Microsoft Office and other documents including PowerPoint, Word, and Excel among others can be a rich source of discoverable information for the plaintiff, especially if the author of the document didn’t take the time to scrub all hidden and personal information before finalizing it. Be aware all of this hidden and personal metadata can’t be altered after a litigation hold should have been applied.
Several types of hidden and personal data can and will be saved by default in an Office document if the correct precautions are not taken. The first point to remember is that Office applications are by default capturing data as the document in question is created, reviewed and revised. Data such as:
- Comments, revision marks from tracked changes, versions, and ink annotations
- Document properties and personal information. Document properties, also known as metadata (metadata: Data that describes other data. For example, the words in a document are data; the word count is an example of metadata.), include details about your document such as author, subject, and title. Document properties also include information that is automatically maintained by Office programs, such as the name of the person who most recently saved a document and the date when a document was created. If you used specific features, your document might also contain additional kinds of personally identifiable information (PII) (personally identifiable information (PII): Any information that can be used to identify a person, such as a name, address, e-mail address, government ID, IP address, or any unique identifier associated with PII in another program.), such as e-mail headers, send-for-review information, routing slips, printer paths, and file path information for publishing Web pages.
- Headers, footers, and watermarks
- Hidden text including reviewers notes
- Hidden rows, columns, and worksheets
- Invisible content PowerPoint presentations and Excel workbooks can contain objects that are not visible because they are formatted as invisible
- Off-slide content
- Presentation notes
- Document server properties. If your document was saved to a location on a document management server, such as a Document Workspace site or a library based on Microsoft Windows SharePoint Services, the document might contain additional document properties or information related to this server location.
- Custom XML data
In my experience, few companies train their employees to remove this metadata before their documents, spreadsheets and presentations are finalized and distributed. For the attorney asking for ESI, a tell tale sign of spoliation would be the total absence of this hidden data. The attory could do a quick sampling of discovered documents and if the majority of them are “clean” then a discussion with the defendants counsel and possibly Judge would be in order. Unless the defendants could show evidence of employee processes including the regular removal of this type of data as a standard process, a spoliation ruling would be in the cards.
So what and how should a company put in place a process to make sure this type of metadata is removed as a standard process before litigation arises?
My next blog entry will answer this question.