Dealing With the “Meta Menace”
The most recent issue of The Lawyer’s Weekly (vol. 26, no. 17) has an article entitled The meta menace: what you can’t see could come back to haunt you which discusses the many problems that can arise when legal professionals forget to clean up the metadata embedded into computer files before distributing documents.
Metadata can include changes made, names of previous document authors, document revisions and versions, and hidden text.
“Problems can arise if law firms send files to clients or opposing counsel that still contains markup. It may as well be hard copy full of sticky notes. Consequences may include a compromised bargaining position and violations of the Rules of Professional Conduct and the Personal Information Protection and Electronic Documents Act (PIPEDA). Laws governing metadata are still in their infancy, but early precedents permit tech-savvy counsellors to freely read any metadata they find, much as they would a forgotten sticky”.
Absolutely Slaw readers should be scrubbing their documents. But I’m surprised M-A that you mentioned PIPEDA, since only the breadth of the statutory definition of personal information would seem to give it that far a reach. Metadata as confidential information – absolutely. But PIPEDA isn’t there as a breach of confidence statute, it’s there to ensure that entities engaged in commercial activities respect certain braod norms for safeguarding personal information.
Metadata raise numerous issues when it comes to discovery in the course of litigation. So far, there is not much case law in Canada regarding the issue. Even on the OBA E-discovery page, there is no case about metadata. Nevertheless, canadian can find some guidelines in article 12 of the GUIDELINES FOR THE DISCOVERY OF ELECTRONIC DOCUMENTS IN ONTARIO which provides that:
“Unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.”
This choice is different from the one made in the american Sedona Principles. Which direction will the canadian courts take?
Regarding M-A’s comment on PIPEDA, I agree that, by sending or producing a document, for example a spreadsheet, on the face of which there are only statistic data, one could look at the underlying information which may include personal information.
Yes agreed. But in a law firm environment, the odds that the info revealed will be PI as opposed to confidences are relatively small. Not that lawyers aren’t dumb about putting PI in open text. Its just that the reasons that the Guidelines give for scrubbing metadata are the key ones. Revealing comments and drafting changes etc.