Lawyers and Technology: The Mystery of Metadata

Please note that this post is from 2009. Evaluate with care and in light of later events.

Image by StarrGazr via Flickr

Jim Calloway writes about a new opinion by the New Hampshire Bar Ethics Committee:

The New Hampshire Bar Association issued Ethics Committee Opinion 2008-2009/4 on April 16, 2009. I’ve written at length on this subject and one can go here to review my take on all previous bar ethics opinions about metadata. It still bothers me that many of these opinions assume (A) that removing metadata is an expensive, mysterious and sometimes impossible process when in fact it is fairly simple to make sure confidential client information is not disclosed and (B) looking at a document’s metadata is often intended to ferret out confidential client information when it is generally looking at routine things like a document’s word count.

The whole post is worth reading, but I think it’s important for all of us involved in technology to remember that many people – including well-educated lawyers – received their education in a time before Twitter, before LinkedIn, and even before the widespread use of computers in legal research at all.

This is true of judges and juries, of course, so it’s always important as a litigator to educate your audience if technology is an issue in the case.

But equally important for all law practitioners is that, even outside the courtroom, may of those involved in the law do not understand the technology they use, such as “metadata” in Word – a concept that seems esoteric until you realize, as Mr. Calloway points out, that this can mean simple things like the word count of a document, and that removing confidential metadata (such as “track changes”) is something anyone using such features ought to know about. (Not that it isn’t easy to slip-up – it is – but then again, it’s also easy to miss a deadline, and that could easily be malpractice).