Follow me on TwitterMy Tweets
Idealistic musings about eDiscovery
“Shouldn’t we be aghast that firms still deal with tracked changes and comments in Word documents by simply wishing them away?” Craig wrote. A couple of paragraphs later, he continued:
A draft of a contract with tracked changes is a record of the document’s development incorporating the drafter’s communication to him or herself in the form of notes, highlighting and the like. If shared collaboratively using tracked changes and comments, the proposed edits are communications.
Craig further argues that, rather than review the metadata for privilege, attorneys merely tend to strip it without review. I encourage you to read his post, but I must provide a counter-argument.
There are a lot of reasons to provide most metadata associated with an electronic document, most of them forensic: date and time stamps, whose computer saved the final version, which custodian’s “fingerprints” were on it, and so on. But unless I’ve read Craig’s post too quickly, he seems to be lumping this forensic metadata together with version tracking metadata, discussing the two types as if they are the same. In my opinion, such is not the case.
In the days when I wrote (or typed, or even word-processed) my document drafts to paper and then passed the drafts to our co-workers for collaboration, they would mark up their edits and make notes in the margins. When I would get the marked-up drafts back, I would incorporate them into a new, final version of the document, and the marked-up copies would hit the shredder. Certainly, I had no expectation that the initial drafts might have evidentiary value in litigation later down the road, just as creators of electronic documents today don’t typically work on a draft with the ugly specter of future litigation perched on their shoulder.
Had my final draft become responsive to a litigation discovery request back then, would I somehow have been in trouble because I had failed to keep the interim drafts? Only if my company’s document retention policy had required me to keep them. Otherwise, the final version stood on its own. It “spoke for itself.” (Res ipsa loquitur, don’tcha know.) Should modern e-files be treated differently?
Before you answer, “But Gary, different technology makes for different requirements,” let me make one significant point: In Microsoft Word, the “Track Changes” function can be disabled. Even after several versions’ worth of changes have been made, “Track Changes” can be turned off, and the version history information can be purged, long before a document reaches the final version – if and only if the user knows that this feature exists and how to turn it off!
I’m not familiar with any judicial mandate that requires Word users to leave “Track Changes” on while they are working on drafts of corporate documents. To me this means that, if we adopt the argument that such metadata should always be produced if available, are we not subjecting some users to a higher standard of production because they don’t have the technical proficiency in Word to know how to turn that feature off?
Some state bar associations have been struggling for years with the ethics of producing metadata versus scrubbing it, and there is not yet any uniform agreement. Personally, I think most metadata should be produced; it’s in keeping with the Sedona Conference’s Cooperation Proclamation, and it generally would cut down on the expense of trying to re-constitute a searchable version of the metadata when produced to opposing counsel. But document version history? That’s creating a duty to preserve and produce that never existed in the days of paper documents. Do we really want to increase the burden of discovery even more than the exploding volume of ESI (and the evolving best practices to deal with it) already requires?
In my next post, I plan to address the challenges inherent in getting lawyers to cooperate in eDiscovery in the first place. For the time being, I propose we focus on shaking that tree for a while, and leave the redefining of “eDiscovery” until we’ve had more success with Job One.