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Opinions give guidance on handling documents' hidden data not directly addressed by codes of conduct

By John F. Baughman and H. Christopher Boehning

New York Law Journal

January 8, 2007

Earlier this year we discussed in this space the ways in which the Federal Rules of Civil Procedure have been amended to address the inadvertent disclosure of privileged material. In recommending these amendments, the advisory committee relied in part on the large volume of electronically stored information and, in particular, the metadata accompanying those stores of electronic data.

Metadata is the term given to embedded electronic data that can be used, for example, to identify, discover and review information relating to a document's editorial history. By reviewing metadata, one may be able to uncover previously deleted text, comments inserted in a document, the identity of persons who have worked on or viewed a document and the dates and times when they did so. Some of this information may be privileged or protected.

Concerns about the problems posed by metadata prompted the advisory committee to take the now controversial step of encouraging parties to enter into "claw back" or "quick peek" agreements to deal with the potential pitfalls associated with producing electronically stored information. Indeed, despite his criticism of the committee's recommendations on this subject, even Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland has acknowledged that the risk of waiver is "one of the most challenging aspects of discovery of electronically stored information." Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (2005).

Issues raised by the potential inadvertent disclosure of protected material through metadata are not governed solely by the Federal Rules of Civil Procedure. Both the advisory committee and Magistrate Judge Grimm have reminded lawyers that they also must satisfy their ethical duties, which would include any relevant guidance on a lawyer's ability to review and use metadata.

But what are those duties? Does an attorney who receives a document containing metadata have an obligation to: (1) refrain from viewing the metadata; (2) refrain from using the metadata to obtain more information about the document's history; (3) notify the disclosing attorney; (4) return the document; and/or (5) refrain from the substantive use of metadata against the producing party? And does the answer vary depending on the context?

What if we are not talking about a large production of electronically stored information, but instead the letter you e-mailed to your adversary last week? Did you revise it before you attached it and hit "send?" Did you remember to scrub the letter of any metadata that might, for example, reveal how you went back and forth before deciding to delete that argument you felt was better saved for a later day? If you forgot, is your adversary free to review the metadata to get a glimpse into your legal strategy?

Like most lawyers, we are better at posing questions than answering them. Fortunately, recent opinions from the American Bar Association and Maryland Bar Association offer some guidance on these questions and provide us with a chance to revisit relevant New York ethics opinions.

Both the ABA and Maryland Bar Association have concluded that a lawyer does not have an obligation under the Model Rules of Professional Conduct (and the Maryland equivalent thereof) to refrain from reviewing and using metadata embedded in e-mail and other electronically stored information received from adversaries

The ABA opinion noted that the model rules (like the New York Code of Professional Responsibility) do not directly address metadata disclosure The ABA concluded that, in the absence of a direct provision addressing metadata, guidance could be found in Model Rule 4.4(b), which governs the question of inadvertent disclosure.

In so doing, the ABA rejected the New York approach (discussed below) of looking at the question of use of metadata as one governed by Model Rules 8.4(c) and (d), which prohibit conduct involving dishonesty and conduct prejudicial to the administration of justice.

Because it rejected the application of Model Rules 8.4(c) and (d), the ABA noted that an attorney's only obligations under the rules are those that attach upon the receipt of inadvertently produced information. Under Model Rule 4.4(b), an attorney who receives such privileged or work-product-protected metadata must notify the disclosing attorney of the inadvertent disclosure

The ABA went on to recommend that lawyers take steps to guard against the disclosure of metadata, including "scrubbing" metadata from documents prior to production and entering into "claw back" agreements as recommended by the advisory committee in connection with the recent amendments to the Federal Rules of Civil Procedure.

The Maryland opinion follows the same basic approach, with one notable exception. Because Maryland has not adopted Model Rule 4.4(b), Maryland attorneys are not under an obligation to notify an adversary of an inadvertent production. In addition, the Maryland opinion concludes that an attorney has an ethical obligation to take "reasonable measures to avoid the disclosure of confidential or work product materials" contained in metadata.

NEW YORK APPROACH

New York takes a different view. Here, a lawyer has both a duty to refrain from reviewing or using metadata and a duty to notify an adversary of inadvertent production. In addition, a New York lawyer must exercise reasonable care to prevent the inadvertent disclosure of client confidences and secrets contained in metadata.

In N.Y. State 749, the New York Committee on Professional Ethics -- unlike the ABA -- took the view that using available technology to view metadata was in conflict with DR 1-102(A)(4) and (5), which prohibit conduct "involving dishonesty or fraud" and conduct "prejudicial to the administration of justice." For this reason, New York bars a lawyer from making "use of computer software applications to surreptitiously 'get behind' visible documents or to trace e-mail."

On the question of inadvertent disclosure, New York again takes a strict view. In N.Y. State 740, the committee held that a lawyer who receives confidential materials when it is clear that the materials were not intended for the receiving lawyer (i) should not examine the materials once the inadvertence is discovered, (ii) should notify the sender and (iii) should abide by the sender's instructions as to the need to return or destroy the materials.

And New York has spoken on the question of a lawyer's obligations to guard against the inadvertent disclosure of client confidences and secrets contained in metadata. In N.Y. State 782, the committee was asked whether a lawyer who transmits documents containing metadata reflecting client confidences or secrets violates DR 4-101(B). The committee declined to answer this question directly, noting that whether a violation has occurred depends on the facts and circumstances. Instead, it concluded that a lawyer has a duty under DR-4-101 to "use reasonable care when transmitting documents by email to prevent disclosure of metadata containing client confidences or secrets."

In reaching this conclusion, the committee reminded attorneys that this duty "may, in some circumstances, call for the lawyer to stay abreast of technological advances and the potential risks in transmission." It rejected the view offered by some commentators that a lawyer has an affirmative duty to remove metadata whenever documents are exchanged with an adversary or disclosed to the public.

Reviewing the ABA and Maryland opinions and revisiting New York's prior statements on these issues is an interesting exercise. It serves as a reminder that, in the litigation context, it is important to have frank discussions with one's adversary over the scope and manner of producing electronically stored information.

For example, both the ABA and Maryland opinions suggest that "scrubbing" electronic productions of metadata prior to production is a step that can be taken to reduce the potential for inadvertent disclosure. This recommendation comes at a time when lawyers are reminded -- in the Maryland opinion and by N.Y. 782 -- that they have an ethical obligation to take reasonable steps to avoid disclosing protected material that may lurk in metadata. But would it be wise to scrub metadata without first reaching an agreement on the contours of electronic production with one's adversary in a case governed by the recent amendments to the Federal Rules of Civil procedure? We think not.

There is no question that metadata creates special problems for lawyers. Dealing with those problems will require staying abreast not only of technology and the amendments to the federal rules, but also their ethical obligations.

FN1 ABA Standing Comm. on Eth. & Prof'l Resp., Formal Op. No. 06-422 (2006); Maryland Bar Assoc., Comm. on Ethics, No. 2007-09 "Ethics of Viewing or Using Metadata." The ABA opinion dealt with metadata received in litigation and other situations (such as negotiations), whereas the Maryland Opinion was limited to the litigation context.

FN2 The ABA has explained that, "the Rules do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents." ABA Standing Comm. on Eth. & Prof'l Resp., Formal Op. No. 06-422 (2006).

FN3 The ABA noted that it did not agree with a Florida Bar Professional Ethics Committee Opinion, Proposed Adv. Op. 06-02 (June 23, 2006), taking this position on the Model Rules. Id. at n.10.5. The ABA declined to decide whether metadata disclosure should be characterized as inadvertent. Instead, the ABA explained that the subject is fact specific. But, as the ABA observed, if the disclosure was inadvertent, the duty to notify exists. Id.6

FN4 New York Comm. on Prof'l Eth., Op. 749 (2001).

FN5 New York Comm. on Prof'l Eth., Op. 2003-04.

FN6 New York Comm. on Prof'l Eth., Op. 782 (2004).