More Data on Metadata

Metadata was the subject of an “Eye on Ethics” column, What’s the Meta with Metadata?, that appeared in the January 2006 issue of YourABA. Since that column appeared, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 06-442 [PDF] Review and Use of Metadata (2006), and the Florida and Maryland State Bar associations have also issued opinions on this topic.

    In Opinion 06-442, the Committee stated that the ABA Model Rules contain no specific provision prohibiting a lawyer from accessing and using metadata in electronic documents from opposing counsel, an adverse party or an agent of an adverse party. It stated further that Rule 4.4(b) was the most closely applicable Rule, but only if the transmission and disclosure of the metadata was considered to be inadvertent:

The Committee first notes that the Rules do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents. The most closely applicable rule, Rule 4.4(b), relates to a lawyer’s receipt of inadvertently sent information. Even if transmission of "metadata" were to be regarded as inadvertent, Rule 4.4(b) is silent as to the ethical propriety of a lawyer’s review or use of such information. The Rule provides only that "[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." Comment [3] to Model Rule 4.4 indicates that, unless other law requires otherwise, a lawyer who receives an inadvertently sent document ordinarily may, but is not required to, return it unread, as a matter of professional judgment. - ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 06-422 (2006).

    The Committee also stated that the question of whether the receiving lawyer should know that the metadata was inadvertent and therefore subject to Rule 4.4(b)’s notice requirements was a subject beyond the scope of the opinion.

    Note: Subpart (b) of Rule 4.4 was added to the Model Rules pursuant to the ABA Ethics 2000 Commission’s (E2K) recommendations. For further information on the ABA Ethics 2000 Commission (E2k), visit the ABA E2k Web site. Also available online are the E2K’s Official Reporter’s explanation of changes memoranda for each Rule.

    The Committee noted that other authorities based their conclusions that lawyers may not mine documents for metadata in part on the "dishonesty, fraud and deceit or misrepresentation" and "conduct prejudicial to the administration of justice" standards found in Model Rule 8.4. See, e.g. New York State Bar Opinion 749 and the corresponding provisions of the New York Code of Professional Responsibility. The Committee found these provisions to be inapplicable, again stating that Rule 4.4(b)’s notice requirements in the case of an inadvertent disclosure was the only relevant Rule and also that the addition of Rule 4.4(b) was evidence of an "intention to set no other specific restrictions on the receiving lawyer’s conduct found in other Rules."

    Finally, the Committee noted that lawyers can take steps to remove or "scrub" metadata from electronic documents using software designed for that purpose or other means, but that the a formulation of the precise methods for doing so were beyond the scope of the opinion. It also cautioned, however that in the context of discovery a lawyer must not alter a document when it would be unlawful or unethical to do so. See, Rule 3.4(a) of the ABA Model Rules.

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    The Maryland and Florida State Bar ethics opinions that were recently issued take differing views on the receiving lawyer’s obligations with regard to metadata. The Florida Bar Opinion 06-02 (2006) issued on September 15, 2006, considered the Florida version of Rule 4.4(b), which is substantially identical to the ABA Model Rule, and concluded:

The duties of a lawyer when sending an electronic document to another lawyer and when receiving an electronic document from another lawyer are as follows:

(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

(2) It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct, effective May 22, 2006.

(3) If the recipient lawyer inadvertently obtains information from metadata that the recipient knows or should know was not intended for the recipient, the lawyer must “promptly notify the sender.” Florida Bar Opinion 06-02 (2006).

    Maryland State Bar Opinion 2007-09 Ethics of Viewing and/or using Metadata (2006), noting that the Maryland version of Rule 4.4 does not have the ABA E2k’s inspired subpart (b), concluded that the recipient lawyer may review and make use of metadata and has no obligation to notify opposing counsel that there may have been an inadvertent transmittal of it.

…the Maryland Rules of Professional Conduct do not require the receiving attorney to notify the sending attorney that there may have been an inadvertent transmittal of privileged (or, for that matter, work product) materials. Of course, the receiving lawyer can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney and/or to take such other action which they believe is appropriate. See generally Rule 1.4 (communications with client concerning certain matters involving the representation). Maryland State Bar Association Opinion 2007-09 (2006)

    However, the Maryland Committee cautioned that the new Federal Rules of Civil Procedure pertaining to electronic discovery that took effect on December 1, 2006, may supersede the applicable ethics standards in the context of federal court litigation. Federal Rule 26(b)(5) [PDF] provides as follows:

"Information produced. If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved."

    A lawyer’s obligations with respect to confidentiality and metadata continues to be a developing area in the law of lawyering. As is evident in this article, there are varying opinions on this issue. Check your local rules, court decisions and ethics opinions.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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