On March 24, 2010 I wrote a guest post for Practical Paralegalism, one of my favorite legal blogs, written by one of my favorite legal bloggers, Lynne DeVenny.  The subject:  metadata. 

If you or your staff are looking for a primer on what metadata is and what you should do about it (from a “best practices” perspective), check out my post: Metadata 101: What You Don’t Know Can Hurt You.

Only a handful of jurisdictions have weighed in on the ethical considerations of metadata, with varying results.  There is no brightline on the ethics of data mining or the duty to notify the recipient if the sender discovers metadata.  There is consensus  that attorneys should use reasonable care to “avoid providing electronic documents that inadvertently contain accessible information that is either confidential or privileged, and to employ reasonable means to remove such metadata before sending the document.”   The American Bar Association takes the same position.  Presumably, if Oregon were to issue an ethics opinion about metadata, they would come to the same result.  Where we would fall with regard to data mining or notification is anyone’s guess.

What Should I Do?

If your firm practices in a jurisdiction that has issued a metadata opinion, follow the requirements of your jurisdiction. A detailed chart is available from the American Bar Association Legal Technology Resource Center.

All firms should establish a metadata scrubbing policy. Even if not required, best practices dictate that metadata be removed from documents prior to transmission. This is the best way to protect sensitive, confidential, or privileged information.  Metadata removal tools in Word, WordPerfect, and Acrobat are described here.

As I  mention in my Practical Paralegalism post,  these tools aren’t foolproof, so it might behoove you to look into more thorough metadata scrubbers.  My favorite is PayneGroup’s Metadata Assistant.  While there, don’t forget to check out all the other great products and resources.  If you read this blog, you know I don’t offer or receive paid endorsements, and this is no different.  Donna Payne and PayneGroup’s reputation is exceptional – you can read about it for yourself.

Copyright 2010 Beverly Michaelis