How Ethical Is Metadata Mining?

Metadata is data embedded in electronic documents that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

The most recent issue of The Lawyers Weekly examines many of the ethical ins and outs of metadata mining:

"Want to know what opposing counsel was really thinking prior to sending you a document? Mine that document for metadata using techniques like these:

• Activate the Track Changes feature to read insertions, deletions and comments
• Check headers and footers (Does the last page in a discovery read 'Page 3 of 7'? Does the date of creation not mesh with other information you’ve been given?)
• Search for 'white text' (text in a white font set on a white background)
• In Microsoft Excel, look for hidden columns and rows and floating notes
• In PowerPoint, look for speaker’s notes
• Check a document’s properties for things like document creation date, author, software used to create the document, and other details
• Look for extra fields in e-discovery production documents
• Download a free metadata extractor from the Internet and use it to open files"

"You won’t always find useful metadata in documents you receive, but enough lawyers remain ignorant of both metadata and the consequences of disclosing it that it’s worth your while to try the techniques in the list above (...)

"Metadata mining can be tricky, since certain jurisdictions forbid mining. But all Canadian lawyers have to guide them are a few weak paragraphs on best practices in the Information To Supplement The Code Of Professional Conduct: Guidelines For Practising Ethically With New Information Technologies, published by the Canadian Bar Association."

Earlier posts from Library Boy on the topic include:

• Metadata in Word Documents Can be a Legal Minefield (May 12, 2005): "Could it be that Law Society regulations prohibit lawyers from taking advantage of another lawyer's lack of sophistication or of another lawyer's error, where that error is to divulge privileged or confidential information via metadata? In other words, if a non-tech-savvy lawyer e-mails a contract, and if that contract contains hidden text or comments or track changes that give away his or her client's negotiating tactics or position, or the client's questions or comments, is there an obligation on the part of the recipient lawyer to avoid opening the document?"
• Risks of Metadata Factsheet from Privacy Commisioner (July 31, 2006): "The ability to view other people’s comments and suggested changes to a document, using the Track Changes feature [in office productivity applications such as Microsoft Word, Excel and PowerPoint, or Corel WordPerfect] is central to collaborating with co-workers on a project. However, changes that are not accepted still remain with the document, even though they are not readily visible (they can be displayed by turning on the 'Show markup view') and could be inadvertently exposed to unauthorized individuals whenever the document is shared..."
• Dealing with the "Meta Menace" (September 6, 2006): "Problems can arise if law firms send files to clients or opposing counsel that still contains markup. It may as well be hard copy full of sticky notes. Consequences may include a compromised bargaining position and violations of the Rules of Professional Conduct and the Personal Information Protection and Electronic Documents Act (PIPEDA). Laws governing metadata are still in their infancy, but early precedents permit tech-savvy counsellors to freely read any metadata they find, much as they would a forgotten sticky"
• U.S. Lawyers Allowed to Snoop on Hidden Metadata (November 6, 2006): "The American Bar Association (ABA) has ruled that lawyers are allowed to look at and use the hidden metadata that may have been inadvertently included in electronic legal documents they receive, even if sent to them by mistake by opposing counsel."
• New Guidelines For Practicing Ethically With New Information Technologies (September 14, 2008): "The Canadian Bar Association has released Guidelines for Practicing Ethically with New Information Technologies: ... The Guidelines examine issues such as confidentiality, encryption, privilege, court rules on electronic storage, metadata, security of information, marketing practices, intellectual property issues regarding software, and participation by lawyers in online discussion fora."
• Metadata - Lawyers' Ethical Duties (January 6, 2009): "LLRX.com has just published an article entitled 'Metadata - What Is It and What Are My Ethical Duties?' (...) 'The ethical implications of one lawyer examining the metadata in a file received from another lawyer have generated a lot of discussion. This article will cover the legal ethics opinions issued so far and give you tips on how to avoid exposing confidential information unintentionally via metadata'. "
• Lawyers' Ethical Responsibilities Relating to Metadata (June 2, 2010): "We are all undergoing training at my place of work on the newest version of Microsoft Office. At a session today, talk got around to the the need to be careful about the 'metadata' that is created whenever we create and change a document. It so happens that the American Bar Association website has recently updated its list of professional ethics opinions from around the United States concerning the handling of metadata ..."