Metadata – A Summary of Important Concepts and Opinions

Review – Examples of metadata -Your name - -Your initials - -Your company or organization name - -The name of your computer - - The name of the network server or hard disk where you saved the document - -Other file properties and summary information - -Non-visible portions of embedded OLE (Object Linked Embedded) objects - -The names of previous document authors - - Document revisions - - Document versions - -Template information - - Hidden text - - Comments -

Why is protecting metadata important? Inadvertent disclosure of metadata may reveal: Inadvertent disclosure of metadata may reveal: who created or worked on a documentwho created or worked on a document Information about previous version (i.e. revisions and comments) of the documentInformation about previous version (i.e. revisions and comments) of the document These hidden texts may reflect editorial comments, strategy, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer. These hidden texts may reflect editorial comments, strategy, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer. ► Ex. Fuzzy interrogatory answers.

The Sending Attorney What are the sending attorney’s ethical obligations? Associated Rules  Rule 1.1 – A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.  Rule 1.6(a) – A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or if the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by the Rule. ► Comment 16 – Should act competently to safeguard information of client against inadvertent disclosure ► Comment 17 – Must take reasonable precautions to prevent client information from being inadvertently disclosed.

The Sending Attorney What are the sending attorney’s ethical obligations? ► Committee Opinions  Colorado Ethics Committee – Ethics Opinion 119  ABA Formal Opinion : Review and Use of Metadata – How do you limit transmitting metadata in discoverable documents? ► Delete comments made. ► Do not use the redlining function in word processors to imbed comments. ► Scrub the metadata. ► Send the document via hardcopy, image file (print and scan), or via Fax. ► Negotiate a confidentiality agreement. ► Create a “claw-back” agreement.

The Sending Attorney Does a sending attorney have a duty to preserve and produce metadata in response to a discovery request? ► Associated Rules  MR Rule 3.4(a) ► A lawyer shall not ► (1) unlawfully obstruct another party's access to evidence or ► (2) unlawfully alter, destroy or ► (3) conceal a document or other material having potential evidentiary value. ► A lawyer shall not counsel or assist another person to do any such act.  FRCP 34(b) ► If a request does not specify a form for producing electronically stored information, then a party must produce it in a form or forms in which it is (1) ordinarily maintained or (2) in a reasonably usable form or forms. ► Full rule at 34(b)(2)(e)(ii).

The Sending Attorney Does a sending attorney have a duty to preserve and produce metadata in response to a discovery request? ► DC Bar  Ethics Opinion 341 – In some instances, the removal of metadata may be prohibited (and even a crime). ► Case Law - Two different standards  Williams v. Sprint/United Management Company: YES ► “when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact. UNLESS that party timely objects to production of metadata.  Wyeth v. Impax: NO ► There is a general presumption against the production of metadata.

The Sending Attorney Does a sending attorney have a duty to preserve and produce metadata in response to a discovery request? Balancing the Duty of Not Producing Privileged Information and the Duty to Produce Metadata  Although a producing party may have a duty to produce relevant and requested metadata, attorneys must still be aware of releasing any confidential iformation.  Amersham v. Biosciences Corp. v. PerkinElmer, Inc. – Motion for return of produced documents; 500 “on their face” privileged documents and 37 “unreadable” documents ► These disclosures were evidence that Plaintiff had failed to take reasonable precautions to prevent the disclosure of privileged documents.

The Receiving Attorney The Ethics of Reviewing or Mining Metadata from Received Documents  Associated Rules ► Rule 4.4(b)  A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.  Three Views on Mining Metadata ► Mining of Metadata Is Unethical  New York State Bar Association – Committee on professional Ethics – Opinion 749 – 12/14/01 ► May a lawyer ethically use available technology to surreptitiously examine and trace and other electronic documents in the manner described? No. ► The technology allows access to confidential communications, including secrets and confidences. ► Strong public policy in favor of preserving the confidentiality of the lawyer-client relationship – use of technology would violate the letter and spirit of these rules. ► Note that FL, Ala., and Arizona have adopted similar views.

The Receiving Attorney The Ethics of Reviewing or Mining Metadata from Received Documents (cont.)  Mining Metadata is Ethical ► ABA Formal Opinion : Review and Use of Metadata  Rule 4.4(b) is silent as to the ethical propriety…”of such information.”  No specific prohibition against reviewing and using metadata, whether received from opposing counsel, an adverse party, or an agent of an adverse party. ► Maryland State Bar Ass’n Common. On Ethics Opinion –  Three questions ► Whether it is ethical for the attorney recipient to view or use metadata in received documents ► Whether the sending attorney has any duty to remove metadata prior to sending any documents ► Whether the attorney has any duty to not view or use metadata without ascertaining whether the sender intended to include the metadata in the produced documents  No ethical violation if the recipient attorney reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata. ► Differences from the ABA Opinion ► Because the Maryland Rules of Pro Rep have not adopted ABA Rule 4.4(b), the Maryland Rules do not require the reviewing attorney to notify the sender that there may have been inadvertent transmittal of privileged materials.

The Receiving Attorney The Ethics of Reviewing or Mining Metadata from Received Documents (cont.) ► Hybrid Opinions – Situations where one can look at metadata  DC Legal Ethics Opinion 341 ► A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent.  Pennsylvania Bar Association Formal Opinion ► Based on the lawyer’s judgment and the particular fact situation, each lawyer must determine whether to use the metadata. ► Factor to consider include: ► The lawyer’s judgment ► Particular facts applicable to the situation ► Lawyer’s view of his or her obligations to the client under Rule 1.3, and relevant comments ► Nature of information received ► How and from whom the information was received ► ACP and WP rules ► Common sense, reciprocity, and professional courtesy

The Receiving Attorney The Ethics of Reviewing or Mining Metadata from Received Documents (cont.) ► Hybrid Opinions – Situations where one can look at metadata (cont.)  Colorado Bar Association Ethics Opinion 119 ► One may generally search for and review metadata.  There is nothing inherently deceitful in searching metadata.  An absolute bar on searching metadata ignores the fact that metadata sometimes does not contain any confidential information.  Some metadata is unimportant. ► So, if a receiving lawyer knows or reasonably should know that a sending lawyer has transmitting metadata that contain confidential information, the receiving lawyer should assume that the transmission was inadvertent, unless the receiving lawyer knows that confidentiality has been waived. ► The receiving lawyer must promptly notify the sending lawyer or non-lawyer sender.

Questions 1) Of the three differing views on the ethics of mining for metadata, which should be adopted and codified by the ABA? 2) Assuming that Ethics Boards adopt the “judicial temperament” of state courts, how would the New Jersey Ethics Board view the ethics of preserving metadata and mining for metadata? Pennsylvania? How about Delaware?