[author: Rob Hellewell]
Most of us have created a new file using an old one as a template. Although we save the file under a separate, new name, the embedded metadata from the old file, such as tracked changes or comments in Microsoft Word, concealed rows or columns in Microsoft Excel, or speaker notes in PowerPoint, is often carried over, possibly revealing confidential or proprietary information. Three prominent examples come to mind:
A first-year associate from a prominent law firm mistakenly exposed hidden columns in an Excel spreadsheet when he converted the file to PDF format, adding 179 additional contracts to the assets Barclays had agreed to buy as part of a bankruptcy buyout of Lehman Brothers.
The hidden text buried in a complaint software company SCO Group filed against DaimlerChrysler divulged the substance of allegations from a prior complaint drafted against Bank of America.
The United Nations published an investigative report in Microsoft Word format attributing the assassination of Lebanon’s former prime minister to anonymous government members; however, readers could access revisions to the document that disclosed the names of responsible Syrian government and military officials.
Some types of metadata are typically extracted during discovery processing and conversion; however, embedded data is often only present in the original native file. Thus, it can easily slip through the cracks and be unwittingly shared with opposing parties, revealing the mental impressions or strategy of lawyers and decision makers and potentially waiving the protections of the attorney-client privilege or work-product doctrine. Although accepting revisions in document drafts lessens the risk of tracked changes, savvy reviewers may be able to recover a document’s revision history and reconstruct its earlier versions.
Unless document reviewers specifically look for embedded metadata or have software that flags its presence, there is no easy way to recognize that a document contains hidden information. In other words, reviewers cannot find this information by examining a static image of a document; rather, they must review the file in a native application.
Investing in an e-discovery application with these features is essential to managing the risk of unwittingly sharing or omitting embedded metadata. Otherwise, this invisible data could compromise your organization’s legal position, lead to the loss of the attorney-client privilege, or create a violation of the ethical duties of competence and confidentiality.