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Bar News - May 15, 2009


ĎMetadataí: Buried Artifacts In Your Documents

By:

 

Our paper documents are a legal treasure chest. Not only do they contain pearls of legal wisdom to be shared with our clients, but they also include buried artifacts that may be both beneficial and harmful. These artifacts are called metadata.

           

Metadata is the data within the data. I could go into great depths of analysis, but letís try to keep it simple: You create a document. Your computer knows your name because you set up the computer and installed the software with yourself as the primary user, so when you create the document the software designates you as the author. In most cases, this is good because the author is known as the document moves around the office between attorney and staff. However, revealing the identity of the author is bad if you borrowed the form from another firm. Surely you donít want your clients to receive a Word document indicating that a different law firm created it!

           

You continue editing and honing the document. You insert paragraphs and phrases. You change your tone of voice. You change the amounts and terms demanded for settlement. While editing the document. you use the undo feature to restore some of the words you cut and you move the pieces around in order to create an effective communication. Most, if not all of these edits are saved in the document. You could open it again and keep editing.

           

You request input from your supervising attorney and she inserts a few comments and recommendations as to settlement terms.

           

The document is finalized and you send it by e-mail to opposing counsel. After all, e-mail is the fastest way to keep the case moving and your client loves your ability to use these modern tools to help keep his bill down. However, the receiving attorney is a bit more of a techno geek and has the skills to look under the hood of your document. He digs (ethical concerns aside) into the edits and finds a comment from your supervising attorney. He reads the hidden comment stating we should demand $350,000, but be willing to bargain down to nothing less than $175,000. My, what treasure you have delivered to the other side!

           

There are software tools designed to scrub your Word documents of this potentially harmful information. My favorite tool for Word is Metadata Assistant from Payne Consulting Group, http://www.payneconsulting.com/public/products/ProductDetail.asp?nProductID=34.

 

The user simply runs this utility before distributing the final document.

           

WordPerfect files also contain metadata, but, in my experience, to a somewhat lesser degree than Word. One technique for reducing the amount of metadata is to save the file in .RTF format and then convert it back into WordPerfect. One problem with this method is that some fancy formatting may not convert properly. Another technique is to insert a character at the top of the document, such as the letter x, and then save the document with a new name. Delete the x and save again. This isnít perfect either, but it does seem to reduce the amount of metadata.

           

Some offices have a policy that they will not share any documents in Word or WordPerfect format. They require that all documents be converted into Adobe .PDF before being sent outside the firm. This isnít a bad policy, but donít forget that Adobe Acrobat is a very flexible tool and also creates some metadata, including information about the author and edits.

           

I recently read an article about an international incident inflamed by metadata. A government agency prepared a report. As is the custom, some of the information was classified. Portions of the text had to be redacted. The author used Adobe Acrobat to place a black box over the questionable text. He believed this was the equivalent of using a magic marker on the paper copy. The author thought that since you couldnít read the text and couldnít print the text, there was no risk of disclosure. For most of us, that would have been sufficient. We see a black box and immediately know that the text has been restricted from viewing by an electronic magic marker. But one enterprising reader downloaded the document using Adobe Acrobat and simply turned off the black box feature. There was the confidential text in all its glory!

           

Paranoia should be avoided, but reasonable caution should be exercised. You should establish a balance between the expectation that work product will move across the Internet promptly and the desire to protect everything except the text showing on the page.

 

Editorís Note: This article first appeared in the Massachusetts Lawyers Weekly. 

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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