Metadata in Court’s Order – A Self-Inflicted Error

In Arconic Corp., et al, v. Novelis Inc., et al., 2022 WL 409488 (W.D. Pa. Feb. 10, 2022), the Court denied a recusal motion that was based on metadata contained in the Court’s order.  Specifically, Arconic moved to recuse the Judge based on “author” and “date created” metadata.  Arconic asserted that the metadata showed an impermissible communication that tainted the Judge. The District Judge denied the recusal motion, confirmed that she was the author of the opinions in question, and explained that the metadata was from previously created documents that were used as a template for opinions. 

The court’s opinion explained: “The court understands the gravamen of Arconic’s motion is an assertion that the court abandoned its duty to conduct an independent, de novo review of the special master’s R&Rs [report and recommendations] by having the special master’s staff ghost-write the court’s decisions….  The only evidence pointed to by Arconic to support its recusal motion is the author and created date fields of the metadata of certain decisions.”

The court wrote:

To be abundantly clear, the court wrote the opinions referred to by Arconic; the special master and her staff did not write any opinions of this court. The steps used by the court to create templates as the starting points for its opinions, as explained more fully below, caused system metadata about the author property to be inherited from other documents. The author metadata is not a reliable way to determine the actual writer of the court’s opinions and does not constitute a reasonable basis to question the court’s impartiality or independence.

Arconic Corp., et al, v. Novelis Inc., et al., 2022 WL 409488 (W.D. Pa. Feb. 10, 2022) (emphasis added).

The court explained:

Arconic’s motion for recusal based on hidden fields of system metadata is not reasonable in light of the visible content of the court’s written decisions. It is readily apparent that the court performed an independent review of the special master’s R&Rs and that the decisions at issue are the work of the court…. Certainly, this court did not expect Arconic to scrutinize metadata in an effort to support a recusal motion. While this court used the same template process in other cases over many years, this case was the first time any issue was raised relating to any metadata associated with the opinions and orders of this court. [emphasis added].

The court wrote that “the author field of the metadata in the documents at issue stemmed from the use of the ‘saved as’ function to create templates based on documents prepared earlier in the case.”

The “saved as” command enables the court to create a template for a new opinion or order without overwriting the document being used as the starting point. The court, as noted, did not take the steps necessary to change the name in the author field of the metadata and the template document inherited the “author” named in the author field of the metadata of the document from which the template was created. The metadata pointed to by Arconic about the “author” in the court’s opinions and orders at issue is superficial and has no relationship to the contents of the final product. [emphasis added].

In support, the court’s opinion cited Craig Ball, “Beyond Data About Data: The Litigator’s Guide to METADATA.”

The court wrote:

The “author” field of the metadata is not a smoking gun or a reasonable or reliable way to determine who is responsible for the content of a document.  See Raiser v. San Diego Cty., No. 19-CV-00751, 2021 WL 4751199 , at *8 (S.D. Cal. Oct. 12, 2021) (“Plaintiff’s discovery of ‘author’ names in Word document metadata is not the smoking gun that he believes it to be”). The author field of the metadata is particularly unreliable for documents created by the “save as” command for use as a template. In Raiser , which involved different facts but a similar motion for recusal premised on author metadata, the court rejected the plaintiff’s “paranoiac allegations” that the metadata demonstrated that the court failed to read, review, or decide the plaintiff’s motions. Id. [emphasis added].

Turning to the “date created,” the court also rejected the recusal motion. “The ‘created’ date field of the metadata does not necessarily reflect when a file was actually created; rather, it indicates when a file came to exist on a particular storage medium, such as a hard drive.”  Id. at *6.

Arconic points to the created date of August 31, 2020, in the metadata of the court’s SJ Opinion attached to the email to counsel on December 3, 2020, to surmise that the special master or her staff was working on that opinion. Arconic is wrong. The created date reflected in the metadata is shortly after the parties’ objections to R&R #33 were filed. The court – not the special master or her staff — started working on a draft opinion before the briefing was fully completed to aid the timeliness of its decision. The created date changed automatically when the court “saved as” a document on August 31, 2020, to create a template for the SJ Opinion.

The court then described a better practice:

In preparing this opinion, the court reviewed the “Guidelines for Editing Metadata” released by the Administrative Office of the United States Courts, https://ksd.uscourts.gov/wp-content/uploads/2015/10/Metadata-Instructions.pdf, last visited Feb. 3, 2022. In those guidelines, the situation that occurred here was addressed:

Court users have expressed concerns regarding authorship metadata. When authors create a document using previous versions created by other authors, the original author’s name is inherited, leading readers to think it was written by someone else. To avoid this issue, the user should verify and edit the author’s name if incorrect through the Properties option (usually found under the File menu of word processing software, see File Description Metadata section on page 3). Otherwise, it is suggested to start with a fresh document, and copy and paste text from the existing documents.

Id. at 2. Going forward, this court will follow the Administrative Office’s suggestions to avoid the concerns raised by Arconic about the author field of the metadata.

Metadata scrubbing techniques are also described in M. Berman, “A Primer on Scrubbing Metadata,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts,” (Md. State Bar Ass’n. 2020), Ch. 21.

See J. Wille, “Arconic Loses Bid for New Trade Secrets Judge Based on Metadata (bloomberglaw.com) (Feb. 11, 2022).