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September 2008The Mining of MetadataNavigating the hidden ethical dangers of discovering hidden information in electronic documents by James T. Yand Imagine the following situation happens to you as part of your normal practice routine. You send a draft sales agreement to opposing counsel as an e-mail attachment. You have redrafted the same agreement many times using your client's standard form that is re saved each time as a new Word document on your computer desktop. Your client's comments regarding target and bottom-line pricing and negotiation strategies and your associate's comments and revisions were included in a redline version. You click "accept all changes" on your redline document and comments, and then re save as the final agreement without redline changes. Without thinking about breaching any ethical obligations related to the disclosure of hidden "metadata" in the electronic copy of your draft agreement, you hit "send." You are amazed at how technology has helped make you so efficient in the delivery of legal service. Another situation arises. Your partner has just requested and received an electronic version of discovery requests to your client. She is aware that there might be some metadata that might provide your client an advantage going forward in the lawsuit. Without thinking that she may be breaching an ethical obligation, she reviews the metadata and learns that opposing counsel considered requesting certain information from your client, but decided to pursue a different strategy. Finally, you also note the ease and cost saving associated with filing documents electronically in various federal and state courts and administrative agencies. Good practice? If the PDF format documents you sent in for filing have not been scrubbed to remove metadata, probably not. Why Is Metadata a Problem? What is metadata? It is the DNA of the electronic record. It may reveal who worked on a document, the name of the organization that created or worked on it, information about prior versions of the document, recent revisions, and comments inserted in the document during drafting or editing. Thus, hidden text may reflect editorial comments, strategy considerations, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer.1 For example, the New England Journal of Medicine used simple Microsoft Word functions to discover that an article submitted for publication by a major drug manufacturer had deleted from an earlier draft the revelation of a study linking its arthritis drug to an increased risk of heart attacks.2 Thus, the devil is truly lurking in the unseen metadata — it very well might be confidential information which the disciplinary rules mandate you safeguard from disclosure. Failing to address metadata in this electronic age could result in a malpractice claim and a not-so-friendly visit from the bar disciplinary counsel.3 Scrubbing metadata should be as basic to the lawyer's practice as washing fruit or vegetables purchased from the grocery store (which may be exposed to unknown contaminants as part of its journey from growers). Metadata — the obligation to scrub it and/or the propriety of its use — has been addressed by a number of bar associations, and recently in a formal opinion form the American Bar Association. The conclusions of the ABA and various states are not consistent and, thus, provide conflicting guidance to counsel on this evolving area. The ABA Opinion on Metadata Imposes Burden on Sending Party In 2006, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06 422.4 ABA 06-442 sidesteps answering the question whether a lawyer who allows privileged or non public information to slip through to the other side in the form of metadata has violated the standard of care in either a liability or ethical standpoint. However, it does recommend sending electronic records that might otherwise contain metadata in an "imaged" or "hard copy" format (such as fax, imaged PDF, or simply paper), "scrubbing" such information (using software designed for this function) from the document before sharing it with the other side, or executing a "claw back" agreement with the other side (allowing each party to "claw back" privileged documents that were inadvertently produced). Beyond confidential information, 06-442 notes that virtually all electronic documents that are in their original word processing format (such as Word or WordPerfect) contain a variety of metadata that is not confidential and, therefore, may be shared with the other side. The bottom line from the ethics opinion is that the sender of electronic records must undertake responsibility to make sure its unseen metadata has been removed before it is sent. Does this then open the door to opportunism by the receiving party, since he must know that no one would intentionally disclose confidential or propriety information to the other side? This issue is not answered by the ABA opinion, and may have been intentionally left to be addressed by state and local bars under their ethical rules and statements of professionalism. An increasing number of bar associations have weighed in on this issue. Not surprisingly, since professional responsibility rules vary by jurisdiction, the rules being developed are not consistent, although electronic documents pass readily through various state boundaries. In one of the earliest decisions, New York State Bar Opinion 782 examined whether opposing counsel's use of metadata was acceptable or merely exploiting a lawyer's inadvertent disclosure of privileged material.5 The New York Committee concluded that lawyers may not mine documents for metadata in part based on the "dishonesty, fraud and deceit or misrepresentation" and "conduct prejudicial to the administration of justice" standards found in Model Rule 8.4. (Interesting, since I do not think New York is a model-rule state.) In discussing New York State Bar Opinion 782, Anthony E. Davis, in "The Intersection of Professional Responsibility and Technology," New York Law Journal, March 7, 2005, states: While the committee may have been concerned about seeming to exceed its jurisdiction by suggesting a hard-and-fast The Alabama State Bar recently came to a similar result. While concluding that attorneys have an affirmative duty to prevent the disclosure of metadata containing client confidences and secrets, it agreed with the New York Bar that "[a]bsent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party." (Ala. St. B. Disciplinary Commission, Op. OR 2007-02 (2007)). The Alabama ethics opinion is consistent with Formal Opinions 749 and 782 of the New York State Bar, and the District of Columbia Bar. DC Bar Opinion 341 (September 2007).6 The State Bar of Arizona, in Opinion 07-03 entitled "Confidentiality; Electronic Communications; Inadvertent Disclosure," decided to follow the same rule and criticized the ABA rule as leaving the sending lawyer at the mercy of the recipient: Lawyers, in light of this fundamental principle, and in keeping with their status as members of a learned profession, should refrain from conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel. ER 8.4(a)-(d). See also Ala. Op. RO-2007-02. It should be noted that the Arizona Rules of Professional Conduct do not mirror the model rules adopted by the ABA. This is also true for New York. On the other hand, Washington and Oregon do follow the ABA model rules. Pennsylvania has a more liberal rule regarding the use of metadata. The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility concluded that, under the Pennsylvania Rules of Professional Conduct, each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer's judgment and the particular factual situation.7 Although the waiver of the attorney-client privilege with respect to privileged and confidential materials is a matter for judicial determination, the Committee noted that — similar to New York, Alabama, and Arizona — the inadvertent transmissions of such materials should not be viewed as a waiver of the privilege, except in the case of extreme carelessness or indifference. In short, Pennsylvania lawyers must apply their own judgment on whether to make use of metadata received from an opposing attorney. The Maryland State Bar Association's Committee on Ethics has taken perhaps the most liberal view of the issue, stating that an attorney has no ethical duty or obligation upon receiving inadvertently disclosed metadata, except in the arena of federal litigation. (Md. St. B. Ass'n Ethics Comm., Op. 2007-09 (2007)). This split of authority between the ABA and the various state bar opinions leaves attorneys in the uncertain position of how to address the review of metadata, depending on in what state they have their office or from what state the e-mail may have been originated. The lack of a bright-line rule may leave you uncertain on your ethical limitations if you elect to engage in the mining for metadata from an opposing party, especially in states where the state bar has yet to speak on the issue. What Should We Do in Washington? The ABA opinion concludes that the ethical rules do not prohibit the review of metadata, and Washington has adopted the ABA Model Rules on Professional Responsibility, and will likely be guided by the same principles.8 As a result, last year the WSBA Professionalism Committee considered whether a separate standard of professionalism should apply to the mining of metadata received from an opposing attorney. The Committee considered the following proposal offered by the chair: In the effort to be forthright and honest in my dealings with the court, opposing counsel and others, if a lawyer requests or is provided a document in electronic form, the lawyer should not seek to expose "metadata" that contains information that the lawyer knows or reasonably should know was not intended to be disclosed. If the lawyer intends to review the metadata, he shall first notify the sender and allow a reasonable time for the sender to make their intentions known. The WSBA Professionalism Committee focused on whether the Creed of Professionalism even needed a specific rule addressing metadata, and whether it was properly the realm of the Rules of Professional Conduct Committee to formally addresses the matter similar to other states. The feedback was mixed. Some believed the need to address the misuse of electronic information is important, and should be included. Others expressed the concern that the use of metadata is a very natural and important part of an attorney's duties, and should not be labeled in any way as unprofessional. The Committee also heard concerns that any prohibition on the use of metadata would unfairly limit the legitimate investigative use of metadata by law enforcement and attorneys during discovery. This resulted in deadlock over whether to adopt a specific limit on the unfettered use of metadata, even if its disclosure was clearly unintended. The Professionalism Committee ultimately did not pass along a specific recommendation to the Board of Governors, and the issue remains open for resolution. Although the Committee did not adopt a specific resolution, it nonetheless focused on the importance of professionalism as applied to changes in technology and the practice of law. There is a constant debate about what professionalism is, and how it should impact the everyday practice of law. For this author, professionalism is the Golden Rule for attorneys, emphasizing that the profession benefits when the standards of conduct are kept high, and when the use of cheap ploys aimed at gaining some perceived or actual advantage in the contest is discouraged. Promoting the pursuit of justice for every person, and advancing the goals of our legal system for the benefit of society as a whole, must be the standard for our profession. The American legal system is based on the foundation that no one is above the law. As such, our profession is charged with maintaining the integrity of laws and the legal system. Each attorney owes a duty much higher than the call of a particular case, or even a particular battle in a protracted contest. Even in an adversarial system such as ours, the duty is to play fair, maintain respect and courtesy to the opposing party, and prevail by following notions of what is right and good, not just what is expedient for the cause of his/her client. In the final analysis, professionalism is needed more than ever as we confront the challenges of technology and the production of electronically stored information. The legal profession is based on competence and high standards of cooperation among counsel to ensure that justice is served, and that the unwary are not trapped and unfairly exploited. If you find that this article has application to your experience with the legal system, please pass along your comments to the WSBA Professionalism Committee (www.wsba.org/lawyers/groups/professionalism/default1.htm) so we can develop a record of how these changes to the practice of law are impacting our profession, and the topic can be addressed at the highest levels of the Bar as further changes to the ethical rules are debated. James T. Yand, a member of Stafford Frey Cooper P.C., has published numerous articles and is a frequent speaker on the topic of electronic discovery. He has taught courses at the University of Washington on complex litigation and e-discovery. He is past chair of the WSBA Professionalism Committee. NOTES |
