Today, technology is an essential part of how lawyers and business professionals operate. Lawyers are familiar with discovery and the requirements set forth by the courts for complying with discovery demands. Likewise, they also understand that they are only required to provide the documents and data set out in the discovery demand. However, if you are providing electronic versions of your documents you may in fact be unintentionally supplying more information than you realize.
Similarly, it is common practice for lawyers to circulate proposed documents around the office via e-mail, as people add comments or suggestions. Eventually, the comments are removed from the final document and expected to remain within the privacy of the office. This is not so, however, as the right tools can be used to reveal document revisions and comments. This is due to the extensiveness of metadata that is integrated into a digital document or other computer generated files.
Metadata is “data about data” that is not evident when viewing a digital file. For example, standard data would include the number of words typed or the date it was last edited. Metadata on the other hand, can reveal significantly more information about a document, including but not limited to:
- who worked on the document
- the name of the company / organization that created or worked on it
- the name of the network server or hard disk where the document was saved
- prior versions of the document
- recent revisions/ highlighted changes (“Track Changes” or “Fast Saves”)
- hidden text or cells
- personalized views
- non-visible portions of embedded OLE objects
- comments inserted in the document during the drafting and editing.
The purpose of metadata is to add functionality to the editing, viewing, filing, and retrieving capabilities of a program. In addition, metadata is used to substantiate core authenticity functions, which case law has mandated is necessary for outputs to be admitted into a legal proceeding. Unfortunately, it is possible for some or even all of this information to be passed on to an inappropriate party (opposing counsel), thus creating adverse consequences for you and your client. Furthermore, lawyers have a duty to protect the information and evidence they have related to their clients’ cases. Lawyers who attempt to conceal or erase metadata must exercise extreme caution, as the destruction/concealment of evidence is an ethical violation. Likewise, liability exists for lawyers who mine (to look for changes or discover information the other side intended to keep confidential) electronic documents, especially when the electronic document is not a discovery item. Therefore, as part of a lawyer’s required competence, it is essential for them to understand the facts and effects of metadata.
Consequently, it is likely the courts will be addressing the various issues surrounding metadata, such as its definition, the mining of it, and how such data can be deconstructed. This will result from the implementation of new digital methods, such as federal and state tax e-filings, electronic medical records (EMRs), and other general sharing of digital data. Currently, there are steps that can be taken to reduce the transmission of damaging metadata, including:
- Disabling the “Track Changes” and “Fast Saves” functions in Microsoft Word
- Use IT tools such as Payne Metadata Assistant, Workshare, iScrub and others, to strip out the metadata from Microsoft Word, Excel, PowerPoint, PDF documents and digital photos.
- Never use “Track Changes,” for it is better to use other document comparison technologies that show text changes in PDF or RTF formats. (Note: PDF documents carry their own metadata, including Keywords, Author, Title, and Subject.)
- Convert soft copy files into Adobe PDF documents because these don’t contain metadata
- Strip out metadata from all incoming e-mailed Microsoft Word, Excel PowerPoint and PDF documents, as well as digital photos, before opening them, so that you do not unfairly learn anything that you ought not to learn.
While it remains to be seen how this emerging issue will develop in response to future legal opinions and analysis, the best approach for the time being is for lawyers to develop sound internal practices to keep metadata from “escaping” in the first place. Such practices will not only uphold the professional and ethical reputation of lawyers, but will also ensure fairness and integrity in the practice of law.
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Metadata and Issues Relating to the Form of Production
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Metadata – What Is It and What Are My Ethical Duties?
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Critical Computer Skills Every Attorney Should Know – Understanding Metadata
Posted By: Eston Whiteside