed a patient's medical record." Co., 241 F.R.D. 534, 555 (D. Md. 2007) ("The most frequent ways to authenticate e-mail evidence are 901(b)(1) (person with personal knowledge), 901(b)(3) (expert testimony or comparison with authenticated exemplar), 901(b)(4) (distinctive characteristics, including circumstantial evidence), 902(7) (trade inscriptions), and 902(11) (certified copies of business record).") InStore Servs., 546 F. Supp.2d 155, 169 (D. N.J. Feb. 4, 2008) (noting that since there was not even a "shred" of evidence that the computer files were in any way manipulated, the proffered documents were reliable) (quoting United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988)); United States v. Steiger, 2006 U.S. Dist. 62...