GSB Vol. 13, NO. 5, Pg. 16. Metadata: The Ghosts Haunting e-Documents.

Author:David Hricik and Chase Edward Scott

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 5, Pg. 16.

Metadata: The Ghosts Haunting e-Documents

GSB JournalVol. 13, NO. 5February 2007Metadata: The Ghosts Haunting e-DocumentsDavid Hricik and Chase Edward ScottMetadata is "data about data."(fn1) Although it sounds quite modern, one form of metadata is no doubt familiar to every lawyer: the "fax band" on a document received by facsimile that shows the time and date the fax was received, the number from which it came, and the number of pages sent. Thus, a fax band is metadata because it is data about data. Even this simple form of metadata may reveal a lot. For example, it could be used to show that a party's claim that she did not receive a document on a certain date is incorrect.

Metadata is not new, but it has become pervasive in the digital world in which lawyers (and their clients) live. Many programs commonly used in the office create data about data and then save that unseen information along with the visible text of the document in a single file. Put simply, "invisible fax bands" normally accompany many of the electronic documents that we create on a daily basis. This unseen information is typically transferred along with the document in which it is embedded unless removed prior to transmission. Thus, generally, any time the file is transmitted, the invisible "fax bands" are also sent.

But rather than simply revealing seemingly innocuous information, such as the time and date the file was prepared, metadata often reveals much, much more. For example, many software programs permit an author to "track changes" to the text, to save "multiple undo's" in case the author later decides to "undo" revisions made long ago, or even to insert "invisible" comments into the file. Such data could reveal a wealth of information to recipients of the electronic file, potentially resulting in a significant impact on negotiating positions, litigation strategies and numerous other sensitive scenarios.

Recently, a lawyer relayed a purportedly true story to one of the co-authors that demonstrates the potential risks of exchanging files with embedded data. He had been negotiating a contract against a well-known software maker, which, for purposes of this article, will be called "Macrosoft." During negotiations, the lawyers for each side used a common word-processing program, Microsoft Word, to edit and propose revisions to the contract, and they used the program's "track changes" feature to allow the lawyers to see the specific changes proposed. They e-mailed the electronic draft with this embedded information back and forth to each other between rounds of revisions. After receiving one such draft from Macrosoft's counsel, the lawyer made a few easy mouse clicks to reveal, without using anything but Microsoft Word's inherent functions, "hidden" internal comments from Macrosoft's business personnel concerning the terms of the contract, negotiating positions and bottom-lines. Thus, had Macrosoft subsequently insisted that a noncompete clause was extremely important to close the deal, the lawyer would have been able to tell if this were true or whether it was simply a negotiating ruse. Clearly, metadata is an important consideration in today's legal environment.

This article, the first of a two-part paper, explains how metadata is created and embedded in some popular programs and analyzes what obligations, if any, lawyers have to remove this embedded material from documents that they create or send on their clients' behalf. Did Macrosoft's lawyers, for example, violate duties to their client by sending embedded data along with the text of the contract to opposing counsel? This article also provides a number of useful tips on how lawyers can remove metadata from documents created in some of the more popular office software and avoid similar situations in their own practice.

The second installment (in the next issue of the Georgia Bar Journal) will analyze the recipient's duties. If a lawyer receives a file containing embedded data that reveals confidential or privileged information of an opposing party, is the lawyer bound by the same obligations that apply as when documents in a misaddressed envelope are received or, conversely, is the lawyer free to use and review the embedded information?

The Purpose of Metadata

Obviously, software does not embed hidden data into documents for the purpose of causing the disclosure of confidential information. Although the type and amount of embedded data stored will vary by the particular program used, the primary function of metadata is utilitarian: it is designed to help users revise, organize and access electronically-created files. Typical metadata includes, for example, information about the person who authored the document and the location (drive, folder) of where the file was saved. In addition, a file can include metadata records of past revisions. A person can, as a result, examine the changes that have been made to a file and compare them visually to any handwritten revisions to ensure that they have, in fact, been made. Thus, embedded data serves a useful and legitimate purpose.

Metadata in Microsoft Word

Microsoft Word has rightly been called the "ubiquitous" software program.(fn2) Lawyers commonly use Microsoft Word to create documents, and these files are regularly e-mailed in electronic form to clients, third parties and opposing counsel. Unfortunately in some respects, embedded data is ubiquitous in Word. Thus, the risk in electronically transferring sensitive metadata through these documents is substantial. The following outlines some of the most common embedded information that is found in Word documents.

File Properties Information

Some of the most basic metadata in a Word document can be viewed by looking in different menu items in Microsoft Word.(fn3) A key location is in the "Properties" item, located in the "File" menu. The "Properties" for a particular document can reveal the author, creation dates and other information. For example, this particular article (as of about halfway through the writing process) contained the following information under File/Properties (see fig. 1).

The metadata on just that single screen reveals that the file was created in August and was still being worked on in October 2005. It also reveals that the document was in its 44th revision (meaning it had been opened and closed 44 times) and had been edited for a total of 205 minutes.(fn4) Had this document been a work product for a client and had the author transmitted the file to the client in electronic form, the client would have been able to access this metadata to tell whether the lawyer had worked on the document for as long as indicated in the lawyer's fee statement. If it had been a report prepared by an expert witness sent to opposing counsel, the attorney could have discerned how long the expert had spent drafting the report. If it had been a brief prepared by an undisclosed attorney and forwarded to opposing counsel, the author's identity could have been revealed.(fn5)...

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