ABA: lawyers can search metadata.

For records departments already worried about complying with government regulations and potential litigation, here's another thing to lose sleep over: the American Bar Association (ABA) recently decided that lawyers who receive electronic documents can look for and use "hidden" information, or metadata, embedded in them.

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The ABA Standing Committee on Ethics and Professional Responsibility said that the ABA ethics opinion goes against the view of some legal ethics authorities who say it is morally impermissible as a matter of honesty for lawyers to search documents they receive from other lawyers for metadata or to use what they find.

Metadata is ubiquitous in electronic documents and includes such information as the last date and time that a document was saved and by whom, when it was accessed, the name of the owner of the computer that created the document, the date and time it was created, and a record of any changes made to the document or comments written into it.

The ABA advises document creators to avoid metadata by not embedding comments in documents or by "scrubbing" or filtering the metadata out before sending the documents, according to an ABA release. At the extreme, individuals can choose to create a document in an alternate format--hard copy or fax--that does not include metadata. But the ABA warns that the production, use, and exchange of hidden data must be negotiated beforehand with opposing parties. If lawyers simply scrub metadata, it may be considered tampering with electronic evidence.

The ABA opinion states that most metadata "probably is of no import," but added that it can sometimes reveal such critical information as "who knew what when" or negotiating strategy and positions.

Clearly, metadata raises the stakes in an e-discovery world. According to FindLaw.com, a federal court in Williams v. Sprint/ United Mgmt. Co. ruled that a party must produce documents with the metadata intact when ordered to supply documents produced in the normal course of business. FindLaw.com said parties can negotiate to exclude metadata from produced documents in the obligatory meet and confer under the new Federal Rules of Civil Procedure, but without such an agreement, metadata must be produced.

It's not yet clear whether judges will accept the use of hidden information in court, but that decision seems inevitable.