Google’s Senior Vice-President and General Counsel posted a scathing criticism of the Motion Picture Association of America’s attempts to revive SOPA. According to stories via The New York Times, The Huffington Post, and The Verge, the MPAA is using Jenner & Block LLP to get Mississippi’s Attorney General to subpoena information from Google. Apparently, in November 2013, a Jenner & Block associate drafted a letter to Google for the Attorney General’s signature. According to The Times, the Attorney General made minimal changes to the letter before adding his signature. The article from The Times, and Google’s response, is an important lesson for lawyers regarding the embarrassing consequences of metadata.
What is metadata?
Generally, metadata is “data about data.” Metadata discloses a number of different aspects about documents, and especially any changes. Metadata can reveal who worked on a document, any changes made to the document, comments, or other legal advice. In Microsoft Word (or Windows) and Adobe Acrobat you can find some basic metadata information under “Properties.” Lawyers’ ethical duties regarding metadata vary depending on the jurisdiction, but “a lawyer’s general duties with regard to the confidentiality of client information under Rule 1.6 apply to metadata.” The ABA posts a summary of ethics opinions regarding each state’s metadata rules.
The detriments of metadata
Presumably, The Times was able to use some aspects of the document’s metadata to discover the changes and edits in the Attorney General’s letter. But Google’s response shows just how much more detrimental metadata can be.
Google posted a redacted snapshot of the letter’s properties.
Despite the fact that most lawyers know their clients rarely draft original documents with legal implications, this revelation is embarrassing for Jenner & Block LLP. The document’s metadata clearly shows who authored the document (Google redacted the author’s name), the author’s company, and even the template drafting program — Esquire Innovations’ iCreate — the author used to create the document.
(Perhaps Jenner & Block or the AG should invest in Esquire Innovations’ iScrub program, too.)
Since Google’s argument is that the MPAA is using its “dogs” at Jenner & Block in the AG attacks, we have additional, substantiating evidence.
Lessons for lawyers about documents and metadata
Lesson 1: Scrub the documents
The reason Jenner & Block LLP should be embarrassed is because it’s easy to “scrub” metadata from documents in Microsoft Word and Adobe Acrobat. Microsoft has a nice tutorial for Word, and Adobe created a similar tutorial for Acrobat. (Lawyerist has a great post, too.) Regardless, a quick search on Google could help anyone find the information quickly.
Scrubbing is important because it removes all of the embarrassing information. For example, I created a simple document in Microsoft Word and revealed the properties. Take a look at all of the information displayed.
The amount of background information could grow depending on the authors, revisions, and content. In some cases, this information wouldn’t be too important. However, in other instances, such as Jenner’s, the information can
bite you in the ass get embarrassing. Simply inspecting and removing the properties could ease the embarrassment.
Incidentally, if you download a document from Google Docs in Word format there is no origin information.
Lesson 2: Never send Word documents to opposing parties
For lesson two, I’ll start by making a fairly educated guess based on my experience with attorneys, email, and Microsoft Office. What I suspect happened, at least as to how Google got the properties and The New York Times got the edits, is that the Attorney General’s office attached the AG’s signature to a finalized Word document and emailed the Word document to Google and their lawyers at WilmerHale.
Of course, that’s just speculation. I couldn’t image any attorney drafting a letter and then attaching the letter to an email, rather than just sending a letter as an email itself. </sarcasm>
Speculation aside, the real lesson for lawyers is this: Word files are not “correspondence”. If you need backup evidence, check out this post on Lawyerist.
Far too often, lawyers send “correspondence” via email to opposing parties in Word (.doc or .docx) format. This is not correspondence, and the likeliest reason Google and The New York Times were able to see the AG’s changes and knew the AG didn’t draft the document. Word files are not final documents.
If you’re sending correspondence, or any document for that matter, to opposing sides by email, the document is always converted to PDF format and scrubbed.
Time to get smart about metadata
If you don’t know how to perform either of these tasks, learn. Don’t embarrass your firm or your client by disclosing important information about your case, strategy, or the document’s drafting because you didn’t properly send a scrubbed document.