Chase Edward Scott and David Hrickik posted a fantastic article in the June 2009, ABA Young Lawyers Division newsletter, titled “Metadata: Are You in Danger of an Ethics Violation ?” They give a good summary of the pitfalls of metadata (the “data about data” that gets stored on all electronic documents) for lawyers. The thrust of the article asks what the lawyer’s duty is regarding confidential metadata embedded in a document transmitted in discovery? It seems that some argue that failure to remove such metadata is a breach of the lawyer’s duty b/c everybody knows about metadata.
In the authors’ experience, though, the oppososite is true: most attorneys have never heard of metadata, let alone understand how to handle it.
The authors say that as technology becomes more pervasive and these issues common knowledge, negligence claims will be unavoidable. “Attorneys should make every effort to prevent disclosure of confidential information.”
Interestingly enough, the ABA has not issued a formal ethics ruling that targets metadata. Most states rely on catch-all phrashing in their professional responsibility rules about “dishonest, fraud, deceit, or misrepresentation.” The following chart sums up state bar positions on such violations:
State Bar Associations Opinions on Metadata Searching
|Ethics Violation||No Opinion||No Ethics Violation|
I do not think that states will be able to narrow this issue much in the future. Search technology just gets better and better as the years go on, and even efforts to conceal privileged information may be futile. This will only increase the scope of what we call “work product” and becomes privileged information. As we strive to find a balance between technology and a lawyer’s duty the watchword (as always) will be reasonableness. The last thing I think any state bar association wants to do is create e-discovery vaults where obtaining electronic documents of value becomes impossible b/c of futile metadata removal efforts.