Documents written with Microsoft Word are notorious for containing meta-data - information about revisions, for example. Likewise, documents saved with WordPerfect can be "unedited" through using multiple "un do" commands to reveal critical changes to a document.

As a Microsoft support document explains:

Whenever you create, open, or save a document in Word 2002, the document may contain content that you may not want to share with others when you distribute the document electronically. This information is known as metadata. Metadata is used for a variety of purposes to enhance the editing, viewing, filing, and retrieval of Microsoft Office documents.
Some metadata is easily accessible through the Word user interface. Other metadata is only accessible through extraordinary means, such as by opening a document in a low-level binary file editor. The following are some examples of metadata that may be stored in your documents:

• Your name
• Your initials
• Your company or organization name
• The name of your computer
• The name of the network server or hard disk where you saved the document
• Other file properties and summary information
• Non-visible portions of embedded OLE objects
• The names of previous document authors
• Document revisions
• Document versions
• Template information
• Hidden text
• Comments

Microsoft goes on to explain that, "Metadata is created in a variety of ways in Word documents. As a result, there is no single method to remove all such content from your documents." Id. .

Lawyers obviously have a duty to avoid disclosing information that could harm the client. Indeed, the ethical rules of most states is far broader, requiring lawyers to take reasonable steps to ensure that no information relating to the representation of a client is disclosed, absent the client's consent. Thus, lawyers should take steps to remove meta-data from documents. The Microsoft article describes some ways. For other, ostensibly more complete, means to remove meta-data, see this article on TechRepublic.com. It explains that several third parties have created cleaning software. Some of it is free. (I do not endorse them since I've never used the products, and there may be others out there.)

Suppose now armed with this knowledge, you examine a Word document that opposing counsel has sent to you, and discover an abundance of meta-data. Can you review it?

At least one bar association has taken the position that it is unethical to examine this hidden information. N.Y. St. B. Ass'n. Op. 749 ( Dec. 14, 2001) In that opinion, the bar association recognized that, although the transmitting party intended to transmit the "visible" document, "absent an explicit direction to the contrary counsel plainly does not intend the lawyer to receive the 'hidden' material or information.". Id.. Based on this premise - that the transmitting lawyer was unintentional in his disclosure of the meta data - the bar association concluded that the meta-data could not be accessed: "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets." Id.

Whether the premise holds true or is adopted by others is an interesting question. More intriguing are the impact of this ethical duty not to review metadata on electronic discovery.

As a practical matter, however, and even assuming that there is an ethical prohibition against using it, the ability to detect a violation of this rule is extremely low. How will you know that opposing counsel is gathering information about your drafting techniques, and so on?

Finally, in all word processors, be certain that, if multiple undoes are enabled, that the file that is sent does not contain the undoes. This could be disastrous. Suppose you draft a contract, and in the first draft you send to your client for review, you propose starting at $30,000. The client, however, revises the document and makes the opening offer $25,000. If undoes are enabled and with some programs, the recipient can "undo" the change and see what the document looked like before your revision. If multiple undoes are enabled, and the file allows it, then all revisions made can ultimately be examined.