GSB Vol. 13, NO. 6, Pg. 30. Metadata: Ethical Obligations of the Witting and Unwitting Recipient.

Author:David Hricik and Chase Edward Scott
 
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Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 6, Pg. 30.

Metadata: Ethical Obligations of the Witting and Unwitting Recipient

GSB JournalVol. 13, NO. 6April 2007Metadata: Ethical Obligations of the Witting and Unwitting RecipientDavid Hricik and Chase Edward ScottAs shown in our last article in the February 2008 issue of the Georgia Bar Journal, software commonly used by lawyers often creates embedded data, otherwise known as metadata.(fn1) As previously discussed, there are means to avoid creating embedded data, as well as means available to remove hidden data already created. In theory, at least, it is possible to remove all metadata prior to sending a document to opposing counsel.

In Theory

As also mentioned in our last article, even good lawyers in large, sophisticated firms have recently transmitted documents that contain not just embedded data, but confidential embedded data-even revealing whom the lawyer's client was intending to sue.(fn2) Accidents will happen; people are not perfect, and no doubt even the best software will miss some form of embedded data even if the document is properly scrubbed.

Suppose you open a document sent to you from opposing counsel. Is it ethical for you to purposely mine through the document to see if there is embedded data present? If it is present, can you actually use it?

Before turning to those questions, it is important to note that the discussion in this article is limited to inadvertent transmission outside the context of document production. Procedural rules, such as the new Federal Rules of Civil Procedure, may replace or augment the issues of ethics discussed here.(fn3) Thus, this discussion may have limited application to document production during litigation.

Can You Look?

Given that metadata is a relatively new concern for lawyers, it is not surprising that formal ethical rules do not yet directly address the question of whether it is proper for a lawyer to search an electronic file sent by another lawyer to see whether any useful embedded data is present. Like most states, however, Georgia has a general catch-all rule that prohibits "professional conduct involving dishonesty, fraud, deceit or misrepresentation."(fn4) The question, then, is whether it is dishonest or deceitful to mine for metadata in a document exchanged between counsel. Although the State Bar of Georgia has not yet addressed this issue, bar associations in other jurisdictions have, and their opinions may provide some guidance to Georgia lawyers.

Unfortunately, however, those bar associations that have analyzed the issue have openly split on whether it is ethical for a lawyer to look for metadata. Further, the split is deep, direct and irreconcilable.

On one end of the spectrum, the bars of New York, Alabama, Florida and Arizona have concluded that conducting a purposeful search for metadata is unethical. The New York Bar Association emphasized that "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets" in the embedded data.(fn5) Alabama's bar similarly condemned the act of mining for metadata as "a knowing and deliberate attempt by the recipient attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party."(fn6) The Florida Bar also agreed, but more softly wrote that a recipient should not try to view metadata that the lawyer knows or should know was not intended for his or her viewing.(fn7) Most recently, Arizona's bar issued an opinion advising lawyers that as a general rule a lawyer may not "mine" documents from opposing counsel for metadata.(fn8)

On the other end of the spectrum, both the American Bar Association...

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