The DNA of a document-- Legal ramifications of 'Metadata' to be discussed at April seminar

By Mike Scott

Legal News

What is metadata and why should it matter to lawyers?

Computer applications and platforms used by lawyers and business professionals today generate information that provides clues as to how digital files have been changed, created, or deleted. Such information is called metadata.

However, the way lawyers should and can use metadata is largely unclear and has yet to be defined in the state of Michigan. The danger to lawyers is that not knowing what metadata is or how it can be manipulated can leave attorneys vulnerable to such issues as breach of confidentiality and malpractice.

Conversely lawyers who understand what digital DNA refers to and how it is used can often better address the best interests of their clients. There will generally be more informed as to the ethical and professional obligations they have to protect clients in using metadata.

These issues and more will be discussed at the "Mining for Metadata: The Ethical Ramifications of Snooping" seminar being hosted by the Oakland County Bar Association's Professionalism Committee on Tuesday, April 13, from 8:30 to 10 a.m. The seminar will be held at the Oakland County Bar Center.

Richard Paige, a partner with Bush, Seyferth & Paige in Troy and chair of the Professionalism Committee, will moderate the 90-minute seminar. The featured speaker is Martha Moore, an assistant dean at Thomas M. Cooley Law School and an expert in metadata issues for lawyers.

Topics that the seminar will cover include whether lawyers have an ethical obligation to prevent disclosure or scrub metadata, how such information should be submitted, whether and how metadata can be ethically "mined," and how lawyers should handle requests seeking a document that include accompanying metadata.

The act of scrubbing an electronic document in other circumstances, particularly in the complex of discovery, may have ethical repercussions, Paige said. Lawyers should be "very concerned about these issues" and should educate themselves about the risks, he indicated.

"The fact that a lawyer may not be technologically savvy is not an excuse (in court)," Paige said.

Just a handful of states have developed opinions on the topic of metadata, such as whether it is ethical to mine for metadata. The American Bar Association has come out with a statement indicate general support of the practice of mining for metadata, but states like New York have indicated it is unethical, Moore said.

Michigan has yet to state such an opinion.

"There is a situation where opposing counsel could be privy to data that you otherwise would not want (opposing counsel) to see," Moore said.

For example, when someone makes changes in a (Microsoft) Word document, previous use of the "tracking changes" editing option could allow others to see previous versions of the document. That could mean confidential data would be available to others, Moore said.

What is unique about metadata is that it can be visible or invisible, she added. It can be easy for even a relative computer novice to see visible metadata by selecting the "properties" tab in Word and searching for a file's name, size, modifications, versions and format.

Invisible metadata is also known as digital DNA of a document. It can be very useful in learning more information about a document, and how it has possibly been manipulated or changed. However, invisible metadata often will require the knowledge and skill of a computer forensic expert to extract.

"The average lawyer may not know much about metadata at this point in their careers but the smart lawyer will know how to use or mine metadata information," Moore said. "One of the key things that you want to know is when as a lawyer you will be required to turn over that data and information."

In fact, Moore said that it is part of a lawyer's required competence that they understand the facts about metadata. In the near future she expects that many lawyers will be faced with the issue who never had to deal with metadata before. This is especially true because of such factors as federal and state tax e-filings, electronic medical records (EMRs), and the sharing of other digital data.

The legal professional demands that lawyers have the obligation to protect the information and evidence they have related to their clients' cases. While steps like turning Microsoft Office documents into PDF files can help, such action may not completely protect a client from accessing metadata.

"The issues around how to ethically treat metadata are rather extensive," Moore said. "It isn't clearly defined when a lawyer should be allowed to scrub or not scrub such information. And ethically should they be allowed to destroy evidence? These are all questions that need to be answered."

Lawyers who receive electronic documents also should be aware of the potential repercussions for mining those materials, Paige said. This is particularly true when the electronic document is not a discovery item, and the main purpose in mining the document is to look for changes or to discover information that the other side intended to keep confidential, he noted.

It is widely expected that the state of Michigan will likely look at the issue of metadata in the near future, and Moore expects that an opinion will be handed down in the coming months.

"You'll need to know about the definition of metadata, the mining of it, and how such data can be deconstructed," Moore said.

The OCBA's Professionalism Committee strives to improve the reputation of lawyers, and presents educational programs on professionalism which will help attorneys provide better service to clients. To sign up for this April 13 conference or for more information, call the OCBA at (248) 334-3400 or register online under "events" at www.ocba.org.

Published: Thu, Apr 1, 2010