Metadata. News articles have reported on it. The Florida Bar has issued opinions on the consequences of metadata. Any attorney who has practiced law for any length of time has heard the term. However, many may not really understand all that is embodied by concept. Metadata is essentially data about data. It is information describing and detailing files. Metadata can be defined by the user or generated automatically by an application or operating system.
Most users are aware that operating systems like Microsoft Windows and Apple’s OS X generate metadata about files. Time stamps for file modification, access and creation are automatically created and tracked by the operating systems. Those time stamps can be important evidence in cases where it is necessary to establish when a document was created or to help build a timeline of a case.
Operating system time stamps are hardly the only metadata created or tracked in modern computers. Applications create a great source of evidence by storing metadata within user files. For example, Microsoft Office applications like Word and Excel store user editable document properties including author, subject and title. Additional data is dynamically updated by the application, including last printed date, word count and total editing time. In addition, the creation date and time is stored by the application, providing a source for verifying the operating system data.
A common misconception is that by converting a Word document to .pdf format, all of the metadata is removed. In reality, converting to .pdf can not only retain original metadata, but in some instances may create additional metadata. Adobe Acrobate properties will report the original document source as Microsoft Word and provide a new creation date.
Cameras and modern smart phones with cameras create and store extensive metadata within digital photos. Photo buffs may appreciate the extensive exposure and other related image properties that are captured within their photos. Image creation dates and times, and the GPS location data captured within smart phone metadata can provide valuable evidence.
Attorneys need to understand that while metadata can provide valuable evidence, it can also present ethical pitfalls. Metadata can inadvertently reveal confidential information related to the development of client documents. In 2006, the Florida Bar issued an ethics opinion noting that “A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.” The Bar further noted that a lawyer receiving a document should not attempt to mine metadata that is not intended for him.
Fortunately, software manufacturers are aware of the risks presented by metadata and have responded accordingly. Adobe Acrobat has provided tools for removing sensitive metadata from user documents. Third party tools have been developed to similarly strip the data from Microsoft Office documents.
Metadata created by operating systems and applications can present both opportunities for important evidence and ethical problems. By understanding what metadata is, how it is created and how to remove it, lawyers can not only find evidence that may be critical to their case, they can avoid the ethical problems that come from releasing confidential client information by inadvertently leaving metadata behind.