“Hi Ed, it’s Adam. I’m glad you liked the report I started for you. I’m going to compile all of the revisions you made to it, as well as my comments and changes, and produce all of that to opposing counsel tomorrow.”
Adam did not write any portion of his expert’s report but, sadly, with the metadata included, it might appear as if he did. Adam just doesn’t know what he’s really about to turn over. Production of an expert report in response to a discovery request is common - nothing to worry about there. The final report is discoverable. They are produced every day. But, are you producing them free of metadata? If not, a real-life example revealing the specific types of information you are really turning over will make sure you do going forward. When it comes to revealing hidden, potentially harmful information, the answer is clear: metadata really does matter.
Here’s the breakdown. Let’s assume Attorney Adam creates the initial document template. Expert Ed asks for some guidance on how Adam would like him to organize his opinions and Adam decides to help out by sending Ed the template. He opens an old expert report saved to the file, takes out all of the content, leaving just the headings to give Ed a skeleton framework to fill in with his opinions on the matter. Adam then emails the template to Ed and Ed begins working.
As part of Ed’s normal process, he starts out with a pretty rough, stream-of-consciousness type rambling just to get his thoughts on paper in order to cull and craft them later. At this stage Ed is creating a “thought vomit draft”. Its language is pretty scathing. It’s just Ed’s process. He always feels he needs to vent a little to himself before he can put together a polished, professional opinion, but no need to worry there because no one’s going to see that, right? Right? Let’s continue. Let’s say Ed finishes the report in record time and emails it back to Adam for initial review. Adam reviews and sends back to Ed with some suggested tracked changes and comments and sets up the call where we find these two professionals now on the phone, reviewing the report one final time before it is produced.
Let’s also assume that during this conversation, after a few mock cross-examination type inquiries from Adam, Ed decides to include some additional information and bases for his opinions. Because they are on the phone together, Adam makes these changes to the document according to Ed’s specific instruction. After one final joint read-through, the two decide the report is finalized and complete and Adam saves it to a USB drive to be produced to opposing counsel tomorrow. If he produces the report in Word, let’s see what Adam is really about to disclose:
- The fact that Attorney Adam authored the document;
- Expert Ed’s initial scathing “thought vomit” vent-a-little version (the thought of which makes Attorney Adam want to now vomit);
- Expert Ed’s multiple revisions and changes;
- The fact that Ed revised it twenty-seven times (it’s just his process);
- Attorney’s Adam’s tracked changes and comments on the pre-final version;
- The changes Ed and Adam made together over the phone; and
- The fact that Attorney Adam made those changes.
I’m sure many of those revelations give you heartburn. But, that’s assuming Adam produced the expert report in Word, which ─ since the outbreak of the big, metadata scare ─ many of you likely may no longer do. Rather, you print your Word document to pdf and voila! Nothing to worry about there, right? Wrong. While printing a document to pdf does eliminate a good bit of metadata, it does not delete it entirely. Some advanced pdf programs, such as Adobe Reader or Sumatra, can uncover many layers of metadata even in a pdf document. Primarily, of particular importance to Adam, it will not hide the fact that he created the document. Is that a question you want opposing counsel to be able to grill your expert on during cross-examination?
The takeaway here is clear: metadata really does matter. Printing to pdf is not enough. Every time a Word document comes to you, it is best to “Save As” and save it as a new version, thereby erasing all previous metadata. Also, there are numerous scrubbing programs that can be easily obtained and utilized to ensure both your Word and pdf documents contain no metadata before you send them to experts, co-counsel, witnesses, anyone. Train your staff on scrubbing procedures and advise your experts to do the same. You may also want to mine documents produced to you for some juicy metadata. You never know when thought vomit will land in your lap.
If it relates to experts, we strive to relay it to you. Join the discussion. Are there other types of metadata you have seen revealed in expert discovery? What procedures have you implemented at your office to avoid disclosure of metadata or uncover metadata in documents produced to you?