Today’s post at Attorney at Work is “Give Final Documents a Good Scrubbing,” by Deborah Savadra. It’s a useful reminder of the simple steps you can take to avoid creating problems for yourself by unwittingly sending the other side a draft that discloses information you’d rather not have disclosed.
Information doesn’t have to constitute a state secret in order for you to prefer that it be deleted. For example, if you copy a document created by Fred Smith, you might well prefer that Fred Smith not be noted in metadata as the author of the new document.
Ken:
Maybe this matters more for folks that do M&A contracts, but I’ve always found this concern to be overblown, especially the authors (unlike Ms. Savadra) who claim it’s malpractice. I turn track changes on as soon as I get the other side’s draft. In commercial deals, that’s called courtesy, not malpractice.
Chris
Chris: I think the concern regarding track changes is that someone might circulate a first draft internally, make changes to reflect comments, then send the draft out marked to show those changes. I agree that beyond that point, it wouldn’t be an issue. Ken
Ken –
Metadata and track changes are indeed issues that must be confronted in any agreement, not just M&A. And, yes, it may be malpractice not to do so.
NY and CA consider the use of metadata to be outside of the bounds of a lawyer’s ethical responsibilities.
Ethics opinions agree that the sender has a “duty … to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.” N.Y.S.B.A. Op. 782, Comm. on Prof’l Ethics (Dec. 8, 2004). The California State Supreme Court has held that “an attorney … may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.” RICO v. Mitsubishi Motors Corp., (2007) 42 Cal. 4th 807.
For reference, the preceding citations are found in this summary (a California State Bar online CLE): .
I personally have had more than one instance when I have received a document (MS Word) containing comments from
opposing. On one occasion the comments were revealing as to the other side’s strategy in the deal (out-licensing), and in another case the comments were derogatory and inflammatory, complete with the use of profanity. In both instances, I closed the documents, notified opposing and deleted all copies. That may seem overboard, as the bell had already been rung, but I think that it was the right thing to do.