image   by Sheila Blackford    ©2015

Guard against inadvertent disclosures by properly removing metadata and redact confidential information before transmitting those digital documents.

Some lessons are so important, they bear repeating. For years the Practice Management Advisors at the PLF and through out the USA and Canada have cautioned lawyers about scrubbing metadata from documents.

Here is a brief snippet from my May 2006 Oregon State Bar Bulletin Managing Your Practice article, Metadata: danger or delight?

“…Much hype has surrounded metadata ever since the March 4, 2004, CNET News.com disclosure that SCO Group’s lawsuit against defendant DaimlerChrysler for alleged violation of their Unix software agreement was initially prepped as a lawsuit against Bank of America for copyright infringement. You may have enjoyed the benefit of using a suite of programs like Microsoft Office, especially because it is easy to pull data from one program into another, such as copying part of an Excel worksheet into a Word document. However, if you do this from the Edit menu using the “Paste Special” feature and selecting “Microsoft Excel Worksheet Object,” you may be in for a surprise. Double-click on the Excel worksheet object in your Word document and you’ll discover that the entire worksheet document is visible, including other worksheet tabs that may contain sensitive information. The entire Excel worksheet is known as an embedded object and is metadata that travels with the Word document. Thus, the full Excel worksheet can be viewed by the receiver of the Word document, even though you didn’t intend that result. The detriment of exposing more that a select portion of an Excel spreadsheet may be exponential if the additional figures pertain to your negotiation strategy on settlement offers or disclose profit projections for complex financing plans.

In complying with discovery requests, you are required to provide only the documents and data set out in the discovery demand. Beware — if supplying electronic versions of your documents — that you are not providing more information than required by inadvertent disclosures in document metadata.”

And a year later, then OSB General Counsel now Executive Director Sylvia Stevens warned lawyers about the perils of being unaware of metadata and referenced the August 2006 ABA Formal Opinion 06-442 Review and Use of Metadata in her April 2007 OSB Bulletin Bar Counsel article, Metadata: Guarding Against the Disclosure of Embedded Information.

“The ABA opinion stands as an important reminder that it behooves lawyers to learn and understand technological advances that are integral to their practice so that they do not inadvertently send information that they might later wish they had not.”
 

And a few years ago, OSB General Counsel Helen Hierschbiel cautioned lawyers about the perils of inadvertent disclosures when sending documents electronically in the June 2012 OSB Bulletin Bar Counsel article, Revealing Bits & Bytes:
Guarding (and Exploiting) Metadata
.

“Two rules inform a lawyer’s duties when sending documents electronically. Oregon RPC 1.1 requires a lawyer to provide competent representation to a client, meaning the lawyer must possess the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” In addition, RPC 1.6(a) requires a lawyer to “not reveal information relating to the representation of a client.” “Information relating to the representation” is a defined phrase under RPC 1.0(f) and includes both information that is subject to the attorney-client privilege and other information gained during the course of the representation that the client has asked be kept secret or the disclosure of which would be embarrassing or likely to be detrimental to the client. With these two rules as a backdrop, the OSB Legal Ethics Committee concludes that competency in relation to metadata requires a lawyer who uses electronic communications to maintain at least a basic understanding of the technology and the risks of revealing metadata or to use adequate technology support. OSB Formal Op. No. 2011-187.”

To safely redact confidential and/or protected information when producing discovery or eFiling, be sure to use Adobe Acrobat XI Pro and follow the easy steps I shared in my June 2012 OSB Bulletin On Professionalism article, Easier Acrobatics: New Adobe Features Especially Appreciated by Attorneys.

“How to Remove Visible Data or Do Redaction from PDF Files in Four Easy Steps:

This can be done in Acrobat XI Pro only.

1. In Acrobat XI, choose Tools > Protection.

2. Click Mark for Redaction.

3. Go through your PDF and highlight the text or images you want to redact.

4. Click Apply Redactions. Acrobat permanently deletes the selected information from the file, replacing it with black blocks or other formatting of your choice.”

Why all the concern? Lawyers are continuing to trip when they should be treading carefully, as stressed in this Law360 post: E-Filing Error Can Destroy Trade Secret Status that you can read in its entirety with a free 7-day subscription.

 “First rule of thumb in trade secrets litigation? A trade secret must be kept secret. It is painfully obvious, but modern practitioners must not grow complacent due to the convenience of electronic filing. Although trade secrets law does not command absolute secrecy, a recent e-filing snafu in HMS Holdings Corp. v. Arendt offers a cautionary tale from New York on how one botched upload could jeopardize a client’s most prized possession.”

Make no mistake, ABA Model Rule 1.1 specifically addresses the need to be competent when using technology, see the December 2013 Your ABA article Duty of Competence in the 21st Century

Model Rule 1.1:

Client-Lawyer Relationship
Rule 1.1 Competence

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment 8:

Maintaining Competence

[8] “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Be safe out there!

Posted by SBlackford

Sheila Blackford is an Oregon attorney who has been a practice management advisor for the Oregon State Bar Professional Liability Fund since 2005. She loves writing, riding her horse, and taking long walks with her husband and their dog.

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