Al Robert Requests Some Help

Al Robert, an alumni of LexThink 1.0, posts a request for help in the aftermath of Hurricane Katrina. He’s a great guy in a tough spot, as you’ll see from his post. I wanted to help get the word out and, if you have ways you can help out, please get in touch with Al. As he suggests, “what a difference a day can make,” for any of us, at any time.
It’s important to remember that the effects of natural disasters do not end for those directly involved as our memories of the disasters start to recede.
[Originally posted on DennisKennedy.Blog (]

Reprising Carolyn Elefant

In honor of BlawgThink 2005, Carolyn Elefant posted a link to a great presentation-by-blog she and Jerry Lawson did in 2003.
Let me reprise my original post on that presentation in honor of all of Carolyn’s great work on
What Blogs Can Do for Solo and Small Firm Lawyers is a cool new approach to doing presentations via blogs by Carolyn Elefant and Jerry Lawson. It has great content and is a highly inventive use of the blog form.
I think the “blog presentation” approach makes great sense as a way to repurpose a presentation on the web. My opinion, however, is that this approach is too “texty” for a live presentation and PowerPoint, used well, is a better tool.”

The presentation stands the test of time and is full of useful information. It’s also interesting to see the “blogroll” for that presentation blog and see the list of excellent blogs that have also stood the test of time. Great stuff.
Carolyn will be one of an amazing slate of speakers we’ve been fortunate to put together for BlawgThink 2005. We’d love to see you there.
I know that many of you are curious about Jerry Lawson’s blog silence of late. I’ve exchanged emails with Jerry recently and can report that he is well, but extremely busy, and, with luck, we’ll see his return to the blogosphere before too long.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by LexThink!(TM) – The Conference, Re-imagined. LexThink! – Think big thoughts, do cool things, change the world. November 11 & 12 – LexThink BlawgThink – the legal blogger unconference.

Introduction to Mind Mapping – Article

[With our big MindJet Mind Manager 6 announcement today for attendees of BlawgThink, I thought I’d post my August 1999 article on mind maps. I’ve updated a few references and eliminated some links that no longer work, but this will give you my general approach to mind mapping and why I’ve used them for many years.]
I wasn’t planning on it, but I started a spirited discussion thread on the TechnoLawyer list a month or so ago about mind mapping and mind mapping software. Portions of the thread can be read in the August/September 1999 issue of Law Office Computing.
Mind mapping, or radiant thinking as it is sometimes called, is a fairly new technique that allows you to both brainstorm and structure your thoughts using graphics, colors and words in a free-ranging map. It’s easier to see than to describe, so take a look at some examples at or
My recommended starting point is Tony and Barry Buzan’s The Mind Map Book. Tony Buzan ( is the acknowledged authority on mind maps. Michael Gelb’s How to Think Like Leonardo DaVinci is another interesting starting point as Gelb analogizes mind mapping to DaVinci’s notebooks which were replete with drawings and notes.
Mind maps are generally seen as an alternative to outlining. My third grade (or whenever) teacher who first taught us outlines put the whammy on me for outlines. I really don’t like using formal outlines and the association of outlining with law school exams is not a pleasant one. But, I did find myself pleasantly surprised by the Palm outliner, BrainForest, which prompted my role in the discussion thread.
The main criticism of outlines is that they force you to impose a rigid structure on your thoughts as you put them down on paper. They also get unwieldy as they become more complicated (hmm, here’s a point W.3.c.ii. ? I wonder what in the world point W.2 was). In general, outlines do not allow your ideas to flow.
Mind mapping lets you brainstorm and generate and connect ideas. More important, you can see new connections between ideas and make new connections. You can also take your mind map and turn it into a traditional outline later.
I’ve used mind maps regularly for several years. I like the process and the results. In fact, I have a whole notebook full of mind maps of articles, plans and ideas.
As a general matter, you take a piece of paper, turn it lengthwise, write your main idea in the center and make a related drawing. You then start to radiate ideas around the central image. For example, with an article like this one, I would start with the word “Mind Maps” and an image in the middle of the page and then surround it with other points I wanted to raise: “comparison to outlines,” “resources,” “Harhai article,” “PowerPoint lessons” and other points. I might draw little pictures with each point.
Then I’d move to each individual point and repeat the process. For example, for “comparison to outlines” I’d surround it with “third grade experience,” “law school exams,” “RIGID,” “unwieldy” and maybe a picture of a person with the flow of ideas out his head blocked by a dam called outline. You try to get your ideas out of your head and onto paper, without self-criticism. That can come later.
At some point, you reach a sense of “done” and you can then look at the tentative mind map. You might add some new points, draw arrows between points, number points or leave gaps for something you might add later. You might use highlighters or different colors of ink. In fairly short order, you have most of your ideas on the piece of paper and the structure that those ideas have may become much more apparent to you.
Contrast this to preparing an outline, where I tend to fuss over numbering schemes and can’t get past the notion that you must have at least 2 sub-points. What I learned, though, from the discussion thread and from using BrainForest on the Palm is that if you are willing to break the “rules,” outliners can give you a lot of flexibility because you can move points around and even do some brainstorming.
Unfortunately, outliners still don’t let you view your ideas and see the structure that may be present in your ideas as readily as mind maps do.
The downside of mind mapping (other than the difficulty of explaining it to a senior attorney and the more “rational” and traditional of your colleagues) is that that the best mind maps are like miniature works of art and you feel obligated to include drawings. If your elementary school teacher left you with the feeling that you didn’t have a single artistic bone in your body (don’t get me started on what my elementary school music teacher did to me with music), this can be daunting.
Enter the world of mind mapping software like Inspiration and MindManager. What if instead of drawing on big sheets of paper, you had a computer program that allowed you to select images (or draw them) and arrows, shapes, et al.? What if you could move parts of your map around and resize them automatically? The mind mapping programs let you mind map on your computer.
These programs can work either for creating a mind map or for “cleaning up” a mind map you’ve made on paper. There’s a certain tactile element to creating a mind map on paper that might get lost for some people if they tried to start with a blank screen rather than a piece of paper. [Note: Tablet PCs rock in connection with mind mapping.] Since mind maps are about promoting the flow of ideas, you want to focus on what works best for you. Some people also like to draw their own images and not pick among pre-fab images.
I’ve found the opposite to be true. One of my favorite parts of creating a PowerPoint presentation is the part where I sort through the clipart library to find an image that fits the points I’m making on the slide. Many times, once I make the selection of the image, I realize another point or two I want to make, change the order of points or realize what example or anecdote I want to use in that portion of the talk. It’s a fascinating element of the creative process and has brought home to me both that the visual element is a key part of the thought process and that the more senses that you can use in the creative process the better.
Mind mapping is one of a number of “thinking tools” that are becoming available to lawyers as technology slowly begins to give us tools that help us work the way we work rather than forcing us to work in ways that programs work. CaseMap (, to me, is another important legal “thinking tool.” Others have experimented with the Brain ( and Trellix. For a great introduction to legal thinking tools, take a look at Steve Harhai’s excellent article in the November/December issue of Law Practice Management magazine, a version of which is on the web at
If you are interested in mind mapping, the definite starting point is Buzan’s The Mind Map Book. I’d try making a few mind maps and seeing if they work for you before jumping into a program. I assume that the choice of this type of program will be highly idiosyncratic and that there’s no one “best” program out there, but I wouldn?t expect the main features of the programs to be too different. Mind mapping is a fascinating and useful “thinking tool.”
Want to attend BlawgThink? Let me know.
Note: This article is one of a series of my previously-published articles that I’m making available for free on my website and incorporating into my blog. Other of my articles may be found in the Articles category archive on my blog.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by LexThink!(TM) – The Conference, Re-imagined. LexThink! – Think big thoughts, do cool things, change the world. November 11 & 12 – LexThink BlawgThink – the legal blogger unconference.

A Mobile Computing Kit for Lawyers – Article

[Written in December 2004. Published in Law Office Computing.]
A Mobile Computing Kit for Lawyers
An anthropologist could spend years studying what lawyers carry in their briefcases and laptop bags and how the items have changed over the years. There is always a story that explains the need for each item. The story usually involves a traumatic incident that made the lawyer vow never to travel without the item ever again.
In my case, you will find the screwdriver I carry because I couldn’t unscrew a projector cord that had tightly secured too tightly to keep the cord from pulling out of my notebook computer. You will see the USB hub I carry because I can’t always fit USB devices into the space for the USB ports on my notebook. The three-prong adapter is the result of finding myself with a three-prong plug in a room with only two-prong outlets.
You get the idea. However, my purpose in this article is not to share my technology snafus that only seem funny in retrospect. Instead, I want to help you put together the best travel kit for your mobile computing needs based on the lessons I’ve learned the hard way and from the wise and kind advice of others.
1. The Focus is You.
In mobile computing, the idea is not to assemble a set of 5-star reviewed devices, hot gadgets or status items. You want to have the tools that help you get your work done, often when you are under pressure, up against time deadlines or in other stress-inducing situations.
Your first guiding question should be, “What do I need to do?” Great athletes visualize themselves in expected scenarios, from making the perfect shot to skiing the perfect slalom run. The best users of technology use a similar visualization process.
Think carefully about the scenarios in which you are most likely to use a notebook computer. Picture how you will actually be using it. If you expect different types of uses, consider how the notebook will work for you in the most important setting.
For me, I care the most about how a notebook works for me when I do presentations, many of which involve air travel. That use dictates my choices. If your main use will be taking notes in depositions or drafting documents in your favorite chair at home, my choices will not be the best choices for you. Focus on what works best for you.
The second key question is just the follow-up to the first one, “Does the item you want actually help you do what you want to do?” If you plan carefully, visualize and understand what you need, you will know the answer to this question. The true challenge is whether you can put aside cost, envy, desire and all of the other tangible and intangible issues that conspire to keep you from voicing that answer and acting on it.
2. Let’s Get Started . . . With the Bag.
Your choice of computer bag plays a more important role than you might imagine.
What you have in your ultimate travel kit will be limited by how much you can fit into the bag. As a result, your ultimate travel kit is going to contain something less than everything that you might want and something more than the bare minimum essentials. You want to make the best use of the space you have.
I have been using a two bag approach. The first bag is an “everyday bag.” For the past six years, I’ve used a Targus combination bag that can be carried as a briefcase, used with a shoulder strap and also works as a backpack. It’s very versatile and makes a great standard choice.
However, even in the backpack mode, it still gets heavy when I hoof it long distances through airports. I now use a wheeled laptop bag when I travel. I thoroughly recommend this approach for air travel and other times you need to carry a heavy bag for an extended time or distance. Test them out before you buy because small details make big differences. Features I like include the little feet on the bottom that keep a bag from falling and smoothly rolling wheels.
Certain people might also consider a less-functional “dress bag,” such as a fancy leather or aluminum case for client meetings or court appearances. Don’t forget about functionality in your quest for style. The other option that might come into play is the “bohemian” backpack or satchel to make the scene at a coffee house.
A well-chosen computer bag is an essential component of the ultimate travel kit.
3. The Essentials.
The notebook computer is the central core of your travel kit. Today’s notebook computers truly have the power and storage capacity to let you carry your office with you. If you haven’t purchased a computer in a few years, you will be amazed at what you can get today.
It’s hard today to make a really bad choice in notebook computers and most of the ones available will do more than the average lawyer requires. There are still a few important factors to consider.
First, you will want to identify the appropriate category for you. Today, there are six categories of notebook computers to consider. One of them will make the most sense for you.
The Middle of the Road – These moderately-priced notebooks are solid, if unexciting, computers that are great all-around choices. They fall into the middle in almost every category and will never dazzle anyone with their design. However, they do almost every job well.
The Desktop Replacement – These notebooks are high-powered and high-priced. They are also big in many ways – big screens, big hard drives and did I mention the big prices? If you handle large amounts of data or work with audio and video, you might consider these. The cost can be a thousand dollars or more than a middle of the road computer.
The Subnotebook – If you travel, every pound you save is important. You can find subnotebooks under four pounds. There are tradeoffs with subnotebooks, including smaller screens and external, rather than internal, CD or DVD drives. These make the most sense for frequent travelers or if you simply want to use a computer in different rooms in your house.
Tablet PC – Tablet PCs seem to be made with lawyers in mind, yet lawyers rarely buy them. No one really understands why. Tablet PCs are full-featured computers that allow you to enter data and write on the screen with a stylus. If you are a litigator, you owe it to yourself to look closely at the Tablet PCs. Other lawyers should consider them as well. The cost differential is less than most people think. Tablet PCs would be great on crowded flights.
The Mac Notebook – Macintosh notebook computers are a realistic option today. They are excellent wireless tools and highly-regarded notebooks. Consider your actual uses and what software is available. If you do your homework, there might be a Mac in your future.
The Mini-Theater Notebook – This new category consists of behemoth notebooks with very large screens, DVD drives and great video and sound cards. They will meet your work needs, but they are unparalleled for watching movies on DVDs. These might be good choices for litigators working with video depositions or for lawyers who need large screens for particular purposes. Frankly, though, traveling with small children is one of the best reasons for using one of these. These notebooks probably are options for small firm lawyers because it is difficult to imagine getting a request for one of these approved by a large firm IT department.
Recommended Specs in 2005.
I see 512 megabytes of RAM as a minimum choice these days and suggest getting a gigabyte of RAM. Unless you are playing high-end games or working with video, almost any processor chip available today will be more than adequate for normal use. The built-in wireless networking and improved battery life make the notebooks with Intel’s Centrino chips a good choice.
Take a good look at screen size and quality and pick the one you like. USB and Firewire ports are all-but-required today. Bigger hard drives are better. I recommend some form of optical writing device – DVD writer, CD-RW, or a combo DVD/CD-RW. If you don’t have a Centrino-based notebook, a wireless network card (very inexpensive) is essential.
4. Communications/PDA Device.
Notebooks with wireless Internet access are changing the equation in this area. I personally have moved to a notebook computer and a standard cell phone and stopped using a PDA (Palm or Pocket PC device). This area is truly one where personal preferences reign supreme. Make your best choices and toss them in the bag. Don’t let your IT department convince you that a Blackberry is as good as having a notebook.
5. Accessories – Essential.
Required Power Supplies, Rechargers and Add-on Devices – You cannot live by batteries alone. In fact, you will want to use AC power whenever possible to reserve battery life for when you need it. Some notebooks have swappable or external drives. Take them with you.
USB Flash Drives – These tiny devices hold a ton of data at a tiny price. Since the summer of 2004, prices have plummeted, all but killing off floppy drives. These drives come in 128 megabyte, 256 megabyte, 512 megabyte and 1 gigabyte sizes and plug into the USB port on your notebook. They are indispensable. They are also easy to lose, so be careful with them. Your travel kit should have one or two of these.
USB Optical Mouse – Gadget gurus talk about all kinds of cool devices. The one thing they all use is an USB optical mouse. These are often available for under $20 and come in wired and wireless flavors. If, like me, you have the habit of dragging your thumb across a touchpad, these are immensely helpful. Just plug them into your USB port and your ready to roll.
Portable USB Hub – With so many useful USB devices available, you can easily have more devices than ports. For about $20, you can get a very small 4-port hub to plug into your notebook’s USB port and plug in four devices.
Headphones – If you can’t work on a plane, you might as well listen to music or watch a movie. They can also come in handy if you don’t want to talk to the people sitting next to you.
The Emergency CDs for Your Computer – They’re no help if they’re at home.
Standard Network Cable and Phone Cable – Worth their weight in gold when you need them.
A Small Screwdriver or Toolkit – Or any other item that past experience has taught you that you can’t be without. Be prepared. Avoid the Swiss army knife with tools unless you enjoy getting the full security treatment in airports and seeing your knife tossed into a trash can.
6. Accessories – Recommended.
Three-prong Adapter, Extension Cord and/or Small Power Strip – An adapter will one day save you if you have any cord with a three-plug. In many rooms, there are available outlets, but they are too far away from where you are sitting. Making your extension cord or power strip available to others is a great way to make new friends.
Surge Protector – Of course, no one ever buys one of these until their notebook gets fried. Some “mobile essentials” packages combine these with a mouse, USB hub or other useful items.
Extra Battery and Extra Power Cord – I didn’t list these items as essential for two reasons. First, they can add significant weight. Second, they can be breathtakingly expensive. I once packed the wrong power cord. I learned that a replacement cord was $150 and a universal power cord cost about the same. I thank my co-presenters for loading my presentations onto their computers. I’ll consider buying one of these if I see a great sale price or if I make the same mistake a second time. For long plane trips, a second battery may be a necessity. Emergency power sources may make sense if you will be away from electrical sources for an extended period of time.
Blank CDs – Not everyone has a USB port and sometimes a network connection is not available. CD drives are almost universal and a blank disk will give you another option for transferring data.
7. Accessories – Special Situations.
USB Hard Drive – External hard drives with USB (or Firewire) connectors are an attractive way to back up your data or carry large amounts of data. You can now routinely find 100+ gigabyte hard drives for not much more than $100.
Remote Control Mouse and Laser Pointer – Depending on your style of presenting, these can be useful devices, although remote controls can be a little temperamental.
Digital Camera – A surprisingly versatile tool that can be used in a number of useful ways, including, in a pinch, as a document scanner.
iPod/MP3 Player – Another versatile device that can be used for more than listening to music or audio CLE, including as a voice recorder or as an extra hard drive.
Portable Printer – For most lawyers, the extra weight and space will rule out portable printers. However, they may be invaluable for you in your practice, especially in a courtroom setting.
Projector – If you need a projector, you can expect to be carrying an extra bag. Key factors: your brightness needs, weight/portability, and compatibility with your notebook. The extra cost of wireless projectors might well be justified by the elimination of the need to carry around a cable. An extra bulb is a must.
8. Helpful Hints.
Watch people who travel a lot when they dig into their computer bags. You can learn a lot of useful tools and techniques. Here are two useful tips.
Resealable Plastic Bags – Many mobile lawyers use one- and two-quart resealable plastic bags to organize the items in their computer bag. Group like items into bags and label them. This technique allows you to check to make sure you have what you need and should prevent you from taking the wrong power cord or other similar mistakes. Plastic bags also work well when you use two or more computer bags and transfer items between them. They are also great for storing your snacks.
A Couple of Pens and a Small Notebook – Sometimes paper is the best or only option.
9. The Final Check.
Take everything that you have decided must be in your ultimate travel kit. Put it in your computer bag and attempt to zip it closed. Give your self time to stop laughing. Eliminate items until the bag can be zipped without undue effort. Even better, clear enough room to throw in a book or a couple of magazines, airport souvenirs for your children and whatever items you will need to remove from your pockets to make it through airport security without setting off the metal detectors.
10. Bringing It Home.
When putting together your ultimate travel kit, the emphasis must be on “your.” Use this article and the advice of other people as checklist of items for you to consider, not as requirements. Consider carefully what you want to do and what you will need. Then make the best choices you can.
Learn from your mistakes and always be on the lookout for ways to improve what you are doing. Listen patiently to what experts tell you, but observe carefully what they actually do and what they actually use.
Mobile computer will only become more common. Whether your mobile computing is by flying around the country or the occasional trips to the local coffee shop, you can put together a great travel kit that works for you and keeps the items you need most often with you when you need them most. The effort you put into getting it right will pay for itself many times over.
Veteran mobile computing lawyers also develop a travel kit of useful services to cover emergencies and other surprises.
1. Backup National ISP Account – Don’t delete all those AOL and other ISP offers that come preloaded on your new notebook. In a pinch, you can activate one if you have no other way to get Internet access.
2. Internet Email Accounts – Hotmail, Gmail, Yahoo Mail and other free email accounts give you options for sending and receiving email if you can’t get to your usual email account. Most services offer address book and even calendaring functions.
3. Internet Fax Service – Maxemailsend and eFax are two examples of inexpensive Internet fax services that let you send and receive faxes by email. You can fax yourself at your hotel to get a printout of a document if you are otherwise unable to print.
4. Online Backup Services – An online backup service will give you accessible storage space for a copy of your presentation or other documents you need. You might also email the documents as attachments to yourself at an online email address.
5. Online Bookmark Repositories and Newsreaders – Get access to all of your bookmarks and favorites no matter where you are. Bloglines is a popular online newsreader so you can keep up with the RSS feeds you read.
6. Connect to Your Office – Depending on your setup in your office, Citrix software, virtual private network software, GoToMyPC or PCAnywhere will allow you to access your office network from the road.
Note: This article is one of a series of my previously-published articles that I’m making available for free on my website and incorporating into my blog. Other of my articles may be found in the Articles category archive on my blog.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s consulting services, featuring RSS and advanced blogging consulting and technology committee coaching packages for law firms, corporate legal departments and other professional services providers.

The Mysterious World of Metadata – Article

[Written in January 2005]
The Mysterious World of Metadata
A. Introduction
Recent stories about lawyers releasing documents containing embarrassing hidden data have highlighted the dangers of “metadata,” especially in documents created with Microsoft Office programs. Unfortunately, other lawyers who do not learn how to deal with metadata will suffer the same public humiliation. Metadata may not be the most important issue in electronic discovery, but it is one issue that lawyers must be familiar with because there will be negative consequences if they don’t address the well-publicized issues.
A. What is “Metadata” and Why We Should Care About It
The hidden data we call metadata is another example of a helpful feature that has some unfortunate negative consequences. The term is occasionally used in a limited or otherwise imprecise way, so let me give you my definition.
1. Defining the Term
“Meta” is the Greek word for “about.” Metadata refers to certain data that are associated with a document, but are not generally visible in the ordinary display or printing of the document. Common examples include comments, markup and revisions, author, owner and other information, and even records of versions. Although metadata is often discussed in connection with Microsoft Office documents, it can be created by many software programs.
2. Why Metadata Exists
Metadata is not inherently bad. It depends on the context we find it and who is viewing or using it. For many purposes, especially for collaborating on documents, this information is helpful and valuable. The “Track Changes” features, versioning, document and author information and other metadata can be very useful when several people work on a document. Once the document moves out of “friendly hands,” however, it can cause some damage if it is revealed, ranging from embarrassment to devastation of your case. Imagine the consequences if a document included a different settlement figure or candid comments about the strength or weakness of certain points.
3. Good Metadata and Bad Metadata
While it is tempting to think in terms of “good” metadata and “bad “metadata, it is more useful to think in terms of the amount and types of information that a particular piece of metadata carries. Some metadata is all but innocuous – file name, file type, creation date and the like. However, in certain cases, this information can turn out to be key evidence in a case. Other metadata is rich in information content – comments and revisions, for example – and you would generally not want this information to fall into someone else’s hands. The context is what is important. A document might have more than one hundred metadata items associated with it. Unless you know what metadata exists, you cannot make good decisions about it.
It’s also worth noting that some metadata may be altered or incorrect. For example, in the document properties, fields, such as author, may be edited and the “statistics” information for some Word documents bears no relation to reality.
B. Metadata You Might Find – Microsoft Word Example
Microsoft Word metadata gets the bulk of the attention these days, so let’s take a closer look at it. Do you know how to check for metadata in Word documents? Microsoft’s website is a useful resource for information about this hidden data.
1. Document Properties
Even if they are aware of metadata being created and associated with a document, many people do not realize how simple it is to view the metadata in documents. We will not go into much detail here, but spending 5 to 10 minutes under the Help menu in Word or on Google will open up new worlds for you.
For a quick example, simply open a Microsoft Word document and click on “Properties” under the “File” menu. You’ll find a screen that will allow you to see the wide range of metadata that is and can be associated with a Word document. People have been embarrassed by nearly all of these items, from revealing that someone outside the firm was the original author of an agreement to showing only a few minutes of actual editing time on a document for which many hours of time was charged for preparation. Again, it’s not so much the information itself – it’s the context that matters.
2. Track Changes and Comments
Everyone’s favorite forms of metadata are “Track Changes” and comments. An opposing party or even a judge can turn the “Track Changes” back on in a document after you thought you turned them off. There are lots of embarrassing and costly examples I’m sure that you have heard about. The sensitivity of this information is obvious.
You simply must learn how these features work and what precautions to take. Note that Office 2003 has built in some warnings and settings to help you out. Note too that you can set up Word to reveal hidden information in documents, which helps you see what is in your documents and, of course, will let you see what might be in documents that are sent to you.
3. Earlier Edits and Versions
If you are not careful about default settings, you may find other surprises. Earlier versions might be included as part of the final document you send, even if you use Adobe Acrobat to create a PDF file as a way to remove metadata. In certain situations, a Word document might contain information to allow someone else to use the “undo” feature to reveal changes and revisions.
D. Playing Offense and Defense with Metadata
Obviously, you want to be careful on this issue. It should be equally apparent that metadata can be a two-way street and that there are offensive and defensive uses of metadata.
1. Protecting Your Documents
Job one, of course, is to protect your own documents. You also want to understand what metadata is associated with your clients’ documents and the implications of that metadata.
A commonly-advised approach is to strip the metadata from the documents. There are several inexpensive software tools that will remove the metadata from or “scrub” Microsoft Office documents. Remember that Excel and PowerPoint files also contain metadata and spreadsheet files might have very damaging revisions or evidence of prior calculations. Microsoft also has a free “Remove Hidden Data” tool, but it only works with the newest versions of Office and you will need to study the published list of known issues.
Other common solutions are to save Word files as PDF files, use WordPad, a stripped-down word processor in Windows, or save the file in the RTF format. Note that Adobe Acrobat can now introduce its own metadata. Scrubbing and other techniques will work, but they may not get everything and it is important to follow developments in this area. There is currently an ongoing discussion about whether Word metadata can in fact carry through to a PDF document.
2. Showing Metadata in Other Documents
Playing defense on metadata is hard work. Playing offense is much more fun. Not to give away secrets, but a number of excellent lawyers have been aware of metadata and how to read it for years. They have used metadata as one more weapon in their arsenals. As we have suggested, it takes only a few setting changes in Word, Excel or PowerPoint to reveal, on a routine basis, the metadata associated with documents you receive. Perhaps the memo you had hoped would be the “smoking gun,” but was not, actually has the smoking gun hidden in it. At this point, it is hard to argue against treating the checking of metadata as a standard practice. However, it is worth noting that some commentators have opined that this practice is just plain wrong.
3. Difficult Ethical and Other Considerations
Metadata raises its own set of difficult ethical and other issues. Consider this question: what happens when I realize that I have produced or am compelled to produce documents that have damaging metadata in them? Am I compelled to affirmatively reveal it?
Given the lack of awareness of many lawyers, simply turning off the “track changes” on Word documents, which does not remove the metadata, does in fact make it invisible to unsophisticated readers. How would a court treat that approach? Is it possible to educate a judge about metadata and obtain a protective order that effectively permits the scrubbing of metadata? Should discovery requests routinely refer to production of documents in a format where metadata has not been scrubbed or altered?
I have little doubt that we will soon see court decisions on some of these questions. This area is one where you will want to track developments carefully. One good approach is to think of metadata in the same light as handwritten comments on paper documents. What would you do with the paper? Let those principles guide you in handling metadata.
E. Conclusions, Tips and Action Steps
The good news in the world of metadata is that, in many cases, you can address the primary issues relatively easily and inexpensively. The bad news is that there are a lot of metadata issues to worry about.
Let’s end with three action steps for you to take in the next few days.
First, an easy one. Open up a Word document, check the properties and see what you find.
Second, write down on a piece of paper the software tool that your firm uses to scrub metadata from documents and locate and read your policy for when and how to use it. If you can’t do either, find out why.
Third, take a few documents created outside your firm and try to turn on the “Track Changes” or show hidden data features. Think about what you find and decide whether you have the nerve to check your own documents.
As always, it’s best to be embarrassed in private than in public. If you don’t get metadata, metadata will get you.
Note: This article is one of a series of my previously-published articles that I’m making available for free on my website and incorporating into my blog. Other of my articles may be found in the Articles category archive on my blog.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s half-day electronic discovery seminar – “Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery.” Contact Dennis today for more information and to schedule a seminar for your firm or legal department.