P R O B A T E   &   P R O P E R T Y
September/October 2004
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Technology Property

Technology Property Editor: Gerald J. Hoenig, 8495 Caney Creek Landing, Alpharetta, GA 30005, ghoenig@mindspring.com.

Technology—Property provides information on current technology and microcomputer software of interest in the real property area. The editors of Probate & Property welcome information and suggestions from readers.

Lawyers Beware: Metadata Is There

It is universally accepted that a book cannot be judged by its cover. Lawyers can now say that a document cannot be judged by the text that appears on its face. That statement does not refer to the fact that the plain meaning of words or clauses in a document may be substantially different from the legal meaning those words take on by application of statutory, regulatory, and case law. After all, the words’ legal significance is what lawyers should recognize in their normal practice.

Many, if not most, lawyers are unaware that documents prepared with word processing software often contain information invisible to the normal document reader, particularly if the document is read only from a paper printout.

What is invisible is “metadata,” often defined as “data about data” or “information about information.” Examples of metadata in a legal document are the names of the author and the typist, the dates of the original draft and of later drafts, the date of publication, and the names of people who have modified the document and the dates on which the modifications were made. Other examples include comments by the drafter or a reviewer of the document, and language that has been added to or deleted from the document from time to time.

There are times when it is undesirable to disclose the various individuals of the firm or of the client who participated in drafting a document sent to another party to a transaction. Imagine the embarrassment, the lost negotiation leverage, and the potential liability of a lawyer for a mortgage lender who, via metadata, discloses to the other side that the client does not want the closing to be delayed to negotiate the exclusions from the nonrecourse provision and that the client is willing to delete two of the exclusions if the borrower simply asks for the deletions.

How can this happen without the lawyer having a clue that he or she is unwittingly conveying confidential information? The lender’s lawyer delivers, or arranges to deliver, draft loan documents to the other parties by e-mailing a Word document without taking care to remove the metadata that contains such confidential information. Why would the lawyer place this information in the document?

Word has built-in tools to facilitate collaboration among members of a team. One tool enables the insertion of comments into a document, which will not be seen in the printed document, and the document can be set so that the comments are hidden from view when the document is read on the screen. The information about the lender’s negotiating position may have been inserted as a comment by the lawyer or one of his or her staff to remind the lawyer of the client’s position. Or the comments may have been inserted by one team member as a means to communicate comments about the document or transaction to other team members. On the surface, this appears to be safe, because the document can be set to hide any such comments. It is not too difficult, however, for the borrower or its counsel to revise the settings to make the comments visible.

Some people do not use comments as a tool and instead place reminders or other information in regular text, highlighted in a different font, type size, or background color. This way such information is easy to identify and delete before sending the draft to the other side. Because the “Track Changes” tool retains deleted text in a hidden form easily revealed by others, this method is a potential hazard as well.

When drafting transactional documents, it is obviously undesirable to let the other side see what text was added or deleted from the standard form or what changes were being considered for addition or deletion to the last draft of a document sent to the other side that were not included. Disclosing such information to the other side can help it in its negotiation strategy.

Creating such hidden confidential metadata does not require the intentional insertion of comments. Track Changes in Word is quite adept at remembering all that has been added to or deleted from a prior draft. If the steps necessary to carefully remove the hidden deletions and additions from the document sent to the other side are not taken, their lawyers or tech support may be able to find that metadata. Track Changes also retains the names of those who made the changes and the dates on which the changes were made. At times it might not be desirable to disclose this information, because such data might help the other side in the negotiation process. There may be ethical and professional conduct questions for both parties. Is the drafting party exercising due care if the draft document contains metadata that can aid the other side? Alternatively, is it unethical for the party receiving the draft to take steps to locate such metadata? Or is a lawyer failing to adequately serve the client by failing to search received documents for metadata? Should there be a notice by the drafting party to the other side that hidden metadata is not for their view, and, if any is inadvertently included, it is not to be read?

Of course the Track Changes tool can be simply turned off to keep it from creating metadata in the first place. But Track Changes is not the only potential culprit causing Word documents to retain confidential information in metadata form. Another productivity feature added to Word is called “Fast Save.” This can be set as an option for the save process. It makes saving a document faster, but the time saving results, at least in part, from the fact that text that has been deleted while editing the document is not actually deleted from the electronic file that produces the document. Without special tools the deleted text will be invisible, but there is no reason to believe such tools are unavailable.

Another metadata scenario could arise from Track Changes or Fast Saves that may be the most troublesome for lawyers. A common practice in preparing initial drafts for a transaction is to use a set of documents from a similar prior transaction. Of course, the details of that prior transaction, which may have involved another client, are deleted and replaced by the relevant information for the new transaction. As described above, the new client may reveal the hidden confidential information about the other client’s deal. This could be a disaster. A similar situation could arise in the early stages of a deal when the other side requests to see how the forms will look generally. The best-fitting precedent is redacted from all of the confidential data specific to the prior deal and replaced with blanks. Nonetheless confidential hidden information that could be extracted may be included in those documents.

So what can a lawyer do to prevent confidential metadata from being handed over to the other parties to a transaction? There are several approaches.

Perhaps the safest approach is to deliver only paper copies of documents, but this would be a return to the dark ages of real property transactions. Imagine having to endure the wait for hundreds of pages to be faxed or sent by overnight delivery. This would be an extremely regressive approach.

Fortunately, another safe approach is technologically progressive. An electronic document can be e-mailed or made available for download from the firm’s server in PDF format. Developed by Adobe, “PDF” stands for portable document format, and it provides a number of advantages. Basically the PDF version is an image of the printed page, and it appears fairly certain that a PDF file includes only the text and graphics that are seen on the printed page. Thus, all of the undesirable metadata is omitted when a word processing document is converted to PDF format. Another advantage is that it makes altering the document more difficult for the recipient. To change a PDF document, the recipient has to use software that converts the document back to a word processing document, although this advantage may be only illusory given the proliferation of document scanners and OCR software. An additional advantage is that every page of the document retains the format provided by the drafting party and appears the same on any computer. This is not always true of word processing documents because the document’s formatting might appear differently on different computers, depending upon settings in the computer’s word processing software. A further advantage is that a PDF copy of a Word or WordPerfect document can be viewed on another computer even if the other computer has an older version of the word processing software or even no word processing software at all. To view and print a PDF file, a software package called Adobe Acrobat Reader is needed. This software package is available as a free download from adobe.com, and because it is widely used to ensure the proper document format is retained, many web sites have links to the free Reader download site.

Although the software to view a PDF document is free, the software to place a Word or WordPerfect document in PDF format must be purchased. The software can be purchased from Adobe, and some third parties have software tools to create PDF documents.

A PDF document is clearly not totally free of metadata, because the file will probably identify the user who prepared the document and the path to where the document is stored. This metadata, however, should very rarely be a problem.

There are other solutions besides the PDF format. A Google search (the search engine at google.com is one of the best on the web) of the phrase “clean metadata from word documents” returned a list of more than 18,000 references. This is an issue on the minds of many people. The search shows a number of listings for software that claim to remove undesirable metadata from Word documents. Some entries suggest WordPerfect is not as troubled by metadata problems (but clearly there are metadata issues with WordPerfect as well), and there is material that explains how to find metadata in documents for investigation or other purposes. Information on how Microsoft has been dealing with the issue also appears.

On its web site Microsoft reports that an add-in for Word, Excel, and PowerPoint in Office 2003 or Office XP, called Remove Hidden Data, “lets users permanently remove hidden data and collaboration data from their Microsoft Word, Microsoft Excel and Microsoft PowerPoint ® files.” This add-in can be downloaded from the Microsoft web site (at http://support.microsoft.com/default.aspx?kbid = 834427). It appears to be free of charge. Microsoft does point out that certain data is not removed, particularly in Excel and PowerPoint, but the data listed does not appear to be important for real estate transactional purposes. If, however, one uses this tool to take care of metadata issues, the exceptions reported by Microsoft should be carefully considered (there is a link for this document on the web page referred to above in this paragraph).

Probably no solution is ideal for everyone’s practice. The author’s personal preference is to use PDF files, because of the multiple advantages described above. The ability to assure retention of formatting is often important. In addition, a good way to avoid the metadata problem entirely is to avoid using transaction precedents to draft new documents or to furnish another party with a redacted form. Instead, create automated templates that incorporate the major variations of significant prior transactions to not only keep from disclosing one client’s confidential information to another but also to avoid inadvertently retaining negotiated provisions specific to a prior deal that are inapplicable to the new transaction. Automated templates will also increase the quality of first drafts and the productivity of the drafter.