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Metadata can cause lawyers megaproblems

By Diane Karpman

Diane Karpman

Some lawyers suspect that metadata is an evil plot designed to undermine the security of the free world, and that it has no other purpose but to drive lawyers nuts.

Metadata is embedded information in a digital document that is not visible in the final form. However, it can be used to uncover the history of the document, such as prior changes in the document, who made them and when they occurred. With the wizardry of computers, you can push a few buttons and easily view metadata, including information that would be construed as confidential. That’s called mining metadata.

This column is about metadata outside the discovery process. In many instances, litigants are required to preserve metadata, which is routinely discoverable. Litigators even joke that the “e” in e-mail stands for “evidence.”

Metadata is a sexy ethics issue, because it involves confidential client information and imposes duties on both the sender and the recipient. Obviously, disclosure of confidential information is antithetical to our overarching fiduciary obligations, and the sending lawyer must use reasonable care to protect confidential client information.

At the recent ABA National Ethics Symposium, it was reported that 75 percent of mid-sized to big firms, and 50 percent of small practitioners and solos employ scrubbing programs to remove metadata.

Legal malpractice is typically defined as a failure to exercise that degree of skill and knowledge ordinarily possessed by members of the legal profession in the same or similar circumstances. So when most other lawyers begin doing something as their standard practice, arguably the “standard of care” for legal malpractice may someday change. If the profession is cognizant of metadata, and knowingly protecting their client’s confidential information, then maybe the failure to remove it from documents could be careless conduct.

Ethics opinions from New York (782) and Alabama (2007-02) maintain that lawyers must use reasonable care not to disclose confidential information in electronic documents. Ethics opinions analogize sending metadata to the inadvertent transmission of information, but how “inadvertent” can it be if most lawyers scrub it out of their documents?

There are many programs that will remove it. Most computer word processing programs have several methods of removal. For example, using “save as” or converting it to a PDF file removes most metadata.

The passive recipient lawyer has a host of conflicting duties. Some states prohibit even looking at metadata. New York, Florida and Alabama consider it surreptitious prying. However, ABA Opinion 06-440 maintains lawyers may look, but must notify the sender if they know or should reasonably know that it was inadvertently sent.

In order to escape the metadata quagmire, many lawyers are exercising precautionary measures. In litigation, lawyers are routinely entering into “clawback” or non-waiver agreements, taking the matter into their own hands.

Then again, maybe this is not worrisome to you, because you have never pulled up an old letter or document and revised it for a client, rather than reinventing the wheel. Oh, no, of course not...

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