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The Legal Ramifications Of Computer Metadata

October 20, 2011

The Legal Ramifications Of Computer Metadata

computer metadata

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:


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:

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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Posted By: Eston Whiteside