Should Lawyers Use Metadata?

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15Sep2007

Should Lawyers Use Metadata?

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By Nicholas Deleault

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I use Microsoft Word, Outlook, Excel and many other office programs. Do you use the same? What many of us do not know is that in each email and office file we create, we are also creating a hidden trail of data about our documents. These programs automatically save information such as who worked on the document, when and for how long was the document open, who printed the document, when was it printed and from what work station.

In addition to personally identifying information, is private comments used for intra office use as well as a trail of all content that was deleted from a document. For those of us who are in the know, it is not difficult at all to retrieve some if not all of this information from every document that is sent to us. The question clearly beckons, should lawyers review metadata in documents? Is reviewing this data ethical, when the author of such data likely had no idea they were creating it.

Metadata by its definition is simply, data about data. It can contain all sort of identifying information. One of the easiest ways for metadata to be left in a document is for the comments section to leave the comments feature turned on. Similarly, if you leave track changes turned on, the receiving attorney can not only read confidential comments that were meant to be intra-office or privileged communications between the attorney and client, but also the attorney can see what content was deleted from the document.

In a recent American Bar Association opinion by its ethics committee, reviewing issues such as metadata sent to lawyers, the committee stated that reviewing metadata meets with the professional responsibility guidelines. 06-442 (August 5, 2006). The committee did add the footnote, “This opinion assumes that the receiving lawyer did not obtain the electronic documents in a manner that was criminal, fraudulent, deceitful, or otherwise improper, for example, by making a false statement of material fact to opposing counsel or to any other third person (Model Rule 4.1(a)), using a method of obtaining evidence that violated the legal rights of a third person (Model Rule 4.4(a)), or otherwise engaging in misconduct (Model Rule 8.4). Such scenarios are beyond the scope of this opinion.”

Perhaps even more interesting than the opinion itself, the committee stated that there is no specific language in the ABA Model Rules of Professional Conduct that would forbid an attorney from reviewing the metadata in electronic documents. The ABA Model Rules of Professional Conduct Rule 4.4(b) reads: “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.” However, when an attorney receives a document that they requested, and the opposing counsel is negligent in removing or redacting information, it is not the job of the receiving attorney to censor what they read.

Is it negligent for an attorney to send an electronic document such as a Microsoft word document or archived email file without first scrubbing it for metadata? This question beckons an analysis of whether even in today’s technologically savvy business and legal environment, the reasonable attorney is aware of metadata and how it can possibly breach privilege by sending confidential comments, or revealing trade secrets, in addition to arming the opposing the counsel with great evidence for a deposition and cross examination.

Does the attorney have a duty to scrub the file and does that duty extend to files sent to the attorney by the client to hold similar to an escrow agent holding funds? If there is a duty does simply sending a file breach that duty? Even if a breach occurred is there an injury to the attorney’s client and was the damage proximately caused by the breach where the attorney sent the document?

It is my contention that too much has been written on the existence of metadata in the past couple of years for someone to not know of its existence.   Moreover, is that a lawyer is negligent for not deleting those comments, and turning off track changes and it would be malpractice to not take advantage of such an oversight by the opposing counsel.  Yet, to understand how to clear out metadata, or even all of the specific details it contains may fall outside the scope of what a reasonable attorney might know. As such, I would suggest that it is fair to review metadata, but at the same time, I believe it is also fair that you must inform the sender of their mistake.

This article was written by Nicholas Deleault, a graduate of the Franklin Pierce Law Student. Nicholas writes select legal articles which can be found at Law Office of Goldstein and Clegg, LLC.

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