by Liz Daube
Staff Writer
Jacksonville lawyers are learning that what they don’t know can hurt them.
Here’s an example of how:
A lawyer e-mails a Microsoft Word document to the opposing counsel on a case. The opposing counsel opens up the file, and voilà: He can access the names of every person who worked on the document (including the client), the names of the firms where their computers were registered and all the document revisions (including deleted information).
Electronic information like this is called metadata, and it’s raising ethical and technological questions for the legal profession.
An ethics opinion proposed by the Florida Bar Association says that lawyers are responsible for protecting the confidentiality of their electronic communications, metadata included. But according to Alan Pickert, president of the Jacksonville Bar Association, most Jacksonville attorneys don’t know what metadata is – let alone how to remove it.
“It’s really a scary concept, and it’s something people need to know about,” said Pickert. “The first thought that came to my mind (when I learned about metadata) was surprise. I was amazed that you can do those kind of things on a computer.”
Metadata isn’t that complicated, according to Jacksonville network consultant Jerry Martin. Metadata is simply electronic information about information.
Martin said MP3 files are a good example. When you play a song on an MP3 player or computer, metadata for the song typically includes the artist, title of the song, album and length of the track. Martin said that information is embedded along with the song itself, simply waiting to be accessed.
The same concept applies to electronic documents created by programs like Microsoft Word. That extra information gives users flexibility. An “Undo” option, for example, uses metadata to reverse an unwanted, recent change in a document.
In legal situations, however, that extra information can cause potentially embarrassing situations or even undermine attorney-client privilege. The proposed Florida Bar opinion holds both the sending and receiving parties ethically responsible for metadata mining.
Pickert said educating attorneys on metadata will help prevent them from sending it. And, he said the lawyers trying to access the metadata should be blamed for an ethical violation.
“I don’t subscribe to the practice of law that says, ‘Hey man, that’s the way it is,’” said Pickert. He compared metadata mining to looking through the items on an opposing counsel’s desk or waste basket. “I find it an incredible breach.”
Jennifer Millis, an attorney at W.C. Gentry, recently returned from maternity leave and was unaware of metadata. Upon learning about the hidden information, she saw both good and bad potential for metadata discovery.
“You should be able to say, ‘I’m going to tweak this, I’m not going to say this,’“ said Millis, agreeing that opposing counsel shouldn’t be able to access document deletions and edits. She mentioned, however, that metadata might be used to verify the origins of important electronic documents. “The only positive would be in attaching scanned documents. You don’t want people altering evidence.”
Some online bloggers have considered similar situations and argued that metadata mining could be used ethically.
For example, one blogger wrote about a custody battle in which the husband accused the wife of sending him disturbing, harassing e-mails. The wife might have lost custody of her children if her attorneys hadn’t discovered metadata in the e-mails. The metadata showed that the husband had created and sent the e-mails himself.
The proposed Florida Bar opinion says it does not address use of metadata that could be used in a trial or arbitration. The closing paragraph notes that “the foregoing obligations may necessitate a lawyer’s continuing training and education in the use of technology.”
The Florida Bar’s professional ethics committee will consider comments regarding the proposed advisory opinion June 23 and make changes accordingly. The comments must be mailed by May 31.
“You need to know the full effects (before reaching a consensus),” said Pickert. “There are always two sides to every story.”
Getting rid of metadata
There are several ways to avoid giving hidden electronic information away:
• Make it physical. Print out documents and mail or fax them.
• Convert to PDF before e-mailing. Programs like Adobe Acrobat take an electronic file and turn it into an image. Readers can look at your document, but they can’t open the metadata and see previous changes.
• Follow the advice of network consultant Jerry Martin. Turn off the quick-saving option on Microsoft Word (it stores recent revision information). Open “Tools,” click “Options,” then select “Security.” Turn off “Fastsave.” Deletions and some other information won’t be available in the metadata. The Microsoft Office and Microsoft Word Web sites offer advice on this method, as well.