Metadata: Some practical advice

Baseball

"I ain't ever had job. I just always played baseball." - Leroy Robert "Satchel" Paige

Hangman's Noose

As I mentioned on Friday, it seems like hardly a day goes by without some idiot insulting African-Americans with a display of a hangman's noose. The latest incident involves a "stupid little prank" that occurred at the construction site for the new baseball park in Washington, DC. See http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503068_pf.html
- and -
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/24/AR2008012403173.html

DOL to Propose FMLA Regulatory Changes

Late last week, DOL officials reported that they have forwarded to OPM proposed new regulations that eventually will be published for public comment. Apparently, the proposals address, among other issues, the notice that employees generally would be required to provide to employers requesting a leave before actually taking the leave. Current regulations allow employees to take off for two days before even requesting FMLA leave. In addition, apparently the proposed regulations would permit employers to require health care providers to recertify annually that an employee has a serious health condition. Current regulations provide that healthcare providers can submit a multiyear certification of a serious health condition. As of the weekend, no one yet had an actual copy of the proposed regulations. Once we have them, we will comment further.

New Leave Law in Defense Authorization Act


The Defense Authorization Act provides that family members would be allowed to take up to six months of unpaid leave to care for wounded military personnel. The Act also would allow for employees to take up to twelve weeks of unpaid leave "for any qualifying exigency" related to a family member's call-up to active duty or deployment. See http://www.govtrack.us/congress/bill.xpd?bill=h110-4986.

The Power of One


In the last few weeks, there has been a hue and cry about the power of words alone to inspire change. Over the past few days, I have been reading a wonderful book published in 1941 by A.J. Cronin entitled The Keys of the Kingdom. Apparently within four months of the original publication, the book sold more copies than the publisher, a major publishing house, had sold since its foundation shortly after the turn of the century. I got interested in the author, and started to do a little research. One of his books, The Citadel, resulted in the establishment in the United Kingdom of the National Health Service. Wikipedia reports that "the popularity of his novels played a substantial role in the Labour Party's landslide 1945 victory." Having said that, I cannot recommend more highly the book that I am reading, The Keys of the Kingdom. Great read.

Corporate Social Responsibility


In the January / February 2008 issue Foreign Affairs, Klaus Schwab has an interesting article on CSR entitled "Global Corporate Citizenship: Working with Governments and Civil Society." Mr. Schwab is the Executive Chair of the World Economic Forum which just met Davos, Switzerland. See http://www.foreignaffairs.org/20080101faessay87108/klaus-schwab/global-corporate-citizenship.html.

Metadata

I thought that I would share with our readers, a very thorough analysis of the metadata problem that a colleague recently sent to me.

Starting with the facts in your email, it appears that you are interested in understanding the obligations of the producer and also the recipient of a document containing metadata that is exchanged during the negotiations (including grant requests and proposals) of a business transaction. With this in mind, my initial observation of your use of the term "metadata" is that you are concerned primarily with the feature in Microsoft's Word that is commonly known as "track changes," but should also include the data within the "properties" tab and "comments" of a document.

Reflecting first upon the recipients' obligations with respect to receiving a document that contains metadata available for review, currently I am not aware of any law that prohibits review of the metadata by the recipient. I am aware of a few state bars and an initial position paper from the ABA (that was later revised) that would suggest it is unethical for an attorney to review and/or "mine" for such metadata, in a business document, but the majority of the state bar associations would suggest that no ethical violation has occurred in such cases.

Since it is too difficult for a recipient to determine whether the "track changes" metadata was intentionally available for review, my opinion is that the recipient does not have either a legal or ethical obligation to refrain from reviewing the metadata available in these documents, nor does he or she have the responsibility of informing the producer of the availability of such data. I would add, however, that it has been a courtesy practice of mine to inform the producer in obvious cases that such metadata exists in their files.

From a producer's perspective, while from a practical and strategic perspective it may be devastating, I do not know of any law (other than the foregoing bar association opinions) that directly prohibits a producer from distributing documents with metadata. There may be, however, some ethical rules that may apply here, such as Rule 1.6 concerning the confidentiality of client information in those cases where the metadata contains client information. This rule along with the varying levels of knowledge among attorneys regarding metadata, and of the tools used to prevent the "leakage" of metadata, suggest that the vehicle that will be used in the near future is malpractice to establish a minimum standards on what steps should be taken by attorneys to mitigate the likelihood of distributing a document with metadata, which frankly is how these issues should be analyzed. I am certain that this standard will evolve in a manner similar to the standard used by attorneys in adopting the use of the internet, which was once feared for possibly disclosing confidential client information during the transmission of data and has now become commonly used by nearly all attorneys in their practice.

However, having said that, on a practical side, the easiest way to clean any of these files is to run them through one of the third party cleaners to remove any unwanted metadata and to "accept all" changes if track changes is not intended to be included, as well as checking the document for comments. These "scrubbers" are software programs that may be initiated either manually by a user or automatically by a system and it removes known metadata, such as the author, hyperlinks, track change information, comments etc. Most organizations will typically use these scrubbers to remove metadata that can be found in the "properties" tab of a document (and rely on the decision of the attorneys with respect to other forms of metadata such as comments and track changes), before transmitting a document to the other side.

While I do not endorse any scrubber product over any other, you may find that some work better than others in your environment, and they have different features that you may or may not find helpful. It is important to note, that while stripping down a document to the bare text will leave a document free of metadata, it will, in the most extensive examples of scrubbing, leave only raw text and thus, lose most, if not all of its formatting. Since we all need to have documents formatted in a coherent human readable form, there will always be a small amount of metadata that could be retrieved by someone, but the changes to a document that you refer to can be stripped out by the use of one of these scrubbers, and this combination of "accepting" all changes and using the software scrubber (to eliminate metadata stored in the properties field and, if selected, comments) can leave your formatting of the document untouched.

While the process you refer to of converting a document into a pdf file will remove most forms of metadata (except for track changes that have been left visible), the pdf produced by your method will create its own metadata viewable in the properties menu of the file. So in a situation that is highly sensitive, I might use this process and then run the pdf file through one of the scrubbers to eliminate the file property information. I agree that this process (as it does with discovery in litigation) results in a less efficient process when making revisions between parties during negotiations, and often frustrates business participants who want to make changes to the documents.

In the context of redaction, do not use any of the more advanced features of Adobe Acrobat like the redaction feature, because the redaction can be stripped out and then everything you redacted becomes visible. If trying to redact a document, I would use the NSA document and follow the directions on it for the best and wisest approach.

I hope I have clarified the issues for you, and while your colleagues had some valid suggestions, the answer to the metadata question is that it depends on the situation, the content of the metadata and what the desired result is to know which solution or combination of solutions is the best.

One note that might be of interest to you, is that the newest version of Microsoft Word (Word 2007) has included features that help to deal with the ever growing concern over metadata by including a stripping function that gets rid of the most common metadata attached to documents.

American "Can Do"

The Man Who Thinks He Can
by Walter D. Wintle


If you think you are beaten, you are.
If you think you dare not, you don't.
If you'd like to win, but think you can't,
It's almost a cinch that you won't.


If you think you'll lose, you're lost,
For out in the world we find
Success begins with a fellow's will.
It's all in the state of mind.


If you think you're outclassed, you are,
You've got to think high to rise.
You've got to be sure of yourself before
You can ever win a prize.


Life's battles don't always go
To the stronger or faster man,
But soon or late, the man who wins,
Is the man who thinks he can.


- Walter D. Wintle


Rick Majerus and Sayed Parwiz Kambakhsh

Two stories from different parts of the globe seem to have, in a sense, some striking similarities. Rick Majerus, basketball coach at St. Louis University, a Catholic institution, stated at a Hillary Clinton rally that he, a Catholic himself, is pro-choice. The St. Louis archbishop, Raymond Burke, has demanded that he be disciplined by the University and denied Holy Communion. See http://www.stltoday.com/stltoday/news/stories.nsf/religion/story/
30545D6CFAE202E1862573D90017AE3B?OpenDocument.

Thousands and thousands of miles away in Afghanistan, a court sentenced Sayed Parwiz Kambakhsh, a 23-year-old journalism student, to death for blasphemy for distributing an article from the Internet that was considered to be an insult to the Prophet Mohammad. See http://www.nytimes.com/2008/01/24/world/middleeast/24afghan.html?ref=todayspaper.

I leave it to you to judge whether there is or is not a striking similarity in terms of fundamentalism. 'Nough said before I lose the few readers that we have.


Hangmen's Nooses

It seems like hardly a day goes by without some idiot insulting African Americans with the display of a hangman's noose. Now, the EEOC announced a $465,000 settlement with a North Carolina furniture company, Henredon Furniture Industries, in a case arising, in part, out of the display of a hangmen's noose. See http://www.eeoc.gov/press/1-24-08.html.


In California, You Can Have Your Ganga, but Not Your Job

A divided California Supreme Court yesterday in Ross v. Ragingwire Telecommunications, Inc. 2008 Cal. LEXIS 784 (3d Dist. Ct. App., #C043392, 9/7/05) upheld the employer's termination of an employee who tested positive for ganga and who argued that to do so was disability discrimination because, pursuant to California's Compassionate Use Act of 1996, a doctor had recommended ganga for medical purposes.


Privacy and the Company Computer

Recently, in Scott v. Beth Israel Medical Center, 2007 WL 3053351, 2007 N.Y. App. Div. LEXIS 7561 (NY Sup. Oct. 17, 2007), the hospital and a doctor who had been formerly employed there, locked horns over emails on the hospital's computer system between the doctor and his attorney. The hospital argued that the privilege status of those communications had been waived by the doctor by virtue of the fact that he had used the hospital's email system to communicate with his lawyer. The court, utilizing the test articulated by the Bankruptcy Court of the Southern District of New York in In re: Asia Global Crossing, Ltd. 322 B.R. 247, 2005 Bankr. LEXIS 415 (Bankr. S.D.N.Y. 2005), concluded that no privilege attached to the doctor's emails with his attorney as the court determined that the doctor had actual or constructive notice of the hospital's policy which stated that its communications systems were its property and were to be used "for business purposes only," and that employees "have no personal privacy right in any material created, received, saved or sent" using those systems. See also Long v. Marubeni America Corp., 2006 WL 2998671, 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006) (court held that employees had waived privilege even though employees, in communicating with their counsel, used personal, password-accessed email accounts).


Leave Home Without It

Recently, in In re: Boucher, 2007 WL 4246473, 2007 U.S. Dist. LEXIS 87951 (D. Vt. Nov. 29, 2007), Magistrate Judge Niedermeier quashed a subpoena which would have required a Mr. Boucher to provide the password to encrypted files on his laptop, holding that to do so would violate his Fifth Amendment right against self-incrimination. This case is on appeal to the First Circuit.

In United States v. Arnold, 454 F. Supp. 2d. 999 (C.D. California, 2006), Judge Pregerson also refused to authorize a search of a laptop. Judge Pregerson's decision was argued on appeal before the Ninth Circuit last October, and some are predicting a reversal based on the oral argument. United States v. Arnold, No. 06-50581 (9th Cir. 2007).

The Fourth Circuit in 2005 in United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005) upheld a conviction in circumstances somewhat similar to the above cases.


Corporate Social Responsibility

For those advising clients regarding CSR policies, read the Maquila Solidarity Network report on Corporate Social Responsibility available at http://en.maquilasolidarity.org/en/node/749.

James v. Metro Government of Nashville

Someone asked if I would set out the citations that reflect the circuit split on this issue - the issue being whether the judge or the jury decides whether the facts support a claim that the retaliatory act could have deterred protected conduct. In our post of Friday, we provided the Fourth, Sixth and D.C. Circuit authorities on this issue.

The Fifth Circuit has held that judges, not juries determine whether the fact-bound Burlington Northern standard has been met. See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437 (5th Cir. 2007). The Eleventh Circuit so held in Collins v. Board of Trustees of University of Alabama, 211 Fed. Appx. 848 (11th Cir. 2006). The Eighth Circuit goes with courts, not juries. See Higgins v. Gonzales, 2007 WL 817505 at *8-*9 (8th Cir., March 20, 2007). The Seventh Circuit in at least six cases since Burlington Northern has held that judges are to decide the question. See Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 459 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 781 n.3 (7th Cir. 2006); Szymanski v. County of Cook, 468 F.3d 1027, 1031 (7th Cir. 2006); Thomas v. Potter, 2002 Fed. Appx. 118 (7th Cir. 2006); Novak v. Nicholson, 2007 WL 1259054 at *5 (7th Cir., Apr. 12, 2007); Schmidt v. Canadian National Railway Corp., 2007 WL 755171 at *4 (7th Cir., Mar. 13, 2007).

In addition to the D.C. Circuit, three other circuits have held that juries, not judges, determine the question. The Third Circuit has so decided in at least three cases. See Hare v. Potter, 2007 WL 841031 at *11 (3d Cir., Mar. 21, 2007); Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 1325 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 347 (3d Cir. 2006). The Second Circuit has aligned itself in favor of juries. See Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 209-10 (2d Cir. 2006); Wrobel v. County of Erie, 211 Fed. Appx. 71, 73 (2d Cir. 2007); Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006). And, the Tenth Circuit has joined the Second, Third and District of Columbia Circuits in holding that the application of the Burlington Northern standard to the circumstances of a case is a matter for a jury. See Williams v. W.D. Sports, 2007 WL 2254940 at *10 (10th Cir., Aug. 7, 2007).

False Claims Act

On January 22, 2008, the U.S. Supreme Court denied cert in U.S. ex rel. Bly-Magee v. Premo, Case No. 05-55556 (9th Cir. Dec. 13, 2006). The Ninth Circuit's opinion is at 470 F.3d 914. In Bly-Magee, the Ninth Circuit ruled that non-federal reports, audits, and investigations qualify as a source of public disclosure under 31 U.S.C. section 3730(e)(4)(A). This represents yet one more split in the circuits, for the Third Circuit limits this provision to federal reports, audits, investigations. See U. S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997). The Eighth Circuit, on the other hand, agrees with this Ninth Circuit decision. See Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003).

FLSA Settlements

If you settle an FLSA claim and have it supervised by the US Department of Labor, pursuant to 29 U.S.C. Section 216(c), the settling employee may end up signing off on a government form entitled WH-58 "Receipt for payment for lost or denied wages, employment benefits, or other compensation." In a recent opinion, the Ninth Circuit teaches us that the language contained in that form can either extinguish a claim or merely extinguish some portion of a claim.

In Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141 (9th Cir. 2007), Mr. Dent signed a WH-58 which acknowledged receipt of payment of unpaid wages for the period beginning with the workweek ending May 4, 2002 through the workweek ending October 11, 2003. Thereafter Dent claimed unpaid wages for a time period prior to May 4, 2002. The district court dismissed his claim, accepting the employer's argument that the unpaid overtime wage claim had been settled in full. The Ninth Circuit reversed, finding that his claim was released only with regard to the time period specified in the WH-58.

Two New New Jersey Employment Statutes

New Jersey has amended its Law Against Discrimination and expanded it to require that employers reasonably accommodate sincerely held religious beliefs unless to do so would impose an undue burden. The statute now defines "undue hardship" as an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement. Further, the statute states that, in determining whether an accommodation constitutes an undue hardship, the factors considered shall include:

• The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.


• The number of individuals who will need the particular accommodation for a sincerely held religious observance or practice.


• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The other statute concerns employment protections for employees on military leave in time of war or emergency.

Insurance Coverages for Federal Employees

There was an interesting article in one of the newspapers in the last few days about insurance coverages provided to federal employees who might be sued, and presumably not otherwise protected by immunity doctrines. Wright & Company, a Virginia-based insurance company, writes coverages. The article indicated that it provides $200,000 for legal fees incurred in an administrative proceeding, an additional $100,000 in fees for criminal investigations, and up to $1,000,000 for damages incurred in civil litigation. See: http://www.wrightandco.com/wmspage.cfm?parm1=23.

Corporate Social Responsibility

The January 19, 2008 issue of The Economist has a special report on corporate social responsibility. Reprints of the report are available. See www.economist.com/rights. A list of sources can be found at www.economist.com/specialreports and an audio interview with the author can be found at www.economist.com/audio.

For those who are interested, there is an ABA corporate social responsibility committee. If you should be interested in joining, please let me know and I will forward your name to the committee chair.

Hangman's Nooses

In the past week we have observed first Kelly Tilghman making an utter fool of herself on the Golf Channel when she said that the way to defeat Tiger Woods was to take him out and lynch him. That merited only a two week suspension. Then to add fuel to the fire, Golfweek distributes this past week's issue with a cover image of a noose for an article about Ms. Tilghman's idiocy. That thankfully merited the discharge of Dave Seanor, the editor.

Some of the obvious questions raised by these two incidents, other than being dumbfounded that supposedly intelligent people still just don't get it, would be the following:

• How come it took two days to apologize? You would have thought that within seconds after Ms. Tilghman uttered her stupidity, that she or someone associated with the channel, would have realized that what she said was over the top, and an apology should have issued within moments after she said what she said. Makes you wonder whom, in addition to Ms. Tilghman, at the Golf Channel simply doesn't get it.


• Makes you also wonder what the hiring practices are at the Golf Channel. I would assume that if there were African-Americans on the production team, that one of them would have spoken up immediately and demanded that she apologize on the air. I sure would like to see the Golf Channel's hiring statistics.


• That takes me to Golfweek magazine, the cover page, I am told, was vetted by a committee. So, it isn't just Mr. Seanor who doesn't get it, there are many others at the magazine who are simply clueless or worse than that, closet racists who took pleasure in insulting millions of our citizens. So, one wonders why Mr. Seanor is the only person who was disciplined. Yes, "the buck stops here", and the boss takes the fall, but the others ought not to go scot free.


• Finally, the incident, like the Golf Channel incident, has to raise questions about the hiring practices at Golfweek. Again, I sure would like to see some data.
  

The EEOC recently obtained a $2.5 million settlement on behalf of an African-American electrician who claimed he was harassed daily, including the display of nooses, at Lockheed-Martin. This was the largest settlement filed by EEOC on behalf of an individual. See: http://www.diversity.com/public/2919.cfm
http://www.eeoc.gov/press/1-2-08.html

Since Fiscal Year 2001, the EEOC has filed more than 30 lawsuits that involve the displaying of hangman’s nooses on the job. It recently settled for $290,000 such a claim against Helmerich & Payne International Drilling in Jackson, Mississippi, for $390,000 against Pemco Aeroplex in Birmingham Alabama, for $600,000 against AK Steel in Butler, Pennsylvania, and for more than $1,000,000 against Commercial Coating Service of Conroe, Texas. Tresa Baldas, EEOC Targets Workplace ‘Noose” Cases, National Law Journal, November 5, 2007. Available at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1193735026861. See Stephanie Armour, “Racial Bias Suits Climb in Workplaces,” Asbury Park Press, Oct. 29, 2007, available at http://www.app.com/apps/pbcs.dll/article?AID=/20071029/BUSINESS/710290307/1003.

For additional coverage of the Golf week debacle see:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902439.html?sub=AR

http://www.nytimes.com/2008/01/19/sports/golf/19magazine.html?_r=1&scp=1&sq=golfweek+fires+editor&st=nyt&oref=slogin

For some startling discussion of the use of nooses as a form of racial discrimination in the workplace see:

http://query.nytimes.com/gst/fullpage.html?res=9804E3DF1238F933A25754C0A9669C8B63&scp=1&sq=nooses%2C+symbols+of+race+hatred&st=nyt

http://www.cnn.com/2007/US/11/01/nooses/index.html

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702700.html

http://www.businessweek.com/magazine/content/01_31/b3743084.htm?chan=search

Sunrise Senior Living Sued by Former CFO

The former CFO of Sunrise Senior Living filed suit back in September in Fairfax County Circuit Court in Virginia, claiming that he was fired in retaliation for uncovering improper accounting practices. Sounds like a snooze, but, trust me it has gotten real interesting. In recent court filings, Sunrise disclosed that it had discovered "more than 25,000 unique pornographic images" on a company-owned computer used by the former CFO. That disclosure raises interesting issues regarding the former CFO's attempt to delete material from laptops provided to him by Sunrise. Sunrise alleges that the former CFO returned one of two laptops after deleting all active electronic files, and that only after a forensic examination did it find the evidence of pornography on parts of the hard drive that had not been wiped clean. The former CFO's attorney has asked the court to strike all references to the pornography, arguing that Sunrise's instructions regarding retention of materials related to accounting activities under investigation and did not require the retention of the "adult materials". We hope to obtain more information about this interesting case and report further in the future.

Baseball

General Sherman supposedly once said: "If I owned Texas and Hell, I would rent Texas and live in Hell." Quite obviously, Roger Clemens is betting that the good citizens of Harris County, Texas will prove the good general wrong. In what, in retrospect, may well be viewed as a serious blunder, Brian McNamee's lawyers threatened to sue Clemens if he went on 60 Minutes. Presumably, that lawsuit would have been filed in a more favorable venue than Harris County, Texas. But Rusty Hardin beat McNamee's lawyers to the punch, and filed a fourteen page complaint for defamation in Harris County before McNamee could file elsewhere. The complaint can be found at http://i.cnn.net/si/2008_images/2008.01.06_Clemens_Original_Petition.pdf.

I am beginning to get that itch that starts about this time every year - the itch to go south for spring training. Many players that I would love to go observe. Will Elijah Dukes get through spring training before he gets arrested yet again? How will D Train (Dontrelle Willis) do in the American League? And who is this latest deportee from Japan, Yosuke Kukudome, who will play right field for the Cubbies?

Damages

Put this under the category of crass commercialism. I co-chair a two day CLE conference sponsored by ALI-ABA on damage issues in employment cases which will be held February 7-8 at Georgetown Law School in Washington, D.C. If you are interested in registering, just contact ALI-ABA at 1-800-CLE-NEWS.