While the word metadata has been liberally spread around, few have much of a clue what it is and why it’s a problem. Worse still, most criminal defense lawyers have little reason to believe that it’s got anything to do with us. That could be a disastrous mistake.
Forensics expert Larry Daniels has provided an incredibly good explanation of what it is and what it means and its ethical implications. This is something that every lawyer needs to know. Better still, its written in sufficiently plain English such that an idiot, even a lawyer, can understand it.
Rather than quote portions of this article, which means that some of you will read snippets and think you’ve got the idea, it would be far more effective if you went to the article itself.
It should be noted that the “protection” against use and abuse of metadata, at present, relies upon ethical obligations imposed to some states limiting an attorney recipients “mining” of metadata, though it offers no protection from mining by police or investigators. Does that make you feel comfortable? Do you know what you can do to protect against metadata mining?
For those of us who hold client privilege dear, and understand the implications of inadvertent disclosure and what that can do to a defense, this is a must-read article and a duty we have to protect our client’s privilege.
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I was surprised to learn that the cut-and-paste trick takes along some metadata; wish he had put in a link as to what. (I just tried it with Open Office, and couldn’t find anything.)
Ask Larry, He’s a great guy and he knows his stuff.
The rules about recipients not using metadata seem divorced from reality.
As a practical matter (and, I would argue, as a moral matter), when you send me your file, it becomes my file, to do with as I please. The usual legal limits—copyright, trademark—apply only if I re-publish the data. (DRM and anti-circumvention rules are notable exceptions, but I think they are fads which will die out once legislative thinking catches up to technological reality.)
The there’s the issue of realistic expectations of attorney behavior. If you discover a “get it settled before end of month even if we have to take half that” note in the metadata, how can you possibly avoid using that to help your client? Are you supposed to not negotiate as hard? Wouldn’t not using something like this strain against everything lawyers are taught about zealous representation?
Or what if your client is technically sophisticated? If you send me a copy of a document you received from opposing counsel, you can bet I’ll poke around in the metadata for something I can use. What do you do when I send you a copy of the other side’s work product?
And, of course, this rule seems almost impossible to enforce.
Lawyers? Use secret private information to their client’s benefit? Ignore it to their client’s detriment? How dare you suggest such a thing!
It really is ridiculous to expect someone to ignore metadata, just as it’s foolhearty to send documents without making sure you aren’t handing privileged info over to your adversary.