Wisconsin Lawyer
Vol. 81, No. 6, June 2008

Managing Risk

Avoiding the Dangers of Metadata

by Thomas J. Watson

Practicing law these days is nothing like it was 25 years ago or even 10 years ago. Thanks to technology, everything moves faster. We communicate with clients faster, we transmit information faster, and we can draft motions and briefs faster. Our word processing software has changed the way letters and other documents are created.

It should come as no surprise to any lawyer that most software applications store hidden information. Such information is called metadata, and it can cause embarrassment and serious damage to your reputation.

Probably the most infamous example of embarrassment and damage to one's reputation is a report on Iraq's security and intelligence organizations published by the U.K. government in 2003. This report was cited by Secretary of State Colin Powell in his address to the United Nations the same month. It was quickly discovered that much of the material in the report actually was plagiarized from work of a U.S. researcher on Iraq. The U.K. government made one additional mistake: It published the report as a Microsoft Word^TM file on the government's Web site. That allowed anyone who downloaded the report to review the metadata in the document and discover the plagiarism.

What Constitutes Metadata

Simply put, metadata is the hidden information that is created automatically and embedded in a computer file. For lawyers, word processing software poses the highest risk. Typical metadata found within a Word document, for example, may include your name, your firm name, the file or network location where you saved the document, the names of other people who worked on the document, the amount of time spent on the document, and the history of revisions made in the document. Lawyers face problems with metadata when they share files as attachments via email, over a network, or even on a compact disc. Sharing files in these ways can present at least two significant threats to you as a lawyer.

Threats

First, the presence of metadata could compromise your negotiating position. If you send a document to the other side that contains information that you thought had been removed and that you do not want the other side to know, you may compromise your client's negotiating position. This would naturally lead to two consequences that would not be good for your practice: Your client would not be happy with you, and you then might be the target of a malpractice claim.

Second, it could lead to embarrassment and damage to your reputation. Sending out a document containing damaging metadata can demonstrate a lack of care on your part as a practitioner and a lack of technical competence, in addition to bad judgment.

Reid Trautz, a law practice advisory attorney in Alexandria, Va., says he is aware of cases in which lawyers have had some explaining to do to their clients. "Metadata shows how much time has been spent on the document. The clients needed only to compare the editing time to the time claimed on their bill to raise the embarrassing issue with their lawyer." In some cases, clients have brought disciplinary complaints against lawyers for their billing practices because of information revealed by metadata.

Thomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison.

Avoiding Metadata Problems

Being aware of metadata is only the beginning. You also must take the necessary steps to reduce or eliminate it. Trautz says whatever you do, do not ignore it.

"Microsoft now has a metadata reduction tool that strips out some metadata. There are several other products now on the market as well."

But maybe the best approach, Trautz says, is simply to not send Word or Wordperfect files. "You can convert the document to a PDF file, which strips most of the metadata, and it is safer in an email anyway. PDFs are harder, and in some cases impossible, for people to edit. Only send Word documents when you need the recipient to help edit them and you know it's safe. It's even better to just have the recipient, whether it's a client or opposing counsel, just add comments to a PDF document."

Green Bay attorney Mark Pennow says PDFs are the solution in his office. "We do not send Word files, Excel files, or any other files electronically besides PDFs. We print out our Word documents and scan the pages to be sent as PDF attachments."

Some lawyers have complained that they cannot edit or make changes to PDF files. But Pennow says that is not the case. "Our optical character recognition (OCR) software easily translates the PDF into a Word file, and I can make changes that way."

Sending only PDFs sounds like an easy solution, but Pennow says it is amazing how many lawyers do not do so because they are still unaware that metadata exists in Word files. "I get them sent to me by other lawyers all the time, often from people who should know better. So far, I have not run into serious problems in my practice with this. But I could easily envision the problems that could arise in the course of a collaborative drafting effort involving adverse parties. This almost came up in a federal case I handled a couple of years ago when the defense attorneys thought about working online together to come up with a settlement document that accommodated everyone's concerns. We decided instead to trade paper by mail."

If you do not want to bother converting files to PDFs, there is an alternative. It is possible, according to Microsoft, to strip off much of the metadata before transmitting a Word or other Office document. Pennow says, however, that "some of the procedures suggested on [Microsoft's] Web site are not very intuitive to the user. Different varieties of metadata require different removal techniques."

Pennow says a wide variety of "metadata stripper" software is available, with cost varying from more than $1,000 to dirt cheap. "It will require the lawyer to know how to use this software. I'm not sure this is the sort of thing the typical busy lawyer wants to undertake."

Technology, of course, makes instant communication for lawyers easy - and as a result, electronic communication has become the norm these days. Baldwin attorney Tom Schumacher says, however, that although technology has changed his law practice over the past several years, sometimes using the old-fashioned techniques can avoid problems. And that is particularly true when it comes to the threat of metadata. "Sending electronic documents, or communicating with clients or opposing counsel is obviously so much faster and easier. But what if you send the wrong document, send the wrong draft, or send it to the wrong party? I sometimes think, `why do I send documents electronically anyway?'"

Train Your Staff

While you, as a lawyer, must carefully track what you are sending out electronically to clients, opposing counsel, and others, and understand the risks of metadata and other electronic mistakes, it is just as important that your staff members have the same understanding.

Schumacher says a mistake by an employee can cost you just as much or more as your own mistake when it comes to sending out electronic documents. "Have a way to manage email so you can track what is happening. Email manager is as important as document manager software."

Conclusion

Trautz says, "Lawyers need to not only understand metadata and the risks it presents, but they must also continually work with their staff to ensure that all employees who have the responsibility of sending out documents are properly trained. This can avoid many headaches and sleepless nights down the road."

Sending electronic documents may be faster and easier, but if you're not sure of what you're doing, it can cause more problems later on. If you have any doubts, do not send electronic documents at all. Mark Pennow takes a page from Johnny Cochran's book, summing it up this way: "When in doubt, print it out." He adds, "Why mess around with an overly technical and possibly complicated solution when the scanner is right down the hall?"

Wisconsin Lawyer