Transcript Scott F. Johnson Maureen MacFarlane     Metadata is information contained in electronic or digital files “Data about data” or “information about information” e-mail, spreadsheets, word processing documents not.

Scott F. Johnson
Maureen MacFarlane
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Metadata is information contained in
electronic or digital files
“Data about data” or “information about
information”
e-mail, spreadsheets, word processing
documents
not readily apparent when
normally viewing the file
(embedded information)
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Can reveal who worked on document and
when
Changes that were made to the document
in drafting process
Comments in a document
Raises issues of attorney client privilege
and attorney work product.
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Both the sender and
receiver have some
ethical obligations
with metadata.
Extent of obligations
depends on state and
how it interprets
various ethical rules.
Issued several opinions noted in handout.
 Latest one was Aug. 2006, Op. No 06-442.
 It stated:
“The 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.”
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“A lawyer who is concerned about the
possibility of sending, producing, or
providing to opposing counsel 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.”
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ABA Opinion also says that Rule 4.4(b)
requires the receiving lawyer to notify the
sending attorney when the lawyer receives
what the “lawyer should reasonably know
were inadvertently sent documents.”
No prohibition on reviewing the
information when inadvertently
sent.
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States appear to agree that there are some
obligations on the sending attorney to
prevent disclosure of information through
metadata.
“Reasonable care to avoid improper
disclosure of confidential information
contained in metadata.” NH Ethics Opinion
2008-2009/4 (April 16, 2009).
What is reasonable depends on
circumstances.
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Attorneys “should acquire, at
the very least, a basic
understanding” of metadata
and ways to limit the
likelihood of transmission
Scanning the document “may
be adequate in most
circumstances.”
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States vary on the obligations of the receiving
attorney.
Some follow an ABA type approach.
Some take an approach that allows “mining”
or searching and reviewing metadata, but
must stop if know or should know
confidential information sent
inadvertantly.
Some prohibit mining for and
reviewing metadata
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Based on particular language in state rules
as compared to ABA
Different interpretations of:
◦ Whether the metadata information is
confidential and inadvertently sent
◦ whether attorney needs actual knowledge that it
was inadvertently sent (as compared to a knew or
should have known approach)
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Some like NH say it is inadvertent and
receiving attorney necessarily knows it is…
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Maryland – followed ABA approach
D.C. – may review for metadata unless actual
knowledge that metadata containing
confidential information was transmitted
inadvertently. Then must notify and stop
reviewing.
New York – May not search for or review
metadata under rule prohibiting dishonest,
fraudulent, or deceitful conduct.
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Colorado – no per se prohibition on searching
and reviewing. If confidential information is
found must assume the information was
inadvertently sent and notify, but may
continue to review.
Maine – Followed New York approach…
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“[I]t 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.”
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Rules 3.2(f)(3) and (4)
“A lawyer shall not:…
(3) engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to
the administration of justice.”
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“[A]n attorney who purposefully seeks to
unearth confidential information embedded
in metadata …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.”
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“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.”
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Notes the Corey v. Norman, Hanson & DeTroy
decision where law court prohibited the use
of confidential information obtained by
inadvertent disclosure.
Based on shared responsibility to protect
attorney-client privilege.
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Unless there is some agreement otherwise,
metadata is inadvertently sent.
No lawyer would intentionally send
confidential information in violation of Rule
1.6.
The receiving lawyer necessarily "knows" that
the information has been inadvertently sent.
Same as receipt of attorney notes stapled to
draft documents.
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Rule 4.4(b) imposes an obligation on the
receiving lawyer to refrain from reviewing the
metadata.
No different than peeking at attorney’s notes
during a deposition or eavesdropping on
client conversation
Rule 4.4(b) different than ABA
rule
4.4(b) “A lawyer who receives materials relating
to the representation of the lawyer's client and
knows that the material was inadvertently sent
shall promptly notify the sender and shall not
examine the materials. The receiving lawyer
shall abide by the sender's
instructions or seek
determination by a tribunal.”
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Mr. and Mrs. Smith and school district
disagree about student’s IEP meeting. The
Smiths submit the required form requesting
due process and email the school’s special
education director a word document that
details the issues they have with the IEP and
what they would like the school to do to
resolve the situation.
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SPED director sends it to the school’s attorney who runs a
“properties” search on the document and finds that the
document was edited by Lynn Stallworth a fairly well
known attorney in the area that the school attorney knows
well.
The school attorney is also able to configure the document
to show comments on the document and one of the
comments says “I think you are asking for too much here,
perhaps you should consider an increase in the amount of
reading services from school staff instead. LS”
The final letter did not include the suggested change and
instead had a request for reading services to be provided
by an outside vendor with specific training in OrtonGillingham.
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The school attorney call’s Lynn and says “I
understand that you represent the Smiths, my
client would like to resolve the case...” and
goes on to make an offer of settlement that
includes increasing the amount of reading
services from school staff.
???
Stallworth replies…..
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Stallworth replies:
“That sounds reasonable. Let me talk with
them and I’ll get back to you.”
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Stallworth calls the Smiths and tells them
about the offer.
The Smiths are furious as they did not want
anyone to know that they were working with
an attorney and did not like the suggestion
for more services by school staff when
Stallworth suggested it in the first place.
They believe Stallworth has now ruined their
chances of obtaining what they want.
Any ethical violations?
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Parents and School District are in an
expulsion hearing with state hearing officer.
During discovery, the school requested
records of the student’s personal
psychologist. Parents objected citing
personal, irrelevant information. Hearing
officer ordered the production of the
documents but allowed the parents, through
their attorney, to redact personal, irrelevant
information.
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The parents’ attorney redacts the documents
using the “blackout” function in Adobe
Acrobat and sends the documents to the
school’s attorney in PDF format.
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The school’s attorney then copies the content
of the PDF document and pastes it into a
word document.
This step removes the PDF blackout and the
attorney can see everything in the
documents.
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The attorney believes that two sentences that
were blacked out by the parents’ attorney
contain relevant information.
At the hearing, the school attorney attempts
to introduce that information as evidence
while cross examining the student. The
hearing officer rules that the information is
not relevant.
Any ethical violations?