Comment 8: And Just Like That, Everything Got All Meta Pt.3
The ABA Rules of Professional Conduct, Model Rule 1.1 Comment 8 requires, “To maintain the requisite knowledge and skill, a lawyer shall keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” To that end, we have developed this regular series to develop the competence and skills necessary to responsibly choose and use the best technologies for your educational and professional lives. If you have any questions, concerns, or topics you would like to see discussed, please reach out to e.koltonski@csuohio.edu.
In Part 1 we introduced the topic of metadata.
In Part 2 we looked at the usefulness of metadata.
Now we are going to examine when you may want to delete metadata and look at metadata in discovery.
Do I Delete?
The very aspects of metadata that makes it so useful, by helping to better organize and track changes in data, are the same things that may make it too useful for other people. For this reason, it is considered best practice to “scrub”—another word for delete—metadata whenever you are sharing a digital file with another person, organization, etc. This is important because you should only share what is necessary. For example, if you send a Word file then others may be able to go back and see all the changes you made to the document: including information that you decided not to share. Doing this could be bad for a regular user but inadvertent disclosure is devastating for those in the legal profession.
To better protect your metadata, it is possible to forego certain features or to get rid of things after the fact; however, that potentially makes Word less useful to you and adds extra time to your workflow. A simple best practice in to simply save your Word file as a Portable Document File (PDF) prior to sending it. A PDF is basically a snapshot of your document that does not include things like revisions, comments, and the like. If any metadata does transfer over to the PDF, simply open it in Adobe Acrobat then go to:
File > Properties > Then just delete anything you do not want to share in the Description tab > Then click “Additional Metadata” and delete anything else you wish to remove.
It is possible to accomplish the same thing with images. You can find a brief explanation here.
Metadata in Discovery
The ethical and legal issues surrounding metadata could probably fill an entire year’s worth of content in this series. At best we will be able to just touch on a few important aspects here, but I will include some suggested reading at the end and encourage you spend time understanding this topic.
The following are some common aspects of metadata in the legal profession, but you should check local laws and rules to know what is applicable to you:
- Parties to litigation are obligated to preserve metadata. Be prepared to explain to your client what metadata is and why they need to preserve it.
- When requesting materials from another party, you may need to word your request in a specific way to obtain “original” digital documents. In doing so be prepared to argue why it is important that you have access to the metadata.
- Both the transmitting and receiving attorneys may have ethical responsibilities when it comes to metadata. It is vital that you understand both how to protect your client from metadata leaking and whether you are allowed to use metadata in received documents.
Suggested Reading
Shira A. Scheindlin, Electronic Discovery and Digital Evidence in a Nutshell (2d ed. 2016)
Jeff Kerr, Why Native Files are Important in eDiscovery
The Sedona Principles, Third Edition, 19 SEDONA C ONF . J. 1
(2018). Link [PDF]
