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Daphne Drescher

By: Daphne Drescher (Guest Blogger)

A big thanks to our honorary Guest Blogger of the day, Daphne Drescher, for taking time out of her uber busy paralegal and blogging schedule to come and tell the rest of us about Metadata. Meta-what, you ask? Metadata! Read on to not only find out what it is, but why it matters to you and your law firm! Thankfully, she’s speaking in plain English on this rather heavy topic, paralegals. I, for one, am oh so glad, and oh so knowledgable about metadata because…you ready for this one? I read this article!!

What are you waiting on? Your metadata education begins – right now! So hit that scrolly wheel on your mouse and venture south for your metadata enlightenment…

Reprinted with permission from Proparalegal: http://proparalegal.com.

What is metadata?

Personally, I don’t find the standard “data about data” definition that helpful, do you? But try this on for size:

[M]etadata is data that is attached to a computer file that describes the file. Think of it as extra information that is hidden in a document, information that is automatically created and embedded in a computer file. (Susan J. Silvernail, Metadata: What It Is & Why You Should Care, ALAJ Summer Seminar, August 11, 2007.)

Word or WordPerfect, Excel and PowerPoint files all generate and store a lot of information about a document’s author, revisions, templates, deleted text, and more. Even PDF documents contain some metadata, although much less.

Is metadata good or bad?

Well, the answer is a favorite in the law profession: It depends!

That’s right, it largely depends on whose metadata it is, and in what context the metadata is likely to be discovered or reviewed.

Confidentiality, Privilege, and Work Product

If the document is internal to the law office, that means attorneys and staff have likely generated it, reviewed it, revised it, and possibly commented on it. The document will contain embedded metadata that records all those events. Perhaps a document has even been reviewed, revised and commented on by a client.

In this case, the metadata contained in the document may well fall under any of – or all three of – the above-listed categories! In that case, an attorney – and her staff – has an ethical obligation to protect that metadata from being seen by anyone not directly involved in the client’s representation.

Discovery of Electronically Stored Information (ESI)

On the other hand, if the metadata is contained in discoverable documents that are relevant to the subject matter of the case, then the metadata is probably discoverable too.

In fact, increasingly parties are including metadata in their discovery requests, requiring that ESI be produced with its associated metadata intact. Sometimes this is accomplished by producing ESI in its native format, together with all original metadata. Other times this is accomplished by processing ESI into TIFFs, and producing them with load files that contain the documents’ original metadata.

Ethical Obligations

Attorneys and their staff have ethical obligations in either case with respect to handling the metadata associated with electronic documents.

Client Confidences

In the case of metadata potentially containing confidential, privileged or attorney work product information, the lawyer has an ethical duty to take steps to prevent its disclosure.

There have been an increasing number of ethics opinions issued by state bar associations relating to a sending attorney’s obligations to prevent disclosure of confidential metadata, as well as a receiving attorney’s ethical obligations in the event of receiving metadata that was inadvertently shared.

On the later issue, there is some disagreement among the states. However on the issue of the sending lawyer’s obligations, there is broad agreement that Model Rule 1.6 requires an attorney to assure that in the process of transmitting electronic documents, he does not inadvertently disclose his client’s confidential information.

Discoverable Evidence

On the other hand, when metadata is embedded in documents relevant to the issues in the litigation, the lawyer has an ethical duty to take steps, and to urge her client to take steps, to see the metadata is not altered, destroyed or withheld from production if requested.

In fact, in federal court at least, recent case law suggests that certain basic kinds of metadata should be produced with its associated ESI as a matter of course, whether specifically referenced in document requests of not. (See Patrick Zeller, Inside Counsel Blog, Technology: Recent cases help evolve guidelines for producing metadata, posted July 29, 2011.)

What’s your view? What does your office do about metadata? Tell us about it!

Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.

See…you went from meta-huh to metadata, didn’t you? All thanks to Daphne for that! We’ll see you on Friday with another fun post on (I have absolutely no idea) – should prove to be an interesting day!

Until then, guard the esquires, my humble, paralegals friends.