The rules governing discovery of electronically stored information, though non fully adult, have matured enough to provide the bones "do'south and don'ts" for attorneys. Often, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document'south metadata, the data automatically embedded in an electronic file that contain data about the document, such as its origin and history of revisions. But what are a lawyer'south responsibilities concerning the manual or receipt of metadata outside of the discovery context? A contempo ethics stance from the State Bar of Texas offers some guidance—and a stern warning: attorneys take chances violating state rules of professional conduct if they mishandle metadata.

According to 1 source, the number of concern e-mails sent and received worldwide each day is expected to exceed 120 billion this year. Attorneys accept taken advantage of the speed, ease, and depression cost of transmitting documents via east-mail; they share drafts of motions and pleadings with clients or co-counsel, for example, and exchange draft agreements with opposing counsel. When these documents are transmitted in their native format, they may include, unbeknownst to some senders or recipients, metadata containing confidential information.

The Professional Ethics Committee for the State Bar of Texas recently concluded that a lawyer must accept "reasonable measures" to avert transmitting metadata containing a client's confidential information to persons to whom such confidential information shouldn't exist disclosed.See Professional Ethics Committee for the State Bar of Texas, Opinion No. 665, at ii (Dec. 2016). This obligation, co-ordinate to the commission, springs from two duties imposed nether Texas rules of professional conduct: the duties of competence and confidentiality.Id.

These professional duties are not unique to Texas, so it is unsurprising that other states similarly require attorneys to handle metadata advisedly. Lawyers in New York, for example, must exercise "reasonable intendance" to forbid the disclosure of metadata containing confidential data.See Committee on Professional Ethics, New York State Bar Association, Opinion No. 782 (Dec. 2004). Like rules be in Alabama, Arizona, Colorado, Florida, Maine, Maryland, Minnesota, Mississippi, New Hampshire, New Bailiwick of jersey, N Carolina, Oregon, Pennsylvania, Vermont, Washington, West Virginia, Wisconsin, and the Commune of Columbia.

But non every country has formally addressed the result, and those that have taken it upwardly take adopted different rules regarding the obligations of an chaser who receives electronic documents containing metadata. In Arizona, for instance, a lawyer who receives an electronic communication may not examine, or "mine," the document for metadata.Encounter State Bar of Arizona Ideals Commission, Opinion No. 07-03 (Nov. 2007). Further, an attorney who inadvertently discovers metadata that she knows, or reasonably should know, reveals confidential information must not review it and must notify the sender.Id. The state bars of Florida, New York, New Hampshire, North Carolina, West Virginia, and the District of Columbia have adopted a similar position.

By dissimilarity, attorneys in Colorado, Maryland, New Jersey, Oregon, Vermont, Washington, and Wisconsin are generally permitted to review or mine metadata, though at that place are important qualifications in many of these states. In Washington, for example, an attorney may not apply special software to examine metadata that is not readily accessible.Meet Washington State Bar Association, Advisory Opinion No. 2216 (2012). Other states, such as Minnesota and Pennsylvania, have adopted a case-by-case approach rather than a vivid-line rule.

Given this patchwork of rules, what steps can be taken to avert violating them? State bars have non precisely defined what constitutes "reasonable measures" for protecting against transmitting metadata containing confidential data. The "reasonableness" of the lawyer'southward conduct depends upon the factual circumstances, including the information'south sensitivity and the intended recipient. Yet, there are relatively straightforward precautions that can exist taken that may go a long fashion in coming together this standard.

  • Consult with an it expert to obtain software that removes the metadata. Of grade, software is but effective if used correctly. Some programs may prompt the user to cull whether or non to "scrub" the metadata before transmitting the document. If the program's default is not prepare to remove the data, blindly "clicking through" the program queries could result in the inadvertent transmission of metadata.
  • Convert the electronic document to a read-only PDF, or impress the document and scan it equally a PDF, and transmit the PDF version. The PDF is itself an electronic document, so it may include metadata, though non necessarily the same information embedded in the original electronic document.
  • Transmit the document the quondam fashion style: impress the electronic document and send the newspaper copy by fax, post, or courier.

The reply to avoiding ethical violations by the recipient of metadata is less straightforward given the different state rules. Recipients who accept a better-safe-than-distressing approach past ignoring metadata in all instances might not be choosing the right class, as declining to thoroughly review documents obtained from opposing counsel could itself be a violation of an chaser's duties of competence and diligence.See, due east.yard., Vermont Bar Association Professional person Responsibility Section, Opinion No. 2009-1 (2009). Attorneys, therefore, must carefully review the rules in their own state. Failure to do then could have significant consequences.

Tags: Confidential Data, Discovery, Electronic Documents, electronically stored information, Ethics, Metadata, Native File Documents