Ethical Issues for Removing or Leaving Metadata
Metadata is data about data, and provides underlying data concerning electronic documents, file structures and correspondence. Metadata can reveal your revisions and annotations to a document, along with the exact time when you created or edited your document. This information is particularly sensitive. Knowing how your applications treat metadata and how to remove it is key to protecting privileged information.
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Uses of Metadata
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Metadata can be useful to a legal team collaborating on a document, allowing members to insert notes and annotations. Team members can also use an application's "Track Changes" function to examine successive drafts before composing the final version. Metadata can be subject to discovery if a litigant disputes the date of a document's creation. The document's metadata allows the court to determine exactly when a document was created and when its creators made revisions to it.
Potential Risks
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A document's recipient can often right-click on its icon to bring up its Properties selection, and view the dates the document was created, edited or sent. In "Metadata: The Ghosts Haunting e-Documents" from the October 2008 issue of "The Florida Bar Journal," authors David Hricik and Chase Edward Scott indicated that Microsoft Word's "Track Changes" feature allows a recipient to view a document's previous drafts, potentially revealing a legal team's strategy and bottom-line position on what they're willing to accept in negotiations. Other document creation software typically includes similar tracking and review features.
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Legal Opinions Concerning Metadata Ethics
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Ethical standards concerning metadata mining vary widely between states. The New York State Bar issued the first legal opinions in America concerning metadata, stating in Opinions 749 and 782, issued in 2001 and 2004 respectively, that while a client's counsel was responsible for expunging data from electronic documents and communications, it was unethical for the recipients to attempt to extract metadata that they could use against their opponents. The Alabama Bar issued a 2007 opinion mirroring the New York Bar's standard, though other states, such as Maryland, permit attorneys to use embedded metadata. The American Bar Association's "Formal Opinion 06-442" of August 2006 places the responsibility for expunging metadata on a document's creators, finding no ethical reason for attorneys to forgo metadata mining.
Legal Implications
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It's an attorney's responsibility to remove metadata from documents before transmission, and failing to do so can result in ethics or malpractice charges, depending on how damaging the information was to her client's case. In some states, such as New York and Florida, viewing metadata opposing counsel accidentally sends within a document and using it during proceedings can result in ethics charges.
Best Practices
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If you rely on staff to compose final drafts, make them aware about metadata-embedding features within the applications they use, as well as giving them the tools to remove it. Learn how each application you use within the office handles metadata along with its options for displaying and removing metadata. Application vendors typically provide metadata removal functions for their applications which make use of it, and you can also purchase third-party applications called "scrubbers" which offer advanced metadata removal capabilities.
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References
- The Florida Bar Journal; Metadata: The Ghosts Haunting e-Documents; David Hricik and Chase Edward Scott
- LLRX.com: Metadata - What Is It and What Are My Ethical Duties?
- The Lawyer's Guide to Fact Finding on the Internet; Carole A. Levitt and Mark E. Rosch
- FindLaw.com: Legal Technology: The Complexity of Metadata
Resources
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