11.03.03. Metadata

The issue of confidentiality and metadata has been a “hot” topic among bar associations over the last few years.  Metadata is simply defined as information that is embedded into documents.  For example, when you draft a document in word processing programs (such as WORD), the software automatically embeds the last time and date that the document was saved.  It might also save the last person to modify or save the document.  Other more substantive metadata may also be included.  If a person redlines a document, the embedded changes may remain accessible by turning on the track changes function.  If comment bubbles are included – those may remain accessible even if the comment function is turned off.  In addition, if you send a word processing document, the receiver could use the “undo” function to reveal changes that were made to the document.  All of this information, which is embedded in the document, is considered metadata.

Although some metadata is harmless and does not compromise client confidences, the facts of a client’s case could make even the most innocuous facts harmful (perhaps it matters who was the last person to modify or save the document or when that occurred).  A lawyer could reveal client confidences by failing to ensure that all metadata is scrubbed from the document.  Although there is a divergence of opinion about what the receiving lawyer can do with metadata, there is universal agreement that the initial obligation is on the sending lawyer to take steps to remove metadata from a document before sending it.  Ways this could be done include faxing or sending the document in a non-electronic form, using software to “scrub” the metadata, or saving the document in a .pdf format.  The lawyer could also negotiate an agreement with opposing counsel which says that if any metadata is inadvertently disclosed, the information cannot be used as evidence.  Of course if the other side has already seen the information, this approach will not remedy the damage done.[1]    

[1] ABA Formal Op. 06-442, Review and Use of Metadata (Aug. 6, 2006).  The ABA maintains a chart with the metadata opinions issued by states.  http://www.americanbar.org/groups/departments_offices/legal_technology_resources/ resources/charts_fyis/metadatachart.html (last visited April 16, 2017).