A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual prior knowledge that the metadata was inadvertently provided. The 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 there is such actual prior knowledge, then notwithstanding the negligence of the adversary, the receiving lawyer should not review the metadata without first consulting with the adversary to determine whether the metadata includes privileged or confidential information. If
the adversary advises that such protected information is included
in the metadata, then the receiving lawyer should comply with his instructions. In all other circumstances, a
receiving lawyer is free to review the metadata contained within the
electronic files provided by an adversary.
Review and Use of Metadata in Electronic Documents
A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 3.4 (Fairness to Opposing Party and Counsel)
- Rule 4.4 (Respect For Rights of Third Persons)
- Rule 8.4 (Misconduct)
Inquiry
We have received numerous inquiries concerning a lawyer’s obligations regarding metadata that is imbedded in electronic documents received from opposing counsel. Metadata is electronically stored information, typically not visible from the face of the document as printed out or as initially shown on the computer screen, but which is imbedded in the software and retrievable by various means. Often described as "data about data," metadata provides information regarding the creation and modification of a document, and sometimes includes comments by persons participating in the creation or modification of the document.[1] To the uninitiated, metadata is hidden and perhaps unknown, but to competent computer-users, the existence of metadata is well known and may be a simple "click" or two away. The information that is embedded is often mundane and of little or no interest, but in some instances it may reveal significant information.
In assessing the ethical obligations of both the sending and receiving lawyer with respect to metadata, we find it useful to distinguish between electronic documents provided in discovery or pursuant to a subpoena from those electronic documents voluntarily provided by opposing counsel. Although the Florida and Alabama Bars have recognized a similar distinction, see Florida Bar Op. 06-2; Alabama State Bar, Office of Gen. Counsel Op. No. R0-2007-02, the distinction has not been universally recognized in other ethics opinions addressing metadata. See ABA Formal Op. 06-442; Maryland Bar Ass’n Ethics Docket No. 2007-09.
A. Electronic Documents Provided Outside of Discovery
1. The Sending Lawyer
B. Electronic Documents Provided in Discovery or Pursuant to a Subpoena
When metadata is provided in discovery or pursuant to a subpoena, the rules of professional conduct are not the only rules of which lawyers must be aware. Although such other rules lie outside our jurisdiction, we note that the Federal Rules of Civil Procedure now provide steps to identify and address issues related to electronic discovery. See F. R. Civ. P. 16(b), 26 (f), 33(d), 34(a) and 37(f) (effective Dec. 1, 2006). Under these new rules, parties are required to consult at the outset of a case about the nature of pertinent electronic documents in their possession and the manner in which they are maintained. This should include specific discussions as to whether a receiving party wants to obtain the metadata, and if so, whether the sending party wishes to assert a claim of privilege as to some or all of the metadata.
Conclusion
We conclude that when a receiving lawyer has actual knowledge that an adversary has 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. In all other circumstances, a receiving lawyer is free to review the metadata contained within the electronic files provided by an adversary.
Published: September 2007
1. [Return to text]The Federal Judicial Center recently issued a publication on electronic discovery that defined the term “metadata” as [i]nformation about a particular data set or document which describes how, when, and by whom the data set or document was collected, created, accessed, or modified; its size; and how it is formatted. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden from users but are still available to the operating system or the program used to process the data set or document. Barbara J. Rothstein, Ronald J. Hedges, & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges 24-25 (Federal Judicial Center 2007), www.fjc.gov/public /pdf.nsf/lookup/eldscpkt. pdf/$file/eldscpkt.pdf.2. [Return to text]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.thesedona
conference.org/dltForm?did=TSG9_05.pdf.3. [Return to text]By stating that the standard for a violation is “actual knowledge,” we do not condone a situation in which a lawyer employs a system to mine all incoming electronic documents in the hope of uncovering a confidence or secret, the disclosure of which was unintended by some hapless sender. The Rules of Professional Conduct are “rules of reason,” Scope [1], and a lawyer engaging in such a practice with such intent cannot escape accountability solely because he lacks “actual knowledge” in an individual case. Moreover, as stated in Rule 1.0(f), “[a] person’s knowledge may be inferred from circumstances.”4. [Return to text]In Opinion No. 256, we discussed the analogous situation of a lawyer who finds a wallet in the street. Here, the more appropriate analogy may be to a lawyer who inadvertently leaves his briefcase in opposing counsel’s office following a meeting or a deposition. The one lawyer’s negligence in leaving the briefcase does not relieve the other lawyer from the duty to refrain from going through that briefcase, at least when it is patently clear from the circumstances that the lawyer was not invited to do so.5. [Return to text]In its Opinion No. 2007-09, the Maryland Bar also concluded that Rule 8.4(c) is not implicated by a receiving lawyer’s accessing metadata. But the Maryland Bar relied on its version of Rule 4.4. which has not been amended to impose any obligation on the lawyer who receives an inadvertently produced document. The Maryland Bar stated that its opinion was “heavily influenced by the difference between the Maryland Rules of Professional Conduct and [ABA Model Rule 4.4].” D.C. Rule 4.4(b), by contrast, imposes upon the receiving lawyer an obligation not only to contact the sending lawyer (as the Model Rule requires), but also to abide by the sending lawyer’s instructions regarding the return or destruction of the document.6. [Return to text]Under D.C. Rule 1.0(o), a “writing” is defined as “a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and e-mail.”7. [Return to text]By citing Williams, we do not necessarily mean to endorse its holding or to provide any guidance with respect to the rules of discovery. See Speedway v. NASCAR, Inc., 2006 U.S. Dist. LEXIS 92028 (E.D. Ky. Dec. 18, 2006) (criticizing the specific holding in Williams). Rather, we cite Williams merely to illustrate that courts have required the production of metadata as probative evidence, and we discuss below the implications of this conclusion for the responsibilities of lawyers under the rules of professional conduct.8. [Return to text]This is not to suggest that all metadata should be treated alike. For example, a Joint Court-Bar Committee of the United States District Court for the District of Maryland has issued a suggested protocol that defines and distinguishes between different kinds of metadata, only some of which are subject to routine production. See Suggested Protocol for Discovery of Electronically Stored Information, In re: Electronically Stored Information, ¶11 (D. Md.), www.mdd.uscourts.gov/ localrules/localrules.html. The purpose of the protocol is “to facilitate the just, speedy, and inexpensive conduct of discovery involving [electronically stored information or ‘ESI’] in civil cases, and to promote, whenever possible, the resolution of disputes regarding the discovery of ESI without Court intervention.” Id. ¶1.9. [Return to text]In concluding that a lawyer may review metadata in documents produced in discovery (that is, unless and until the lawyer has actual knowledge that the metadata contains protected information), we do not intend to suggest that a lawyer must undertake such a review. Whether as a matter of courtesy, reciprocity, or efficiency,“a lawyer may decline to retain or use documents that the lawyer might otherwise be entitled to use, although (depending on the significance of the documents) this might be a matter on which consultation with the client may be necessary.” D.C. Ethics Op. 256, n.7 (citing D.C. Rules 1.2(a) and 1.4(b)); see also D.C. Ethics Op. 318, n.5.10. [Return to text]When in litigation, an attorney must comply with the applicable rules of procedure of the court in which the litigation resides. In this regard, for example, Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure requires a lawyer who is informed by opposing counsel that an allegedly privileged document was produced, to return, sequester or destroy the document until the court adjudicates the claim of privilege. See also D.C. Rule 3.4(c) (requiring a lawyer to comply with the rules of a presiding tribunal).
October 2007