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Metadata, put simply, is data about data. It is used in a wide variety of contexts pertaining to a wide variety of media. Here we will talk about the term metadata as it is used in the context of digital files such as word processing documents, spreadsheets and email, and the particular risks associated with its misuse in a legal setting. We will also discuss various ethics rules that address the potential confidentiality problems inherent in metadata transmission and methods for “scrubbing” or removing metadata from documents. Please note that the information here does not apply to files that are produced during discovery. It is now routine to look at metadata in these files as a legitimate item for production and to shed light on issues that cannot otherwise be cleared up by the documents themselves. “Scrubbing” of these types of files could be interpreted as destruction of evidence.

Why Metadata is an Issue
Computer programs, such as the widely-used Microsoft Office suite, typically include data that exists as a hidden part of the document you’ve created. This data contains information about who authored the original document, when it was created, how much time was spent editing it and may even contain comments embedded in the document and/or text that had been previously deleted from the original document. Metadata can be very useful as it makes it possible to search for documents by date or author or to track changes in situations where partners and associates are collaborating on a document. When a document is created, edited, finalized and sent to opposing counsel, however, any potentially compromising metadata follows the document unless that document is “scrubbed,” or cleared of this hidden information. Many attorneys don’t even know that metadata exists, much less how to retrieve it from a document, but there are some who do, which raises serious confidentiality issues for attorneys and clients.

Metadata and Lawyer Ethics
In response to this problem, the ABA and some state bars have enacted ethics rules pertaining to the handling of metadata. These rules address the sender’s duties and the recipient’s duties, including whether or not the recipient has a duty to inform the sender that metadata was found in a document received by the sender. The state bars that have addressed this issue in some manner include: Alabama, Arizona, Colorado, Florida, Maine, Maryland (Ethics Docket 2007-09, Login required), New Hampshire, New York (Recipient’s Duties, Sender’s Duties and Recipient’s Duty to Disclose Receipt of Metadata), Pennsylvania (Formal Opinion 2007-500, Login required) and Washington D.C. Click on any state for a link to that state bar’s ethics opinion. The ABA and the state and local bars that have weighed in on this issue are split on whether or not a receiving attorney may “mine” for metadata, leaving the issue up for grabs depending on the state in which you practice. Attorneys who practice in states where there are no rules on metadata must make difficult choices between zealous representation of their clients, client confidentiality and what is fair and just under the circumstances.

How to Avoid Sending Files Containing Metadata
This problem would not exist if firms were adamant about not sending out documents that contain metadata. There are relatively simple solutions, one of which is to convert to PDF all files that you send as attachments instead of sending Microsoft Office or WordPerfect attachments. Office 2007 contains the new feature, Document Inspector, which will display the metadata in the document you are working on and remove it if you wish. It works fine, but you, the other attorneys in your firm and staff members must remember to scrub all documents before sending as attachments. Remember is the operative word here. The document isn’t successfully scrubbed unless someone remembers to scrub it. To solve this problem, some firms may benefit from programs such as iScrub and SendShield which automatically work with Outlook, Lotus Notes and GroupWise to prompt users to scrub their attachments before sending so they won’t forget. These programs will also scan for metadata in attachments received by the firm.