Data Mining Opinions Rita Assetto E-Discovery Fall 2009

Metadata Data typically stored electronically that describes characteristics of ESI found in different places in different forms. It can be supplied by application, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted. Metadata can be altered intentionally of inadvertently. Some metadata, such as file date and sizes can be seen easily by users; other data can be hidden or embedded and unavailable to users not adept to searching for it. Certain metadata can be extracted when native files are processed for litigation purposes.

Data Mining Mining Data refers to the practice of deliberately searching a document’s underlying metadata for hidden or embedded information. –The ability to look at metadata can be hugely beneficial to the receiving party and detrimental to the producing party

Data Mining Is it ethical to mine data? –Currently there are conflicting answers to the question of whether attorneys can ethically mine data. –The views range from mining is ethical to it is completely unethical. –Where does the debate come from?

Data Mining Generally, the debate surrounding the answer stems from differing interpretations of ABA Model Rule 4.4(b)

Data Mining 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.

Data Mining New York was the first jurisdiction to address the ethical obligations of attorneys in relation to metadata. The New York State Bar Association Committee on Professional ethics recognized that modern computer technology enables sophisticated users who receive documents by electronic transmission to get behind what is visible on the computer screen to find potentially vital information. It issued Opinion 749 on 12/14/01.

Data Mining Opinion 749 specifically responded to the question: –“May a lawyer use available technology to surreptitiously examine and trace and other electronic documents in the manner described?” –Their answer was that mining this information constituted an impermissible intrusion on the attorney-client relationship.

Data Mining Opinion 749 stated that public policy favored 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 the Disciplinary Rules. –The bar associations of Florida, Alabama and Arizona have adopted a similar view as New York about the unethical nature of mining metadata.

Data Mining In August 2006, The ABA’s standing Committee on ethics and Professional Responsibility issued Opinion In contrast to New York, the ABA found that the Model rules did not contain provisions that would forbid attorneys from reviewing and using metadata. ABA maintained the Rule 4.4(b) was silent as to the ethical propriety of a lawyer’s review or use of such information.

Data Mining ABA-Formal Opinion stated that: “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 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.”

Data Mining Then in 2007 the Maryland State Bar Association issued yet another opinion. The Maryland Opinion was in line with the ABA but followed a different rationale. The Maryland opinion addressed three questions. –1.Whether it is ethical for the attorney recipient to view or use metadata in documents produced by another party. –2. Whether the attorney sender has any duty to remove metadata from the files prior to sending them. –3. Whether the attorney recipient has any ethical duty not to view or otherwise use the metadata without fist ascertaining whether the sender intended to include such metadata in the produced documents.

Data Mining The Maryland Opinion found that there is no ethical violation if the recipient attorney reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata. Note: the Maryland Rules of Professional Conduct have not been amended to include Model Rule 4.4(b)

Data Mining Hybrid Opinions: –D.C. Legal Ethics Opinion 341 (2007) A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent.

Data Mining Hybrid Opinions: –Pennsylvania Bar Association Formal Opinion “Each attorney must determine for him or herself whether to utilize the metadata…” The decision of how or whether a lawyer may use the information contained in metadata will depend upon many factors, including: –Judgment of the lawyer; facts of the situation lawyer’s view of his or her obligations to the client; nature of the information received; how and from whom the information was received; attorney-client privilege and work product rules; and common sense, reciprocity and professional courtesy.

Data Mining Hybrid Opinions: –Colorado Bar Association Ethics Opinion 119 (2008) The Committee concluded that a receiving lawyer generally may ethically search for and review metadata embedded in an electronic document received from opposing counsel or a third party. However, if the receiving party knows or reasonably should know that a sending lawyer has transmitted metadata that contains Confidential Information, the receiving lawyer should assume it was transmitted inadvertently and must properly notify the sending party.

Data Mining Access to and the use of metadata pose a number of ethical concerns. –Duties of Sending Attorneys –Duties of Receiving Attorneys

Data Mining 1. Which view do you agree with? What do you think the duties of the sending and receiving attorney are? 2. Should there be a “safe Harbor provision similar to 37(e) for the good faith operation of a software scrubbing program.