Many organizations manage their content using enterprise content management (“ECM”) systems like SharePoint, Office 365, FileNet, Open Text, or Documentum. These ECM systems are really databases that permit organizations to associate various classifications, tags, and descriptions (collectively, “attributes”) to the content being managed and to use those attributes to find specific documents.
Parties seeking documents without seeking the associated attributes from ECM systems leave themselves less able to work with and analyze the produced documents. Furthermore, full-text searching is often used to collect or cull responsive documents. Agreeing to search terms without agreeing to what full text is going to be searched can cause a requesting party to receive far fewer documents.
For example, full text searching of the text on the face of documents will yield one set of documents, but full text searching that includes all ECM document attributes will result in a larger, more exhaustive set of documents. Also, the terms appearing in tags or classifications provide a way to link to other content within the organization.
If a requesting party does not explicitly reference ECM classifications, tags, or descriptions early in the discovery process beginning with discovery requests and meet & confers, it leaves an out for the responding party to focus just on the text within the document and to avoid a “redo” if the requesting party waits too long to raise the issue of searching and producing the attributes.
There are two general approaches to seeking ECM document attribute information. One is to speak of these attributes as metadata. The benefit of taking this approach, especially if taken very early in the discovery process, is that there is a general presumption that metadata ought to be produced, see, e.g., Judge Scheindlin’s opinion in National Day Laborer *1/ and the Sedona Principles 2d. *2/
One slight risk here is that there may be lawyers and judges who will think of only system metadata, i.e., only of date created, date last modified, file size, and folder path/filename, and the party seeking disclosure may have to overcome this negative learning.
Another possibly better approach is to view the process of obtaining ECM document attributes as a type of database discovery as described in the Sedona Conference database discovery guidance published in 2011 *3/. This contemplates the requesting party being able to see the database schema for the tables and fields maintained in the ECM database. This is important because ECM systems provide for user-created custom fields, some of which may be significant, some of which may be irrelevant. Without examining the schema the requesting party has no way of knowing what attributes are actually available.
For example, the SharePoint documentation *4/ mentions that users could set up fields or columns for:
- Purpose of document
- Intended audience
- Department responsible for financial implications
- People who’ve edited the document
Information provided in those fields or columns will provide valuable context for evaluating the significance of documents.
Proportionality is always an issue in discovery – does the value of the information sought exceed the cost of obtaining it? One point the party seeking ECM attribute information is that if the party that uses the information day-to-day needs attribute information to be able to work with it on a day-to-day basis, how much greater is the need for the requesting party which lacks that familiarity?
As noted in the Sedona Conference database guidance, the producing party should be able to export the desired attribute information in a form that the requesting party can then import or overlay in its litigation support or e-discovery review tool. In other words, the requesting party should not need to actually license a copy of the ECM system software.
For more information on managing unstructured content, go to the following link to download your free, personal-use copy of Guide to Managing Unstructured Content: https://beyondrecognition.net/download-john-martins-guide-to-managing-unstructured-content/
For related earlier posts, see:
- “E-Discovery: Using Path Names & Filenames to Create Folksonomies,” https://beyondrecognition.net/e-discovery-path-names-filenames-for-folksonomies/
- “Missing Calendar Items? Might be Missing the E-Discovery Boat,” https://beyondrecognition.net/missing-calendar-items-missing-e-discovery-boat/
*1/ National Day Laborer Organizing Network vs. US Immigration and Customs Enforcement Agency, 877 F. Supp. 2d 87 (S.D. NY 2012), https://scholar.google.com/scholar_case?case=16613916971224539339
*2/ The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production (2d ed. 2007) (“Sedona Principles 2d”), Principle 12 (“[P]roduction should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form …”). https://thesedonaconference.org/download-pub/81
*3/ Sedona Conference™ Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, April 2011: https://thesedonaconference.org/publication/The%20Sedona%20Conference%C2%AE%20Database%20Principles%20Addressing%20the%20Preservation%20and%20Production%20of%20Databases%20and%20Database%20Information%20in%20Civil%20Litigation
*4/ Microsoft, “Introduction to managed metadata,” https://support.office.com/en-us/article/Introduction-to-managed-metadata-a180fa28-6405-4679-9ec3-81d2028c4efc
*5/ Craig Ball, “Databases in Discovery,” Ball in Your Court blog, Nov. 1, 2015, https://ballinyourcourt.wordpress.com/2015/11/01/databases-in-discovery/