Maine Evidence and Electronic Discovery

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.

Pennsylvania Ethics Commission Clarifies its Prior Muddled Position on the Access and Use of Metadata

So I've previously written about the ethics implications on sending lawyers on taking reasonable steps to avoid sending confidential metadata to opposing counsel, and on receiving lawyers on avoiding trying to access such metadata, at least in some jurisdictions.  See, e.g., this post.

I had previously reported that the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued a prior opinion in 2007, which basically said it was up to each lawyer to decide on his or her own what to do, subject to being penalized by the bar authorities if they second-guessed the lawyer's choice in hindsight.  Pennsylvania has now issued Formal Opinion 2009-100, which acknowledges that "the prior opinion provided insufficient guidance to recipients of documents containing metadata and did not provide correlative guidance to attorneys who send such documents."  Id. at 1.

In the new opinion, the Pennsylvania committee generally adopts the ABA view, concluding that "an attorney has an obligation to avoid sending electronic materials containing metadata, where the disclosure of such metadata would harm the client’s interests.  In addition, an attorney who receives such inadvertently transmitted information from opposing counsel may generally examine and use the metadata for the client’s benefit without violating the Rules of Professional Conduct."  Id.

The committee concluded that "the responsibility of keeping client confidences is primarily that of the sending attorney, but recognize[d] that technological challenges require the offsetting duty of the receiving lawyer to notify the sender of the possible error."  Id. at 14.  As far as receiving lawyers are concerned, the committee considered the lawyer's duties owed both to the lawyer's own client and to the opposing party, and found that "the former takes precedence."  Id. at 5.  With respect to inadvertently disclosed metadata, as with other inadvertent disclosures, the committee found that for a receiving lawyer "any action other than reporting is purely a matter of intraprofessional courtesy and the lawyer’s sound judgment or substantive law."  Id. at 6. 

Therefore, the committee's opinion is that a receiving lawyer must (1) inform the opposing party upon receipt of the inadvertently disclosed metadata, then (2) determine as a matter of substantive law whether the party can use the disclosed metadata (it is unclear what body of substantive law would govern such an inquiry, other than the broad discovery rules that generally permit the discovery and use of anything that is potentially relevant), considering (3) the potential impact on the lawyer's own client's case if the metadata is used, in consultation with the client as to the appropriate course of action.

So there is now one more state that is aligned more with the ABA's view that access to inadvertently produced metadata generally is acceptable by a receiving lawyer.  As stated in my prior post, that is contrary to the rule in Maine.

Metadata and ECF Filings

The issue of metadata and a lawyer's ethical duties came to the surface recently in connection with a bankruptcy adversary proceeding in New York.  (New York's ethics opinions on access of metadata were discussed in the article attached to my prior post here.)

In Steinbuch v. Cutler, Adv. Pro. No. 07-50064 (Bankr. E.D.N.Y. June 5, 2009), the court addressed allegations made in a letter by the pro se plaintiff (who happens to be a law professor) that the defendant's counsel violated the New York Code of Professional Responsibility through "observation and commentary on the electronic file name of documents filed as a matter of public record" on plaintiff's behalf in another action pending in U.S. District Court in Washington.  Id.at 3.  Specifically, the plaintiff argued that defense counsel inappropriately mined metadata by referencing the filename of documents publicly filed by plaintiff's counsel through the ECF filing system in the DC lawsuit.

When defense counsel responded to plaintiff's allegation by requesting that plaintiff withdraw his letter complaint or face a demand to reimburse defendant for defendant's fees, plaintiff sent a second letter to the court, complaining that defense counsel was threatening him for reporting violations of the bar rules, itself a violation of the ethical canons. 

After citing the two relevant New York ethics opinions on the access of metadata in materials from opposing counsel, the court quickly brushed aside the plaintiff's complaints.

[Plaintiff's] observation of the original file name was not made possible by use of computer software, nor did such file name come from "behind" the visible document.  Neither was disclosure of the original file name an inadvertent act on behalf of plaintiff.  The original file name of a document filed via a court's ecf system plainly shows on the court-generated Notice of Electronic Filing. This court finds disingenuous plaintiff's suggestion that by reading the notice of Electronic FIling, [defense counsel] invaded plaintiff's relationship with his then counsel, threatened confidentiality, made public a "secret" between plaintiff and his counsel or unethically used metadata.

Id. at 4.

The court also was displeased by what it perceived as plaintiff's attempt "to use a frivolous and factually inaccurate ethics complaint for the purpose of gaining an advantage in a pending civil matter."  Id. 

All in all, not a very convincing case by the plaintiff of the exploitation of metadata.

Ethics of Metadata

In my post of December 2, 2008, I discussed the recent Maine Ethics Commission Opinion No. 196that addressed the issue of lawyers searching for metadata in documents provided by opposing counsel. 

I've written this article recently published in a DRI newsletter that surveysthe positions taken by other state bar ethics committees on the ethics of mining for metadata.  The issue is sure to continue to be addressed as more and more documents are exchanged electronically, even in the normal course of business and apart from the world of electronic discovery.

Maine Ethics Commission Issues Opinion on Obligations Concerning Metadata

The Maine Professional Ethics Commission recently issued Opinion # 196, on October 21, 2008, that addresses two important questions concerning lawyers’ ethical obligations regarding metadata that may be found on electronic documents transmitted from one party to another:

first, whether it is ethical for an attorney receiving electronic documents (the “receiving attorney”) to make efforts to uncover embedded metadata that contains confidential information not intended to be communicated by the attorney transmitting the document (the “sending attorney”); and second, whether the sending attorney has an ethical duty to take reasonable measures to remove metadata containing confidential information before document transmission.

The commission reached the following conclusions:

1.  Without authorization from a court, it is ethically impermissible for an attorney to seek to uncover metadata, embedded in an electronic document received from counsel for another party, in an effort to detect confidential information that should be reasonably known not to have been intentionally communicated.

2.  A sending attorney has an ethical duty to use reasonable care when transmitting an electronic document to prevent the disclosure of metadata containing confidential information.

The commission noted that most lawyers today exchange documents with opposing counsel from time to time in electronic form, often via email.  Those documents often contain metadata.  Most people today are at least vaguely aware of that fact, but many may not know much more about what types of metadata might exist, or how to get rid of it.  In light of the commission’s opinion, pleading ignorance isn’t likely to be well received in the future.

The commission provided a thorough, detailed discussion of the various approaches taken by the American Bar Association (“ABA”) and other states.  Other jurisdictions have adopted inconsistent approaches “regarding the ethical duties of receiving attorneys in probing documents for metadata containing confidential information,” but “there is greater harmony among the jurisdictions with respect to the duties of sending attorneys to take reasonable measures to minimize the prospect that such data will be inadvertently transmitted.”  The Maine commission strived to adopt “a balanced view, articulating reasonable ethical duties on both the receiving and sending attorneys.”

Duties of Receiving Attorneys

The commission first addressed the duties of attorneys who receive electronic documents, and whether they are free to probe the documents in search of hidden metadata.  As with many things, New York addressed the issue first, and has advanced the approach (now followed in Maine) that recipients of electronic documents “have an obligation not to exploit an inadvertent or unauthorized transmission of client confidences or secrets.”  A few other states, including Florida and Alabama, have followed New York’s lead.

Other jurisdictions, in contrast, have shifted the burden essentially entirely onto the sending party, absolving the recipient of the need to refrain from probing to see what metadata might be lurking behind the scenes. The ABA, for one, has said that its model rules “do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents,” and it’s up to the sending lawyer to scrub them first.  Maryland and Colorado have followed the ABA’s position.

Still other jurisdictions, like Pennsylvania and the District of Columbia have adopted hybrids of the two extremes, but seem to be much closer to the ABA side of things.

The Maine commission found the New York rule to be the “better view” for several reasons.  The commission concluded that “an attorney who purposefully seeks to unearth confidential information embedded in metadata attached to a document provided by counsel for another party, when the attorney knows or should know that the information involved was not intended to be disclosed, has acted outside of these broad ethical requirements.”  Going further, the commission stated, “Not only is the attorney’s conduct dishonest in purposefully seeking by this method to uncover confidential information of another party, that conduct strikes at the foundational principles that protect attorney-client confidences, and in doing so it clearly prejudices the administration of justice.”  By probing for hidden metadata, according to the commission, “the receiving attorney is making purposeful efforts to probe for information he or she knows or should know to be confidential and not to have been knowingly communicated by opposing counsel. That such conduct is dishonest and designed to prejudice the administration of justice seems beyond dispute.”

So as determined by the commission, “an attorney may not ethically take steps to uncover metadata, embedded in an electronic document sent by counsel for another party, in an effort to detect information that is legally confidential and is or should be reasonably known not to have been intentionally communicated.”

Duties of Sending Attorneys

But the responsibilities don’t lie just with recipients.  Even though recipients are not supposed to look for hidden metadata, senders can’t simply send electronic versions of documents without giving the issue any thought.

The Maine commission noted that, unlike the dispute concerning the duties of recipients, “there has been relative unanimity in dealing with [the duties] of sending attorneys.”  Under the New York rule, “sending attorneys have a duty to take reasonable measures to guard against improper disclosure of confidential information contained in metadata in documents transmitted to other parties.”  Florida, Alabama, Maryland, Colorado and Pennsylvania have more or less said the same thing, although states that follow the ABA’s approach for recipients of electronic documents tend to place a heavier burden on the senders, some even suggesting that lawyers should employ computer consultants to help them scrub all of their documents.

The Maine commission did not go quite that far, instead adopting the familiar “reasonableness” standard that exists in so many areas of the law.  The commission “agree[d] with the other jurisdictions that attorneys are ethically required to take reasonable measures to avoid the communication of confidential information, regardless of the mode of transmission.”  What exactly those “reasonable” measures should be is left to a case-by-case analysis, although the commission did offer some suggestions. 

If an attorney is in doubt, many documents can be readily converted to generic files (such as PDF) which retain little of the metadata contained in word processing documents, and of course resort can be made to paper copies where issues of metadata confidentiality are significant. Although we do not believe that an attorney’s ethical duties dictate, in routine work, the retention of a computer expert for these purposes, we also do not believe it reasonable for an attorney today to be ignorant of the standard features and capabilities of word processing and other software used by that attorney, including their reasonably known capacity for transmitting certain types of data that may be confidential.

The commission was careful to note that its pronouncement was “not intended to deal with the extent to which relevant information may be sought in litigation through proper discovery under the guidance of a court.”

So there is now another reason to be careful about what you send to opposing counsel.