Metadata is the information that computers automatically generate and store. In litigation, metadata becomes important during discovery, because it could be used as evidence.

In a recent case, the U.S. government used GPS coordinates generated by Google Earth to find and arrest an illegal alien who had impermissibly crossed the border. Although the agent who arrested the alien did not prepare the satellite image the government relied upon, the court determined that the image was not hearsay (an inadmissible out-of-court statement), because it was not made by a person. The court explained that the GPS coordinates created by Google Earth were made by a program and no human intervention was involved. Because the “statement” of where the alien was found was made by a machine — not a person — the court allowed the evidence, explaining that nothing generated by a machine can be excluded from evidence as hearsay.

This reasoning is significant, because if no human testimony is available or admissible as evidence, companies may increasingly rely on metadata or “machine statements” to prove facts. For example, metadata can be used to demonstrate file creation dates, edit dates, times of documents and other digital “fingerprints” that could be useful in litigation.