I must be honest. Though I had an idea what metadata was, and I knew it should be “scrubbed” from documents sent to opposing counsel, I did not really know exactly what it entailed. I recently searched for a non-technical definition for metadata. I could not find an entry under Black’s Law Dictionary and Webster’s definition was “data that provides information about other data.” Helpful, right? So, I delved further and found a publication by the National Information Standards Organization that purported to explain metadata. “Metadata is structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use or manage an information resource. Metadata is often called data about data or information about information.” http://www.niso.org/publications/press/UnderstandingMetadata.pdf. This did not help much either, so I continued my search of a simple definition of metadata.
I found my answer in, 2009 FEO 1 and the Pennsylvania Formal Opinion 2009-100. Thankfully, these opinions present the definition of metadata in a simple fashion that those of us with low-tech skills understand. “Metadata … is data contained within electronic materials that is not ordinarily visible to those viewing the information. Although most commonly found in documents created in Microsoft Word, metadata is also present in a variety of other formats, including spreadsheets, PowerPoint presentations, and Corel WordPerfect documents.” 2009 FEO 1 quoting Pennsylvania Formal Op. 2009-100. Metadata can include information about a document such as the date and time the document was created, the computer on which it was created, the last time it was saved, track changes showing what was added or deleted to the document, or comments made during the editing process. This information can be revealed to a recipient by right-clicking, clicking on an icon, or using software to reveal the metadata. Id. These explanations make much more sense.
Not only does 2009 FEO 1 present a helpful definition of metadata, it addresses why lawyers should be concerned about disclosure of metadata and the duty to ensure this does not occur. The danger of metadata in the practice of law is that it may contain confidential client information. We are all aware that RPC 1.6(a) prohibits lawyers from revealing confidential client information unless it falls under a certain exception, but what is a lawyer’s duty regarding metadata that is “not ordinarily visible?” The opinion states that a lawyer must use “reasonable care to prevent the disclosure of confidential information hidden in metadata when transmitting an electronic communication…” What constitutes reasonable care depends on the circumstances and hinges on the following factors:
(i) The sensitivity of the confidential information that may be disclosed;
(ii) The potential adverse consequences from disclosure;
(iii) Any special instructions or expectations of a client; and
(iv) The steps that the lawyer takes to prevent the disclosure of metadata.
Rather than having to analyze these factors each time a document is sent electronically, it is probably a better idea to use a metadata “scrubbing” application to remove any embedded information before sending electronic files to others. These applications can be found online and many are reasonably priced. However, before scrubbing metadata, make sure you are not inadvertently violating any disclosure duties under the law. This is especially important when forwarding electronic documents in response to a subpoena or formal discovery request. For example, Rule 26(b)(1) of the NC Rules of Civil Procedure states, “[f]or the purposes of these rules regarding discovery, the phrase ‘electronically stored information’ includes reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the parties agree otherwise or the court orders otherwise upon motion of a party and a showing of good cause for the production of certain metadata.”
Bottom line, metadata is potentially embedded in every document drafted. Lawyers must concern themselves with metadata in order to remain compliant with NC rules, statutes, and ethics opinions.