August 2005
Volume 1, Number 4
Table of Contents

How To E-Mail Documents To Opposing Counsel
By David W. Snyder

IT IS NOW COMMON in litigation practice to transmit pleadings and briefs to opposing counsel through e-mail. Courts have adopted rules that permit the service of pleadings and other documents on opposing counsel via e-mail. See, e.g., Pa. R. Civ. P. 205.4(g)(2) . Even if you do not take advantage of electronic service rules available to you, opposing counsel may ask you to e-mail him or her an electronic version of a recently filed document as a courtesy. Opposing counsel may have practical, legitimate reasons for such a request. If you recently served discovery *24 requests, it may be more efficient for opposing counsel to work directly from an electronic copy rather than typing your discovery requests into the computer system. Receiving an electronic version of your recently filed document may also save time for opposing counsel-it will enable opposing counsel to transmit the document to his or her client more quickly and it will allow opposing counsel to prepare a response immediately.

THE DANGERS OF E-MAILING DOCUMENTS TO OPPOSING COUNSEL . There are, however, at least two hidden dangers in e-mailing documents to opposing counsel that could embarrass you or hurt your client.

Metadata

The first potential danger is that the recipient may be able to view hidden information about the document's creation and development, which is sometimes referred to as "metadata." Examples of metadata that may be attached to your document include:

  • A document summary, similar to a mini-profile of the document, which may identify the author of the document, the date it was created, the date(s) it was modified, or the identities of those who accessed, edited, or printed the document;
  • Custom fields created by the author;
  • Your company or organization's name, and the name of your computer;
  • Comments and notations typed directly into the document; and
  • Hidden text such as track changes (e.g., prior versions and red-lined versions of the document).

Some of this information may be harmful to your case or your client. If the document you transmit to opposing counsel contains prior drafts or comments, however, you may be disclosing attorney-client communications or attorney work product. See Jan Sylanski, Threat of Metadata and Malpractice Initiates Problems for Attorneys, 15 Law. J. 8 (2001). A prior version of your document may contain sensitive information about your litigation strategy, or it may contain comments that you or your client typed directly into a draft of the document. Moreover, if you re-use forms or template documents, the document you transmit may contain metadata about other cases that has been inherited from other prior documents.

Some of this information may be harmless. There may be strategic reasons, however, why you do not want opposing counsel to have access to some of the traditionally harmless metadata. For example, if an attorney is seeking a preliminary injunction alleging exigent circumstances, but the metadata reveals that the attorney has been preparing the papers for several weeks, opposing counsel could determine how long the attorney has been working on the document through the document summary and use this information to undermine the movant's exigency claim.

Document Alteration

The second potential danger of e-mailing documents to opposing counsel is that the recipient may intentionally (or unintentionally) alter the document.

If, for example, you send opposing counsel an electronic copy of a pleading you filed, he or she has the power to alter your document, including changing the representations you made in your document. Opposing counsel could conceivably alter a document intentionally and then distribute the altered version to the court or-in a case important to the public interest-to the press. This may be an unlikely scenario, but it may be a risk that is significant enough to cause concern depending on the nature of your case or your assessment of your opponent.

Opposing counsel may also unintentionally alter your document. When you draft a document it is formatted to be printed from your computer's default printer, not opposing counsel's printer. When opposing counsel prints the document, the page breaks and the overall appearance of the printed document may be markedly different. If opposing counsel uses this version of your document as an exhibit to a brief or a motion, the court will see an improperly formatted version of your document instead of the professionally formatted document you painstakingly drafted. This could be an embarrassment to you and your client.

TWO SIMPLE WAYS TO MITIGATE THE RISKS . There are two ways to prepare your document for electronic distribution that will help to mitigate these risks.

Convert Your Document to PDF Format

The most effective way to mitigate both of the risks discussed above is to convert your document to PDF (portable document file) format. PDF format has become a standard format for distributing a document electronically because it enables you to preserve the document's original graphic appearance. If you convert your document to PDF format, it will diminish the risk that opposing counsel will unintentionally alter the formatting of your document. There are two types of PDFs: text PDFs and image PDFs. While a text PDF can be edited, an image PDF cannot. Therefore, if you convert your document to a text PDF, opposing counsel may still be able to edit your document substantially. If the document is converted to an image PDF, however, the document cannot be edited.

Minimal Metadata

The converted PDF document will contain some metadata, such as the date the PDF document itself was created. However, any metadata that may have existed in your document before converting to PDF format will not be transferred to the newly created PDF document.

Clean Your Document Before Electronic Distribution

If document alteration is not a concern, it may be practical to "clean" (i.e., remove) the metadata from the document before e-mailing it to opposing counsel. Your ability to clean metadata from your document depends on the word processing software you are using. The word processing software itself may allow you to remove certain types of metadata. Because metadata can exist in a variety of forms, however, your word processing software may not be able to provide you with a single method to remove all of the metadata. Some companies have developed software specifically designed to remove metadata, making the cleaning process easier and more thorough. It is important to note, however, that even if you clean a document before e-mailing it to opposing counsel, there is still a risk that the document could be altered.

CONCLUSION . The use of e-mail will continue to gain popularity as a means of transmitting filings to opposing counsel. As the use of e-mail in the day-to-day practice of law continues to grow, so does the need to identify and mitigate the attendant risks.

Practice Checklist for How To E-Mail Documents to Opposing Counsel

E-mail provides the fastest way to send documents to opposing counsel, but there can be some things lurking in those transmissions that you might not know about. All lawyers should be aware of the risks involved in using e-mail to send documents, and what can be done about them.

. Two hidden dangers in e-mailing electronic documents to opposing counsel are that the recipient may:

__ Be able to view hidden information about the document's creation and development ("metadata"); and

__ Intentionally (or unintentionally) alter the document.

. There are two ways to prepare your document for electronic distribution that will help to mitigate these risks:

__ Convert your document to PDF (portable document file) format. A text PDF can be edited, an image PDF cannot; and

__ "Clean" your document before electronic distribution. Your ability to clean metadata from your document depends on the word processing software you are using. The word processing software itself may allow you to remove certain types of metadata.

 

Copyright © 2003 by the American Law Institute; David W. Snyder

Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

David W. Snyder is a litigation attorney in the Pittsburgh office of Klett Rooney Lieber & Schorling.

 

 

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