Article

April, 2007

The Strongest Links - Staying on Track with Track Changes

  Tom Mighell and Dennis Kennedy

Document drafting, negotiation of agreements, and other preparation of legal documents are nowadays primarily electronic, and more collaborative than ever. There was a time when "red-lining" meant taking a paper document and marking the changes with a ruler and red pen. Over the years, redlining software and other approaches allowed us to do the same tasks in electronic format.

Although redlining software offers great functionality in drafting legal documents, is any attorney 100% happy with the software or redlining process? The results don't always meet expectations, or turn out to be as helpful as anticipated. The number of dedicated redlining programs shrank drastically a few years ago, and standalone redlining tools became quite expensive; recently, more redlining tools are available, at affordable prices. 

In the meantime, however, the "Track Changes" feature contained in Microsoft Office applications has become the most commonly-used tool for tracking revisions and marking changes in documents.  Track Changes was a giant step forward in collaboration technology -- it allows multiple authors of a document to easily view the changes in a lengthy document and make comments that other participants could review, all in one place.  Although technology has made even greater strides with respect to document collaboration, Track Changes is arguably the most-used document collaboration tool.

Track Changes has its own unique set of frustrations, but its usage is now so common that lawyers, especially those with transactional practices, should be familiar with using the feature as part of their everyday document creation routine.  Lawyers have also learned in recent years that the Track Changes feature can introduce "metadata" into a document, and that such information could be potentially embarrassing, revealing, or compromising if it were revealed.  As metadata becomes a more common component of electronic document discovery, lawyers must understand Track Changes and how its use (and misuse) can impact the information that accompanies a Word document or Excel spreadsheet.

In this article, we take a look at Internet resources that may help get you up to speed on this now-standard legal tool, so you can better protect your documents and manage today's collaborative document preparation process. We can't promise that this article will eliminate all of your frustrations and difficulties with Track Changes, but it should definitely make your life with the feature a little bit easier.

Track Changes Horror Stories

A number of news stories in the past year or so have reported on the embarrassments that can occur when Track Changes is not used in a proper manner.  In 2004, hidden text in a Word document revealed that the SCO Group's lawsuit against Daimler Chrysler was originally intended to target Bank of America ( http://news.com.com/2100-7344_3-5170073.html).  In September 2005, a U.K. document purported to support a plan to hold terrorist suspects for up to three months without trial, but the Track Changes revealed a concern about that policy ( http://news.com.com/Word+blunder+exposes+U.K.+split+on+terrorism/2110-1029_3-5869260.html?part=rss&tag=5869260&subj=news).  And in the fall of 2006, a report on the assassination of the Lebanese Prime Minister listed the names of several prominent Syrian officials ( http://www.iht.com/articles/2005/10/27/opinion/edyoung.php).  Fortunately, it's relatively easy to learn how to use Track Changes, and how to make sure they don't appear in documents that you might send to clients, opposing counsel, or others.

Using Track Changes

The best place to get started learning about Track Changes is at the source:  Microsoft's About Tracked Changes Page ( http://office.microsoft.com/en-us/help/HP052416341033.aspx ) Here, Microsoft pulls together the basic information about Track Changes you need with links to more detailed topics. Pay particular attention to the sidebar links, especially "Get Rid of Tracked Changes and Comments, Once and For All" -- it describes an easy way to remove a great deal of metadata from a document without using a metadata removal too.  There's also a KnowledgeBase article ( http://support.microsoft.com/kb/305216 ) that discusses how to track and manage changes in Word 2002 and 2003.  The useful Word 2003 Legal User's Guide ( http://www.microsoft.com/downloads/details.aspx?FamilyId=3641478C-2CC6-487B-A15F-53B83A560DF7&displaylang=en ) contains good sections on Track Changes and document comparison.  And if you're a bit more studious, spend a half hour or so taking Microsoft's Online Course on Using Track Changes ( http://office.microsoft.com/training/training.aspx?AssetID=RC011600131033 ) -- just three short lessons, a test, and even a quick reference sheet.

 

Some other Track Changes sites and resources we like include:

Beyond Track Changes

The Track Changes features in Microsoft products are only the beginning of a discussion on document comparison tools.  Sean Scott's Article on Womble Carlyle's Experience with Document Collaboration ( http://www.law.com/jsp/legaltechnology/pubArticleLTN.jsp?id=1138356404721 ) provides a good overview of some the practical experiences, issues and factors a law firm faces when choosing redlining and document collaboration tools. For another legal angle, check out "Improve the contract negotiation process with the right tools" ( http://office.microsoft.com/en-us/workessentials/HA011275351033.aspx); Shirley Gorman's white paper gives an excellent overview of how a transactional lawyer might use document comparison tools and other features in Word 2003.  Finally, we've talked a bit about how Track Changes can embed potentially confidential metadata inside a document -- in Mining the Value from Metadata ( http://www.discoveryresources.org/04_om_thinkingED_0601.html ), Dennis Kennedy, Tom Mighell and Evan Schaeffer introduce you to the basics of metadata and the role Track Changes and other document collaboration tools play in creating metadata.

Redlining Software

To take your document collaboration to the next level, consider whether a redlining tool will enhance your productivity.  These tools will take two (or more) versions of the same document and rapidly compare them to determine the changes; the user can then decide which changes to accept or reject, without harming the original document.   

Note that Microsoft Word also has document comparison and redlining features other than Track Changes built into it. Check the "Compare and Merge Documents" option under the "Tools" menu. WordPerfect also has built-in redlining tools.  Adobe Acrobat has some intriguing features to allow you to handle revisions and comments from reviewers.

Here are a few of the dedicated redlining software packages we found -- we offer no recommendations, just links so you can decide for yourself.

Final Thoughts

The ability to monitor the revisions made to the legal documents you create is critical, and the Track Changes feature is a terrific tool for that purpose.  But because we are often dealing with our client's confidences when we draft these documents, it is crucial to not only understand how Track Changes works, but also how its misuse can result in the inadvertent disclosure of privileged or otherwise privileged information. The links above provide a good education on how to protect this client data from being produced, while also helping you keep track of changes in negotiated and revised legal documents.

About the Authors

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He is a frequent speaker and writer on the Internet and legal technology issues. He has published the Internet Legal Research Weekly Newsletter since 2000, and the Internet legal research weblog Inter Alia since 2002. He is also a contributor to the blog Between Lawyers . He is a member of the 2006 and 2007 ABA TECHSHOW Planning Boards, and of the ABA Law Practice Management Section’s Council. He received both his B.A. and J.D. degrees from the University of Texas at Austin.

 

Dennis Kennedy is a well-known legal technology expert, technology lawyer and blogger. His blog and his web page are highly-regarded resources on technology law and legal technology topics. He is member of the ABA Law Practice Management Section’s Council and Webzine Board.