With the rapid progression of computer technology, the production of documents in response to a government subpoena or civil discovery request has unearthed new and unexplored issues. Increasingly, prosecutors and regulators are requiring, and opposing counsel in civil cases are requesting1 that documents be produced in electronic format. Yet, unlike their hard copy counterparts, electronic documents—specifically those in native format—contain hidden information in the form of "metadata." Simply stated, metadata is "data about data,"2 which is buried beneath the information visible on a computer screen and which readily can be extracted. Metadata reveals the "who," the "what," and the "when" behind a document's creation and modification.
The issue of metadata poses at least three questions: (1) Must your client preserve metadata? (2) Under what circumstances must the client produce metadata? And, (3) if metadata is produced, may prosecutors, regulatory agencies, and civil litigants "mine" that metadata for hidden information?
As for preservation, a client gathering documents in response to litigation or anticipated litigation, whether in the civil, criminal, or regulatory context, has an obligation to not alter or destroy metadata.3 Failure to preserve a document—including the metadata—after receiving a subpoena (or merely becoming aware of the possibility of a subpoena's being issued) is tantamount to spoliation and could result, in the criminal context, in a prosecutor's drawing inferences adverse to the client or, worse yet, obstruction charges. Similarly, in the civil context, destruction of metadata can result in adverse inferences being drawn, and the imposition of monetary sanctions, against the offending party.
Whether such metadata needs to be produced, however, is another question. Production of metadata gives a prosecutor, regulator, or litigant a trove of hidden information about the documents being produced. Generally speaking, absent a specific request, there is no requirement to produce the metadata. However, the point is increasingly becoming a moot one: federal prosecutors, state Attorneys General, the Securities and Exchange Commission, and so on are increasingly demanding from the outset that electronic documents be produced "as maintained" or in "native format"—that is, with all metadata intact and unaltered. Indeed, in recent investigations the SEC has gone even further, specifying in great detail the data delivery standards expected of all productions, such as file type, image format, inclusion of OCR-data, and treatment of attachments.
In the civil context, assuming that electronic documents are produced with all of the metadata preserved and included, an ethical question arises as to whether an adversary then can mine the metadata. The challenges this issue presents has prompted a number of state bar associations, as well as the American Bar Association, in recent years to address the question of whether it is ethical for an attorney surreptitiously to search metadata contained in documents received from the opposing side.
Considering the ethical implications of mining for metadata, the ABA's Standing Committee on Ethics and Professional Responsibility, in an opinion issued in August 2006,4 concluded that, although the applicable rule obligates a recipient of inadvertently sent confidential information— including metadata—to notify an adversary of the inadvertent transmission, 5 there is no additional ethical duty to abstain from searching metadata. The committee dismissed the idea that the prohibitions against "dishonesty, fraud and deceit or misrepresentation" and "conduct prejudicial to the administration of justice" bar the mining of metadata.6 A similar approach has been taken by the Maryland State Bar Association, which concluded in a 2006 opinion that an attorney receiving an electronic document or communication containing metadata does not have a duty to refrain from searching for such hidden information.7 The Maryland opinion discussed the use of metadata in the context of civil litigation, though not specifically referring to documents produced in the course of discovery.
In contrast to the ABA's and Maryland's approach, a 2001 ethics opinion issued by the New York State Bar Association determined that an adversary cannot "make use of computer software applications to surreptitiously 'get behind' visible documents or to trace e-mail."8 Although the discussion was not framed in terms of documents turned over as a result of a document demand or subpoena, there is no reason to believe that the ethical considerations underlying the opinion would not apply similarly to documents provided under such circumstances.9 Similarly, the Alabama Disciplinary Commission also has reasoned that mining metadata is 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."10 Thus, the commission concluded that such mining amounts to professional misconduct and that, without authorization from an adversary to uncover confidential information, a lawyer has an ethical obligation not to search metadata. In addition, an opinion issued by the Florida State Bar Association also advised that an adversary receiving an electronic document or communication has an obligation to refrain from mining metadata.11 However, it should be noted that both the Florida and Alabama opinions addressed those situations in which documents are voluntarily exchanged with opposing counsel, rather than where they are produced as part of electronic discovery.
More recently, in the fall of 2007, the Ethics Committee for the District of Columbia Bar Association advised that a receiving lawyer may review metadata contained in an adversary's electronic files, unless the receiving lawyer has actual prior knowledge "that [the] protected information was unintentionally included."12 Of course, considering the ethical obligation not to alter information and the prevalence of electronic documents, one might presume that an adversary who has produced metadata has done so knowingly, making such information entirely searchable.
Noting the incongruity among the various jurisdictions and the "persuasive rationale" underlying each approach, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility recently opined "that it would be difficult to establish a rule applicable in all circumstances and that consequently the final determination of how to address the inadvertent disclosure of metadata should be left to the individual attorney and his or her analysis of the applicable facts."13 The opinion sets forth a list of factors that the Ethics Committee believes an attorney should consider in determining whether to use the metadata contained in a document, including: how and from whom the information was received; the nature of the information received; attorney-client privilege and work-product rules; and common sense, reciprocity, and professional courtesy. Although the Ethics Committee concluded by stating that it did not believe the inadvertent transmission of metadata constitutes a waiver of attorney-client privilege, from a practical perspective, the Pennsylvania approach ultimately does little to dissuade an attorney from succumbing to the temptation to search the metadata in electronic documents received from an adversary.
Although these various opinions are limited to the civil context, we know of no reason why the government could not mine metadata if documents in native format are produced inadvertently in response to a grand jury or administrative subpoena, even if such information was not specifically requested. Of course, this is not to say that the government might not be restricted from using metadata if such information constituted attorney-client communications or attorney work product.
Because the metadata lurking on one's computer can provide critical information to an adversary, it would be remiss for anyone responding to a government subpoena or civil discovery request to be unprepared to address issues that may well arise when electronic documents are required to be produced.
Footnotes
1. See Fed. R. Civ. P. 34(a)-(b).
2. The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age, App. F (The Sedona Conference Working Group Series, July 2005 Version).
3. See, e.g., Williams v. Sprint United Management Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (holding that, when "produc[ing] electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order").
4. See ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 06-442.
5. See Model Rule 4.4(b) ("A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.").
6. See Model Rule 8.4.
7. Md. State Bar Opinion 2007-09 (2006).
8. NYSBA Ethics Opinion 749 (2001).
9. See also DR 4-101, Preservation of Confidences and Secrets of a Client.
10. Ala. Ethics Op. Ro-2007-02 (2007).
11. Fla. Bar Op. 06-02 (2006).
12. D.C. Leg. Ethics Op. 341 (2007).
13. Pa. Bar Assoc. Comm. on Leg. Ethics and Prof'l Responsibility, Formal Op. 2007-500.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
