Elizabeth’s Hospitality Law Blog / by Elizabeth Ardanowski

Meta . . what?  Chances are if you are not an IT professional, or you are not involved on a daily basis in litigation, you do not know what metadata is.  Well, I didn’t either, until a few years ago when electronic discovery (if you’re not an attorney and don’t know what that is, don’t worry – simply stated it is production during a law suit of electronically based documentation) became a big deal and the federal rules of civil procedure implemented rules regarding it.  So here it is in simple form (I’m an attorney, not an IT person, afterall . . .):  metadata is the electronic information that is contained in any document, email, program, text, etc. you create in a computer, Blackberry, etc.  It consists of information you might have “deleted.” 

So, if I send an email to you, and type “Hey, what are you doing later?” there will be electronic information that shows just that.  However, if I had typed “Hey hot pants, nice evening last night.  Glad your wife didn’t catch us.  What are you doing later?”  then thought better of it and “deleted” everything but what remained of the first email, then sent it, I would still be sending far more than just “Hey, what are you doing later?”  How??  Because metadata contains the ghost image of everything that was ever entered and/or deleted on that email.  Sometimes it is no big deal.  But other times, it’s a huge deal. 

Let’s say you have an employment contract with your restaurant manager, Bill.  Bill is extremely good looking, and when you were originally drafting the contract (based on an old form document you copied from some other contract you have used in the past) you jokingly typed in something to the effect that Bill’s job duties would be to provide some rather explicit and illegal services to you (personally) as well as to your best friends.  After a laugh (and maybe after sending it to your best friend as a joke too) the business person in you deletes the silliness and inserts the proper, professional language, and saves it in some program.  In the morning, you email Bill and attach the contract to the email for Bill’s review.  Bill signs it, and begins working for you.  So far so good. 

Time passes. . . sales are way down and you have to let some people go.  There have been a couple of complaints about Bill, but nothing meriting dismissal.  Still, Bill’s salary is high, so you decide to let him go per the terms of the contract.  The next thing you know, Bill is suing you for sexual harassment and discrimination.  WHAT???  How did that happen???

Well, sad to say, Bill didn’t take getting let go lightly, and has decided to sue you claiming that you made his continued employment contingent on a personal, sexual relationship with you.  It’s not true, not one bit of it, but nonetheless you are in court being sued.  Happens all the time, even when you’ve done nothing wrong. 

The attorneys start discovery, and ask for electronic discovery, including drafts of Bill’s contract.  You think nothing’s wrong.  BUT WAIT!!  Here’s where you’ll get tripped up – the computer records of the contract you drafted still have all that metadata (there’s that word), including the since deleted language involving the faux duties of Bill.  So when a copy of that harddrive is made, and an expert gets to that contract, that metadata will be there.  Uh oh.  The opposing side now has evidence that you were seeking sexual favors from Bill, even when you hired him.  Not that you really ever were, it was a joke.  But what will a jury think?  Probably that you fired Bill because he refused you sexual favors. 

This is an extreme example of metadata, but something you need to know about and be careful about in your business.  How does it affect you when you’re not in litigation?  Another simple example:  you have a draft contract you use with most of your vendors.  It has standard language, terms, and dollar amounts that you vary depending on the vendor.  You open the last copy of it you used, you make the changes, and save it as Agreement with Client 1.  You then email your vendor and attach the contract.  You put much more favorable terms (for you) in this version of the contract than you did with the last vendor.   Client 1 gets the email, opens the attachment, then for fun has his daughter (an IT wiz) go through it to see what metadata she can mine off of it.  (Mining data is the term used for finding the metadata.)  Low and behold, the daughter pulls up the old terms, tells her dad, and he now refuses to sign with you unless you match the terms you gave the last vendor.  Not a good thing for you.  

There are ways to avoid this.  For instance, when you use an old version of a document, change it and save it, DO NOT attach the saved document to an email.  The metadata is there.  Instead, print the document, then scan it and save it under another name.  The scanned document does not contain the electronic remnants of the metadata in the computer version of the document.  There are other ways to avoid sending metadata, but they are far more complicated for me to go into here.  Needless to say, you can contact me for more information.  I’m glad to help.  It’s part of what I do to protect you and your business.

So, there’s an extremely simple “primer” on metadata for those who are not IT pros.  It affects everyone of us, whether we know it or not. 

Be smart about your business!

-Elizabeth