PDF is the file format of choice when exchanging documents with clients, other lawyers and the courts. Because of their prevalence, it is critical that lawyers understand the uses, risks and benefits of PDF files. This session covers how to work with PDF files, including metadata removal, document security, redaction, Bates numbering, collaboration features, as well as the pros and cons of the different PDF applications.
1. Why is this Important?
Too many lawyers and firms have not embraced technology; in fact, they view the technology they depend on in their practice as being nothing more than a tool that is for assistants and clerical staff to understand. Those lawyers and firms that persist in this outmoded view will become today’s dinosaurs and like those long-gone creatures, will eventually die off and be replaced by those who adapted to the changing world. But beyond the economic issues posed, there is the recognition that technology isn’t just something that only the support staff needs to understand: this was made clear with the adoption of Comment 8 to Rule 1.1 Competence of the ABA Model Rules of Professional Conduct in 2012.
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (emphasis added).
This comment change validates what many in the legal technology world have long said: with advancements in technology and the extent to which it has become inseparable from a lawyers’ practice, lawyers, not just their staff, must have a working understanding of the technology they use on a daily basis. Let’s consider some of the requirements of the modern law practice and see why you cannot hide from technology any longer.
For those who practice in federal court, e-filing has been a fact of life for many years. State court practitioners are finding that their courts have also adopted e-filing or are in the process of doing so as well. With e-fling, you no longer take paper pleadings to the clerk’s office for filing; you now send them in PDF format by email or upload them to the Court’s online portal such as the federal ECF/PACER system. Lawyer’s and their staff must be able to convert documents to the proper PDF format, navigate the internet to the proper website site, use the system to upload the documents and be able to receive information from the courts in electronic format as well as pay for these services electronically. For lawyers without staff, or that only have part time support, with appellate practices – do you know how to insert a Table of Authorities into the appellate brief? Can you convert your briefs to PDF/A format for filing? Are you able to convert a document to PDF and remove confidential or restricted information such as birthdates, social security numbers and other personably identifiable information using redaction tools in your PDF software or third party products? You should as the removal of this information before filing is an absolute requirement in federal court and in many state courts as well.
One of the facts of the legal profession is that it includes lots of paper. There are letters, pleadings, orders, memorandums, cases, statutes. Some weeks it seems like you receive a ream of paper from opposing counsel.
The volume of paper poses three immediate questions: First, what format do we use when we convert it from paper to digital files? Second is a storage problem. i.e. where do you put the ever-increasing paper. Third, is an analysis problem i.e. how do you analyze and search the information in the documents that you have?
2. Why PDF?
When it comes to what file format to use to store scanned documents the only format you need to consider is the Portable Document Format (PDF) created by Adobe Systems.
Invented by Adobe Systems and perfected over 20 years, Portable Document Format (PDF) is now an open standard for electronic document exchange maintained by the International Organization for Standardization (ISO). When you convert documents, forms, graphics, and web pages to PDF, they look just like they would if printed. But unlike printed documents, PDF files can contain clickable links and buttons, form fields, video, and audio – as well as logic to help automate routine business processes. When you share a PDF file, virtually anyone can read it using free Adobe Reader® software, the Adobe Reader mobile app, or any of a variety of other programs or mobile apps.
Think of a PDF as a photocopy of your paper document. The key fact in this statement from Adobe is that PDF is now an open standard. This means that lawyers and their employees are not limited to using only Adobe products to create, edit, and view a PDF. The PDF also has the benefit of being an electronic duplicate of the document, whether it is created on a computer in a word-processing program or scanned from a paper document. Think of a PDF as an electronic photocopy that provides the ability to limit changes and can be digitally secured and authenticated.
PDF has moved from being the de facto standard for storing and sharing electronic documents in the legal world to the de jure standard based on its adoption for use by federal and state courts and governmental agencies. Because electronic filing is required for lawyers in the federal courts and many state courts, understanding the tools available to create PDF documents is a necessity.
3. PDF Software
There are a number of software and online tools to create PDF documents available. A small sampling of them are shown on the chart attached as Addendum A to this paper provided by our friends at Affinity Consulting. In this paper we discuss the ways in which you can use PDFs in general and Adobe Acrobat DC from Adobe or Power PDF from Nuance, in particular to handle your documents.
There are two versions of Adobe Acrobat DC (Acrobat) – Standard and Pro as well as two versions of Nuance Power PDF (Power PDF)- Standard and Advanced. The standard version of most PDF software tools provide you with the basics including creating, inserting, deleting pages and re-ordering pages, adding text to the PDF much like a typewriter, commenting, creating bookmarks, making the PDF searchable and some form of Optical Character Recognition (OCR) capability to allow you to convert the image that is the PDF into text such as a Word or Excel document. For those that need to submit PDF/A documents for electronic filing, the Standard versions usually include this functionality as well. The Advanced or Pro versions, add features that lawyers will need including redaction, bates numbering, form creation and other advanced features. Take a look at Addendum A to compare the features and functionality between the Standard and Pro versions. The reality is that most attorneys should have the Pro version of the software.
If you need to just view a PDF file, Adobe also makes the free Adobe Acrobat Reader DC (https://adobe.ly/2Dzb9n8) which allows you to view, print and comment on PDF files, but not much else. Other free readers include Nitro Reader (http://bit.ly/2DwTZqp) and Foxit Reader (http://bit.ly/2Dw43Qp) which include more features than Acrobat Reader including the ability to create PDF files. For a list of more free PDF readers, see Techradar’s The Best Free PDF Reader 2018 at http://bit.ly/2DwBsu9 or Fossbytes 10 Best Free PDF Reader Software for Windows (2018 Edition) at http://bit.ly/2DwBClf .
To properly handle PDF files, you and your staff need the more advanced capabilities only found in the paid PDF tools. For a detailed comparison of features between Acrobat Standard vs. Pro, Adobe Provides a comparison chart at https://adobe.ly/2DuA4Zc . You will find a similar chart for Power PDF at http://bit.ly/2Dy1k8Y. For creating PDF/a files with Power PDF you need the Advanced version.
Acrobat is probably the most widely used PDF tool in law firms throughout the U.S., but with the advent of tools such as Power PDF, NitroPro and others that provide similar features as Acrobat but without requiring a subscription have made them much more attractive as alternatives to Acrobat.
4. What Are PDFs?
As mentioned earlier, think of a PDF as an electronic photocopy. Thus, having a PDF of a document on your computer is the same, conceptually, as having a photocopy of the same document siting in your file folder but in electronic format.
The key difference between the PDF and a piece of paper, however, is that the PDF can contain more information than the piece of paper. In addition to the photocopy of the document, a PDF can also contain information such as an invisible copy of the text. This invisible text layer can then be searched, indexed, copied, or otherwise examined and used.
This invisible layer can be embedded in a PDF in one of two ways. When the PDF is created or after the fact. You can do this by printing to the Acrobat or Power PDF print driver, or by using the macro these programs add to programs such as Word, or by using the PDF creator built into many programs. This process not only creates the image of the document i.e. the photocopy, but also embeds the layer of text from the original document as well. But what about PDF files you receive from outside the office, those files that you did not create and that are just an image?
To add the invisible text layer to these documents, you have to run the file through the OCR process. This process can be done from within Acrobat or Power PDF, or by using a third party product such as ABBYY FineReader (http://bit.ly/2EXNWIp ) or OmniPage Ultimate (http://bit.ly/2EZpUNt ). One interesting feature of note that Acrobat has had for many years is that when you have an image only PDF, Acrobat allows you to not only create the text layer, but also to enhance and automatically straighten or align the PDF image at the same time. This is a useful feature if the image is skewed from not feeding straight when scanned.
Power PDF has added a similar feature that will automatically orient skewed page as it runs OCR to make the page searchable.
Regardless of the method, having this invisible text layer can be invaluable in how you handle and use PDFs. It is this text layer that allows you to use computer search tools to search within the text of a PDF just as you search within a word processing or other Office document format such as Excel or WordPerfect.
One thing to keep in mind is that the invisible text layer that is created when you generate the PDF by printing it, is that it is 100% accurate. The invisible text layer created by OCR on a scanned document is something less than 100%.
The invisible text layer created by OCR on a scanned document is something less than 100%.
In the latest version of Acrobat, Adobe has changed its tool bars and menus significantly. Often the easiest way to access a tool that does appear on your tool bar is to type its name in the “Find your tools here” search box, found either in the tools pane or under the Tools Menu.
5. How to Remove Metadata from a PDF
Every electronic file contains metadata. Metadata is often described as “data about data”. At its most basic form, metadata is simply information contained in a file that is not readily apparent from simply viewing the file itself. Examples of metadata in a PDF include author details, Subject, Title, File name as well as the invisible text layer that we discussed above.
Every file contains metadata, and that is not inherently a bad thing. However, there are times that the Rules of Professional Conduct require you to take steps to ensure that you do not accidentally disclose confidential or privileged information when transferring a file, which includes disclosing this information from the inclusion of metadata in the PDF or other electronic file. Thus, you may need to take steps to remove metadata from your file. The ABA Legal Technology Resource Center has a useful chart and links to ethics opinions throughout the U.S. that pertain to metadata as well as a summary of that opinion. You will find this chart at http://bit.ly/13OrpXp .
Metadata is generated in a file in several different ways. First, every program that create electronic files, creates metadata, including Acrobat and Power PDF. Automatically generated metadata includes information such as the file name, the date and timer the file was created, who created it, the last date it was modified, etc. who created, etc. Additionally, depending on how the PDF was created, it is possible to include metadata from an underlying program into a PDF such as comments from Word. You can also add your own metadata to a PDF. You may be asking “Why would I want to do that?” The answer is that it can help you find the file (add keywords), provide more details about who worked on the file, add comments or notes, etc. If you want to learn how to add metadata to a DF in Acrobat, checkout this link: https://adobe.ly/2DypgJG. For Power PDF, check out this link: http://bit.ly/2DwTn40 . However, more common is the need to remove metadata from a PDF and both Acrobat and Power PDF (both Standard & Pro/Advanced versions) allow you to do this, here’s how:
Fortunately, Acrobat allows you to examine your document and remove any confidential metadata. To examine a document for metadata, select the Tools > Protection > Remove Hidden Information. This process will reveal the metadata in your document, identify its location, and allow you to remove it as shown here.
The best part of the process is that removing the metadata is as simple as clicking the Remove button.
By doing this, you can ensure that any document that you send to another person has had any confidential information removed from it. Although no single software product can ensure that you comply with the Rules of Professional Conduct, Adobe Acrobat can help place you one step closer to helping you keep confidential information secure.
Power PDF places this function under its Security menu and provides a button for “Remove Elements.”
This opens the next screen where the end user determines what metadata is to be removed.
If you only want to remove Metadata, simply click the Remove button and you are done!
If you click the “Clean Document” button rather than the Remove Elements button, this triggers a removal of all of the elements including metadata with a single click.
In addition to needing to protect information hidden in your document, you may also need to redact information that is visible on the face of the document itself. Common information that needs to be redacted includes birth dates, social security numbers, and account numbers. In fact, the Northern District of Illinois requires attorneys to certify that they have redacted certain information before the system allows them to sign into the electronic filing system.
An important fact to keep in mind is that that once information is redacted in a PDF using a general PDF tool such as Acrobat or Power PDF, it is removed forever. Thus, you must always be careful to make sure that when redacting a document, you save it with a new name or start with a copy. If you fail to do so, your original file will be irretrievably redacted!
There have been a number of instances over the years where lawyers and others thought they had redacted the information from a document, but in fact failed to fully redact the information so that others were able to see the supposedly redacted information. Remember, the PDF, if it is not an image only PDF file, consists of the visible image and the invisible underlying text layer that can be searched, copied and pasted. If you create a PDF from Word but before you do, you draw a black box over the text, when the PDF is created the text layer is sent to the PDF along with the black box that covers it. Think of the PDF like a layer cake, where the underlying text is the bottom layer of the cake. Unless you cut all the way through the cake and remove not only the frosting and top layer, but the bottom layer as well, you’ve left something behind. The same applies to PDF files – you not only have to cut out the image, but also the invisible text layer as well. Luckily, the redaction tools of popular full featured PDF products, including Acrobat and Power PDF, include not only removing the image but the underlying text layer as well.
However, for Acrobat you will need the Pro version and for Power PDF you will need the Advanced version to have redaction capabilities.
Redacting information in Adobe Acrobat is a multi-step process. The first step is to mark the information that needs to be redacted. This can be accomplished in two different manners. First, you can use your mouse to manually mark the information that you want redacted. Second, you can have Adobe Acrobat search the document for patterns of numbers.
After you have marked the areas that you want to redact, you then need to tell the program to redact the information. Simply marking the information does not redact it.
One precaution that you can take is to change your preferences to append a prefix or a suffix automatically to the file when redacting. This forces you to save the file with a new name and prevent overwriting of the original file unless you do so affirmatively. To do this, go to Edit > Preferences. Under the Categories column on the left of the Preferences screen go to Documents and then go to the Examine Document section of the screen and select Adjust filename when saving applied redaction marks as shown in this next image.
To learn more about Acrobat’s Redaction tools, check out Rick’s Semi-definitive guide to Redaction in Acrobat at http://blogs.adobe.com/acrolaw/?p=125
Power PDF is similar to Acrobat in that Redaction is a two-step process. The Redaction tools are found under the Security menu as shown in this image.
To learn more about Power PDF’s Redaction tools, check out this link: http://bit.ly/2DzluzI
Common to both products is the ability to set your Redaction Properties.
In Power PDF as shown in the image to the right, you can select the Mark color, whether or not to use Overlay text show the redacted area shows “Redacted” or something else as well as the color of the redacted area once it is redacted. Unfortunately, Power PDF does not have a similar feature to Acrobat that you can set to automatically add a prefix or suffix the file name when redacting so that you automatically save a new file and not overwrite the original.
One thing to keep in mind is that you can use your redaction tools to remove things for purposes other than security or confidentiality. For example, many forms that you scan in have information that you do not want to use. Similarly, some of the court forms that are available in Illinois have text that may not be applicable to a particular situation. In instances such as this, the redaction tool can be invaluable in removing the unwanted text. Of if you have a scanned document that is has lines and other marks on it, you can use the redaction tool to remove these marks.
If you are doing a lot of redaction, we suggest that you invest in a dedicated redaction product. They offer greater capabilities, including not working on an original document when redacting thereby eliminating the danger of redacting and then saving your original file. These tools include RapidRedact (http://bit.ly/2Dxa7It ), Redact -It™( http://bit.ly/2DuY7r4 ) and Redax (http://bit.ly/2DwQLTO ) to name just a few.
Bryan Sims is a shareholder and founder of Sims Law Firm, Ltd., where he concentrates his practice in the areas of commercial litigation, civil appeals, and real estate matters. He is a member of the Illinois Bar and the Northern District of Illinois Trial Bar. He is also admitted to practice before the United States Supreme Court, the United State Court of Appeals for the Seventh Circuit, the United States courts in the Central District of Illinois, the Southern District of Illinois, and the Eastern District of Michigan. Bryan has spoken on legal technology issues at the ISBA Solo and Small Firm Conferences, Wisconsin Solo and Small Firm Conferences, for the DuPage County Bar Association, the Chicago Bar Association, the Winnebago County Bar Association, the Lake County (Indiana) Bar Association, the Lake County (Illinois) Bar Association, the International Technology Law Association, National Business Institute and at ABA TECHSHOW. Also he was the featured speaker at the 2014 Oklahoma So-lo and Small Firm Conference. Bryan has contributed to TechnoLawyer and was recognized as the 2005 TechnoLawyer of the Year. He blogs about the intersection between law and technology at www.theconnectedlawyer.com. Before entering private practice, Bryan worked as a judicial law clerk for Illinois Supreme Court Justice S. Louis Rathje. He has also worked as a staff attorney for the Second District of the Illinois Appellate Court.
Attorney Nerino Petro (IL & WI) is President of the Erickson Group of companies in Rockford, IL. Previously he was the Chief Information Officer for HolmstromKennedyPC, in Rockford, Illinois where he was responsible for all in-house technology and training, recommending and implementing new technologies and providing direct support in the office and at trial as well as providing practice management support. Nerino served as the first Practice Management Advisor for the State Bar of Wisconsin’s Practice411™ Law Office Management Assistance Program for eight years helping members operate their offices more effectively and efficiently. Nerino has provided consulting to lawyers across the US on practice management and technology issues confronting since 1994. He serves on the Citrix ShareFile Advisory Panel and is a Certified Independent Consultant for a number of legal products, writes extensively for local, state and national publications and is the Technology Editor for the ABA GP|Solo magazine. He speaks internationally on topics of interest to lawyers earned a spot on the inaugural Fastcase 50 list in 2011 of the top legal techies. Nerino provides legal technology consulting services through CenCom Technologies which he started in 1994 and blogs at www.compujurist.com. He can be reached at email@example.com