Friday, September 21, 2007

2007-09-21 DC Bar Publishes Metadata Ethics Opinion - Sending and Mining Issues Addressed

The District of Columbia Bar recently issued an opinion on a lawyer's ethical obligations and responsibilities in connection with the sending or receipt of electronic data in a non-discovery context, that might contain confidential information.

The DC Bar approach takes a somewhat less balanced approach than does Florida, and permits greater leeway to a receiving party. To that end, the DC Bar opinion places upon the sending attorney a reasonable duty not to send electronic information containing confidence-laden metadata, but places an "actual knowledge" (rather than Florida's more stringent negligence-based "know or should know" standard) that a received document contains metadata.

In actuality the "actual knowledge" element might well prove be difficult to establish, as one might presume that the "actual knowledge" might be acted upon by as recipient in such as way as to *not* give rise to any suspicion of metadata mining. For instance, an attorney might have "actual knowledge" but unless that attorney acted in some way in furtherance upon that "actual knowledge" (such as claiming a fact found only in such metadata, or writing a brief setting forth such confidences, both of which seem fairly unlikely), an allegation of actual knowledge would probably fail.

Excerpt from DC Ethics Opinion 341:

Electronic Documents Provided Outside of Discovery

1. The Sending Lawyer:
Lawyers sending electronic documents outside of the context of responding to discovery or subpoenas have an obligation under Rule 1.6 to take reasonable steps to maintain the confidentiality of documents in their possession. This includes taking care to avoid providing electronic documents that inadvertently contain accessible information that is either a confidence or a secret and to employ reasonably available technical means to remove such metadata before sending the document. See N.Y. State Bar Ass'n Committee Op. 782. Accordingly, lawyers must either acquire sufficient understanding of the software that they use or ensure that their office employs safeguards to minimize the risk of inadvertent disclosures.

2. The Receiving Lawyer:
More often than not, the exchange of metadata between lawyers is either mutually helpful or otherwise harmless. Lawyers routinely exchange contracts, stipulations, and other documents that include “track changes” or other software features which highlight suggested modifications. Similarly, spreadsheets include necessary metadata such as formulas for the columns and rows, thereby providing a useful understanding of the calculations made. But when a receiving lawyer has actual knowledge that the sender inadvertently included metadata in an electronic document, we believe that the principles stated in Opinion Nos. 256 and 318 relating to inadvertent production of privileged material should be used in determining the receiving lawyer’s obligations. In Opinion No. 256, we stated that, where a lawyer knows that a privileged document was inadvertently sent, it is a dishonest act under D.C. Rule 8.4(c) for the lawyer to review and use it without consulting with the sender. We reached a similar conclusion in Opinion No. 318, regarding the receipt of documents from third parties. However, we noted in Opinion 318 that, where the privileged nature of the document is not apparent on its face, there is no obligation to refrain from reviewing it, and the duty of diligent representation under D.C. Rule 1.3 may trump confidentiality concerns.

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