Metadata can bite you where it hurts, law-wise

By Diane Karpman

Most lawyers have boldly embraced computer technology. If you haven’t, just think about what happens when everyone else is adopting a procedure — someday it may become standard practice.

Karpman

For example, the father of modern SPAM was a Tennessee immigration lawyer, with offices in California and Arizona. Thousands received his original “Green Card Lottery” and he was disbarred from Tennessee for misconduct, including SPAM. The Los Angeles County Bar’s recent Opinion No. 514 has a great discussion about SPAM, ethics and List-servs at http://www.lacba.org/showpage.cfm?pageid=5751.

SPAM is intentionally transmitted e-mail and is a heinous plague. Recently, the IT department in a Los Angeles firm blocked e-mail containing the usual terms about enhancing body parts or certain physical acts. In a “brilliant” move, they included “brief” as a verboten word. Well, the partners went wild when they suddenly stopped receiving legal “briefs.”

What about unintentionally transmitted information like metadata? Metadata is hidden data that is sent with an e-mail or an attachment. Keep in mind the computer Geeks designed “Word” to encourage collaboration with the transparency of metadata. Word, with a flick of a button, shows the last 10 people who collaborated on a document, in addition to revisions, comments, etc. (Go online for the solution!) Do not think that you are safe with “WordPerfect.” You must still “scrub” documents with “paste special” or “publish to PDF.”

Colin Powell’s speech to the United Nations Security Council in 2003 relied on a document produced in Britain. When the document posted online was reviewed, the metadata downloaded from the Internet showed that the original information was plagiarized off the Internet, causing Tony Blair profound embarrassment. If metadata can embarrass governments, just imagine the impact in a fee arbitration in Pacoima involving a billing dispute.

Ethics lawyers have been stressed about giving information to the “other side.” In our collective myopia, we failed to consider clients who become grumpy. Will that client be able to introduce an attachment that shows the beginning of the document was in the secretarial pool? Can that be reconciled with your bills? If a client is murmuring about professional negligence, to properly evaluate the risk, you should be thinking about the history of any documents that you long ago attached to e-mails.

Some argue that “gentlemen/ women” recipients of a document would never look at information when they were not the intended recipients. Does a recipient have a duty to notify the sender of inadvertently received information, as with an inadvertent fax?

But wait! What about electronically filed documents that are just sitting in the public domain, like the Blair documents or those filed with a court? If it was sent before you knew about metadata, then arguably, it was inadvertently sent. How does that impact upon attorney-client or work product privilege? You can be sure that the courts will have something to say on these issues soon. Gosh, what about court orders?