Archive for February, 2008

Do I Really Need a Metadata Scrubber?

February 27th, 2008

The California Bar Journal, a monthly newspaper for attorneys, had a recent update on laws regarding metadata, how to avoid disclosing it inadvertently to opposing sides in litigation, and what to do if someone sends you a document containing inadvertent disclosures.

There are a couple of items in it that might be surprising. Among these is that the California Supreme Court recently opined that if a lawyer receives a document from the opposite side and realizes that the document contains information in the metadata that could be detrimental, the lawyer has a duty to notify the other side of the disclosure.

The trick is that metadata is so pernicious that it’s almost impossible to get rid of without third-party tools. I once had a client that was the victim of “business plan theft”- someone else literally took the company’s business plan, changed the names and used it as its own. This was made crystal clear by the fact that the bottom of the plan had a Mail To hyperlink field. The thieves had typed a new address over my client’s text, but the hyperlink itself was unchanged. If one hovered over the link my client’s email address was still visible.

The more prosaic “forgot to removed tracked changes history” is an even easier way to reveal one’s intra-company discussions as well.

So the question is “who needs to scrub metadata”?

State and local Bar association opinions offer a pretty good answer. Lawyer conduct in litigation settings is highly regulated, and yet the bar associations are profoundly split on how to handle metadata. Some say that a lawyer needs to stop reading as soon as s/he finds confidential information (metadata) inadvertently disclosed, some say the lawyer need only notify the sender of the disclosure, and some say that the burden lies on the sender- leaving the recipient free to view, use and even actively mine metadata.

Taking this as a starting point, the clear answer is that once information has been disclosed it is in the open- at least in the vast majority of cases. So yes, if there is information to protect metadata scrubbers are valuable.

Microsoft has a tool called “Document Inspector” in Word, Excel and Power Point 2007 (not available in Mac Office 2008) that will make sure tracked changes are all removed from a document. Saving a document to pdf will have the same effect. I am told that third party tools such as Metadata Assistant and Workshare Protect do a more thorough job of identifying and removing undesired metadata, though I have not tried either of these products.

Most companies have good storage and backup policies to make sure data isn’t stolen lost in case of a catastrophic event. Metadata disclosure is probably more likely on a week-to-week basis (how many redlined documents do you work with regularly?) but gets less attention. As with most security measures, it probaby isn’t necessary in 99.99% of cases, but the 0.01% can be a killer.

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Roll-my-own Tumblr Digest

February 26th, 2008

I use this blog mostly for business oriented posts, and Tumblr and Twitter for “lifestreaming”. What I have discovered, though, is that the line gets frequently blurred and there are things I would like to post in two or more places.

On my Tumblr page, I have added feed digests from Twitter and The former sends one daily update of my tweets, and the latter shows my weekly top artists.

I would like to drop a daily Tumblr digest into this blog, both so that content that wants to be in both places can get there, and so that the feed from this blog doesn’t get overwhelming.

So, dear readers, this is both a notice and a request. I intend to keep using this blog for longer pieces, which seem to happen twice a week or so. At the same time, “short form” notes on interesting things I find from across the web and MP3 blogs may start showing up here.

The request is that if anyone has found a good way to do this, kindly let me know in the comments or by email.

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The First Rule of Holes

February 21st, 2008

I’m sure I am the last person to hear this term, but it’s a gem.

The First Rule of Holes is that if you find yourself in one, stop digging. It sounds so simple- I think the hard part may be understanding that you are actually in one, or maybe the urge to tunnel away from problems is just irresistible.

Either way, the term is going into my lexicon.


Slow Steps Into the Digital Age at the IRS

February 20th, 2008

For those who have never filed form 1099 before, one copy (red) goes to the IRS and another (black) goes to the independent contractor who provided services to a business. Apparently the reason for this is that the IRS’s computers scan the filings, and they can only read forms printed with red ink.

One can’t download the fileable form, because the shade of red must be very specific and a normal color printer can’t be trusted to get it right. One must have the forms mailed out or buy them from an office supply store. tells me that the Social Security Administration updated its systems to accept black copies of form W-2, but the IRS has changed its systems twice without adding this magical ability.

The IRS does allow 1099s to be filed electronically. This is a great step forward- it fairly leapfrogs the whole download/print/mail correct-color routine.

*However*, while thousands of businesses everywhere have figured out how to create online forms viewable and editable in any web browser, AND have worked out a way to let consumers create accounts online in minutes (if not seconds), the IRS is not quite there.

So in order to conveniently file my 1099s online, I must first mail in a form to the IRS, receive a Transmitter Control Code back by mail, and then download and install the IRS’s special form-creation software.

Identity theft and fraud are certainly big concerns so I can understand the need to verify identity before setting up accounts. Putting documents in the mail is not a remedy here though (the IRS should ask Network Solutions about Stephen Michael Cohen and on this point).

The IRS has a huge job managing millions of accounts. They are certainly correct to be careful, and kudos to them for getting on the e-filing program. My wish, though, is that after Microsoft takes over Yahoo and drives away key employees, that the IRS will see an opportunity to pick up some Internet expertise. Yahoo has great e-commerce software. Get some of the engineers behind it working on IRS e-file programs for all kinds of filing.

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Oh, Those Darn Fiduciary Duties

February 15th, 2008

It must be really tough to be Jerry Yang these days. First his no-sacred-cows 100 days campaign fizzled, now his Board is (if one believes the New York Post) seriously considering Microsoft’s tender offer.

Yang is a director as well, of course. That means that despite the obvious pride of ownership he has in the company, and his clear hope to turn things around rather than see the business picked up by anyone else, he needs to consider what is best for the shareholders.

But what is best? There is no way to answer this question, which is why directors and officers rely on the “business judgment rule” to shield them from Monday-morning quarterbacks everywhere. In short, so long as the Board acts conscientiously, considers all information that may be relevant to a decision and reaches a decision based on its analysis of all the facts at its disposal, the law provides significant protection- even if the Board’s decision works out badly.

In practice, emotions are hard to separate from facts. Yang and his fellow Board members need to put aside their personal feelings and decide whether the sale to Microsoft, sale to a third party, or going the course alone will bring the best outcome for shareholders. This is no mean feat, especially when you started the company and it has been part of your identity for a dozen years.

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A Letter of Intent Can be a Dangerous Thing

February 14th, 2008

I’ve been reading DC Toedt’s notes on “350 Things I Wish I Knew as a First-Year General Counsel”. He has a number of very good, practical observations about how to be an effective attorney- and not a “Sales Prevention Department”.

One that made me laugh was to remember that “the most useful function of a letter of intent—arguably its only proper function—is to establish that the parties do not intend to enter into a contract at that time.”

In other words, it’s a contract to say that there is no formal contract. The comment is hyperbole, of course- the parties do intend to enter a contract at a future time or they wouldn’t bother with the LOI to begin with, but there is a lot of truth to it at the same time.

I ‘ve definitely seen deals go bad between the LOI and the final agreement. Most LOIs say explicitly that they are non-binding, but having the signed piece of paper can have some kind of placebo effect that gives people undue confidence in the strength of a relationship.

I actually had one client that got a signed LOI, proceeded to hype it for all it was worth and told a bunch of investors that the final agreement was a mere formality. The investors chose to wait for the final agreement before committing, and when the other side backed out it was very embarrassing for everyone. I don’t think the company ever recovered.

So yes, letters of intent are great to have. Just don’t bet the company on one.

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Dilbert and the Corporate Lawyers on Protecting Secrets

February 11th, 2008

I love it when legal advice and common sense overlap. Here’s Dilbert presenting the entirely reasonable proposition that marking something “top secret”, then putting it in public view is likely to give it wider distribution (some might call it an “attractive nuisance”).

Next up, a reasonably typical paragraph from a non-disclosure agreement. It says confidential information needs to be so marked. That makes sense, too- especially when the sensitive information belongs to another company.

It’s paragraph 7 that pulls it together. It’s not good enough to get someone’s business plans and leave them lying around- even if they are marked confidential. Keep them secure.

And for those who find lawyers overly wordy, it took Dilbert three pictures to say what the agreement does in 111 words. So much for the old adage.

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I’ll Take My Metadata to Go, Please

February 9th, 2008

OpenSocial, OpenID and the rest of the shared-social graph ideas are promising, but they are starting to make me channel Rodney King and ask “can’t we all just get along?” Everyone seems to love the idea, but no one knows how to manage the details.

Meanwhile, I use Zimbra on my Mac. My wife uses Yahoo and Outlook. I want to share my calendar with her, but can’t figure out how to do it. If there is a cross-platform calendar sharing utility I definitely have not found it.

In a similar vein, I use, Pandora and occasionally Hype Machine and Seeqpod (whose days seem sadly numbered) to stream music, and Sonic Living for event updates. They should all talk the same language so I don’t have to enter my favorites over and over- or at least work from the same starting point using my iTunes listening habits. I understand that each site’s “secret sauce” is its music-recommendation algorithm, so by all means wow me with great picks. Just don’t make me tell you again and again what I like. Is that really so difficult? Apparently.


Tumblr, Grr – But Hey There’s a Nice Bit of Code

February 9th, 2008

I started playing with Tumblr a little while ago. My page is here. It is a short-form blogging platform that is great for posting music, photos, videos, etc. It is decidedly techy, though.

The site offers a variety of “themes” to choose from, and also give users total freedom to edit the HTML. This is nice if you actually know HTML because it lets you add all kinds of features like search boxes, comment systems, feedburner integration, etc. Changing default themes, however, wipes out any custom code.

I know- as the proverbial saying goes- just enough HTML to get myself in trouble, and no CSS or javascripting whatsoever. I have tried out most of the themes I have found, which means that when I factor in all the theme changes and the back-to-defaults after I break the page with faulty code, I have now re-added comments, a Lijit search box and a Feedburner feed to my tumblog approximately 9,472 times.

I’m pretty good at it by now- or at least if I can find good directions I can follow them easily. I’m lost as soon as I get off the map, though.

Fortunately, I am now reasonably happy with my page and I am resolved to stop messing with it. Then again, I like the way Bijan Sabet does his comments integration. Wish I could figure out how to copy that . . .

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Small Mysteries Solved – Why Lawyers Write in ALL CAPS

February 8th, 2008

Why is it that certain parts of most commercial-type business agreements have sections written in ALL CAPITAL LETTERS? Don’t the lawyers who wrote it know they are shouting?

The answer is mundane, a little unsatisfactory and pleasantly simple all at the same time. Commercial arrangements in the U.S. are governed by and large by the Uniform Commercial Code, a set of model laws prepared by a national conference of experts and adopted- more or less verbatim- by each state.

Article 2 of the UCC covers sales agreements. Among other things, it says that when goods are sold, there is an implied warranty that the goods are “merchantable”, or of decent quality.

Further, the article says that any limitations on this warranty must be CONSPICUOUS.

All caps is the practical way of satisfying this requirement. While the SEC and others in the Plain English camp might argue that putting complete paragraphs in capital letters actually lessens readability, we can be thankful that this not the accepted view. The alternative might be to put the language at the top of the agreement, or under separate signature, or otherwise turning the conspicuousness requirement into a nuisance.

Happily, the conference of delegates, courts and wise heads everywhere reached the sensible conclusion that capitals got the job done so that we could all move on to more important matters such as making the documents actually facilitate the transactions to which they relate.

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