Our world is filled with data of all kinds, including metadata (“data that provides information about other data”).[i] Metadata exists in numerous places. For example, “a digital image may include metadata that describes the size of the image, its color depth, resolution, when it was created, the shutter speed, and other data.”[ii] Attorneys should be especially interested in the metadata contained within a text document. “A text document’s metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.”[iii] It can also contain information about the number of versions, how long it took to draft, and ways in which it was modified.[iv]
As you can imagine, this can be problematic for a profession that drafts and redrafts highly consequential documents, strategically considering the effect of each word and phrase. Though there was much talk about metadata in the early 2000s, it seems that lawyers are still failing to heed the warnings.[v] Lawyers for Sean “Diddy” Combs recently made headlines for failing to remove some track changes language from a court filing, revealing that one reviewer questioned the legitimacy of an assertion before the document reached the court.[vi]
Even the United States Supreme Court is not immune from this kind of mistake. Earlier this year, when handing down its decision in Trump v. Anderson, the Court failed to scrub some metadata, revealing that what appeared to be a concurring opinion coauthored by three justices was, at one point, an opinion both concurring in part and dissenting in part, drafted by Justice Sotomayor alone.[vii]
It’s easy to overlook metadata in our documents because, generally, we don’t see it without taking certain steps to reveal it. And, without knowing how it is created and stored, we may not realize exactly how easy it is to find and view. For example, while drafting this post in Word, I did not use track changes, but when I clicked on “version history,” my document appeared as if I had. I could see every addition, alteration, and deletion from the last auto-saved version—not a big deal for a blog post, but potentially catastrophic for a demand letter, settlement offer, motion, appellate brief, or judicial opinion.
There are several places on the web you can go to find information about how to scrub metadata from your document.[viii] And you should.
But what if you receive a document with metadata still intact? There have been many ethics opinions on the issue over the years, but there are still some open questions.[ix] As one author suggested, “[t]he best rule is for law firms to develop best practices internally to keep metadata from ‘escaping’ in the first place.”[x]
[i] “Metadata.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/metadata (last accessed Oct. 6, 2024).
[ii] “Metadata.” Wikipedia.com, https://en.wikipedia.org/wiki/Metadata (last accessed Oct. 6, 2024).
[iii] Id.
[iv] Marilyn Cavicchia, How Clean is Your Document? What You Need to Know About Metadata, American Bar Association, Bar Leader (Vol. 32, No. 3, Jan.-Feb. 2008), available at: https://www.americanbar.org/groups/bar-leadership/publications/bar_leader/2007_08/3203/metadata/#:~:text=Where%20is%20metadata?,belonging%20to%20a%20U.S.%20contractor (last accessed Oct. 6, 2024).
[v] Catherine Reach, Exposed! What Lawyers Need to Know About Metadata, North Carolina Bar Association (Jan. 4, 2022), available at: https://www.ncbar.org/2022/01/04/exposed-what-lawyers-need-to-know-about-metadata/ (last accessed Oct. 6, 2024).
[vi] Staci Zaretsky, Lawyers for Sean ‘Diddy’ Combs Make Embarrassing Mistake in Bail Letter to Judge (Sept. 18, 2024), Above the Law, available at: https://abovethelaw.com/2024/09/lawyers-for-sean-diddy-combs-make-embarrassing-mistake-in-bail-letter-to-judge/ (last accessed Oct. 6, 2024).
[vii] Mark Joseph Stern, Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling, Slate.com (Mar. 4, 2024), available at: https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html (last accessed Oct. 6, 2024).
[viii] See, e.g., https://ncculaw.libguides.nccu.edu/Technology/metadata, https://support.microsoft.com/en-us/office/remove-hidden-data-and-personal-information-by-inspecting-documents-presentations-or-workbooks-356b7b5d-77af-44fe-a07f-9aa4d085966f, or https://www.adobe.com/acrobat/hub/remove-metadata-pdf.html.
[ix] In Comment [2] to Rule 4.4(b) (“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender”), the ABA notes, “Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.” https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/comment_on_rule_4_4/.
[x] Jim Calloway, Metadata – What Is It and What Are My Ethical Duties? LLRX.com (Jan. 5, 2009), available at: https://www.llrx.com/2009/01/metadata-what-is-it-and-what-are-my-ethical-duties/#:~:text=Without%20authorization%20from%20a%20court,to%20have%20been%20intentionally%20communicated (last accessed Oct. 6, 2024).