Maine Evidence and Electronic Discovery

A Useful Refresher on the Hearsay Rules

In case you missed it, Judge Woodcock issued a helpful refresher on some of the hearsay-within-hearsay principles in a recent decision, EMK, Inc. d/b/a Eaton Mtn. Ski Area v. Federal Pacific Elec. Co., Civil Action No. 08-383-B-W (D. Me. Jan. 7, 2010).

That case involved a building fire in which the issue in dispute was whether the fire was caused by a defective electric baseboard heater manufactured by the defendant, Federal Pacific.  Federal Pacific moved in limine to exclude portions of two reports prepared by the state fire marshal's office and the Skowhegan Fire Department.

The fire marshal conducted an investigation and prepared a report which, among other things, included supposed statements made by the owner of the plaintiff company.  Although Federal Pacific conceded that the remaining portions of the fire marshal's report might fall within the hearsay exclusion contained within Fed. R. Evid. 803(8)(C), it sought to exclude the references to the plaintiff's owner's statements as hearsay-within-hearsay.  Relaying upon Weinstein's evidence treatise and a fairly similar First Circuit case involving hearsay statements contained within an FBI report, United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997), Judge Woodlock had little difficulty in granting Federal Pacific's motion in limine to exclude the portions of the fire marshal's report reciting statements allegedly made by the plaintiff's owner.

As far as the town fire department report was concerned, the report contained the following statement:  "Fire cause determine to be a result of faulty electric heater in bathroom in garage."  Federal Pacific argued that the statement in the report on the cause of the fire was inadmissible because it was not expressed pursuant to the fire department's statutory authority (as the fire department was not charged with, and did not, investigate the cause of the fire), thereby failing to meet the requirements for admission under Fed. R. Evid. 803(8)(B).  Federal Pacific also argued that the statement on causation was inadmissible because it was untrustworthy, so could not fall within the public report hearsay exception in Rule 803(8)(c).

The court side-stepped around the Rule 803 issues, finding that even if the statement in the report fell within one of the Rule 803 hearsay exceptions, it should be excluded as prejudicial under Fed. R. Ev. 403.  As Judge Woodlock observed:

The critical issue in this case is whether a defect in Federal Pacific's electric baseboard heater caused the January 28, 2005 fire.  As its report reveals, the Skowhegan Fire Department responded quickly to the alarm just before 9 p.m. and left the scene at 2:20 a.m. the next day.  The report was filed immediately and there is no indication that a thorough cause and origin assessment was made or that the heater was examined for defects.  Instead, the report simply states that “[f]ire cause determined to be a result of faulty electric heater in bathroom in garage.”  It does not say who made this determination, his or her qualifications to make this determination, what they did to make this determination, and what other possible sources were considered and eliminated.

Id. at 5.  The lack of any indication that the statement was supported by any investigation or evidence known to the fire department at the time the statement was made in the report was compounded by the risk that the jury might view the report as carrying "the imprimatur of municipal government," led to the risk the jury "could well place undue emphasis on its summary causation conclusion on the assumption that it reflects the considered opinion of a fire investigator, who is cloaked with governmental objectivity and expertise."  Id.  Based on the unreliability of the statement and the potential risk that it might cause mischief with the jury, the court granted the motion in limine as to that portion of the Skowhegan fire report.

Often these types of hearsay rulings occur in the midst of trial or in unwritten decisions.  So this is a useful reminder on some basic evidence issues that frequently arise but often go unnoticed.

Recent Maine Decision Provides Guidance on What's Required When a Party Cannot Find Responsive Documents

Magistrate Judge Rich issued an interesting opinion late last year that provided guidance on the specificity that a third-party must provide to support its assertion that it has been unable to locate documents in response to a subpoena. 

In Campbell v. First Am. Title Ins. Co., Civil Action No. 08-311-P-S (D. Me. Nov. 18, 2009), the plaintiff served a subpoena on third-party T&M Mortgage Solutions, Inc. (“T&M”), seeking production of mortgage and loan files.  T&M failed to produce anything by the designated return date, and so the plaintiff moved for an order requiring T&M to show cause why it should not be held in contempt.  In response, T&M filed two affidavits from its employees that stated, among other things, that one of the employees personally searched through the company's closed files in a storage area and was unable to locate the processing file that would have contained the subpoenaed documents, that they were unable to locate the processing file pertaining to the mortgage in question, that they had no reason to believe that the file was destroyed, and that they were unaware of any reason why they were unable to locate the processing file.  In other words, the file should have existed, but they were unable to find it.

Quoting a California district court case, Judge Rich stated that “[o]rdinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party’s obligation to respond to a request for production of documents[,] ... [i]f the documents sought are known to have been in the party’s possession, custody, or control, it would not suffice for that party to simply disavow their existence without adequately explaining the disposition of the documents.”  Id. at 4.  The court agreed with the plaintiff that the "affidavits are insufficient to assure First American, or the court, that reasonable efforts have been made to comply with the subpoena, including by way of ... a thorough search throughout T&M’s premises for documents that T&M effectively concedes should have been maintained within its files."  Id. at 4-5.

The court directed T&M to undertake a new search and, if it still could not find the documents, to "submit verified declarations (i) detailing the time(s), date(s), and specific location(s) of its search for responsive documents; (ii) identifying the person(s) who conducted the search; and (iii) stating whether and when T&M has contacted the individual, known to T&M, who closed the plaintiffs’ October 2004 loan to request a copy of the documents."  Id. at 5.

The decision provides a useful reminder on the need for details to back up a claim that documents sought in discovery are unavailable.  Presumably the same degree of specificity would be required where it is a party that has been unable to find the responsive documents, as well.

Unusual First Circuit Decision Reversing Order Precluding Expert Testimony

The First Circuit issued a relatively unusual decision recently vacating a district court's discovery sanction that excluded the plaintiff's expert witness, which in turn led to the dismissal of the case.

In Esposito v. Home Depot U.S.A., Inc., No. 08-2115 (1st Cir. Dec. 30, 2009), the plaintiff failed to produce an expert designation within the deadline set by the district court (a deadline that the plaintiff apparently had proposed).  The defendants moved for summary judgment, in part based on the plaintiff's failure to designate any expert to support his product liability claim.  The plaintiff never offered any plausible explanation for his tardy disclosure, and so the district court entered an order precluding the expert from testifying.  That order left the plaintiff without an expert, effectively leading to the dismissal of the case.  It was that latter effect that seemed to trouble the court of appeals the most, leading to a fairly rare decision where - even applying the deferential abuse of discretion standard of review of the trial court's discovery order - the appellate court reversed.

The First Circuit stated that, "Because all parties acknowledged that the sanction carried the force of a dismissal, the justification for it must be comparatively more robust."  In other words, where the preclusion of an expert is likely to result in the end of a lawsuit, district courts now must factor that impact into their analysis.  The court was quick to point out that this "is not a case of a party repeatedly balking at court-imposed deadlines," or "a case where the sanctioned party ignored pre-sanction warnings from the district court," or "an act of calculated gamesmanship on the part of the sanctioned party." According to the court of appeals, the lack of such evidence, coupled with the severe impact of the sanction on the plaintiff, outweighed the lack of justification for the plaintiff's failure to comply with the scheduling order and the harm caused to the defendant (in the form of having to prepare summary judgment papers on a shifting playing field, the need to have their own expert supplement his disclosure in light of plaintiff's untimely disclosure, among others). 

Judge Woodcock, sitting by designation, offered a thorough and thoughtful dissent, expressing concern that the First CIrcuit was imposing a new heightened standard for district courts to meet in deciding whether to preclude experts.  In Judge Woodcock's view, the majority's decision may result in trial courts feeling constrained to exclude experts only where it makes no difference on the case; conversely, where the decision would have a significant impact on a party's ability to present its case, trial courts may be reluctant to enter such a stiff penalty.  If that bears out, it might mean that the threat of preclusion as a tool for policing compliance with trial courts' scheduling orders doesn't carry as much weight as it always has. 

It will be interesting to see if Judge Woodcock's concerns come to pass as district courts in the First Circuit apply Esposito in the future.

New Maine Privilege Rules To Go Into Effect

So a year ago I reported on a new Maine Rule of Evidence 514, that codified a privilege for certain statements made during mediations, and then reported on the Maine Supreme Judicial Court's decision to withdraw the new rule for further study.

The court has again promulgated a new Rule 514, along with modifications to Maine Rule of Evidence 408, found here.  The changes go into effect on January 1, 2010.

The changes to Rule 408, which addresses offers to compromise, clarify that statements made by party in the context of settlement discussions cannot be used "to impeach a witness through a prior inconsistent statement or contradiction."  Me. R. Ev. 408(a).  The rule also has been amended to provide that statement made by a party or mediator in any court-ordered mediation, or in any mediation in which the parties and mediator have agreed in writing to confidentiality, is inadmissible except in instances of fraud and the like.  Me. R. Ev. 408(b).  Previously Rule 408(b) was limited to court ordered domestic relations mediations.

The commentary to Rule 408 provides that the rule "is designed to encourage parties to speak openly and freely in mediation by assuring them that their statements will not be usable against them in the case being mediated or in any other case between the same parties with the same subject matter."  Interestingly, the comments also state that the new Rule 408(b) is not intended to "insulate statements in mediation from civil discovery."  Arguably, then, the drafters may be envisioning a situation where a party can conduct discovery into what was said in another mediation, although whether such statements are admissible is a separate question.

The new Rule 514 adopts a new mediator's privilege.  The new rule provides that "All memoranda and other work product ... prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."  Me. R. Ev. 514(b).  There are exceptions in instances of misconduct, or in order to prove that the parties actually reached a settlement agreement at the mediation, or in stances of criminal activity and such. 

The commentary makes clear that the "privilege only applies to mediation proceedings conducted by a neutral mediator.  Thus, when a party’s lawyer, a guardian ad litem, or other person with a particular point of view to represent attempts to function as 'mediator' in settlement or other discussions, the privilege is not applicable.  The privilege also does not apply to conferences with “settlement judges” or other judicial officials who may be acting in a meditative capacity because of the importance of transparency of public justice institutions."

Notably, the "privilege belongs to mediators, not mediating parties," so the rule "does not empower a party to prevent a mediator from testifying if the mediator chooses to do so."

Justice Alexander issued a separate statement of non-concurrence, based on the comments provided by the Maine Attorney General, who requested additional privilege exceptions to allow testimony about threats or statements of intention to inflict other types of harm beyond bodily injury, and to permit the use of testimony about events occurring at mediations in protection from abuse proceedings.  It is unclear why the Attorney General's requests were not acted upon by the majority of the court.

Supreme Court Issues Decision on Interlocutory Appealability of Discovery Orders Compelling Production of Privileged Materials

The Supreme Court has issued its decision in Mohawk Industries, Inc. v. Carpenter, No. 08-678, discussed in my posts of September 25th and October 9th.

In Mohawk, the Court addressed a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.

At issue in the case was information concerning an interview that a former employee of Mohawk had with Mohawk's outside counsel while he was still employed by Mohawk.  Mohawk argued that the interview and any documents related to it were privileged, but the district court ruled that Mohawk had waived the privilege previously and so the materials were discoverable.  The court of appeals declined to accept an interlocutory appeal, holding that the collateral order doctrine did not apply because the discovery order would not be “unreviewable” on appeal from the district court’s final judgment.

The Supreme Court upheld the Eleventh Circuit's ruling in a decision issued December 8th, rejecting decisions in the Third, Ninth and D.C. Circuits that had permitted interlocutory appeals of discovery-related orders compelling production of arguably privileged materials under the collateral order doctrine. 

The Court recognized that its stringent standards for immediate appeals "may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment," but that "has never sufficed."  Slip op. at 5 (internal quotation omitted).  As the Court framed the issue, the "crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders."  Slip op. at 7.  The Court concluded that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney client privilege.  Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence."  Slip op. at 8. 

Finally, the Court noted that in extreme circumstances, a disgruntled litigant still retains limited options for seeking an interlocutory appeal of a privilege-related discovery order.  The party could ask the district court to certify, and the appellate court to accept, an immediate appeal under 28 U.S.C. § 1292(b); the party could petition for mandamus review; the party could "defy a disclosure order and incur court-imposed sanctions"; or the party could invite the district court to hold it in contempt for disobeying the court's disclosure order, from which the "party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment."  Slip op. at 9-10.

Justice Thomas issued a concurring opinion, essentially asserting that the Court's collateral order case law has created a mess that should be avoided altogether in favor of a clear, predictable application of the appellate jurisdiction statute, which effectively would abolish the collateral order doctrine altogether.

In reality, those appellate options are extremely narrow and difficult to obtain, and most parties may be unwilling to risk sanctions or contempt, meaning that most litigants who believe they've been ordered to turn over materials they think are privileged will have little recourse until an eventual appeal post-judgment.  And by that point, the ability to effectively raise the discovery ruling in the context of whatever other substantive legal issues are on appeal may be minimal.

Seventh Circuit Adopts Set of Principles and Standing Order for Handling E-Discovery

The Seventh Circuit recently adopted an Electronic Discovery Pilot Program that will run through May 2010, at which point feedback from the program will be assessed and the program may be modified.  As the judge who chaired the committee reported in a news release, electronic discovery "is expensive, burdensome, time-consuming, and it is causing executives to make decisions about sometimes meritless litigation simply because of the costs involved in the litigation."

The Pilot Program report states that acommittee of more than 40 e-discovery practitioners was assembled last spring with the goal of developing a set of principles designed to "incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic."  Pilot Program at 9.  As the committee noted, "Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce."  Id.

The committee developed a draft Standing Order to be entered by participating judges in selected cases.  "Once adopted as standing orders, the Principles will serve as supplemental procedural guidelines to be followed by litigants."  Id. at 10. 

All too often discovery turns into a contentious, difficult process, which generally adds to the ultimate costs and frustrations of all involved.  The committee observed that an "attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner."  Id. at 11.

The principles set forth a series of deadlines and meetings that have to take place early on in a case, prior to the initial status conference with the court, to get everyone thinking about the specific electronic discovery issues that will be implicated by a particular case.   Parties are required to appoint "e-discovery liaisons" to handle technical issues and to appear in court to explain the issues as necessary. 

With respect to document preservation, the committee's consensus was to avoid overly broad, blanket document protection orders.  "Vague and overly broad preservation requests do not further the goals of these Principles and are therefore disfavored. Vague and overly broad preservation orders should not be sought or entered."  Id. at 13. 

Under the principles, "the requesting party is responsible for the incremental cost of creating its copy of requested information. Counsel or the parties are encouraged to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable electronic images that may be contemplated by each party," but "ESI and other tangible or hard copy documents that are not text-searchable need not be made text-searchable."  Id. at 15-16.

It is surprising that more courts haven't already followed the lead of the District of Maryland, which adopted its own set of guidelines more than a year ago (discussed in my prior post here).  What is interesting about the Seventh Circuit's program is that it specifically contemplates revisiting the principles next spring to assess how effective they have been in addressing the goals of the committee.  The feedback and changes that may be made to the principles going forward next summer no doubt will be influential in guiding others looking at ways to reasonably and cost effectively implement the e-discovery rules.

More Congressional Activity on Post-Iqbal Attempts to Return to Simple Notice Pleading

As a follow-up to my post of October 28th discussing a bill introduced in the Senate to wipe out the Bell Atlantic and Iqbal decisions that made clear that something more than bald implausible allegations is required for notice pleading purposes under the federal rules, there is a companion bill pending in the House of Representatives that was referred to the Judiciary Committee for consideration about a week ago.

H.R. 4115, the Open Access to Courts Act of 2009, does essentially what the Senate bill would do.  It would enact a new section 2078 in Title 28 that would provide:

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

The bill ostensibly would preclude courts from eroding the statutory language through caselaw, as it further provides that its provisions "govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter."

Of course, the fact that the provision itself can't be cast aside by the judiciary doesn't mean the courts can't interpret its terms in a a more lenient manner. 

Also, the bill seems to overlook Rule 9(b), which on its face requires particularity for fraud claims.  If the bill is enacted in its present form, one might try to argue that the statute trumps the rule, such that even in fraud cases particularity is not required.  Presumably the drafter of this bill does not intend as much, or the intent to work such a fundamental change in procedure would be much clearer.

It's Getting Even Harder to Appeal Interlocutory Discovery Orders, Even When Trade Secrets Are Involved

The First Circuit recently issued a helpful reminder on the difficulties in trying to file an interlocutory appeal from a discovery order, even where the order is going to place in the public eye materials for which there is a colorable argument about their status as confidential trade secrets.

In Awuah v. Coverall N. Am., Inc.,No. 09-1284 (1st Cir. Oct. 27, 2009), the defendant sought to keep sealed portions of the deposition of its former CFO, on the ground that the testimony revealed "confidential information about Coverall's business practices including various accounting matters."  The district court agreed to keep about half of the identified portions of the transcript under seal, but ruled that the remaining portions would be unsealed.  The practical issue from the plaintiffs' perspective was that, even though it had unfettered access to the complete transcripts and could rely upon them in its case (at least as long as they were filed under seal), the sealed status precluded them from sharing the material with experts and using it in other ways.

The defendant filed an interlocutory appeal, arguing that the discovery order imposed immediate harm that could not effectively be raised on appeal after final judgment, because the horse would already be out of the barn.  The court began by observing that

Many discovery orders are effectively reviewable on final judgment, but disclosure of allegedly privileged or sensitive information may threaten immediate harm that cannot later be undone on review of the final judgment. The unsealing order in this case meets that test and also definitively resolves the question whether the disputed passages are to be made public.

Nevertheless, the court ultimately rejected the appeal as premature, holding that the appeal failed to "present an important issue meriting immediate review."  The court rhetorically asked itself "why such requirements exist at all if an order may cause irreparable harm that cannot be undone by later review," and answered by noting unsympathetically that "the final judgment rule implicitly accepts that some harms may result from deferring appeals."  The court seemed most concerned about controlling its own docket, as "piecemeal appeals impose costs of their own by multiplying proceedings and delaying resolution."

As the court framed the "importance" issue, it stated that "cases deemed to qualify usually present a disputable legal issue whose importance turns on the likelihood that it will arise in other cases," where there is a generalized benefit to the "system" in resolving the interlocutory appeal.  Where there is no "legal issue presented by the merits of the discovery order," but rather a factual analysis of whether disclosure would or would not implicate confidential trade secrets, the court concluded that the importance step was not met. 

The court was careful to carve out situations involving discovery orders against third-parties.  "The situation is different where a discovery order is directed to a non-party who is not otherwise part of the litigation ... and thus cannot ordinarily appeal from a final judgment."  But that will serve as little consolation to the defendant or to parties challenging disclosure of trade secrets in other cases.

Recent Maine Decision Involving Juror Use of Facebook to Dig for Dirt on the Plaintiffs

By now pretty much everyone has heard about, or maybe even experienced, the problem of jurors accessing the Internet during trial to dig up information about the parties, lawyers or issues involved in a case.  Although every judge tells jurors not to do it, some do anyhow, and it can cause real problems with the integrity of the trial process.

Judge Hornby in the District of Maine issued an interesting opinion recently on a motion for a new trial arising out of the discovery that one of the jurors had "friended" the plaintiff on Facebook and had browsed around the plaintiff's photos showing the plaintiff engaged in what the juror thought was a drunken state.  See Wilgus v. F/V Sirius, Inc., Civil Action No. 08-225-P-H (D. Me. Oct. 27, 2009).

After the trial had ended, one of the jurors sent an email to plaintiff's counsel, stating:

[D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? ...  It[’s] really sad what happened but with all the work going into this don[’t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

Id. at 2.  Plaintiff's counsel promptly filed a notice of juror contact with the court, provided a copy of the email to defense counsel and filed a motion to conduct post-trial voir dire of the juror.  Judge Hornby found that, "While the e-mail did not say explicitly that the juror considered information from the Internet during the trial, that was certainly a possible interpretation. (I had explicitly told the jury more than once not to do research about the case or the parties on the Internet, explaining why it would be unfair.) The extraneous information could reasonably have prejudiced a hypothetical average juror."  Id. at 3.  Accordingly, the allegation of misconduct was "non-frivolous," requiring an investigation.

In preparing for a conference with counsel and the juror, Judge Hornby also found that one of the anonymous post-trial juror questionnaires returned by one of the jurors in the case stated that one of the plaintiffs “was a party drug [illegible] animal.”  Id. at 4. 

The court then summoned the juror and the jury foreperson back with a regular juror summons, without explaining the purpose of the summons.  The court, with counsel present, questioned the foreperson and juror separately.  The foreperson could recall no substantive discussion by any of the jurors about accessing the Internet to research the plaintiffs or any comments about concerns that the plaintiff was a drug user.

The juror who sent the email professed not to recall whether he sent in the juror questionnaire that mentioned drug use by the plaintiffs.  He did admit to sending the email, but stated that he had used Facebook to "friend" the plaintiffs a couple of days after the trial ended, and that was when he discovered the photos.  He said that neither he nor any of the other jurors discussed accessing the Internet during trial.

The court found that "some of the juror’s answers to my questions, particularly his uncertainty about his handwriting, are troubling, I have no basis for finding him untruthful in answering the one key question—when he discovered the information."  Id. at 8.  "Under these circumstances, I see no reason to summon other jurors (and the lawyers did not request me to do so) to inquire about extraneous information reaching the jury."  Therefore, "having found no evidence that juror misconduct actually occurred," the court denied the request for a new trial.  Id.

The only way to know whether the juror was telling the truth would be to find out from Facebook when he actually "friended" the plaintiffs, to see whether it occurred after trial as he said or at some point before.

New Hampshire and Vermont Wade into the Metadata Mix

New Hampshire and Vermont have issued recent ethics opinions addressing the ethical obligations of sending and receiving lawyers as they relate to metadata.  Both jurisdictions (As has essentially every other state to consider the issue) concluded that sending lawyers have a reasonable duty to avoid inadvertently disclosing metadata.  When it comes to receiving lawyers, however, the states diverged.  (The views of Maine and other states are discussed in my posts here and here.)

As the New Hampshire committee concluded in Ethics Committee Opinion 2008-2009/4: 

Lawyers sending electronic materials to opposing counsel are ethically required to take reasonable care to avoid improper disclosure of confidential information contained in metadata, including appropriate training and education on reasonable measures that can be taken to reduce the likelihood of improper disclosure of confidential information through transmission of metadata. There can be no per se rule on what constitutes reasonable care in transmission of metadata, as the facts and circumstances of each case will dictate the reasonableness of protective measures taken by sending lawyers.

Receiving lawyers have an ethical obligation not to search for, review or use metadata containing confidential information that is associated with transmission of electronic materials from opposing counsel. Receiving lawyers necessarily know that any confidential information contained in the electronic material is inadvertently sent, triggering the obligation under Rule 4.4(b) not to examine the material.

Id.at 1.  However, the committee noted that parties could reach "mutual agreement on review of metadata," apparently if both sides agree to it.  Id. at 7.

The committee likewise made clear that lawyers cannot use ignorance of evolving technologies as a basis for avoiding obligations under the rules.

The Committee recognizes that, as a result of rapid technological advances, some lawyers are generally unaware of the myriad of ways that client confidences may be disclosed in the form of metadata that accompanies electronic documents and files. However, unless lawyers obtain a reasonable understanding of the risks inherent in the use of technology in transmitting and receiving electronic materials that may contain confidential information, they risk violating their ethical obligations to clients.

Id. at 3.

The Vermont committee took a slightly different approach to the duty of receiving lawyers in Ethics Opinion 2009-1.  The committee determined that "a lawyer who receives an electronic document from opposing counsel that contains inadvertently disclosed, privileged and confidential metadata must notify the sending lawyer, with the question whether the receiving lawyer can use this information being decided by a court of competent jurisdiction."  Id. at 1. 

The Vermont committee concluded that, contrary to the decisions in Maine, New York and elsewhere, there is nothing in the rules "to compel the conclusion that a lawyer who receives an electronic file from opposing counsel would be ethically prohibited from reviewing that file using any available tools to expose the file’s content, including metadata."  Id. at 4-5.  On the contrary, the committee thought that receiving lawyers have a thorough duty to review every document received from opposing counsel, in whatever medium it is produced. 

Nevertheless, Vermont lawyers are not automatically free to review and use metadata produced by opposing counsel.  "Vermont lawyers are subject to the obligation to notify opposing counsel if they receive documents that they know or reasonably should know were inadvertently disclosed. Whether inadvertent disclosure results in waiver of the attorney client privilege or the work product protection, and whether the receiving lawyer can review and use the inadvertently disclosed information, remain issues of substantive law" subject to resolution by an appropriate court in the context of a waiver analysis.  Id. at 6. 

The issue of what to do with metadata - and even whether you can look for it at all - remains one that varies from one state to the next, requiring careful analysis in each case.