The District of Columbia Bar is the most recent authority to consider whether a lawyer who receives an electronic document from an adversary is prohibited from reviewing any metadata contained in the document.  In Ethics Opinion No. 341 (September 2007), the DC Bar concluded that when a receiving lawyer has actual knowledge that an adversary inadvertently provided metadata in an electronic document, the lawyer should not review the metadata without first consulting with the sender and abiding by the sender’s instructions. Otherwise, a receiving lawyer may review metadata contained in electronic files provided by an adversary.  Distinguishing electronic documents provided in discovery or pursuant to a subpoena, however, the DC Bar determined that since it is impermissible to alter electronic documents that constitute tangible evidence and the removal of metadata would be prohibited¹, a receiving lawyer is generally justified in assuming that metadata was provided intentionally in that context.

In explaining its approach, the DC Bar reasoned that lawyers sending electronic documents have an obligation to take reasonable steps to maintain the confidentiality of documents in their possession. This includes avoiding disclosure of electronic documents that inadvertently contain confidential information².  (For information on methods for handling metadata, see The Sedona Conference Working Group Series, The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (Sept. 2005), www.thesedonaconference.org/dltForm?did=TSG9_05.pdf.)  Given the ubiquitous exchange of electronic documents and the sending lawyer’s obligation to avoid inadvertent production of metadata, mere uncertainty by the receiving lawyer as to the inadvertence of the sender does not trigger an ethical obligation by the receiving lawyer to refrain from reviewing the metadata. 

Where the receiving lawyer knows of the inadvertence of the sender, then notwithstanding the negligence or even ethical lapse of the sending lawyer, the receiving lawyer’s duty of honesty requires that he refrain from reviewing the metadata until he has consulted with the sending lawyer to determine whether the metadata includes privileged or confidential information. A receiving lawyer may have actual knowledge if he is told by the sending lawyer of the inadvertence before the receiving lawyer reviews the document, or where a receiving lawyer immediately notices upon review of the metadata that it is clear that protected information was unintentionally included, as would occur where the metadata includes a candid exchange between an adverse party and his lawyer, which it is “readily apparent on its face,” was not intended to be disclosed.  The DC Bar analogized inadvertent disclosure of metadata to a lawyer who inadvertently leaves his briefcase in opposing counsel’s office following a meeting or a deposition.  One lawyer’s negligence in leaving the briefcase does not relieve the other lawyer from the duty to refrain from going through that briefcase when it is patently clear from the circumstances that the lawyer was not invited to do so.  The DC Bar instructs that a prudent receiving lawyer who is uncertain whether the sender intended to include metadata should contact the sending lawyer to inquire.  If the sending lawyer advises that the metadata contains protected information, then the receiving lawyer should comply with the instructions of the sender. 

Metadata is “data about data.”  It provides information about the creation and modification of electronic documents, and may include comments by those involved in creating or reviewing the document³.  Metadata describes how, when, and by whom the document was collected, created, accessed, or modified; its size; and how it is formatted.  Some metadata, such as file dates and sizes, is readily seen, while other metadata can be accessed only by sophisticated analysis of the program that was used to process the document.

The New York and Alabama Bars have found that it is improper for a receiving lawyer to “mine” an opponent’s metadata. See N.Y. State Bar Ass’n Committee Op. 749 (lawyers have obligation not to exploit inadvertent or unauthorized transmission of client confidences or secrets; “use of such information ... [is] conduct ‘involving dishonesty, fraud, deceit or misrepresentation’”); Alabama State Bar, Office of Gen. Counsel Op. No. R0-2007-02 (“[t]he unauthorized mining of metadata by an attorney to uncover confidential information would be a violation….”).
In August 2006, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association reached a different conclusion in Formal Opinion 06-442 (August 5, 2006), entitled “Review and Use of Metadata.”  The ABA Opinion concluded that the ABA Model Rules of Professional Conduct permit a lawyer to review and use embedded information contained in e-mail and other electronic documents.  The ABA Committee did not address whether a receiving lawyer who knows or reasonably should know that opposing counsel’s production of an electronic document that contains metadata was “inadvertent” is thereby obligated to provide notice of its receipt to the sender.  The ABA Committee observed that lawyers must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure. See E. Stocker, Labor and Employment Law Ethics Committee, Newsletter, Winter 2007.
The conclusion of the DC Bar suggests the following guidelines to ensure a lawyer does not run afoul of the ethical obligations in this area:

Receiving Electronic Documents:

• If a lawyer receives an electronic document from opposing counsel and has actual knowledge that the metadata was inadvertently sent, the metadata may not be reviewed.
• If the privileged or protected nature of the information is not apparent on its face, a lawyer has no obligation to consult with opposing counsel.  In fact, the duty of diligent representation may override the confidentiality concern.
• If a lawyer is uncertain whether metadata was inadvertently sent, a lawyer should consult with opposing counsel, but there is not an ethical obligation to consult if the lawyer is unsure.

Sending Electronic Documents:

• If a lawyer sends an electronic document to an adversary, the lawyer should use scrubbing technology to remove metadata before sending the document. 
• If a lawyer provides an electronic document in discovery or pursuant to a subpoena, it may be impermissible to remove metadata since it could constitute tangible evidence.
• If a lawyer sends an electronic document to an adversary and is unsure whether it contains metadata, the adversary should be notified that any metadata contained in the transmission was inadvertently provided and instructed not to review it.

This Ethics Corner was prepared by Stewart S. Manela of Arent Fox LLP.  He is a member of and Section Council Liaison to the Section’s Ethics Committee.

¹http://www.dcbar.org/for%5Flawyers/ethics/legal%5Fethics/opinions/opinion341.cfm

² N.Y. State Bar Ass'n Committee Op. 782

³ B.J. Rothstein, R. J. Hedges, E. C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges 24-25 (Federal Judicial Center 2007), www.fjc.gov/public