Several interesting ethical issues have cropped up in the legal field due to increased use of the internet and electronic media in the transmission of information. One such issue concerns the use of metadata and whether an attorney may use or view such metadata when provided by an adverse party. Metadata is electronically embedded information within programs (e.g., Microsoft Word/Excel/Power Point, Corel Word Perfect/Quattro Pro, Adobe Acrobat, etc.) which is not readily visible from the face of the document, either in the print version or on computer screen, but which is retrievable and which may include data such as author, dates of creation/printing, number of revisions, content and authors of those revisions or previous versions, editing time, and other information relating to the production of the final document.
There are several pertinent inquiries into the ethical use of metadata. First, is it ethical for an attorney, who is the recipient of a document with metadata produced by another party, to view and use the metadata contained in the document. Second, is the attorney sending a document with metadata under any obligation to remove metadata from files prior to transmitting them? And third, is the attorney who receives a document with metadata under any obligation to ascertain first whether the sender intended to include such metadata before viewing or using it?
Several State Bars have considered these issues and have issued opinions to address them. Recently, the Maryland State Bar Association issued Ethics Opinion No. 2007-09, in which it advised that there are no ethical violations if an attorney in receipt of a document containing metadata uses or views the metadata without first ascertaining whether the sender intended to include it. In determining such, the Committee of Ethics relied upon the differences between the Maryland Rules of Professional Conduct and the American Bar Association's Model Rules of Professional Conduct. The Maryland Rules do not require a receiving attorney to inform the transmitting attorney of the inadvertent transmission of confidential or work-product information. Though the Committee points out that there is no such ethical obligation codified in the rules, the Federal Rules of Civil Procedure's 2006 amendments with respect to electronic discovery in federal litigation supersede the lack of ethical obligations, and such conduct, though not an ethical violation, might be in violation of the Federal Rules and Rule 8.4 concerning the prejudicial administration of justice.
The Committee also stated its belief that the sending attorney has an ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials imbedded in the electronic discovery:
The Committee believes that this ethical obligation arises out of a combination of Rule 1.1, which provides that a lawyer shall provide competent representation to a client, together with Rule 1.6, which obligates the lawyer not to reveal confidential information relating to the representation of a client. See generally, New York State Bar Association Committee on Professional Ethics Opinion 782 (2004), concluding that attorneys have an obligation to "stay abreast of technological advances" and to behave reasonably in accordance with the risks involved in the technology they use. This is not to say, however, that every inadvertent disclosure of privileged or work product material would constitute a violation of Rules 1.1 and/or 1.6 since each case would have to be evaluated based on the facts and circumstances applicable thereto.
In August 2006, the ABA issued its own opinion stating that attorneys may look for and use information hidden in metadata: "[t]he Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." In September 2007, the DC Bar issued a similar opinion, Opinion No. 341, in response to numerous inquiries regarding the viewing and use of metadata embedded in electronic documents from opposing counsel. Opinion No. 341 stated that, "A receiving lawyer is prohibited from reviewing metadata send by an adversary only where he has actual knowledge that the metadata was inadvertently sent." The Opinion was careful to distinguish electronic documents provided outside of discovery and those provided in discovery or pursuant to a subpoena. As for electronic documents produced outside of discovery, the Opinion stated that under Rule 1.6, a sending attorney has an obligation to avoid providing confidential information and take reasonable steps necessary to remove metadata before sending it. See N.Y. State Bar Ass'n Committee Op. 782. A receiving lawyer has an obligation to consult with the sender when the receiving lawyer has actual knowledge that the sender inadvertently included metadata in his transmission. Absent such actual knowledge, however, the sender may view the metadata even if there is uncertainty as to whether the metadata was inadvertently disclosed.
With respect to documents produced in discovery, the Opinion said that a sending attorney is prohibited from altering, destroying, or concealing evidence. This may include erasing metadata from a discoverable document when the attorney knows that the evidence is or may be the subject of discovery. A receiving lawyer is permitted to view such metadata since the presumption is that the metadata was provided intentionally, provided that the receiving attorney does not have actual knowledge to the contrary.
Not all bar associations take the same view. The New York State Bar Association Committee on Professional Ethics, in Ethics Opinion 749 from December 14, 2001, and the Florida Bar Association Ethics Committee, in Ethics Opinion 06-02 from September 15, 2006, both found such metadata mining to be unethical. Other state bar associations have made similar findings. With increased electronic technology and transmission of confidential information, the topic of data mining likely will continue to be a much debated topic in the realm of legal ethics and professional responsibility.
n1 Debra S. Katz is a partner with Katz, Marshall & Banks, LLP, a plaintiffs' employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and whistleblower matters. Alan R. Kabat of the Bernabei Law Firm assisted with the research and earlier draft of these materials.