impossible in this day and age of increasingly sophisticated hack- ers. Instead, it requires that attorneys be aware of the possibility of metadata transmission and take steps to avoid it. On the second question, the committee approved the review
and use of metadata received by an attorney and did not re- quire that the recipient attorney verify whether the disclosure was intentional.6
not impose an obligation on the recipient attorney to report potentially inadvertently disclosed information.7
Preventing Metadata Transmission The Maryland opinion on metadata does not strictly
prohibit disclosure, but requires “reasonable” measures to preclude disclosure. As an initial matter, attorneys and their staff should take great care before transmitting any documents electronically to determine if those documents ever contained confidential or otherwise sensitive information (for example, draft answers to interrogatories with notes of client conversa- tions, or settlement demand packages with bottom-line dollar figures). An office policy should be established based on the likelihood of sensitive information in the document. Necessary precautions could entail: • Print the document out and scan it in using a commercially- available scanner. The only significant metadata present will be the date the document was scanned and the title. This is the safest method, aside from simply producing hard copies.
• Word processing files (i.e., Microsoft Word and WordPerfect) can be “cleaned” of unwanted metadata by using a simple- text editor, like Windows Notepad, which is incapable of saving metadata. Select the text from your word-processing program (cntrl-A), copy the text (cntrl-C), and past the text into the Notepad document (cntrl-V). This will remove all metadata, but will also remove all formatting. Then copy the text from the Notepad document, and paste it into a new word processing program.
6
Other states find differently on these issues. For example, the Florida Bar opined that in some cases lawyers are not allowed to look for metadata in documents sent to them by opposing counsel (“It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the repre- sentation of the sender’s client that the recipient knows or should know is not intended for the recipient.”)(Opinion 06-02, issued Sept. 15, 2006).
7
The view of the American Bar Association, promulgated by the Stand- ing Committee on Ethics and Professional Responsibility in Formal Opinion 06-442 (Aug. 5, 2006), is that metadata may be used by the receiving attorney; however, an attorney who receives inadvertently sent information must notify the sender. The opinion does not dis- cuss whether transmission of documents containing metadata is “inadvertent,” but notes that the analysis may be fact-specific.
8
See Grimm, Paul W., Ethical Issues Associated with Accessing and Using Metadata Related to Electronic Records, THE ADVOCATE, YOUNG LAWYERS SECTION–MARYLAND STATE BAR ASSOCIATION, v. 22, no. 3 (2007). Judge Grimm analyzes the potential impact of the recent amendments to the Federal Rules of Civil Procedure on the ethical obligations of attorneys with regard to metadata.
Fall 2007
new Rules to the Federal Rules of Civil Procedure may alter this analysis for federal cases.8
Furthermore, the Maryland ethics rules do However, the
• Computer users with Acrobat 8 can eliminate metadata by clicking the ‘Document’ drop-down menu, select ‘Examine Document,’ click ‘Check All’ and ‘Remove all Checked Items.’ This will remove metadata, annotations and comments, hid- den text, and bookmarks, leaving only a clean document.
• Microsoft Word users can follow the procedures listed on Microsoft’s website to remove personal information, comments, revision marks, hidden text and old file versions.9
• WordPerfect Office X3 features a “save without metadata” op- tion.
• When converting documents into PDF files from Microsoft Word, click ‘Change Conversion Settings’ from the ‘Adobe PDF’ drop-down menu, and make sure ‘Attach source file to Adobe PDF’ is unchecked. Otherwise, the underlying word processing document will be attached to the PDF document.
• Finally, other commercially-available products “scrub” metadata from individual files, including e-mails.10 A full list of steps is not possible here; however, attorneys
and/or their IT department should check with their software manufacturers to determine the most efficient and practical methods for preventing metadata transmission. With the advent of electronic court filing, many courts
recommend that attorneys use the “convert to PDF” feature of their word processing programs to create PDF documents for filing. This creates a cleaner-looking document than manual scanning. However, the underlying document should be cleaned of metadata and other potentially sensitive infor- mation before converting the document to PDF, because that information can follow into PDF format. Using the methods above will ensure that for documents received by opposing counsel, “what you see is what you get.”
Conclusion Technological advances are inevitable, and only a Luddite
would stoically refuse to accept those advances that can have a beneficial effect on his or her profession. Metadata is not something to be feared, but only something to be cautious of. With the proper precautions, client confidences can be main- tained and documents can continue to be transported at the click of a button. n
About the Author
John Cord, Janet, Jenner & Suggs, LLC, graduated from the University of Colorado School of Law in May 2003. Mr. Cord concentrates his practice on assisting victims of birth trauma and other serious injuries of medical negligence. He is licensed to practice in Maryland, the District of Columbia, Pennsylva- nia, Georgia and Minnesota. He is a member of the American Association for Justice and is the current chair of the Maryland Trial Lawyers Association Technology Committee.
9 10
Microsoft, How to minimize metadata in Word 2003. (visited July 27, 2007) <
http://support.microsoft.com/kb/825576>.
See, e.g.,
www.payneconsulting.com;
www.esqinc.com; and www.
litera.com; and
www.docscrubber.com.
Trial Reporter 47
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