New England Biz Law Update
Lawyers across the country are peeking at hidden “metadata” in electronic documents, and state ethics boards are all over the map on whether that practice is permitted.
“There have been an increasing number of opinions on the metadata issue just within the last year,” said Andrew Perlman, a professor at Suffolk University School of Law in Boston and co-contributor to the legal ethics blog, www.legalethicsforum.com.
Metadata is hidden information embedded in electronic documents that can include a treasure-trove of information – the who, what, when and where of a document, as well as previously deleted versions – and can be readily mined with a few clicks of the mouse if the document has not been “scrubbed.”
In the most recent ruling, the Colorado Bar Association said “there is nothing inherently deceitful or surreptitious” about metadata mining, and in general a lawyer may ethically search for metadata in electronic documents received from opposing counsel or third parties. (Ethics Opinion 119.)
If the receiving lawyer knows or reasonably should know the metadata contains confidential information, he should assume it was sent inadvertently and must notify the sender – but the lawyer is not prohibited from continuing to review the metadata, the opinion said.
However, if prior to examining the metadata, the receiving lawyer is notified by the sender that confidential information was accidentally included, he must not look at the metadata.
“What I like about the Colorado opinion is that it recognizes a variety of circumstances under which a lawyer has the right to review metadata [that] may be perfectly relevant or critical to a case and appropriate to review,” said Perlman.
Daniel Siegel, an attorney and president of Integrated Technology Services, a legal technology consulting firm in Havertown, Pa., expects the opinion will generate more disputes.
“The Colorado approach seems to vary based upon the relative technical skills and expertise of attorneys and their support staffs, rather than create a more definitive line that attorneys, even those who are not tech-savvy, can easily understand,” he said.
The opinion is similar to ethics opinions issued by the ABA and the Maryland and D.C. Bar Associations.
Alabama, Arizona, Florida and the New York State and County bars, on the other hand, have come out the other way, finding that it is generally unethical to search for metadata.
Pennsylvania staked a middle ground by saying it depends on a number of circumstances – such as the type of information and the individual attorney’s judgment.
In an ethics opinion released in late March, the New York County Lawyers’ Association said it is unethical to search for metadata if it appears to have been sent inadvertently. The ruling, however, does not apply to material produced during e-discovery.
The opinion indicates a shift toward a more “nuanced” approach and away from earlier state ethics opinions that either permit or bar mining metadata.
“This reflects what is becoming the majority view, but state bar associations are still split,” said Professor David Hricik of Mercer University School of Law in Macon, Ga., who has written articles and lectured to lawyers on this subject.
The New York opinion (No. 738) says while the sender has a duty of care to scrub documents before sending them, it would be unethical for the recipient to take advantage of a breach of this duty of care by intentionally searching for metadata.
You can read the opinion at http://www. lawyersusaonline.com/pdfs/nymetadataethics.pdf
However, it is limited to the transactional context, where lawyers are sending correspondence, contracts or other documents, back and forth – and doesn’t apply to documents produced in e-discovery.
The opinion is a “step in the right direction,” because it is not a one-size-fits-all rule, said Perlman.
However, it would make it unethical, for example, for a lawyer to search for metadata in an Excel spreadsheet from opposing counsel, even though the lawyer would arguably be conducting due diligence by mining the metadata, he added.
“It seems to me it would be quite expected for a lawyer to look at the formulas used, or who originally authored the spreadsheet, or whether it took into account sales figures on certain dates, but technically that’s metadata,” said Perlman.
The opinion “points out the difficulty for recipients” and “leaves a lot of gray area,” said Steven Bennett, a partner at Jones Day in New York and chair of its e-discovery committee.
“How are you supposed to know if it was or was not an inadvertent transmission, or if it is or is not privileged?” asked Bennett.
But Hricik said: “The only reason you’re going to look for metadata is because you know it’s not supposed to be there.”
Conflicting duties
The metadata issue cuts to the core of a lawyer’s potentially conflicting duties of zealous representation, maintaining client confidences, and meeting the interests of justice and fair play.
State bar associations are struggling to decide how to balance these interests in the world of new technology, said Perlman.
Lawyers in states without an ethics opinion are “at great risk,” said Hricik.
“You can’t rely on the fact that the other side won’t look, and you don’t know whether it’s ok to look, or whether you have a duty to look,” he said.
Thomas Smith, a partner with K&L Gates in Pittsburgh and a founding member of the firm’s E-Discovery Analysis & Technology Group, said a lawyer who receives an electronic document he knows or suspects contains metadata should perform a step-by-step analysis to determine whether he can mine and review it.
“The first decision,” Smith said, “is whether the metadata was intentionally produced, such as if a court ordered it to be produced or, in a non-litigation context, if both sides have agreed to track changes to documents.“ In that case, you would be free to review the metadata, he said.
But if an attorney thinks the metadata was sent inadvertently, the next step is to look to an applicable ethics opinion or case law to see if it compels you to take certain steps or prohibits you from reviewing it.
“If you determine that you are not subject to any opinion prohibiting your review of inadvertently produced metadata, then you are entitled to look at it,” Smith said.
If a lawyer starts to look at the metadata, then realizes it may be privileged, “a whole separate set of ethics opinions applies,” he added. The general rule is to notify the sender of inadvertently produced privileged information.
ABA Model Rule 4.4(b) adds another twist. While it says a lawyer who receives a document that appears to be inadvertently sent must notify the sender, it does not say the lawyer cannot read it.
However, not all states have adopted the ABA model rules.
Duty to scrub
The New York opinion and the ABA recognize the duty of the sender to make sure documents are scrubbed of privileged data.
Bennett suggested a more efficient rule might be to allocate the burden to the sender rather than the recipient.
“There’s relatively simple software, something you strap on to your e-mail system, and before any e-mail goes out of the office, the system tells you it’s scrubbed, unless you make a specific decision to send something unscrubbed,” said Bennett.
But Perlman said scrubbers are still “woefully inadequate,” especially in discovery.
“I don’t think you can say the burden is entirely on the sending attorney. Sometimes there are millions of documents involved and you can’t expect lawyers to go through each individual document to be sure it’s scrubbed of privileged metadata,” said Perlman.
The bottom line is that the metadata issue will continue to plague lawyers.
“This is going to be an issue for a while. Even if you have really good software and fancy scrubbers, accidents are going to happen,” said Hricik.
He added that many small firm and solo practitioners are “not anywhere near” where they should be in terms of understanding what metadata is and whether they are inadvertently sending it out.
