originally published in Lawyers Weekly
Want to know what opposing counsel was really thinking prior to sending you a document? Mine that document for metadata using techniques like these:
- Activate the Track Changes feature to read insertions, deletions and comments
- Check headers and footers (Does the last page in a discovery read “Page 3 of 7”? Does the date of creation not mesh with other information you’ve been given?)
- Search for “white text” (text in a white font set on a white background)
- In Microsoft Excel, look for hidden columns and rows and floating notes
- In PowerPoint, look for speaker’s notes
- Check a document’s properties for things like document creation date, author, software used to create the document, and other details
- Look for extra fields in e-discovery production documents
- Download a free metadata extractor from the Internet and use it to open files
You won’t always find useful metadata in documents you receive, but enough lawyers remain ignorant of both metadata and the consequences of disclosing it that it’s worth your while to try the techniques in the list above.
“It isn’t just legal,” says Dominic Jaar, president of Montreal-based Ledjit Consulting Inc. “It’s an ethical obligation for lawyers to look at metadata from opposing counsel.” He also notes that lawyers are obliged to disclose any finds to opposing counsel.
“I review the metadata if it’s relevant to the case,” says Dera Nevin, senior director, litigation support for McCarthy Tétrault LLP.
Why does metadata still matter? Electronic documents have contained metadata for as long as there have been electronic documents. “It’s so 1990s. It became a boring, passé topic a long time ago,” says Jaar.
But Bar associations tend to educate lawyers on issues that generate claims against members, and metadata has yet to turn into one of those issues.
“As far as I know, LAWPRO has never seen a claim involving metadata,” says Dan Pinnington, director of practicePRO for Toronto-based Lawyers’ Professional Indemnity Company (LAWPRO).
“Unless there’s money involved, people don’t care,” adds Jaar. “One big case often opens everybody’s eyes, and then lawyers will start to care.”
That day can’t be far off. “As more firms go electronic, it becomes a bigger issue for lawyers,” says Pinnington.
Nevin insists that day has already dawned, noting that certain law firms have developed their own internal protocols based on best practices.
“Metadata should be within the competence of every lawyer,” she opines, “but it remains underdiscussed. In Canada, metadata hasn’t yet been understood as a discrete topic requiring ethical opinions. Lawyers are not taught this in law school. They are just somehow expected to understand this when they go into practice.”
“It’s odd, since I haven’t touched a case that hasn’t had some element of electronic discovery since 1999.”
Metadata mining can be tricky, since certain jurisdictions forbid mining. But all Canadian lawyers have to guide them are a few weak paragraphs on best practices in the Information To Supplement The Code Of Professional Conduct: Guidelines For Practising Ethically With New Information Technologies, published by the Canadian Bar Association. (Two appendices to this document offer decent tips on handling metadata and useful references for further learning.)
As if the matter were not already complex enough, Nevin notes that there are three types of metadata, although “Unless you know what you’re talking about, you can wrap yourself in knots,” she says. “Not all types of metadata create ethical matters.”
Nevin distinguishes between:
- system metadata (benign stuff like date of creation and file path, all created by the computer, not the user)
- substantive (or application) metadata (like fonts and layout information used by the computer to properly display a document)
- embedded metadata (created by the user, including track changes, comments and hidden columns in Excel — the stuff that causes most metadata mishaps)
Even though the United States isn’t much farther along in issuing guidelines for handling metadata, Jaar frets about decisions like those of certain state bars which disallow data mining, a decision he strongly disagrees with.
Yet the American influence can’t be discounted. “There’s lots more happening there,” Jaar notes. “But by copying and pasting what they do and say, we might miss reflections by Canadian lawyers about whether US guidelines apply here.”
“Generally, American guidelines need to be tweaked to reflect the Canadian reality.”
Not that guidelines are likely to migrate north anytime soon “We have no ethics opinion prohibiting metadata mining in Oklahoma,” says Jim Calloway, director of the management assistance program for the Oklahoma Bar Association, whose bar is typical of many states. “The ABA [American Bar Association] has model ethical rules,” he adds. “They’re persuasive to states but they aren’t binding.”
The lack of ethical guidelines ought to concern all lawyers for at least one reason. “Law society guidelines state you should have adequate understanding of technology or help from somebody who understands it,” Pinnington says, stating an opinion found in many jurisdictions.
“Metadata disclosure ought to be handled not unlike accidentally sending a fax or email to the other side,” Pinnington adds, although he admits, “I don’t know if there’s any case law to that effect.”
Further clouding the waters are questions that swirl around e-discovery. For instance, do lawyers only need an image of a document or a copy in the original format?
It’s useful to ask whether the original contains metadata. “If you request all paper invoices from a supplier, there’s no reason to look at metadata for that,” Calloway says. “But if you get email, you need to confirm it was sent, it was read, who was on the BCC line and so forth. There’s lots of metadata in email, and examining it is part of a lawyer’s obligation to get at the truth.”
Jaar takes issue with the design of document creation software lawyers use. “A ‘scrub metadata’ button should be up front, like the print or save button,” he says. “One simple button should handle it all for lawyers — purge properties, revisions, track changes and the rest.”
“That could be done by personalizing Microsoft Office. It would be simple.”
“The one good thing Microsoft did since Office 2007,” Jaar continues, “is to include a ‘save as PDF’ button. You don’t retain comments or tracked changes in the document.” (Some firms already tell lawyers to PDF outgoing documents.)
Metadata scrubbers are available from the Internet as well as inside popular productivity software, but since lawyers may forget to scrub, some firms have their systems purge metadata from outgoing documents automatically. (Jaar warns that lawyers need to beware of such systems when exchanging documents for a trial.)
Nevin doesn’t like such “set it and forget it” systems. “They perpetuate ignorance about metadata,” she says.
If you’re still concerned you don’t understand metadata, try Pinnington’s advice: “Start mining your own metadata,” he suggests. “Look at the properties of your documents. That’s the best way to educate yourself about metadata.”
How do you do that? Try the tactics listed at the beginning of this article — before opposing counsel does.
Looking for the end game in this metadata morass? Consider Calloway’s conclusion. “If all lawyers would quit sending metadata in their documents, things would work out just fine,” he says.
For a PDF of this article, click Metadata.