Vermont Bar Association Professional Responsibility Section Opinion 2009-1 concluded that a lawyer could “search” for metadata, but may have an obligation to notify the sender of the existence of the metadata pursuant to Rule 4.4(b)
New Hampshire attorneys may not search for, review, or use metadata in electronic materials received from opposing counsel. New Hampshire Bar Ass’n. Ethics Comm., Op 2008-2009/4 (April 16, 2009)
Pennsylvania lawyers who receive electronic content from opposing counsel can examine metadata hidden in documents and use it for the client’s benefits. Pennsylvania Bar Ass’n, Comm. on Legal Ethics and Professn’l. Responsibility, Formal Op. 2009-100
On November 7, the Law School will host the 9th annual Georgia Symposium on Professionalism and Ethics. The topic for this years symposium is “Ethics and professionalism in the Digital Age.” There will be presentations and panel discussions on e-discovery, the internet and lawyer marketing, and meta-data. The symposium will take place in the Law School Courtroom beginning at 9 a.m. on the 7th. The event is open to the public, and CLE credit will be available. For further information, contact professor Patrick Longan at (478) 301-2639 or longan_p@law.mercer.edu
Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.
Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!
Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states:
A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information. What constitutes reasonable care will depend on the facts and circumstances. The duty to provide competent representation requires a Sending Lawyer to ensure that he or she is reasonably informed about the types of metadata that may be included in an electronic document or file and the steps that can be taken to remove metadata if necessary. Within a law firm, a supervising lawyer has a duty to ensure that appropriate systems are in place so that the supervising lawyer, any subordinate lawyers, and any nonlawyer assistants are able to control the transmission of metadata.
A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata. If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived. The Receiving Lawyer must promptly notify the Sending Lawyer. Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred. In some instances, the lawyers may be able to agree on how to handle the matter. If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.
If, before examining metadata in an electronic document or file, the Receiving Lawyer receives notice from the sender that Confidential Information was inadvertently included in metadata in that electronic document or file, the Receiving Lawyer must not examine the metadata and must abide by the sender’s instructions regarding the disposition of the metadata.
The full opinion, No. 119 (May 17, 2008) is here.
Blacking out text doesn’t erase it. But a plaintiff’s firm suing GE in a $500m class action didn’t realize that… and put a whole slew of GE confidential information in the public domain as a result. Read about it here.
Another opinion, this one from the New York County Bar Association (New York County Lawyers’ Ass’n Comm. of Professional Ethics, Op. 738 (March 24, 2008)), suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context). The opinion is here.
David Hricik and Chase Scott have published a thorough piece on where most common software creates metadata, available here in the February 2008 Georgia Bar Journal.
Arizona’s bar association in Opinion 07-03 (Nov. 2007) concluded that, while lawyers must use reasonable care to “scrub” metadata from out-going documents, a recipient must generally avoid looking for inadvertently included metadata, but instead generally must notify the sender of the inclusion of metadata.
As noted elsewhere here, the question of whether it is ethical to look for metadata in a document e-mailed among opposing counsel has split the bar associations. Pennsylvania recently issued opinion 2007-500 (not available on line, but at 30 Pa. Law. 46 and on westlaw). After surveying those opinions, the committee concluded that “it would be difficult to establish a rule applicable in all circumstances and that consequently the final determination of how to address the inadvertent disclosure of metadata should be left to the individual attorney and his or her analysis of the applicable facts.”
The DC Bar issued ethics opinion 341 concerning the review and use of metadata. ”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.”
This ABA CPR Metadata Powerpoint is a product of Michael Downey, Karen Phillips, and David Hricik.
Professor Hricik’s latest article on metadata, just published by the North Carolina Journal of Law & Technology is found here.
This article reports that Vista apparently creates its own metadata.
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