A good summation of Microsoft Word metadata issues for lawyers

I have been involved in teams of litigators on the biggest cases around with dedicated IT people fixing everything IT related, and consider myself to be relatively well aware of the perils of electronic documents. But some metadata slipped out with a document not so long ago, a comment which I could not see in the Word view mode I was in before I emailed it. It probably went unnoticed by my opponent, but a footer in a word document resulted in BHP — one of Australia’s then biggest companies — paying hundreds of millions of dollars to settle the Ok Tedi litigation after being convicted of contempt of court (see below for Julian Burnside‘s account of it). (The conviction was later set aside, but, alas, too late.) Here is a useful article from the American Bar Assocation which summarises the perils of not expunging the metadata generated by use of Word’s track changes feature of draft documents, with lots of links to technical help on the issue. And here is an article from www.discoveryresources.org linked to from that article which explores the issues well too. But now, back to the Ok Tedi Case, probably the best metadata horror story out there, but, I think little known outside Melbourne legal circles:

“natives of the Ok Tedi River in Papua New Guinea [brought an action] against mining giant BHP. BHP had established a copper mine in the New Guinea highlands. The tailings dam failed and it was going to be expensive to rebuild it. BHP persuaded the government to allow it to dump the tailings into the river. As a result, millions of tonnes of polluted tailings were poured into the river from which, for generations, the natives had derived their sustenance. The river was polluted beyond recognition and the natives’ traditional way of life was destroyed. The government’s response was to offer resettlement. A suit was brought in the Supreme Court of Victoria… just 2 blocks away from BHP’s headquarters. When BHP began to recognise that it had some problems in the litigation, an astonishing thing happened. The government of PNG passed an Act which made it a criminal offence to sue BHP for polluting the Ok Tedi River or to continue any such action already on foot; it also made it a criminal offence to assist a person to bring or maintain such an action.

Things looked grim. Plainly, it was not possible to do anything to overturn the
legislation; and it appeared to be impossible to continue the litigation since we lawyers, and our clients, would thereby be committing an offence. But we discovered that BHP’s lawyers had drafted the legislation: a draft with their word-processing footer was found. We charged BHP with contempt of Court: they had knowingly taken steps to impede our clients’ access to the Court in existing litigation. The judge agreed with us, and found BHP guilty of contempt just at the time their annual general meeting was to be held. Their share price fell significantly, wiping millions of dollars off their market capitalisation. Their bad behaviour dominated the AGM. Within a fortnight they came to the negotiating table and resolved the litigation.”