Lawyers Beware "Track Changes": That's Metadata You're Handing Over

At Law.com's Legal Blog Watch, Robert Ambrogi posts "Keeping Track of 'Track Changes,' " on the usefulness and risk to lawyers of using Word's Track Changes collaboration function.  "The bottom line, of course, is that what goes into a document as metadata should come out of that document before you send it as final," Robert writes. 

He links this abanet tech piece on Track Changes as embedded metadata (essentially electronic footprints).  That piece contains several great "horror stories" worldwide of embarrasing or compromising metadata that just would not die and wound up on the wrong retinae -- like the instance in 2004, when "hidden text in a Word document revealed that the SCO Group's lawsuit against Daimler Chrysler was originally intended to target Bank of America."  The defendant and location of filing the lawsuit was switched starting at 11:10 a.m. on 2/18/04.  [This is the art of suing sort of like how Radar used req forms in M*A*S*H:  Delete "incubator" and insert "pizza oven."] 

Another poster child for this advice, after Robert's post, is from a commenter noting this linked example from Australia:  embedded data in a footer revealed that an opponent had drafted anti-sue legislation and led to a costly contempt charge and settlement.

Ethics rulings conflict.  Recall from Mike's post that the ABA has considered it pretty much the producing lawyer's responsibility to scrub documents and files of metadata before sending to opponents and courts, not the receiver's (against the position of some ethicists like David Hricik).  The ABA's original position is sternly followed in Maryland (also here), where the receiver may ethically mine metadata in documents without an issue of inadvertent disclosure (subject perhaps in federal courts to new civ pro e-discovery rules effective Dec. 2006).  New York, by contrast, makes it unethical for the receiver to mine metadata and requires notice to the other side of inadvertent disclosure.  This Florida opinion places intitial reponsibility (Hricik's comments are here) upon the producer but disallows mining for inadvertent revelations.  Even the ABA now warns that reading metadata and mining it may run afoul of the more general Ethics 2000 rule about inadvertent disclosure.  Developing that line of ethical inquiry may ultimately bring the ABA position more in line with that of New York and Hricik (though not in Maryland, which so far lacks the inadvertent disclosure aspects of Ethics 2000).

Some of the more embarrassing ways metadata ghosts can haunt a lawyer, however, don't really involve such competing ethics positions, since they involve sending drafts to clients.  Every lawyer should have in place a clean-up mechanism before sending any final draft anywhere, whatever ethics rules are eventually adopted for placing where that responsibility ultimately falls.

Of course part of the dilemma, I think, is that the Track Changes function is so hard to turn off and scrub, in my experience.  I have previously tried multiple Help searches to find an easy way to accept all changes, turn it off, and produce a final document with no history or metadata.  It always seemed that one has to go bubble-by-bubble to accept changes -- and even then it seems any new work starts up Track Changes again.  Does anyone know an easy way how to stop this process and make the document truly "final"?  "Jane, stop this crazy thing!"   The abanet tech article recommends this Microsoft website sidebar, "Get rid of tracked changes and comments, once and for all"; I will check it out and see if it finally works.  [More general Microsoft "About tracked changes and comments" stuff is here.]

But even cleaning up tracked changes does not necessarily scrub whatever you put it in a footer, whether in Melbourne or America.  You have to view those, too, before a document is sent out.

[Alan Childress]