Although most attorneys and law firm staff have heard of "metadata," most don’t fully understand how it can work for you or against you.
In the proper context, metadata is harmless and extremely helpful for collaborative writing and editing work. But if the document you are transmitting to opposing counsel contains comments and notations that have been affixed to the document, you may have inadvertently waived the attorney-client privilege and work-product doctrines, violated ethics rules about client confidentiality and committed malpractice with your computer.
Not likely to happen to you, right? Consider the following scenario. You send your client a finished legal document as a Word e-mail attachment. Your client opens the document and learns that the document was drafted by your paralegal by cutting and pasting from a prior client’s document and edited by a first-year associate. The client also discovers that the total editing time tracked in the document doesn’t match the total hours billed by the billing attorney, whose name and billing rate don’t match the names and billing rates of those who actually did the work. Document statistics such as the last 10 authors, the amount of time spent editing, and file dates can create awkward situations such as this.
Metadata may cause problems in other areas you hadn’t considered. Much hype has surrounded metadata ever since the March 4, 2004, CNET News.com disclosure that SCO Group’s lawsuit against defendant DaimlerChrysler for alleged violation of their Unix software agreement was initially prepped as a lawsuit against Bank of America for copyright infringement. You may have enjoyed the benefit of using a suite of programs like Microsoft Office, especially because it is easy to pull data from one program into another, such as copying part of an Excel worksheet into a Word document. However, if you do this from the Edit menu using the "Paste Special" feature and selecting "Microsoft Excel Worksheet Object," you may be in for a surprise. Double-click on the Excel worksheet object in your Word document and you’ll discover that the entire worksheet document is visible, including other worksheet tabs that may contain sensitive information. The entire Excel worksheet is known as an embedded object and is metadata that travels with the Word document. Thus, the full Excel worksheet can be viewed by the receiver of the Word document, even though you didn’t intend that result. The detriment of exposing more that a select portion of an Excel spreadsheet may be exponential if the additional figures pertain to your negotiation strategy on settlement offers or disclose profit projections for complex financing plans.
In complying with discovery requests, you are required to provide only the documents and data set out in the discovery demand. Beware — if supplying electronic versions of your documents — that you are not providing more information than required by inadvertent disclosures in document metadata.
Metadata has been almost totally linked with the Microsoft Word program. It also exists in Microsoft Excel and Microsoft PowerPoint. It chiefly has been cited as a problem with word processing documents. Some people erroneously believe that it does not affect Corel WordPerfect or Adobe Acrobat PDF documents. There may be less metadata, but it is there, nonetheless. Even less commonly used programs such as Lotus Word Pro 9 and the former king of spreadsheets, Lotus 1-2-3 (part of the Lotus SmartSuite) contain metadata. Metadata exists in many other software programs as well.
Some metadata is readily accessible and visible to anyone opening your document in the application program in which it was created. Other metadata might not be immediately apparent when you view the document in your application program but is accessible by opening the document in a low-level binary file editor. To check for basic metadata, open a new document, select "Properties" from the File menu, and you will see an assortment of metadata that stays with the document.
Metadata That May Be in Your Document
Some metadata is fairly innocuous, while other metadata is the potential electronic smoking gun. Here is a quick list of what may be in your document, depending on which program created the document.
Options for Handling Metadata
No central place addresses all metadata issues in all programs. You can turn off some features that create metadata in the "Options" dialog boxes by selecting "Settings" under the Tools menu. Other programs have an Options menu and include "Security" settings to address some metadata issues. Good places to look are the pull-down menus under File, Edit, View, Insert, Format, Table and Tools. Visit the website of the software publisher for possible articles on metadata and search for "metadata" or "minimizing program X metadata." Programs include metadata for a variety of legitimate purposes to facilitate editing, viewing, filing and retrieving capabilities. You will likely just want to turn off the features that create metadata before sharing the document in an electronic format.
One option is to save your document to RTF (Rich Text Format) before attaching it to an e-mail. Under the File menu, select "Save As" and, in the dialog box for the File Type, select the option of saving your document in RTF Rich Text Format. Documents in this format will show ".rtf" at the end of the file name.
Another option is to print your word processing document and then scan it and turn it into a Portable Document File or PDF format using scanning software such as ScanSoft PaperPort. You then select the document, which now will have a ".pdf" file name extension, before sending it as an e-mail attachment. Right-click on the PDF document and select the "Send To" option and "Mail Recipient." This automatically opens your e-mail program and attaches the PDF document to the blank e-mail. You are sending an image PDF document, which cannot be edited by the recipient (unlike text PDF), and which will contain some metadata, such as the date the PDF document was created. But any metadata that existed in the document prior to converting to PDF format will not be transferred to the PDF document.
WordPerfect 12 users are likely smiling that they can turn their WordPerfect document into a PDF document under the File menu by selecting the "Publish to" option and then selecting "PDF." You might want to be cautious about the properties of the PDF you are creating. Check the tabs in the "Publish to PDF" window, such as the General tab where you can remove the author name that automatically fills in from the converted WordPerfect document. Under the Document tab, you may deselect "include hyperlinks" and deselect "generate bookmarks" if these are metadata that you do not wish to share.
You may decide to invest in a metadata cleaning program. At the Microsoft Web site, you can find a lot of information about metadata and download a free utility to scrub the metadata from your documents. The Office 2003/XP add-in "Remove Hidden Data" allows you to permanently remove hidden data and collaboration data, such as track changes and comments from Microsoft Word, Excel and PowerPoint files. Microsoft cautions that "Remove Hidden Data" has not been tested on Microsoft Windows 2000 and that it cannot be installed on Windows 98 or the Windows Millennium Edition. This is another reason to update your Microsoft operating system and to install Microsoft Service Packs and Security Patches as they become available. (www.microsoft.com/downloads/) Programs such as Metadata Assistant for Word, Excel, and PowerPoint are available from the Payne Consulting Group website. (www.payneconsulting.com/products/ProductDetail.asp?nProductID=34) The website promotes it as the most popular metadata cleaner on the market, with over a million users worldwide. Another choice is the BEC LegalBar Metadata Scrubber available from the BEC (Business Equipment Company) Legal Systems website. (www.beclegal.com/lsy/lsylegspeclegbarmetadata.asp) Appligent’s utility family includes software components such as "APSetDocInfo" that enable you to modify the metadata of a PDF document. See their PDF utilities at www.appligent.com/ products. The principle behind these metadata cleansing programs is to give the software user the ability to identify and either modify or remove metadata. Since metadata becomes an issue with sending electronic versions, you should be sure that the metadata cleansing program works with your e-mail program, whether it’s Microsoft Outlook, Eudora or Lotus Notes.
Should an attorney be able to view metadata contained in opposing counsel’s electronic document? Should metadata be discoverable? If the metadata is not readily apparent, is it ethical to use a program such as Princeton Software’s "Meta Data Reviewer," which allows the user to search, explore and export 41 fields of information about each file (and which can be purchased for $19.95 at www.princetonsoftwarecompany.com.)? Interestingly, Appligent sells a program "APGetInfo" that enables the user to get metadata from PDF files for $149 which includes the ability to retrieve XML metadata from PDF documents that support the Adobe Extensible Metadata Platform (XMP). This program is also located in the Utilities at the Appligent Web site.
Computer forensics experts and electronic discovery service providers may provide the expertise if you are on the offensive. But if you are representing the defense, you would be prudent to consider the full ramifications before stripping or scrubbing metadata from discovery documents. It might be viewed as spoliation and could result in an ethics violation. You may need to get a protective order that permits the scrubbing of metadata from documents that are subject to discovery. In fact, some discovery requests now include metadata along with requests for the documents, treating it the same as postmarked envelopes and fingerprint dusted documents.
Increasingly, courts are addressing the issues around metadata and electronic discovery and rules are being adopted in various jurisdictions. For example, New York has published Opinion 79-12/14/01:DR 1-102(A)(4), DR 1-102(A)(5), DR 4-101, DR 7-102(A)(8), Canon 4, Canon 7, EC 4-1, advising that "Lawyers may not ethically use available technology to surreptitiously examine and trace email and other electronic documents." Attorneys in Oregon have treated the concept of metadata as an inadvertently sent document and thus view the guidance of ethical conduct by the Oregon Rule of Professional Conduct Rule 4.4 Respect For the Rights of Third Persons; Inadvertently Sent Documents (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
You don’t need to stay awake at night worrying about metadata. Just become more mindful when you are sharing or delivering documents electronically. The savvy way to practice is the safe way to practice.
ABOUT THE AUTHOR
Sheila Blackford is a practice management advisers with the Oregon State Bar Professional Liability Fund. Reach her at (503) 639-6911.
© 2006 Sheila Blackford