Tuesday • March 7, 2006

Making sense of metadata: a mega-list of links for lawyers

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Everyone's talking about metadata -- but everyone's not talking about the same issue.

Some are talking about the inadvertent disclosure of confidential or sensitive information through metadata contained in an electronic document -- for example, the hidden revision history of a document transmitted to opposing counsel by e-mail.  The possibility of such inadvertent disclosure raises a variety of issues, including:

• Does a lawyer violate client confidentiality, or commit legal malpractice, by transmitting an electronic document to an adverse party without taking pains to remove metadata which reveals something material about the client's interests -- for example, something about the client's bargaining position?  and
• Is is unethical for the recipient to probe the metadata of the document for information which the sender did not intend  for the recipient's eyes?  Does the sender waive any claim to the confidentiality of the information that appears in metadata, by allowing the document to be transmitted with the metadata in place?
  
  Stated another way, is probing for metadata no different than closely examining a document passed across the table in a deposition?  Or is it more analogous to looking through opposing counsel's papers during the lunch hour?

Other commentators are talking about a related but distinct issue -- that is, the role of metadata in electronic discovery.  Litigators who seek or oppose the discovery of corporate records are quickly beginning to realize that the surficial content of an electronic record -- for example, the visible text of an in-house e-mail message -- is not the entire "ball of wax" where probative evidence is concerned.

In other words, a law firm that decides to "send someone in the office to a seminar on metadata" might find that two different types of seminars are being offered:  one about risk management, another about electronic discovery!

I have also noticed that, to some degree at least, there are two different threads of commentary about metadata on the Internet. One thread emanates from the legal tech community; the other from the legal ethics community. That's a good thing, except for the fact that they sometimes seem to be talking past each other. The technology wonks focus on technical possibilities, problems and solutions, while the ethics wonks focus on the ethical implications and competing ethical obligations. 

I have a foot in each of those camps; consequently I see the listserv messages, the blog posts and the magazine articles that emanate from each.  So I thought I would take a moment to pass along my own "working list" of links to on-line resources about metadata.  Here it is:   

• Introductory material
  • Wikipedia's encyclopedia entry for the term "metadata"
  • "What's the Meta with Metadata" [Jan. '06], an article in the January 2006 edition of the ABA e-Journal
  • "The Mysterious World of Metadata" [Jan. '05], an article by legal technology expert and electronic discovery consultant Dennis Kennedy
  • "The Mysteries (and Magic) of Metadata" [Jan. 30, '06], a long post at Jim Calloway's Law Practice Tips Blog
  • "Understanding Metadata", an article by Craig Ball in Law Technology News [registration required]
  • "Document Security 101" [Dec. 5, '05], an article in the on-line edition of The Washington Post
  • "Reckoning with Metadata" [Dec. 12, '05], an article by Shari Claire Lewis that appeared in law.com
• Ethical Considerations
  • Ethics opinions specifically relating to metadata [see also, "Ethics opinions relating to inadvertent disclosure of confidential information," below]:
    • New York State Bar Association Committee on Professional Ethics, Opinion Number 782 (December 8, 2004)
    • Florida considers ethics opinion [article in on-line edition of Florida Bar News [Jan 1, '06]
  • "Materials on Inadvertent Disclosure", a resource page on the web site of the ABA Center for Professional Responsibility
  • "The Transmission and Receipt of Invisible Confidential Information", 15 The Professional Lawyer No. 1, p. 18 (Spring 2004), by David Hricik and Robert R. Jueneman [as reprinted on Professor Hricik's web site, www.hricik.com]
  • "Metadata Update: The Duty of Reasonable Care", a supplemental article by Professor Hricik which discusses New York Ethics Opinion 782
  • "Metadata: Hidden Information in Microsoft Word Documents and Its Ethical Implications" (PDF) [Oct. '04], an article Brian D. Zall which appeared in The Colorado Lawyer, reprinted on the web site of Sherman & Howard, L.L.C.]
  • "Metadata: Reflections on an Attorney’s Professional Responsibility" (PDF) [Apr 18, '05], a paper by Shawn Newman available on the web site of the Corporate Counsel Technology Institute
  • "Lawyers Must Use Reasonable Care When Transmitting Documents by E-mail to Prevent the Disclosure of Client Confidences or Secrets in "Hidden" Metadata" [Jun 3, '05], a commentary by the law firm of Hinshaw & Culbertson on New York Ethics Opinion 782 
  • Ethics opinions relating to inadvertent disclosure of confidential information (possibly applicable, by analogy, to metadata):
    • Alaska Opinion 97-1 (1/17/97)
    • Arizona Opinion 93-14 (9/23/93)
    • Colorado Opinion 102 (3/21/98)
    • Connecticut Opinion 96-4 (3/14/96)
    • District of Columbia Opinion 318 (12/02)
    • District of Columbia Opinion 256 (5/16/95)
    • Illinois Opinion 98-4 (1/99)
    • Kentucky Opinion E-374 Revised (11/95)
    • Maine Opinion 146 (12/9/94)
    • Maryland Opinion 00-04 (2/16/00)
    • Massachusetts Opinion 94-6 (3/22/94)
    • Massachusetts Opinion 99-4 (7/15/99)
    • Michigan Opinion RI-179 (11/16/93)
    • New York State Opinion 749 (12/14/01) Confidentiality; E-mail; Internet
    • New York State Opinion 700 (5/7/98)
    • North Dakota Opinion 95-14 (12/4/95)
    • Ohio Supreme Court Ethics Committee Opinion 93-11 (12/3/93)
    • Oregon Opinion 1998-150 (4/98)
    • Pennsylvania Opinion 99-150 (11/18/99)
    • Philadelphia Opinion 94-3 (6/94)
    • Utah Opinion 99-01 (1/29/99)
    • Virginia Opinion 1702 (11/24/97)
• Metadata in litigation
  • "Uncertain and Unseen" [Jan. '06], an article by Todd Nunn of Preston Gates [originally in Law Technology News, reprinted at the Preston Gates website], which discusses proposes amendments to the Federal Rules
• Practical advice
  • "Mining the Value from Metadata" [Jan. '06], a round-table discussion by Tom Mighell, Evan Schaeffer and Dennis Kennedy, which discusses specific software tools and techniques for reducing metadata
  • "Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF"., a paper by the National Security Agency, [but see criticism at Ed Bott's Windows Expertise blog]
  • "How To E-Mail Documents To Opposing Counsel", a 2003 article by David W. Snyder, available in the on-line archives of the ABA's GP | Solo Practice "Litigation Trends" newsletter
  • "Clean Up Your PDFs" [Dec. 7, '05], an article at the PDF Zone

[Thanks to Dennis Kennedy, Tom Mighell, David Hricik, and all others who have provided pointers to these resources.]