METADATA What is it?
METADATA • The digital DNA of a document • Hidden electronic data • DNA can indicate how, when, and by whom document was created, accessed, modified
METADATA Some visible; some invisible • File name • File location • Format • Size • Date created • Last Modifications • Versions of the document • Comments • Author • Hidden Text
METADATA Some visible; some invisible Revisions made to a document Comments added to a document Could lead to disclosure of: Client confidences and secrets Litigation strategy Editorial comments Legal issues Client comments
METADATA Examples Motion for Summary Disposition circulated among several lawyers in firm and each insert comments about strengths and weaknesses of argument included potential settlement amounts Use of templates (changing client’s name for current client). Could allow opposing party to discover identities of prior clients
METADATA • To Scrub Or Not To Scrub: Does An Attorney Have An Ethical Obligation To Prevent Disclosure Of Metadata?
RULE 1.1- COMPETENCE • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
RULE 1.6-CONFIDENTIALITY Rule: 1.6 Confidentiality of Information • (a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
RULE 1.6-CONFIDENTIALITY Rule: 1.6 Confidentiality of Information (b) Except when permitted under paragraph (c), a lawyer shall not knowingly: (1) reveal a confidence or secret of a client; (2) use a confidence or secret of a client to the disadvantage of the client; or (3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
RULE 1.6-CONFIDENTIALITY Rule: 1.6 Confidentiality of Information (c) A lawyer may reveal: (1)confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them; (2)confidences or secrets when permitted or required by these rules, or when required by law or by court order; (3)confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used; (4)the intention of a client to commit a crime and the information necessary to prevent the crime; and (5)confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
RULE 1.6-CONFIDENTIALITY Rule: 1.6 Confidentiality of Information (d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.
METADATA Alabama Ethics Opinion 2007-02 “Ethical Propriety of Mining Metadata” “Lawyers have an ethical duty under Rule 1.6 to use reasonable care when transmitting electronic documents to prevent the disclosure of metadata containing client confidences or secrets”
METADATA Arizona Ethics Opinion 07-03 (2007) “Confidentiality; Electronic Communications; Inadvertent Disclosure” “Lawyers must take reasonable precautions to prevent inadvertent disclosure of confidential information”
METADATA Colorado Ethics Opinion 119 (2008) “Disclosure, Review, and Use of Metadata” Lawyer has ethical duty to avoid disclosing confidential metadata in electronic documents transmitted to third parties (citing Model Rules 1.1, 1.6, 5.1 and 5.3)
METADATA Florida Ethics Opinion 06-2 (2006) “A lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.”
METADATA Maine Ethics Opinion 196 (2008) “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.”
METADATA Maryland Ethics Opinion 2007-092 (2006) “Absent an agreement with the parties, 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.”
METADATA Minnesota Ethics Opinion 22 (2010) “….a Lawyer must take reasonable steps to prevent the disclosure of confidential metadata.” “When a lawyer sends, receives, or stores client information in electronic form, the lawyer’s duty to protect that information from disclosure to unauthorized individuals is the same as it is for information communicated or kept in any other form.”
METADATA New Hampshire Ethics Opinion 2009-2009/4 “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.”
METADATA New York Ethics Opinion 782 (2004) “When a lawyer sends a document by e-mail, as with any other type of communication, a lawyer must exercise reasonable care to ensure that he or she does not inadvertently disclose his or her client’s confidential information.”
METADATA Pennsylvania Ethics Opinion 2009-100 “…an attorney has an obligation to avoid sending electronic materials containing metadata, where the disclosure of such metadata would harm the client’s interests.”
METADATA Washington D.C. Ethics Opinion 341 (2007) “Lawyers sending electronic documents outside of the context of responding to discovery or subpoenas have an obligation under Rule 1.6 to take reasonable steps to maintain the confidentiality of documents in their possession.”
METADATA West Virginia Ethics Opinion 2009-01 “Lawyers sending electronic documents have an obligation under Rule 1.1, which provides that a lawyer shall provide competent representation to a client, together with Rule 1.6, which obligates a lawyer not to reveal confidential information relating to the representation of a client, to take reasonable steps to maintain the confidentiality of documents in their possession.”
METADATA Ways To Avoid Transmission Of Metadata • Avoid use of redlining function • Avoid use of comments function • Scrub the document • Send documents in hard copies • Create an image of the document (copying or scanning) • Send as a .TIFF file (tagged image file format, which deletes the metadata; PDF) • Seek a confidentiality agreement or protective order
METADATA • Use a clean format • Metadata management application for Microsoft Office (Word, Excel & PowerPoint) and PDF files • iScrub 7
METADATA What you do not see can hurt you.
METADATA What you do not see can be malpractice.
METADATA What you do not see can result inn bar complaints, which jeopardize your law license.
METADATA May An Attorney Ethically “Mine” Metadata?
METADATA May An Attorney Ethically “Mine” Metadata? • Practice of deliberately searching a document’s underlying metadata for hidden or embedded information • If opposing party was allowed access to draft responses, would give insight into strategy
METADATA • Fishing Expedition?
METADATA Data Mining Software
METADATA • Conflicting Answers • 1. Mining is ethical [ABA Rule 4.4(b)] • 2. Mining is unethical [ABA Rule 4.4(b)] • 3. Michigan?
METADATA ABA Model Rule 4.4(b) • 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.
METADATA Mining Is Ethical ABA Maryland
METADATA ABA Standing Committee on Ethics and Professional Responsibility 06-442, 2006 • Opined that the Model Rules of Professional Conduct did not contain any specific prohibition against attorneys reviewing and using metadata • Model Rule 4.4(b) is silent as to the ethical propriety of lawyer’s review and use of metadata
METADATA ABA Standing Committee on Ethics and Professional Responsibility 06-442, 2006 • “a lawyer who is concerned about the possibility of sending, producing, or providing a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by ‘scrubbing’ metadata from documents or by sending a different version of the document without the embedded information.”
METADATA Maryland Ethics Opinion 2007-092 (2006) • “This Committee believes that there is no ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata”“ • Nor is there any requirement that the recipient attorney notify the sending attorney of the inadvertent transmittal of privileged information
METADATA Mining Is Unethical • Alabama • Arizona • Florida • Maine • New Hampshire • New York
METADATA Alabama Ethics Opinion 2007-02 “Ethical Propriety of Mining Metadata” “Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party”
METADATA Arizona Ethics Opinion 07-03 (2007) “Confidentiality; Electronic Communications; Inadvertent Disclosure” “Except in specific circumstances described in this opinion, a lawyer who receives an electronic communication may not examine it for the purpose of discovering the metadata embedded in it.” Conduct amounts to an “unjustified intrusion into the lawyer-client relationship
METADATA Florida Ethics Opinion 06-2 (2006) “A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer.”
METADATA Maine Ethics Opinion 196 (2008) “Without authorization from a court, it is ethically impermissible for an attorney to seek to uncover metadata, embedded in al 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.”
METADATA New Hampshire Ethics Opinion 2009-2009/4 “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.” “…there is a shared responsibility on both sides to protect the attorney-client privilege through imposition of a receiving lawyer’s obligation to refrain from reviewing confidential information that can be nothing other than ‘inadvertently sent’.”
METADATA New York Ethics Opinion 749 (2001) “We believe that in light of the strong public policy in favor of preserving confidentiality as the foundation of the lawyer-client relationship, use of technology to surreptitiously obtain information that may be protected by the attorney-client privilege, the work product doctrine or that may otherwise constitute a ‘secret’ of another lawyer’s client would violate the letter and spirit of these Disciplinary Rules.”
METADATA Hybrid Approach Colorado Minnesota Pennsylvania Washington, D.C. West Virginia
METADATA Colorado Bar Ass’n Ethics Op. 119 2008 • “ a receiving lawyer generally may ethically search for and review metadata embedded in an electronic document • If receiving lawyer knows or reasonably should know that sending lawyer inadvertently transmitted confidential metadata, receiving lawyer should assume that the confidential information was transmitted inadvertently, unless receiving lawyer knows that confidentiality has been waived. Receiving lawyer must promptly notify the sender
METADATA Minnesota Ethics Opinion 22 (2010) “ Whether and when a lawyer may be advised to look or not to look for such metadata is a fact specific question beyond the scope of this Opinion.
METADATA Pennsylvania Bar Ass’n Formal Opinion 2007-500 “If the receiving lawyer concludes that the disclosure of metadata was inadvertent, the lawyer must promptly notify the sender of the receipt of the materials containing the metadata; and, The receiving lawyer must then determine whether he or she may use the data received as a matter of substantive law; must consider the potential effect on the client’s matter should the lawyer do so; and, should advise and consult with the client about the appropriate course of action under the circumstances.’