- Assess your document retention practices as they pertain to metadata.Impose a litigation hold that preserves all potentially relevant electronically stored information (ESI), including metadata (whether or not you think metadata is likely to be requested in discovery targets).Discuss the kinds of metadata that are associated with potentially relevant ESI and devise a protocol to propose to litigation adversaries.Be prepared to testify about the scope of your ESI resources, and the methods you used to preserve, collect, and produce ESI, including metadata.At the Rule 26 meet-and-confer conference or before: Disclose your intentions regarding ESI, including metadata specifically (both with respect to propounding and responding to discovery).If you think metadata might be relevant and/or useful to your case, request it as early as possible.In your role as discovery respondent, implement systems to ensure that your discovery protocols are being followed.Develop a defensible evidentiary record that demonstrates your adherence to the discovery protocols you disclosed as a standard operating procedure.Be prepared to authenticate (challenge/defend the authenticity of) ESI, including metadata that you intend to offer as evidence at trial or in support of dispositive motions.Practice aggressive transparency to avoid issues of spoliation and to make sure everyone understands what metadata will be preserved, how it will be preserved, and how it will be produced.
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