frank@vmbs247.com
Friday, May 12, 2006 7:38 AM

Recently I had a client ask me to look into the "metadata" of a document received electronically from an adverse party to find out when the document was created.  ("Metadata" is the hidden information that computer word processing programs keep with a document in its electronic format.  The information recorded includes when the document, who created the document, who edited the document, whether it was edited, edit history, who viewed it, etc.) 

When my client asked me to do this, I researched MD ethics opinions and found nothing.  However, it seemed improper to essentially look at drafts of the final product, so I refused.  (However, keep in mind a technically savvy client will know how to "mine" the data on his own.)

Ironically, this month (I'm also a Florida lawyer) I was reading the Fla. Bar bulletin and noted the Florida Bar ethics committee ruled that it is unethical to mine metadata "when the attorney reasonably knows that such data is not intended for their eyes."  Although not a MD. opinion, I think it's a good rule-of-thumb that I thought I'd share.

Frank Costanzo

scott@conwellusa.com

Frank’s point is a very good one.  As the metadata is a work product or attorney-client privileged communication, here is some additional support for that position a little closer to home, for those who are members of the DC Bar (or for law firms with DC Bar members).

The bar of the District of Columbia plainly bans even viewing attorney-client privileged communications.  (D.C. Bar Ethics Opinion 318: Disclosure of Privileged Material by Third Party).

When counsel in an adversary proceeding receives a privileged document from a client or other person that may have been stolen or taken without authorization from an opposing party, Rule 1.15(b) requires the receiving counsel to refrain from reviewing and using the document if: 1) its privileged status is readily apparent on its face; 2) receiving counsel knows that the document came from someone who was not authorized to disclose it; and 3) receiving counsel does not have a reasonable basis to conclude that the opposing party waived the attorney-client privilege with respect to such document. Receiving counsel may violate the provisions of Rule 8.4(c) by reviewing and using the document in an adversary proceeding under such circumstances and should either return the document to opposing counsel or make inquiry of opposing counsel about its status prior to determining what course of action to take.

If an attorney violates these procedures, the attorney may violate Rule 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation). 

clavrin@hotmail.com

My understanding of how to prevent others from looking at your metadata is to always send documents to the opposition in PDF format.  If someone has a different opinion or has better information I would love to hear about it.

frank@vmbs247.com  

That's correct, Cecilia, or if you have XP here is the Microsoft program that hides the metadata in Word docs:  http://www.microsoft.com/downloads/thankyou.aspx?familyId=144e54ed-d43e-42ca-bc7b-5446d34e5360&displayLang=en&oRef=&Hash=SBRW8MD

tlochner@annapolis.net

You can also download a free plug-in which provides a "Remove Hidden Data" option in any MS Word or Excel product. I require that outgoing electronic docs either be in PDF or stripped of metadata.  Just Google and you will find it.

robertfieldesq@gmail.com

Sending by pdf file is a good way to make sure that this information is not transmitted.  However this means that the transmitted document cannot be simply edited by the other party to suggest changes which is sometimes a useful means of negotiation.

I consulted with my son in New York who makes his living as a computer guru and he tells me that highlighting the text of the document and copying it onto a blank wp page would probably hide the meta data from all but the most sophisticated parties.  In addition there is a ms tool that supposedly eliminates the history from a word document:
http://www.microsoft.com/downloads/details.aspx?FamilyId=144E54ED-D43E-42CA-BC7B-5446D34E5360&displaylang=en

I have not tried the tool so buyer beware.

McKennaLegal@aol.com

            Excellent topic.  In order to prevent (or at least reduce) the possibility that my own metadata would fall into the wrong hands (remember that not everyone would refuse to mine it on ethics grounds), I almost never give adverse parties electronic documents in Word or WordPerfect format.  I try only to send them out in Adobe (pdf) format.  Note that you don't need to buy Adobe Acrobat ($$$) in order to create pdf docs.  Check out www.cutepdf.com for a decent free pdf writing package.  That's my $.02 anyway.

dclitigator@yahoo.com

I have a stated policy on electronic transmission.  The policy incorporates what has already been said on this list except that the conduct is cumulative.  The reason is that each of the steps alone (including mere conversion to pdf) is insufficient when confronted by someone computer savvy . 

Therefore, when I send electronic documents I will:

1. Save document

2. Use the free download MS Remove Hidden Data Feature

3. Copy the material into another Document (same format type)

4. Then I will convert to PDF

This process is based on National Security Agency protocol; if you'd like a copy feel free to email me.  Also, RE Adobe v. Cutepdf, the latter may have unwanted "ware" in it--always a problem when downloading anything "free."  The old adage is apt:  you get what you pay for. 

fyi, The Florida Bar has made (or shortly will make) metadata mining an ethical violation.  Perhaps other bars will follow suit.

sltax@fisherwinner.com

First, I am not certain that the Florida opinion correctly states one's ethical obligations.  I've commented on the opinion on my weblog at:
http://taxbiz.blogspot.com/2006/01/gentlemen-dont-read-each-others-mail.html or here http://snipurl.com/qd61

Second, there are several ways to strip out metadata.
             1.  As noted, converting the final product from a Word or WordPerfect document to a pdf will strip out the metadata.
             2.  I strip it out even before I convert to pdf because every revision is saved as a separate file.  Thus there is no "history" of changes or modifications.  (I use WordPerfect, but I believe that this will work in Word as well.)
            3.  Finally, you should be aware of some redaction problems even with pdf.  To that end, see: http://www.pdfforlawyers.com/2005/05/pdf_redaction_s.html

A few more words about pdf.

Cutepdf is great and everyone should have it--it's free.

However, the full version of Adobe Pro 7 is also worth having.  In particular, it allows comments concerning a document to be shuttled back and forth among the parties via email.  The list price is about $450+.  However, it can be purchased for less as follows:

1.  Search online for Adobe Acrobat Pro 6.0.  It's still available and downloadable for about $75.00, but you have to look a bit to get that price.

2.  Install Adobe Acrobat 6.0 and then get the Adobe Acobat Pro 7.0 upgrade.  I just got this for $145.00.

jbadams@adamslegalfirm.com

Word includes a limited ability to remove evidence of textual changes to a document.  On the editing toolbar, click the button to "accept changes" and then click on "accept all changes."  This does not remove buried data, such as date of creation.

I once received a Word document to which this was not done.  All of the changes that opposing counsel had made to modify a pre-existing document from another case were immediately visible upon opening the document.  I don't know whether that happens all of the time, but it certainly made me more cautious about sending Word documents to others.

I agree that the ability to share edits can be very useful, but it is worth the effort to ensure that you only show the other side what you intend to share.