Lawyers, Metadata and Client Confidences
Heard this one?
Guy goes up for Supreme Court Justice. Opposing political operatives pass disparaging e-memos. Major national political party gets wise a little late and smartly scrubs the discoverable data. Whew. Close one. But what's this? Oh No! BUSTED by the META data in the Word.doc.
It was bloggers who got the meta-goods. Think maybe there's a change a-comin'?
It looks like US Supreme Court nominee Samuel A. Alito, Jr. will do fine (no bets on the DNC). But the data snafu is not unique. Lots of lawyers are mondo-surprised by the foremost threat facing lawyers today -- metadata -- made more acute by ethical and professional requirements regarding client confidences.
The main peril is twofold: inadvertent disclosure of 1) attorney communications with adversarial third parties, and 2) clients' underlying communications and documents in the course of litigation. But they share a common source. METADATA. Metadata contained in documents provided during otherwise ordinary e-discovery can accidentally expose confidential information, and destroy the attorney-client relationship -- nevermind cases, careers, even the firm itself.
Metadata is "data about data". It's information about the formatting, the history, the tracking and management of any electronic document. Metadata can spill all the beans about how, when and by whom the data was collected, created, accessed, or modified. Metadata can be modified, inadvertently (which is aggravating) or intentionally (which can be criminal). Metadata is meant to be invisible in the final printed document. But it can be extracted when native files are converted to image files, like the universally preferred PDF files so routinely used for printing out.
State Bar Opinion
Lawyers must become aware of metadata and of how their software stores it, in order to properly safeguard their clients' confidences. God forbid a lawyer should transmit a document by e-mail to someone other than the client, without realizing the recipient is able to view prior edits or comments that qualify as privileged attorney-client communication.
Wherever such communications could jeopardize client confidences, the lawyer must exercise "reasonable care" to protect the client's information, because that responsibility still lies squarely with the lawyer. That's one thing that has definitively NOT changed.
E-discovery
The explosion of electronic data discovery, or EDD, additional changes to federal rules of disclosure proposed for 2006, and inexorably evolving technology -- all combine to make data in general -- and metadata in particular -- some of the most perilous and costly aspects of litigation.
It has never been more crucial to find the right people to meet increasingly tech-savvy demands of litigation support .
Guy goes up for Supreme Court Justice. Opposing political operatives pass disparaging e-memos. Major national political party gets wise a little late and smartly scrubs the discoverable data. Whew. Close one. But what's this? Oh No! BUSTED by the META data in the Word.doc.
It was bloggers who got the meta-goods. Think maybe there's a change a-comin'?
It looks like US Supreme Court nominee Samuel A. Alito, Jr. will do fine (no bets on the DNC). But the data snafu is not unique. Lots of lawyers are mondo-surprised by the foremost threat facing lawyers today -- metadata -- made more acute by ethical and professional requirements regarding client confidences.
The main peril is twofold: inadvertent disclosure of 1) attorney communications with adversarial third parties, and 2) clients' underlying communications and documents in the course of litigation. But they share a common source. METADATA. Metadata contained in documents provided during otherwise ordinary e-discovery can accidentally expose confidential information, and destroy the attorney-client relationship -- nevermind cases, careers, even the firm itself.
Metadata is "data about data". It's information about the formatting, the history, the tracking and management of any electronic document. Metadata can spill all the beans about how, when and by whom the data was collected, created, accessed, or modified. Metadata can be modified, inadvertently (which is aggravating) or intentionally (which can be criminal). Metadata is meant to be invisible in the final printed document. But it can be extracted when native files are converted to image files, like the universally preferred PDF files so routinely used for printing out.
State Bar Opinion
Lawyers must become aware of metadata and of how their software stores it, in order to properly safeguard their clients' confidences. God forbid a lawyer should transmit a document by e-mail to someone other than the client, without realizing the recipient is able to view prior edits or comments that qualify as privileged attorney-client communication.
Wherever such communications could jeopardize client confidences, the lawyer must exercise "reasonable care" to protect the client's information, because that responsibility still lies squarely with the lawyer. That's one thing that has definitively NOT changed.
E-discovery
The explosion of electronic data discovery, or EDD, additional changes to federal rules of disclosure proposed for 2006, and inexorably evolving technology -- all combine to make data in general -- and metadata in particular -- some of the most perilous and costly aspects of litigation.
It has never been more crucial to find the right people to meet increasingly tech-savvy demands of litigation support .
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