By Dera J. Nevin*
Is readily available metadata maintained in an electronic records management system presumptively producible if the underlying “record” or “document” is produced in response to a Freedom of Information Act request? What about if the record is produced in civil or criminal litigation? Canadian lawmakers and judges have yet to rule conclusively in the matter and much of the practice suggests that parties may not view metadata as producible.
The recent decision from the U.S., Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. Feb, 7, 2011), took a bold but controversial position on the producibility of metadata: certain (unspecified) metadata is a part of the record and should be produced.
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