Scott F. Johnson Maureen MacFarlane

 Metadata is information contained in electronic or digital files  “Data about data” or “information about information”  , spreadsheets, word processing documents  not readily apparent when normally viewing the file (embedded information)

 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.

 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  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.”

“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.”

 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.

 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 /4 (April 16, 2009).  What is reasonable depends on circumstances.

 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.”

 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

 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)  Some like NH say it is inadvertent and receiving attorney necessarily knows it is…

 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.

 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…

 “[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.”

 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.”

 “[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.”

 “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.”

 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.

 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.

 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.”

 Mr. and Mrs. Smith and school district disagree about student’s IEP meeting. The Smiths submit the required form requesting due process and 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.

 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 Orton- Gillingham.

 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….. ???

 Stallworth replies:  “That sounds reasonable. Let me talk with them and I’ll get back to you.”

 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?

 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.

 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.

 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.

 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?