Metadata: Pitfalls and Prevention LEGALTECH
by John Cord, Chair MTLA Technology Committee T
he continuous march of technology and its invasion into the everyday practice of law can certainly cause anxiety in lawyers who have to consider their ethical
duties when adapting any technology. Rather than adopting the view of the Luddites1
; however, attorneys should embrace
the advances of technology and learn enough about it to comport with their ethical requirements. One frequent topic of consternation is the advent of metadata and its impact in the legal arena.
What is Metadata? Metadata is behind-the-scenes
information stored in electronic documents.2
It includes typically
benign information, including the author, date of document creation, and date the document was last modified. However, it can also include the document revisions, prior versions, and a history of comments associated with the document. Practically, this is important
when sending documents that have at any time included sensitive information. For example, an attorney who sends a proposed settlement demand letter to his partner in Microsoft Word with a comment about the client’s bottom-line, which is later replaced by the actual de- mand figure and forwarded to defense counsel, runs the risk that the bottom-line number is discoverable, even though it is not apparent on the face of the document. This risk is highest when utilizing the ‘Track Changes’ feature of Microsoft Word;3 however, other features of this and other word processing
1 Luddites were 19th century Leicestershire workers who destroyed
textile machinery to protest technological advances brought about in the industrial revolution, which they feared would threaten their livelihoods. The term, along with “neo-luddism,” has evolved to signify one opposed to technological change.
2
The technical definition for ‘metadata’ is “data that provides infor- mation about other data.” Merriam-Webster’s online dictionary (visited July 27, 2007) <
http://mw1.merriam-webster.com/diction- ary/metadata>. Less enigmatically, it is “information describing the history, tracking, or management of an electronic document.” Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005).
3
For example, open a new Microsoft Word document. Type “Plain- tiff will accept $10,000.” Enable the track changes feature from the ‘Tools’ drop-down menu. After deleting the sentence, the document appears clean unless the ‘Mark-up’ feature is selected from the ‘View’ drop-down menu. Future recipients of the document will be able to see these changes made to the document.
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applications, such as comments, hidden text, and old file ver- sions can all lead to inadvertent data disclosure. Additionally, PDF documents converted from Word or WordPerfect may contain similar metadata in the form of comments, or even the underlying word processing file.
Ethics of Sending and Viewing Metadata
Most law firms send a substantial percentage of their documents out by e-mail, either exclusive of or in addition to regular mail. Lawyers that do so run the risk of violating the Rules of Professional Conduct if proper precautions are not taken. The Maryland State Bar Association’s Committee on Ethics published Ethics Docket 2007-09, “Ethics of Sending and/or Using Metadata.” There, the committee explored first, whether an attorney has an obligation to prevent transmis- sion of metadata; and second, whether an attorney may review metadata sent by others.
ments containing metadata, the committee pointed to Rules of Professional Responsibility 1.14
Regarding the first question, the sending of electronic docu- (competence) and 1.65
(confidentiality of information) and noted that attorneys have an ethical obligation “to take reasonable measures to avoid the disclosure of confidential or work product materials.” This takes a common-sense approach toward metadata. First, it does not assume that disclosure of metadata is per se unethical. Rather, the metadata itself must be either confidential or work product to bring the disclosure within the possible scope of an ethics violation. Second, the opinion only requires that attorneys take “reasonable” measures to preclude disclosure. This does not equate into an absolute prevention of the transmission of con- fidential and/or work product metadata, which may be nearly
4
Rule 1.1 of the Maryland Lawyers’ Rules of Professional Responsi- bility provides: Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
5
Rule 1.6 of the Maryland Lawyers’ Rules of Professional Responsibil- ity provides, in part: Confidentiality of information. (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representa- tion, and except as stated in paragraph (b).
Trial Reporter Fall 2007
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