Accidental Misuse of Privileged Metadata Results in Sanctions

• Pages: 7-7
• Date: 01 October 2024
• Author: Andrea L. McDonald
• Subject Matter: Civil Law

ven unintentional misuse of

privileged information might

warrant sanctions. An appel-

late court considered whether

an attorney’s use of privileged

information inadvertently disclosed

through unredacted metadata merited

disqualication. Although the court

determined that disqualication was

unnecessary, it did not foreclose the

future possibility, noting that attorneys’

duty of competence extends to computer

technology. To avoid harsh sanctions,

ABA Litigation Section leaders encour-

age all attorneys to understand their

ethical obligations related to electronic

discovery and to protect privileged

information.

In Hur v. Lloyd & Williams, LLC, the

petitioner challenged a trial court’s

denial of a motion to disqualify oppos-

ing counsel for misconduct in retaining

and using privileged material to support

a summary judgment motion. In the

underlying contract dispute, the peti-

tioner electronically produced its emails

with a notice that privileged information

had been redacted. However, the redac-

tion was only partially successful, failing

to scrub embedded text.

Opposing counsel found matches

to keyword searches despite appar-

ent eorts to black out the text. Rather

than notifying the producing attorney,

as required by Washington Rule of

Professional Conduct 4.4(b), respon-

dent’s counsel included the embedded

text in a summary judgment motion.

The petitioner’s attorney recognized

the privileged email fragments and

promptly moved for opposing counsel’s

disqualif‌ication.

Under the deferential review stan-

dard, the Washington Court of Appeals

armed the trial court’s decision not

to impose the “drastic sanction” of dis-

qualif‌ication. Nonetheless, the court

recognized that the respondent’s coun-

sel violated both the rules of civil pro-

cedure and professional conduct when

she failed to take corrective action. The

Accidental Misuse of Privileged

Metadata Results in Sanctions

court considered the resulting prejudice

to the producing party, the fault of the

receiving attorney, the receiving attor-

ney’s knowledge of the privilege, and

the availability of lesser sanctions.

Critically, there was little to no

prejudice to the petitioner. Even if the

respondent’s counsel had followed

the rules, she would have challenged

the claimed privilege and disclosed

the information to the trial court for in

camera review. Further, respondent’s

counsel did not intentionally seek out

privileged metadata. Her keyword

searches appeared motivated only by

her client’s version of the facts.

On the issue of knowledge, the court

of appeals deferred to the trial court’s

determination. The respondent’s coun-

sel testif‌ied that she was unaware that

her keyword search had exposed privi-

leged information. Emphasizing the

drastic nature of disqualif‌ication, the

court found destruction of the f‌iles and

an order in limine was appropriate.

The Hur court did not question the

counsel’s claimed unfamiliarity with

metadata. It acknowledged that even

a “sophisticated computer user” may

have been confused when the search

results did not match the visible text.

Nonetheless, someone “familiar with

metadata” would realize the discrep-

ancy was attributable to insucient

redaction. Unequivocally, the court

specif‌ied that a lawyer’s duty of com-

petence requires an understanding of

metadata.

Litigation Section leaders agree

that this opinion serves as yet another

reminder that attorneys’ obligations

extend beyond just knowledge of the

law. “[Competence] means not only

understanding the types of documents

and ESI that must be collected, pro-

cessed, reviewed, and produced, but

also the software that is utilized as a

part of the process,” asserts Joseph

V. Schaeer, Pittsburgh, PA, Co-Chair

of the Section’s Pretrial Practice &

Discovery Committee.

“It isn’t absolutely necessary for

every litigator to have a vast under-

standing of metadata,” clarif‌ies Andrew

D. Tharp, Nashville, TN, Co-Chair of

the Section’s Mass Torts Litigation

Committee. “However, they must have

processes in place to protect against

inadvertent disclosure, such as having a

member on the team with a higher level

of technical expertise or using a third-

party vendor to assist,” Tharp notes.

Generally, attorneys can guard

against f‌inding themselves the sub-

ject of a motion to disqualify. “When a

receiving attorney comes across what

objectively appears to be privileged

information or an attorney-client com-

munication, that attorney should reach

out to the producing attorney,” Tharp

counsels. “Obligations in the case of

inadvertent disclosure can vary state

by state,” adds Schaeer. In states like

Washington “where ethical rules only

require receiving counsel to notify dis-

closing counsel—not necessarily to

return, destroy, or sequester—the dis-

closing counsel may have an ethical

obligation to clawback the disclosure

when discovered,” he illustrates.

While rare, disqualif‌ication may be

imposed against an innocent receiving

attorney. The Hur court cautioned that,

in the context of a conf‌lict of interest,

mere access to privileged information

may result in mandatory disqualif‌ica-

tion. “The strongest case for a no-fault

disqualif‌ication would likely be where

the inadvertent disclosure was truly

material and the prejudicial eect of

the disclosure could not be undone by

a liminal order,” Schaeer opines.

“Attorneys should work together to

cordially and professionally address

these situations before they become

a hotly contested issue,” Tharp sug-

gests. “Whether to produce metadata

should be part of every initial discov-

ery conference, and attorneys on both

sides should know whether metadata is

being collected and produced,” advises

Schaeer.

By Andrea L. McD onald, Litigation News Contributing Editor

FALL 2024 • VOL. 5 0 NO. 1

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D

Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

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