Metadata: the future impact of invisible data on e-discovery in Florida.

• Author: O'Neal, Nicole

The complexities of electronic discovery (e-discovery) are leading to disputes regarding the scope of discovery, the form of production, and the protection of privileged and confidential information. Since there is an established trend toward a greater dependence on electronically stored information, as opposed to paper documents, (1) pressure is growing for the creation of solutions and rules to promote uniformity in this area of the Florida Rules of Civil Procedure and the Rules of Professional Conduct. Consequently, ambiguity regarding the disclosure of metadata is becoming a prominent issue throughout Florida's legal community. (2) Metadata, which is often referred to as "data about data," is information that becomes embedded within an electronic document, sometimes invisibly, often providing all of the document's history and changes. (3) Its growing importance is reflected in the fact that it has recently become the topic for continuing legal education seminars. (4)

The purpose of this article is to consider the likelihood that metadata will become discoverable in Florida, and if so, to what extent. The article will assess the possible effects this could have on inadvertent disclosure, the duty to preserve, and the duty to disclose by considering recent measures of The Florida Bar Professional Ethics Committee and the findings of federal courts when applying the Federal Civil Procedure Rules. (5) Federal courts have found that there is not only a duty to preserve metadata, (6) but also a duty to disclose it (7) under Federal Civil Procedure Rules 34 and 26, respectively. Furthermore, failure to comply with these rules has resulted in sanctions from the courts. (8) The Florida Supreme Court may determine that metadata is discoverable, at least in cases where metadata is necessary to the functionality of discoverable documents or where the metadata itself is at issue. (9) The Florida Bar and Supreme Court are currently in the process of developing rules to govern e-discovery, and these rules will play a crucial role in determining how metadata affects future litigation in this state. (10)

Metadata: A Brief Definition

The official definition of metadata is "information about a particular data set which describes how, when, and by whom it was collected, created, accessed, modified and how it is formatted." (11) In general, metadata occurs within word processing, spreadsheet, and presentation programs.12 Although there is usually less metadata within Corel Word-Perfect or Adobe Acrobat PDF documents, it is certainly still there. (13)

One important question to consider is what exactly remains in a document after it is saved and e-mailed to a client or opposing counsel? Many times it is simply innocuous, albeit embarrassing, information that does not breach any privilege. (14) However, metadata can routinely reveal the original authors of the document, the firm name, the computer name of the drafting computer, the file location on the drafting computer, document revisions and versions, file properties, hidden text, hyperlinks, initials of the drafter, network or server name of the firm, undo/redo history, comments on the document, and tracked changes. (15) Clearly, a significant portion of this information should be kept confidential.

The most vulnerable part of the Microsoft suite of applications is the "track changes" tool, most commonly used in Microsoft Word. (16) When this feature is turned on, the word processor will save all modifications that are made to a document in an easy-to-read format, which could permit the opposing side to discern exactly what was in the mind of the document drafters throughout negotiations and pleadings. (17) In the legal realm, this tool can create more harm than good. As such, it seems preferable to turn the tool off completely, specifically remove it from a document before it is e-mailed, or avoid utilizing e-mail to send the document to opposing counsel. (18)

Unfortunately, unlike the Word "track changes" feature, most metadata is additional text and can be invisibly and unavoidably stored within a document. (19) One quick way to make this invisible text appear is to take any Word document and open it in the Notepad program included with every release of Microsoft Windows. (20) Once a Word document is opened in Notepad, it is immediately apparent that, in addition to the written text within the document, there is a large amount of seemingly arbitrary letters and symbols. Much of this nonsensical text is in fact metadata, and likely includes information such as the firm name or drafting dates.

Current Rules Governing Metadata: Florida Ethics Opinion 06-2

The Florida Bar Professional Ethics Committee is "concerned about the ethical obligations both of attorneys sending documents electronically that may contain metadata and of attorneys receiving such documents." (21) In response to this concern, The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006. The purpose of the opinion is to outline the ethical duties of lawyers when they send and receive electronic documents from other lawyers in the course of representing their clients. (22) The opinion states:

(1) It is the sending lawyer's obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

(2) It is the recipient lawyer's concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender's client that the recipient knows or should know is not intended for the recipient...