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legal: tony wilson

If you're a small to medium-sized business, you've no doubt sent out correspondence, quotes, invoices and deal sheets by e-mail.

If there have been any negotiations between you and a client or supplier, you may have sent out a Letter of Intent, a Memorandum of Understanding, a draft contract or some other document as an e-mail attachment in Microsoft Word or a similar format, with the knowledge that the other side will be able to insert comments or suggest changes so the parties can get lawyers involved (if the transaction is large enough to warrant it).

Hopefully both parties have used features such as Word's "track changes" function to allow them to see each other's revisions. If you're simply sending Word documents by e-mail holus bolus and thinking the other party won't modify the document without telling you, guess again.

Until I started acting for her, a client of mine used to send her franchise agreements out to franchisees in MS Word to print out and then return the executed hard copy to her. I got involved because one of her prospective franchisees had surreptitiously changed some of the essential terms of the agreement without her consent (such as the length of the term, the renewal right and the royalty rate). The franchisee had made these changes in the same font and font size as the original document, and had signed and retuned the hard copy without advising the franchisor of the modifications, or highlighting them in any way.

He hoped she wouldn't look. Needless to say, when she asked me what to do, I told her: "Sometimes bad faith just hits you in the face. Do you really want to be in business with someone who would pull that stunt on you?"

Thankfully, the deal died.

But the words within an electronic document are just part of the problem. You have to understand that a document contains more than just words. You have to be very concerned about the metadata in it.

What's metadata? It's a Greek word, and it means data about data. If online is a binary world of zeros and ones, then the concept of data about data is important. It's the information behind the words, like layers of an onion or the iceberg below the waterline. Metadata is information about the history, tracking or management of an electronic document. Failure to appreciate its importance could be career limiting.

Say you've just received a proposal from Triple-Dipple Trading in MS Word, and you want to know more about the document and its author. The easiest way to find the most basic information is to see its "properties," which you can do by going to the File toolbar and selecting Properties from the drop-down menu. You might find the document wasn't authored by the person you're dealing with at Triple -Dipple, and it might even specify a company that isn't the one you're actually dealing with. In other words, Triple-Dipple acquired this original electronic document from somewhere else, perhaps from another party on another deal, and modified it to suit its needs.

In some circumstances, you can see the changes made and accepted to a document e-mailed to you going back all the way to the date the original version was created. This can be done by accessing the track changes function and going "back" as far as you can. If, after reviewing the tracked changes in a document, the author chose "final" in the reviewing toolbar instead of "accept all changes," the recipient of the document could click "original showing markup" and see the history of all the changes made. This might reveal different terms, different pricing and other highlighted changes made to the document before it was e-mailed to you, and reveal the people who reviewed the document.

Or you might notice there are still comments embedded in the document when you hit the "comments" function.

Although not a part of "tracked changes," I've heard of some documents having comments made in white text in order to hide the words from everyone except the author. Of course, if the colour of the font is changed, the white text is exposed.

What can be worse is thinking you're hiding portions of text by highlighting words or sentences in "black" using the highlight function. Although this might look secure at first glance (and somewhat like bits of it have been crossed out with a thick black felt pen by a censor or the RCMP), all readers have to do is re-highlight the words covered up, click yellow highlighting or, even better, no highlighting, and they'll see what the not-so-smart censor tried to cross out.

For the recipient of a document that hasn't had the metadata "scrubbed," the ability to see previous tracked changes, deletions, imbedded comments and white text might be a windfall in terms of positions to take in negotiations.

For the sender, well, you might think your organization has a mole or a spy in it, and rent James Bond movies for a quantum of solace.

But metadata isn't just an issue for business. For teachers and university instructors, metadata in an essay or assignment can reveal that the purported author of the assignment wasn't the student enrolled in the class, but someone else, such as a commercial essay preparation company or another student. So metadata can potentially reveal plagiarism and other academic offences.

Politicians have failed to appreciate the importance of metadata. The so called "Downing Street Memo" was downloaded in MS Word from the British Prime Minister's website in 2003, and it revealed that the press officers and others in the PM's office who prepared the memo justifying the war in Iraq, "cut and pasted" an American graduate student's article into the memo word for word without, of course, referring to the student's work, or changing anything, begging the political question: Who's in charge of the UK's foreign policy anyway? Washington or London?

In 2002, a lawyer I know was shocked to learn a securities filing he was involved in drafting revealed his "hidden" comments in the version of the prospectus filed with the TSX by another lawyer. The TSX was good enough to call the lead lawyer and alert her to the problem. And for all the litigation lawyers out there, the metadata behind a document is discoverable in litigation proceedings.

Although sending documents as e-mail attachments in PDF is far superior to sending documents in Word, some metadata, like the author's name, can survive a conversion of a word document to PDF. Scanning a document to PDF, however, will not contain metadata. And nether will faxes.

The answer to all this lies in using special software to "scrub" the metadata off the document before the document is e-mailed, prompting you to hit "scrub" or "not scrub" each time you e-mail a document.

So if transmitting documents by e-mail is a function of your business, unless you scrub your document clean of metadata, the recipients of your documents can learn a lot more about your document, your business and you than you might think. Or want.

Special to the Globe and Mail

Vancouver franchise lawyer Tony Wilson is the author of Buying A Franchise In Canada – Understanding and Negotiating Your Franchise Agreement and he is ranked as a leading Canadian franchise lawyer by LEXPERT. He is head of the Franchise Law Group at Boughton Law Corp. in Vancouver and acts for both franchisors and franchisees across Canada, many of whom are in the food services and hospitality industry. He is a registered Trademark Agent, an Adjunct Professor at Simon Fraser University and he also writes for Bartalk and Canadian Lawyer magazines.