Metadata: the ghosts haunting e-documents.

• Author: Hricik, David

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Metadata is "data about data." (2) 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. A fax band is metadata since it is data about data. And even this simple form of metadata may be important. It could 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" commonly accompany many of the electronic documents 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. Generally, each time a 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 had been prepared, metadata often reveals much, much more. For example, many software programs permit an author to track changes to the text, to save multiple undoes 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 affecting significant negotiation positions, litigation strategies, and numerous other sensitive scenarios.

Recently, a lawyer relayed a story to one of the co-authors that demonstrates the risks of exchanging files with embedded data in negotiating a contract against a well-known software maker who, for purposes of this article, will be called "Mercer." 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 utilized the program's track changes feature to allow the lawyers to see the specific changes proposed. They e-mailed the electronic draft, complete with embedded data, back and forth to each other between rounds of revisions. After receiving one such draft from Mercer'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 Mercer's business personnel concerning terms of the contract, negotiating positions, and bottom-lines. Had Mercer subsequently insisted that a noncompete clause would be needed to close the deal, the opposing lawyer would have been able to tell if the demand was simply a negotiating ruse. Clearly, metadata is an important consideration in today's legal environment.

This article explains how metadata is created and embedded in some popular programs and analyzes the ethical obligations to remove this embedded material from documents lawyers create on their clients' behalf. Did Mercer'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 programs and avoid situations similar to those suffered by Mercer in their own practice.

The final portion of this article analyzes the duties of a lawyer who receives a file containing embedded data that reveals confidential or privileged information of an opposing party. Is that lawyer bound by the same obligations that apply 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

Software does not embed data into documents to cause disclosure of confidential information. While the type and amount of embedded data will vary based upon 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) where the file was saved. In addition, a file can include metadata records of past revisions. As a result, one can examine changes that have been made to a file and compare them visually to any hand-written revisions to ensure that they have, in fact, been made. Thus, embedded data may serve useful and legitimate purposes.

Metadata in Microsoft Word

Microsoft Word is a "ubiquitous" software program. (3) Lawyers everywhere commonly use it 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 prevalent in Word, and the risk in electronically transferring sensitive metadata through Word files is substantial. The following illustrates embedded information typically found in Word documents:

* File Properties Information--Basic metadata in a pre-2007 version of Word can be seen by reviewing the different menus available. (4) A key location is in the "Properties" subset menu, located within the "File" menu. The "Properties" for a particular document may 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:

The metadata on that single screen alone 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. (5) Had this document been 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. (6) Metadata matters. (7)

* Track Changes Feature--More troubling than the basic metadata found in the File/Properties screen is the other unseen data that can accompany a Word file. Foremost, "track changes" is a feature within Word that creates a record of every change made to a document. It has many uses: Lawyers who exchange drafts of contracts, as mentioned in the introduction, can turn on this feature to allow prior revisions of a proposed contract to be reviewed...