The Parol Evidence Rule in the Digital Age: Is Metadata Extrinsic Evidence?

Abstract

In the modern twenty first century, technology is at the core of our every day lives. According to Cisco Executive Rob Soderbery, in 2012 the number of Internet connected devices totalled to approximately 8.7 billion. This number has continued to grow with the advent of less expensive tablets, computers, and mobile devices. With the modernization of daily activities, professional industries have had to adapt to technological advances. Within the legal industry, lawyers are utilizing programs such as Microsoft Word to draft contracts and specific functions, such as Track Changes, to follow work of their colleagues during the drafting process, with the digital contracts being transmitted to opposing counsel or clients. Although a seemingly efficient way to conduct “modern lawyering”, lawyers must remain cognisant of what lies beneath the contract, otherwise known as metadata, which can prove to stir conflict. Even with technology, centuries old rules still remain in modern contract law. This includes the admissibility or prevention of oral assurances and pre-contractual negotiations after the formation of a finalized contract. This rule is known as the parol evidence rule, which restricts for extrinsic evidence to be permitted. The purpose of this paper is to discuss if metadata can be considered as extrinsic evidence, with parties having the ability to rely on metadata to enforce the parol evidence rule. One considers whether a contradiction embedded within the metadata would trigger the rule. A systematic approach will outline the parol evidence rule and case law for and against the rule, as well as exceptions; followed by a definition of metadata and if it can be considered as extrinsic evidence. One will argue that metadata is not outside of the contract, but rather is embedded in the contract itself. Thus, parties cannot compare metadata to oral assurances or negotiations leading to the contract. To note, there is no current case law on point, however with expansion of this digital age, this topic remains one that must be addressed.