I got my Florida Bar News yesterday and while flipping through it this morning I have discovered that the Bar’s Board of Governors has voted to condemn the practice of viewing metadata in electronic files even though it does not fully understand exactly what that means.
If you’re unfamiliar with metadata, you are not alone. Several board members said they hadn’t heard of it until it came up at their December meeting.
The issue of metadata has been a topic of interest for lawyers for some time now. Evan Schaeffer and Dennis Kennedy are two among the many lawyers who have focused on the issue and what it means for the legal profession.
Described most simply, “metadata” is any data in a document which describes the document itself, as opposed to the data in the document which is the content. Any document created electronically has some form of metadata attached to it. This blog post, for example, contains the time and date of the post, the web location it can be found, the author, the category, the title, the number of comments, and so on. Even a simple text file will have file name, file size, date created, and so on. None of these are really controversial.
The problem comes when document creators use more sophisticated software to create documents. If you have Microsoft Word on your computer, open a recent file. Under the “File” menu, select the “Properties” option. You are now viewing the metadata for that Word document. File type, location, size; dates of creation, modification, and access; a “file summary” that lists the author, company, and other optional information; number of revisions and even total editing time.
To make matters worse, Word and some other document creation software actually contain metadata about edits and changes made to the document – either incidentally, such as a “Fast save” that copies the clipboard to a file, or intentionally, such as when the user enables the “Track Changes” feature. Either of these could cause real problems for an attorney who unwittingly sends out a file with this information.
One such example is when an attorney drafts a letter to one party, then uses it as a template for a letter to another party. If revisions to the first letter are accidentally included in the metadata of the file, and then sent to a another party, the lawyer may be disclosing one client’s confidential information to another client. Even worse, he might be sending it to opposing counsel. This occasionally happens in the analog world as well. Many years ago, my secretary send a letter to opposing counsel that was meant for my client’s eyes only. Little harm resulted, as the letter was a perfunctory notice and the other lawyer, a stand-up guy, stopped reading as soon as he realized it wasn’t meant for him.
Ultimately, each lawyer has the responsibility to ensure the confidentiality of any confidential information in his care, whether that information is on paper or disk. This vote by the Board of Governors seems designed to protect lawyers who have failed to take the necessary measures to do that, including developing an adequate understanding of the technology they use.
The article basically says that the president-elect of the Board got burned by Word (“track changes” anyone?) and it sounds like he is freaking out over it.
The biggest problem here is that the Board of Governors has no idea what it’s just done. No serious argument can be made that it’s unethical to use metadata which is knowingly released by another lawyer – such as file dates, file names, and so on. The Board clearly means to shield unwitting lawyers from the consequences of their unknown disclosures, but have stated their case too broadly. Furthermore, attorneys who aren’t aware of the metadata in their own documents will be unaware of the possible sources of evidence in metadata from other sources that wouldn’t be protected – thereby failing in their obligation to their clients to uncover such information if they can. In the very short term, it may be common for lawyers to lack an understanding of the importance of metadata. in the long term, every lawyer must develop an understanding of metadata and its significance, both to protect their clients’ confidences but also to figure out how metadata affects their clients’ legal matters in their day to day affairs.