Practice Tips: Metadata

by Dave Bilinsky, Practice Management Advisor

Metadata. This is a word that has only recently been introduced into the lexicon of lawyers, but it is one about which lawyers should be concerned.

First, what is metadata? The Sedona Conference defines Metadata as "information describing the history, tracking or management of an electronic document." There are at least two ways that metadata is relevant to lawyers:

  1. in a litigation context, when making or receiving discovery; and
  2. in an office context, when exchanging documents with opposing counsel or even with a client.

lap topIn the first situation, there is no question that metadata, forming part of electronic files, is subject to discovery. The metadata stored as part of an electronic document is discoverable if relevant and should not be privileged. Within the rules surrounding discovery of documents, it is clearly possible that metadata would be relevant in certain situations, such as when it is necessary to prove that an email was sent from or received on someone's computer on a certain date (which may or may not be the date in question). Within the grounds of relevance and proportionality, the metadata in a document may have greater significance than the contents of the document itself, particularly if the metadata is the proverbial "smoking gun."

Accordingly, it behooves litigation counsel to know about metadata and when it may be appropriate to request discovery in electronic form that preserves the metadata in the evidence. Obtaining discovery in paper form eliminates any chance of discovering the metadata in an electronic document. In fact, obtaining discovery in anything less than "native format" may be the only appropriate form of discovery in certain cases.

In the second situation, if counsel is sending a Word, Excel, WordPerfect or even a PDF or other electronic document to either their own client or to opposing counsel, that document almost inevitably contains metadata. If the document happened to be a draft contract, offer to settle or such, then it is possible for the recipient to "peel" back the layers and see the earlier changes to the document while it was in draft form.

Some lawyers believe that if a document is converted to PDF format prior to being sent, the metadata in the document will be "scrubbed." Alas, this is not always the case. There are instances when a Word document can be attached to a PDF in native format (in which case it will have its metadata intact). It can contain its metadata if you have your "print" function set to print "track changes" or if you have the "tracked changes" visible when you create the PDF, for example.

There is as yet no ethical ruling in BC on whether or not a lawyer is permitted to view the metadata in a document that has been received by an opposing party. Some jurisdictions have made it an ethical requirement for lawyers to use "metadata scrubbers" prior to sending communications to the other side, in order to prevent this problem from occurring. Note that "scrubbing" discovery evidence to remove metadata prior to its delivery to opposing counsel may be improper and could result in sanctions against the client and counsel alike.

Metadata is an emerging issue and lawyers certainly need to consider whether the other side should see what they see.