Locking a Draft Contract

Longtime reader Jim Brashear, now general counsel of Zix Corporation, shared with me a series of exchanges he engaged in regarding locking, and unlocking, Word draft of contracts; I’ve copied them below.

This isn’t an issue I have any experience with, as I no longer do deals, but the idea of locking Word documents strikes me as beyond pointless: It can be easily circumvented. It’s vaguely insulting. Document-comparison software provides greater protection and is more discreet. (For more about document comparison, see this July 2010 blog post.) And the idea of your average law firm or law department locking their documents to protect their copyright is, on several levels, outlandish.

Here’s Jim’s initial salvo, a post to a discussion forum of the Association of Corporate Counsel:

I find it annoying and not very collaborative when opposing counsel tries to lock a Word document with a password in order to limit or track changes. (Same with sending PDF documents to discourage changes.)  As a public service I therefore present:

How To Unlock and Edit a Password Protected Word Document

This works with Word documents that have been password protected to track or prevent edits. It does not unlock Word documents that have a password that prevents opening the file.

  • Open with Microsoft Office Word the password protected DOC or DOCX document
  • In Word’s File menu, select “Save As” and save the document as an HTM formatted file, noting the saved file location
  • Close the document in Word
  • Find the saved HTM document file and right click the icon
  • Select “Open With” and choose Wordpad
  • In Wordpad, search for the text string <w:DocumentProtection
  • Highlight and delete the entire line that begins with <w:DocumentProtection and the line directly underneath it that begins with <w:UnprotectPassword.  Make no other changes.
  • In Wordpad’s File menu, “Save” the HTM file and exit Wordpad
  • RIGHT click the HTM file icon and again select “Open With” but this time choose Microsoft Office Word
  • The document is now unprotected, you can edit at will (with or without tracked changes)
  • In Word’s File menu, select “Save As” and save the document with the .DOC or .DOCX format

Another friend of the blog, David Munn, general counsel of Pramata Corporation, chimed in:

There’s an even easier way to crack a “protected” Word document.

  • Save the document to your hard drive or other location
  • Open a new blank document in Word
  • In Word 2007, in the Insert menu, select Object and the Select From File. (In Word 2003 I believe it’s simply Insert File from the Insert menu)
  • Navigate to the original file and select it. The text of the original document will be inserted into your new document. The document is now unprotected, you can edit at will (with or without tracked changes).

The other lesson from this is that you should never rely on the “protection” in Office if you really need to protect a document.

Jim subsequently received an email from another general counsel:

Rather than make this a public debate, where I run the risk of apparently if not intentionally chastising you in front of our peers, who dismayingly seem, in large part, to agree with you, I find the efforts to subvert the locked document to be less than professional.

If the sender wants to ensure that no one edits the text, those wishes should be respected, if not as a basic matter of copyright law, than as a matter of professional courtesy.  How else can one protect oneself from our unscrupulous brethren who may make changes in a document that runs on for a hundred pages without identifying those edits, whether on purpose or unintentionally?

This kind of “trick” is exactly why laypeople hold us in such disrepute.

Jim responded directly to this email, but it also prompted him to post this follow-up comment on the ACC forum:

My post under this title prompted some interesting discussion about the state of etiquette in modern contract drafting. It seems we lack clear guidelines on aspects of appropriate behavior when sharing electronic copies of draft contracts.

There is a consensus that it is unprofessional to send a reply draft that is marked to show less than all of the changes from the prior draft – even when that inaccuracy is inadvertent (e.g., due to internal versioning problems). There is a perception that it is appropriate behavior for the commenter to provide an accurate, electronic redline draft. There is some debate about the appropriateness of sending an electronic copy that is password-protected so that opposing counsel is “forced” to show all changes.

Earlier posts have already demonstrated that password protecting Word documents is easily defeated and ineffective. Some commenters (publicly or privately) have criticized removing password protection as poor behavior. Other commenters opined that it is poor behavior to apply password protection in the first place.  This post examines those opposing viewpoints.

Attorneys in most, if not all, U.S. jurisdictions have an ethical obligation to ensure that their client’s confidential information is not disclosed to opposing counsel within metadata contained in Word documents. That hidden metadata can contain (depending on software versions and settings) internal versions of the same file, embedded comments, details of proposed changes, identities of persons who reviewed the document and more types of confidential information.

Microsoft provides online guidance about how to redact hidden metadata in Office documents, specific to each version of Office. See this linked white paper from Payne Consulting (which offers consulting services and metadata redaction software) for more information about what kind of information can be found in hidden metadata, and lawyers’ ethical obligations to redact metadata. http://www.payneconsulting.com/pub_books/white_papers/pdf/PayneJuly2006ArticleonMetadata.pdf

To my knowledge, metadata cannot be redacted from a password-protected Word document. That means reviewing counsel who use a password-protected Word document to send their client’s comments to opposing counsel must either (i) disclose whatever metadata is captured in the locked document and risk legal malpractice, or (ii) enter into the locked document only the final changes that the client wants to transmit to opposing counsel.

Many companies would, in their normal process of commenting on a draft agreement, route the electronic copy through various departments, with each inserting proposed changes, questions and embedded comments. The metadata in the resulting agreement can then be expunged, and a redline created by comparing the original to the “cleansed” final version. If the company cannot redact metadata from a locked document, then counsel would need to start from the original version of the locked draft and input into that version only the final changes that the client wants to transmit to opposing counsel. That seems inefficient.

The principal explanation I’ve heard for password protecting Word documents is that the originating counsel lacks confidence that opposing counsel will accurately track changes. There are ways to solve that perceived problem without locking the Word document with a password. Ronald Reagan often quoted the Russian proverb “trust but verify” and that is a good way to treat opposing counsel in contract drafting.

It is easy to use Word or commercially-available document comparison software (e.g., Workshare’s Worksite f/k/a DeltaView) to compare the reply draft from opposing counsel to your own last transmitted draft. Doing your own comparison does not create for opposing counsel the dilemma of either turning over their client’s confidential metadata or slowing down the drafting process. There are also opinions indicating that counsel who rely on opposing counsel’s redlined drafts may be committing legal malpractice and that they should instead do their own document comparison and complete read-through.

Another explanation I’ve heard for password protecting Word documents is that the originating counsel perceives they own the drafting process or the document, some even asserting a copyright.

Attempting to control the drafting process by controlling the electronic drafts was in vogue when I started in big firm practice in the early 1980s but has largely disappeared as electronic documents are now easily shared via email or portals. Contract drafts are now largely a professional collaboration. Many contracts even contain a provision stating that the contract is the product of joint drafting and therefore should not be interpreted against either party as the principal drafter.

Although it is theoretically possible for copyright to exist in a contract, the concept does not apply to the vast majority of contracts because they are not sufficiently creative or original. See Ken Adams’s discussion of contract copyright in this article. https://www.adamsdrafting.com/downloads/Copyright-NYLJ-8.23.06.pdf

Some have noted that reviewing counsel who receive a locked document can simply call the authoring counsel and request an unlocked version.  If the authoring counsel is willing to provide an unlocked version on request, then why make reviewing counsel ask for it? Some counsel or contract administrators send fax versions of documents, presumably to discourage comments. One can call and ask them for an electronic copy, too. As we are trying to define drafting etiquette, however, the question is, Why not send an unlocked electronic copy in the first place?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.