Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at firstname.lastname@example.org.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at email@example.com.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at firstname.lastname@example.org.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at email@example.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
This might be better suited to Overlawyered than Between Lawyers, but I'm posting it here anyway because it's a great series of posts. One thing I don't see addressed: one of the most powerful features of Facebook (and a host of other social networking sites) is the fine-grained privacy control users have over the visibility their data. Often, only "friends" have access to the kinds of details George discusses. But, lots of people do make their data more generally visible. It's ironic that employment laws are such that though "the public" may be invited to view such information, lucrative damages awards or settlements could be associated with doing so in the context of employment or potential employment.
Microsoft Provides a Good Illustration of the Metadata Exposure Problem
Ed Botts offers up a great example of how tricky the hidden data, or metadata, issue can be in Microsoft Office. The victim this time is Microsoft. Irony aside, it's important to understand the example and be attuned to the potential problems.
Ed's recent post "What's Hidden in Your Word Documents?" also is an eye-opener on the topic for those who are not familiar with the workings of the default settings in Office 2007 (that may include some bar regulators in the US).
As Tom Mighell says, "knowing the right questions to ask in an electronic discovery deposition is crucial, and I'd wager most lawyers haven't had the opportunity to ask many questions along those lines."
Will the New Electronic Discovery Rules Changes Affect You Sooner Than You Expect?
Rob Robinson points to an article indicating that the new electronic discovery amendments to the Federal Rules of Civil Procedure that have been so much in the news may impact lawyers in some states in a few weeks rather than a few months. Do you know if your state is an early bird?
Nobody is covering current developments in electronic discovery, especially in e-discovery technology, better than Rob Robinson is on his information governance blog. The blog has pointers to great info on a daily basis.
Evan Schaeffer offers a thoughtful and thorough critique of an effort by the Florida Bar to legislate how lawyers can and cannot use metadata. As Evan points out, the rationales for and provisions of the proposed rule are confusing and contradictory (or even miss the point completely) to lawyers who are familiar with and comfortable with the underlying technology issues.
I don't have much to add to Evan's analysis other than to wonder why a rule directed at requirements for a lawyer protecting the confidentiality of his or her client is being used as the basis to create a prohibition on opposing counsel who do not represent that client from looking at metadata in documents? That seems like a long stretch in logicto me.
Given a choice between hiring a lawyer in Florida, where lawyers may not be allowed to use technology as it was intended, and hiring a lawyer somewhere else, why would anyone choose the lawyer from Florida?
From my point of view, this proposed rule once again raises the question of the proper place for state-by-state regulation of lawyers in an Internet era.
Your thoughts are welcomed in the comments to this post.
The AP's Brian Bergstein has a recent story on the e-discovery field: E-Discovery Is Big Business. "With so much work done via e-mail, instant messaging and other online platforms, 'nothing's in the file cabinets anymore,'" he writes, quoting Michele Lange, staff attorney for legal technologies at Kroll Ontrack. It's an interesting article and a good overview of the explosive growth happening in the e-discovery arena. What struck me about the article though was the fact it didn't mention Web 2.0 companies and services — also experiencing explosive growth and uptake. Ms Lange is of course correct that nothing is in file cabinets anymore, but increasingly — with employees using Web mail, blogs, wikis, online news aggregators, social bookmarking, and other hosted means of communication and knowledge management for business purposes (which might violate a technology use policy, but that doesn't mean it doesn't happen) — material of great relevance to a legal dispute might not be anywhere under a litigant's direct control.
I hear the wheels turning in the heads of our trial court litigator readers: what I'm describing has some competing aspects. On the one hand, it lets a party respond to a discovery request by saying, gee, we'd be happy to give you that but we just don't have it. On the other, someone, a third party, does have it, and things that might ordinarily be known about and subjected to a document (non)retention policy can and probably will persist in that third party's database.
The article talks about companies employing e-discovery firms proactively, so as not to have to scramble or be caught unawares when the inevitable discovery requests roll in. (Included factoid: "The average company bigger than $1 billion is wrestling with 147 lawsuits.") In this vein, it concludes with Gerald Massey of Fios speculating, "The names we'll associate with the services we provide in three, four, five years from now will be like IBM and EMC and Oracle." I think that's right, but I wonder too if (and doubt whether) many Web 2.0 companies have tried to factor responding to third party discovery into their cost of doing business. By definition, they are bound to be subjected to the expense and inconvenience of more subpoenas duces tecum than would otherwise be the case.
Genie Tyburski: "Perhaps more disturbing than the request itself is that we learned about it because Google refused to comply." Today Genie's TVC Alert also supplies a primer in the form of a definitve collection of links.
It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.
HOWEVER . . .
In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.
Consider this quote:
Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.
Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.
Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.
I like hyperbole as much as the next person (or maybe a little bit more), so I encourage electronic discovery buffs to take a look at Ephraim Schwartz's InfoWorld column called "Document Management Systems Go to Court," in which he reports on two proposed amendments to the federal Rules of Civil Procedure that one expert he spoke with called, if enacted, a "legal Chernobyl."
I've found the legal articles I've read on these proposed amendments to use much more measured and sober tones and analogies. I like this approach much better.
That said, I like the column because it looks at the impact of the rules on the IT departments and business departments of companies rather than solely from the view of lawyers. It's an eye-opening discussion of the practical concerns these rules might have.
I've been trying to take a less alarmist tone on electronic discovery issues (I don't think it's really helpful - I want to talk more about rolling up your sleeves and getting things done), so some of this article feels a little "over the top," but I recommend it especially for IT people who want to get a flavor for what may be coming down the road.
The (fun) money quote:
If you think calling the changes to Rules 26 and 37(f) “Chernobyl” is a bit of hyperbole, well then, you can always sit back, do nothing, and wait for the fallout.
Mining the Value of Metadata in Electronic Discovery
"Mining the Value of Metadata" is the new Thinking E-Discovery column from Dennis Kennedy, Tom Mighell and Evan Schaeffer over at DiscoveryResources.org. It's a wide-ranging discussion with quite a few practical pointers that may save you some future embarrassment.
If you're planning on committing murder, make sure you research your crime anonymously. In a murder trial going on in Raleigh-Durham, an inspection of the defendant's computer revealed that he had searched the words "neck," "snap," "break," and "hold" on a search engine before his wife died. The computer evidence also apparently indicates that the defendant allegedly researched lake levels, water currents, boat ramps, and access to the lake where his wife's body was later discovered.
When we talk about e-discovery, we're not just talking about e-mail and Word documents with embedded metadata -- we're also talking about your browser's search history. Properly harvested, it can definitely yield some interesting evidence.
Dennis Kennedy in the New York Times today on metadata, Beware Your Trail of Digital Fingerprints: "If you take the time to educate yourself a little and know the issues, you can avoid problems pretty easily." (I'm less sanguine about that for the nonbusiness or small business user, whose document distribution habits aren't being scrutinized by a department of minions dedicated to avoiding these sorts of snafus. How many users do you know, for example, who have the time or inclination to make heads or tails of these search results?)
Evan Schaeffer and Between Lawyers' own Tom Mighell and Dennis Kennedy have written a new column where we take on one of the most interesting questions in the practice of law in 2005: if everyone thinks that electronic discovery is the next big thing in the practice of law and is so important, why are lawyers staying away from electronic discovery in droves?
I was thinking after we had our discussion of metadata in Word documents the other day on Between Lawyers that electronic discovery could actually be fun - checking for metadata and using all the new electronic discovery tools. Most lawyers, it seems, prefer to stay squarely in the world of paper. I've even heard that some judges make it all but impossible for lawyers who want to get electronic files to obtain them.
Is your lawyer asking you to print out documents for a hoard of high-paid associates to review or more comfortable pawing through a banker's box of papers than mousing through computer files? Maybe it's time for clients to become a lot more concerned about what their legal fees buy them in the world of practice-as-usual. In any event, you'll want to read the column to see how Evan, Tom and I grapple with the question. It's a thorough, well-rounded conversation that will make you think.
We had a follow-up discussion this morning on our back-channel email list about metadata and the post on metadata I made yesterday.
We thought we'd let you see our discussion and invite you to join in.
Marty started it by saying:
Maybe you could recommend a specific meta-cleanser and provide a link?
Meta-cleanser - sounds like something an existential cleaning service might use.
p.s. The WSJ ran a piece on the UN report with the title "Will Bill Gates Topple Assad?'
How do you reconcile the tension between the fact that on the one hand metadata can convey information you might not have wanted to convey, and it also enhances searchability and the richness of one's internal database? Is the solution just to ensure metadata is purged before things break free of the firewall?
Aye, there's the rub.
In the article on my blog and when I speak about this issue in more detail, I try to reconcile the two faces of metadata and emphasize that it can be quite a good thing. (e.g., "Metadata is not inherently evil. It is often quite useful.")
I'd almost think of metadata with the idea of DRM in mind. Internally and with clients, metadata, especially the collaborative info, is incredibly useful. However, in someone else's hands, it can be quite damaging. The "scrubbing" is almost like sending the doc out with limited rights and access to the "full" document, at least conceptually.
So, metadata can't be handled appropriately without considering who the audience is (or might be). You then start to think of the document not just as a document, but as a published product.
In the classic approach, you would "scrub" the document (or create a new clean version or create a PDF) just before you sent it to an opposing party or someone who should not see the metadata. I.e., handle it as a separate process before the doc leaves the firewall.
BTW, I think the good of metadata far outweighs the bad, and, frankly, it's not that difficult to deal with metadata in most cases, if you take the time to learn about it.
I'd mention a metadata scrubber, but since I'm not getting any royalties on the gigantic amount of business I'd send over to them by mentioning a product on this blog, I probably won't do that on the blog. ;-)
Microsoft has a free downloadable Remove Hidden Data tool for Office 2003/XP that some experts turn up their noses at because it doesn't clean EVERYTHING, but, if you are aware of what it doesn't do, most of the time you'll be fine with it Note that it's for Office 2003 and XP, but, seriously, why are law firms still using older versions of Office as we near the start of 2006?
. Donna Payne has a cleaner called Metadata Assistant that's more or less become the de facto standard tool in legal. It's $79.There are a couple of others (E.g., EZClean.or Workshare Protect.)
Even with scrubbers, you still have the possibility of user error problems.
Both Tom and Ernie are very knowledgeable on these issues and probably have a few other pointers.
My main recommendation is to go into MS Word's properties and turn on what I think is called the "Show Hidden Data" setting (that's the one that will automatically show you the stuff in docs people send to you). Also very helpful is a setting that will pop up the properties window when you first save a document, so you can delete some of the standard automatically-generated metadata.
I think that most explanations of metadata are laden with fear-mongering. Of course, this is probably called for since the greatest danger of metadata is not knowing that it is created in the first place. It's a very binary problem. If you know about metadata and know about the threat then the odds are you aren't going to make a mistake (note I said 'the odds are' and not 'you won't make a mistake').
I think many people don't want to understand the problem; they just want to avoid it. And for those people I would say this: make your document into a PDF using some tool that lets you 'print to PDF.'
Make sure that you have chosen to print only the document and not 'the tracked changes' or any similar thing.
Then after you 'print to PDF' open the document and see if the metadata is visible in the PDF document. If it is go back to step #1. If it's not. then feel free to send it.
If you are doing anything more complicated than that (i.e. redacting using an advance PDF function in Acrobat etc.) then read everything that Dennis has written on the subject of metadata and be afraid. Be VERY afraid....
I really agree that the basics of metadata aren't that hard to learn, if you just invest a little time. Once you start sending Word docs around, though, you really should know what you are doing or you're asking for trouble, just like the UN group.
pls blog this thread
One in our occasional series of looks into our behind-the-scenes discussions.
THE United Nations withheld some of the most damaging allegations against Syria in its report on the murder of Rafik Hariri, the former Lebanese Prime Minister, it emerged yesterday.
The names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle, were dropped from the report that was sent to the Security Council.
The confidential changes were revealed by an extraordinary computer gaffe because an electronic version distributed by UN officials on Thursday night allowed recipients to track editing changes.
Extraordinary computer gaffe? These "gaffes" have become all too commonplace.
And too many lawyers remain unaware of the issue.
As an example, a lawyer sent me an email today noting this article and saying, "is my understanding correct that the two ways of preventing prior versions from being disseminated in a Microsoft Word document are by either changing the format to pdf or rtf, or by clicking 'accept changes' in Word?"
I thought I'd share my answer to that question:
Arrrghhh!!! Your second assumption is probably the CAUSE of the revisions being able to be revealed! It's absolutely not the solution.
The first method will generally work, but you can mess up and reveal revisions and other information (which I'll refer to as "metadata") even when using RTFs and PDFs. If you want to be really sure, you'll want to use a metadata cleaner and then save the document as a PDF. However, even then you need to become acquainted with the various issues out there and the actual dangers in documents.
Be aware that you can reintroduce that hidden info in a variety of ways after you think that you have "cleaned" it. By the way, don't make the assumption that the doc was in MS Word, even though the odds are that was the program used here. You can pull that prior version info out of other programs as well, including the beloved tool of many lawyers, WordPerfect. In addition, be careful about the assumptions you make about different versions of different programs. Don't make assumptions - make it your business to learn about the issues and the solutions.
This is important stuff, often with embarrassing and far-reaching results. There's no excuse for lawyers (and others) not to be familiar with the basic issues of metadata and to be knowledgeable about both the problems and the solutions. That is, unless they want to have their documents or their clients' documents appear in similar stories in the newspaper. Too many lawyers are operating in the dark on this one. Lawyers routinely send me documents that have metadata that is either easily visible or can readily be surfaced with little or no effort.
I posted a short primer on metadata and the related issues on my blog at http://www.denniskennedy.com/archives/2005_10.html#a000891. Use it as a starting point and then set aside a little time to get yourself up to speed on these issues. Making assumptions in this area is especially dangerous.
How many times do you (and lawyers in general) need to hear the alarm go off on these issues before you stop hitting the snooze button and going back to sleep?
With my usual bit of disclosure that I'm on the board of the ABA's webzine Law Practice Today, I wanted to announce the latest issue, which is a "Best of LPT" compilation.
There are many great articles in this issue, but I especially recommend a roundtable article on electronic discovery that I put together with a who's who of experts in electronic discovery, with a strong focus on the practical issues involved in electronic discovery. It's called A Gold Mine of Electronic Discovery Expertise. Even though the article was written about a year ago, it's still the article I recommend as the place to start learning about electronic discovery. Fellow Between Lawyers author Denise Howell is one of the contributors to the article.
As an aside, It's been a joy to work with the team who have created Law Practice Today out of air and an idea, with no budget, and turned it into a powerhouse publication that has produced a treasure trove of great articles. I'm very proud of what we have accomplished.
Following up on yesterday's Bag and Baggage podcast (and my earlier post here about del.icio.us), I've blogged from time to time before about electronic discovery and weblogs. Folksonomies have me thinking along the same lines. While it's not a big leap to imagine a lawyer combing through an opposing party's weblog archives for statements that might prove useful in litigation, it's less obvious but no less true that one's information tagging activities could also be examined with that goal in mind.
Say, for example, you have parties arguing about the meaning of terms used in a contract. Assuming there's enough ambiguity in the language that the court agrees to consider parol evidence, the lawyers and the court might be very interested in how the parties have treated the terms in question when categorizing information online. Sure, it's a bit of a stretch and/or a nonissue today because these tools are not all that widespread. Twenty years ago, the same thing was true of hard drives. I'm curious whether my coauthors agree — or think maybe I've been smoking a few too many tags.