Managing metadata: attorneys need to be aware of metadata, especially in regard to electronic discovery and professional responsibility obligations.

There are now numerous state and federal court decisions, a myriad of articles, and various conferences regarding the growing area of electronic data. Electronic evidence and discovery are here to stay and must be dealt with in the context of litigations. Further, the tremendous use of e-mail with attachments imposes an obligation upon attorneys not to knowingly reveal client confidences or secrets via the transmission of metadata.

The significance of the expanding field of electronic data and corresponding host of issues is sometimes lost on attorneys because they are not entirely familiar with what all the hype is actually focused on--not only the obvious, the electronic documents, but also the associated "hidden" metadata--embedded digital information in electronic files.

Every type of electronic document has corresponding metadata: a potential wealth of data that can aid in the prosecution or defense of most cases. Some types of metadata are more obvious than others. For example, with an e-mail that is printed on paper, you are limited to the typed words. However, having the same c-mail in its electronic format allows you to view who, if anyone, was blind copied; determine if the recipient forwarded the email to others; and view any attached files.

Metadata also may tell you if the creator of the e-mail is different from the sender; the date the e-mail was created vs. the send date; the type of files attached to the e-mail, if any; and, for internal e-mails within an organization, the time and date a particular recipient opened the e-mail.

Another advantage is your ability to search for select words, or sort a document by date, author or recipient. And rather than going through hundreds or even thousands of printed e-mails, with electronic form (and the aid of third-party software) you can instantly sort or filter, thereby saving time and expense.

In preparing witness fries, using electronic files will allow you to easily include e-mails where the witness would have received a carbon copy or blind copy, as opposed to being a direct recipient. Then if a witness denies seeing a particular e-mail, with metadata you can show the time and date that the witness opened the email at his or her workstation.

Letters and spreadsheets also contain metadata. As with a hard copy of an e-mail, the same holds true for letters, memos, reports or spreadsheets--you are limited to viewing only the written words. However, the same document produced in electronic form suddenly transforms your options for examining it in much greater depth. With Word documents, for example, you can view the name of the original author, learn the identity of any editors, determine the number of versions, and locate the file path to see where the file is saved.

In addition, metadata will allow you to view prior drafts depending on how the Word document was formatted, for example the track-changes option. With Excel spreadsheets, an electronic version (as opposed to a hard copy) will allow you to view a formula used for making calculations, and you will be able to view any hidden columns.

The existence of metadata also creates an obligation that attorneys do not knowingly reveal client confidences or secrets via electronic transmission; for example, New York Disciplinary Rule DR 4-101(B) provides that a lawyer shall not "knowingly" reveal a confidence or secret of a client. The New York State Bar Association Committee on Professional Ethics issued Opinion 782, dated Dec. 8, 2004, and held, in pertinent part, that when a lawyer sends a document by e-mail, as with any other communication, the lawyer must exercise reasonable care to ensure that he or she does not inadvertently disclose a client's confidential information.

Some examples of metadata given in the committee's opinion for word processing documents included recent revisions of the document, and comments inserted in the document in the drafting or editing process. A more dramatic example given by the committee's opinion was a prosecutor's use of a cooperation agreement signed by a confidential witness as a template for an agreement with another witness, which was then sent via e-mail to another party. If the metadata in the template was not removed, it's possible that the recipient of the e-mail with the template could look at the past revision--and view the name of the original confidential witness.

The list of electronic fries and their associated metadata is extensive. It's not possible here to identify all the metadata that's out there; just be aware of its existence and potential ramifications.

Contributor Bruce R. Kaliner is a partner at Mound Cotton Wollan & Greengrass, New York. He can be reached at [e-mail].