Metadata - Lawyers' Ethical Duties

LLRX.com has just published an article entitled Metadata - What Is It and What Are My Ethical Duties?:

"There is little dispute at this point over the pervasiveness of metadata that can be contained in digital documents and other computer-generated files. It is important to understand that for computer files, that 'deleted' often does not really mean gone. This has been obvious for some time to those of us who have learned the magic of the Ctrl + Z (Undelete) keystroke combination. I smile almost every time I use it. "

"In many law firms, proposed documents are circulated among lawyers by e-mail with each adding their own comments or suggestions. These comments from other lawyers in the firm attached to the document are ultimately deleted and never meant to be communicated outside of the office. But these comments might be revealed by anyone with a copy of the document. Document revisions may be revealed by using the right tools."

"The ethical implications of one lawyer examining the metadata in a file received from another lawyer have generated a lot of discussion. This article will cover the legal ethics opinions issued so far and give you tips on how to avoid exposing confidential information unintentionally via metadata. "

Earlier posts from Library Boy on the topic include:

• Metadata in Word Documents Can be a Legal Minefield (May 12, 2005): "Could it be that Law Society regulations prohibit lawyers from taking advantage of another lawyer's lack of sophistication or of another lawyer's error, where that error is to divulge privileged or confidential information via metadata? In other words, if a non-tech-savvy lawyer e-mails a contract, and if that contract contains hidden text or comments or track changes that give away his or her client's negotiating tactics or position, or the client's questions or comments, is there an obligation on the part of the recipient lawyer to avoid opening the document?"
• Avoiding Problems with Hidden Document Metadata (February 6, 2006): "SiliconValley.com, an offshoot of the San Jose Mercury News, printed an article on Feb. 3 entitled Stronger efforts being made against embarrassing document 'metadata' (...) The article explains that examining the metadata in a word processing document exposed how pharma giant Merck had tried to mask data showing the connection between the drug Vioxx and heart attacks. Very embarrassing. As well, 'a United Nations report on the assassination of former Lebanese Prime Minster Rafik Hariri developed new layers of intrigue when it was revealed that damaging accusations about Syria's involvement had been removed before publication'."
• Risks of Metadata Factsheet from Privacy Commisioner (July 31, 2006): "The ability to view other people’s comments and suggested changes to a document, using the Track Changes feature [in office productivity applications such as Microsoft Word, Excel and PowerPoint, or Corel WordPerfect] is central to collaborating with co-workers on a project. However, changes that are not accepted still remain with the document, even though they are not readily visible (they can be displayed by turning on the 'Show markup view') and could be inadvertently exposed to unauthorized individuals whenever the document is shared..."
• Dealing with the "Meta Menace" (September 6, 2006): "Problems can arise if law firms send files to clients or opposing counsel that still contains markup. It may as well be hard copy full of sticky notes. Consequences may include a compromised bargaining position and violations of the Rules of Professional Conduct and the Personal Information Protection and Electronic Documents Act (PIPEDA). Laws governing metadata are still in their infancy, but early precedents permit tech-savvy counsellors to freely read any metadata they find, much as they would a forgotten sticky"
• U.S. Lawyers Allowed to Snoop on Hidden Metadata (November 6, 2006): "The American Bar Association (ABA) has ruled that lawyers are allowed to look at and use the hidden metadata that may have been inadvertently included in electronic legal documents they receive, even if sent to them by mistake by opposing counsel."
• New Guidelines For Practicing Ethically With New Information Technologies (September 14, 2008): "The Canadian Bar Association has released Guidelines for Practicing Ethically with New Information Technologies: ... The Guidelines examine issues such as confidentiality, encryption, privilege, court rules on electronic storage, metadata, security of information, marketing practices, intellectual property issues regarding software, and participation by lawyers in online discussion fora."