Most attorneys now have some familiarity with metadata. But some of us old-schoolers who recall practicing in days of book research and interoffice mail may be less familiar with the scope of metadata in simple Word documents or that we can violate ethics rules by inadvertently disclosing it.
Our Supreme Court has described metadata as "data about data" or "hidden information about electronic documents created by software programs." Metadata in Word documents can show document history - when it was created and edited, how long it was worked on, by what authors and, most significantly in some cases, what changes were made to the document. In addition to Word documents, Power Point slides, Excel spreadsheets and other documents used by lawyers contain metadata.
If the "comments" or "track changes" function is turned on while any of these documents are created, those changes tracked and comments made (if not properly deleted) may stay with the document, even after the functions are turned off, the mark-ups are hidden from view and the document is saved. Thus, for example, a brief in Word format could contain metadata showing comments about arguments that were included for the client's benefit in prior drafts. Similarly, a draft agreement could contain metadata showing provisions that were considered internally and rejected before sharing the document with opposing counsel.
While final documents are generally sent out as hard copies or PDF scans, it is common for counsel to share documents in Word format. When negotiating business deals, attorneys generally circulate draft agreements. In litigation, counsel share draft stipulations. Unless those documents are run through software utilities and "scrubbed," they may contain privileged and confidential information that can negatively affect a client's legal position and create ethical problems for the lawyer.
Last year, the Rules of Professional Conduct Committee for the Washington State Bar Association issued Advisory Opinion No. 2216 (2012) addressing ethical obligations relating to metadata.1 Specifically, the Committee opined that attorneys must make reasonable efforts to "scrub" metadata reflecting protected information.
Lawyers are prohibited from using special forensic software to recover metadata contained in documents received from other counsel that is not readily accessible or has otherwise been "scrubbed." A lawyer who receives a document from opposing counsel that has not been scrubbed has an ethical obligation to inform the other side, but, according to the Committee, is not required by ethical rules to refrain from reading the metadata and may have to consult with his client before returning the document.
The Advisory Opinion implicitly underscores the usefulness of scrubbing software and is a reminder of the utility of agreements between counsel and parties requiring the return of inadvertently disclosed privileged or confidential information.
Ethical Obligation To Send a PDF Scan or To Scrub Metadata
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