The Practical Litigator | 21

Carolyn Witherspoon

Communication may be getting easier, but secrets are getting harder to keep.

The legal profession is no stranger to adapta-tion. Indeed, the doctrine of stare decisis and the funda-mental principles of the common law are evolutionary by their very nature, and so is human technology. In the past decade or two, the attorney’s ethical duty of confidenti-ality, the attorney-client privilege, and the work-product doctrine, have all been affected by innovations in efficien-cy of communication like the fax machine, computer, cellular phone, and email. The legal profession’s various procedural and ethical rules invariably lag behind the lat-est invention, and new ethical issues arising from technol-ogy disputes are common, making reluctant technophiles out of many practitioners. The latest legal gremlin to cause mischief in litigation pertains to the inadvertent disclosure of metadata, and, to a lesser extent, pre-production deletion of metadata. The latter practice is becoming more and more common and is normally not an issue. When the metadata is under evidentiary dispute, however, deletion or “scrubbing” of this metadata may have consequences for obvious reasons. Problems also arise when a document and accompany-ing metadata are disclosed with confidential information contained therein. Because of the scarcity of the law in this area, inadvertent disclosures of metadata are creat-ing ethical questions affecting the disclosing attorney’s

Carolyn Witherspoonis a partner with Cross, Gunter, Witherspoon & Galchus, P.C. in Arkansas. She is a member of the Pulaski County (President, 1989-1990), Arkansas (President, 1995-1996; Labor Law Section, Chair, 1991-1992) and American (Member; House of Delegates, 1997-; Labor Law Section and EEO Committee; TIPS) Bar Associations, Arkansas Association of Women Lawyers (President, 1982-1983); William R. Overton Inn of Court (President, 1992-1993); Member, Members Consultative Group for Restatement Third, Employment Law, American Law Institute; Fellow, American College of Labor and Employment Lawyers; Member, American Employment Law Council; Member, American Judicature Society. This article is based on a paper the author prepared for a seminar sponsored by the ABA’s Section of Labor and Employment Law. The author would like to thank Travis Bo Loftis, a student at the University of Arkansas at Little Rock, William H. Bowen School of Law, for his assistance with this article.

Confidentiality And Ethics In A Wired World

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duty of confidentiality and the receiving attorney’s duty of zealous representation. Although this is a broad topic raising many issues, the focus of this article is directed to ethical implications generally. Confidentiality disclaimers in email commu-nications are used every day by virtually all par-ticipants in the online commercial marketplace and throughout the legal profession. Although no attempt to enforce this boilerplate language is cur-rently reported, they seem to be here to stay, like the disclaimers commonly displayed on fax cover-sheets. This article also focuses on the efficacy of the disclaimer and ethical issues arising from the use and non-use of them.

hi-TeCh realiTY anD eThiCal oBli-gaTions: MeTaDaTa • Many lawyers know that electronic documents contain metadata. For the less technologically savvy attorney, metada-ta—also known as “data about data”—is embed-ded information in an electronic document. From a more technical perspective, metadata is used by the system administration to manage the docu-ment’s storage, transfer, and general handling. As for spreadsheets (e.g., Microsoft Excel), these files contain cells that may contain mathematical for-mulas or calculations in metadata form that are not seen in a printed version but may have evidentiary value. See Williams v. Sprint/United Management Com-pany, 230 F.R.D. 640 (D. Kan. 2005). All of these files are subject to metadata inspection in an elec-tronic copy. An analog from the pre-electronic era is a li-brary catalog card. The card typically contains data about the contents and location of a book in the library. Additionally, the card contains the name of the author, the title of the book, the publisher, the year of publication, the genre, the series it belongs to, and other identifiers such as ISBN numbers and Dewey Decimal system call numbers. Using meta-data, a Microsoft Word or WordPerfect document is created, catalogued, and retrievable in a fashion

similar to the library catalog card. Metadata is im-mediately associated with a new document that designates the type of file, creation and edit dates, authorship, and edit history.

The ethical rules The issue of metadata is important for attorneys because the disclosure of this information—either on purpose or not—implicates several ethical rules, as well as discovery rules. Obviously, a primary ethical rule implicated is the disclosing attorney’s duty of confidentiality under Rule 1.6 of the ABA’s Model Rules of Professional Conduct. When is metadata confidential? Metadata may also affect all attorneys’ duty to provide diligent representation to their clients under Rule 1.3. Does the interplay of these rules require the disclosing attorney to delete metadata before sending? When will deleting meta-data be an offense subject to discipline or sanc-tions? Does Rule 1.3 oblige the receiving attorney to inspect metadata that is disclosed in discovery in order to zealously represent the client? Does Rule 4.4(b) require the receiving attorney to notify the disclosing attorney when confidential information contained in metadata is inadvertently disclosed? The hi-tech landscape and the presence of metadata information may affect the attorney-cli-ent relationship, the work-product doctrine, and the attorney’s general duty of confidentiality. The imprudent attorney is in danger of waiving the first two of these doctrines by inadvertently disclos-ing metadata and is in danger of violating ethical rules by breaching confidentiality in the process. The courts have adopted various approaches to the waiver of the attorney-client and work-product privileges. See Douglas R. Richmond, The Attorney-Client Privilege and Associated Confidentiality Concerns in the Post-Enron Era, 110 Penn. St. L. Rev. 381 (2005). Most courts take a reasonableness or balancing ap-proach to determine whether a waiver applies to these privileges. E.g., Maldonado v. New Jersey, 225 F.R.D. 120, 130–31 (D.N.J. 2004).

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The DisClosing aTTorneY: aBa MoD-el rUle 1.6 • Rule 1.6(a) mandates that “[a] lawyer shall not reveal information relating to the representation of a client” unless the client gives per-mission or other exceptions apply. Model Rules of Prof ’l Conduct R. 1.6 (2004). Comment 16 to Rule 1.6 states that, “[a] lawyer must act competently to safeguard information relating to the representa-tion of a client against inadvertent or unauthorized disclosure by the lawyer.” Id. Also, Comment 17 states that, “the lawyer must take reasonable pre-cautions to prevent [transmitted communications] from coming into the hands of unintended recipi-ents.” Id. How do these general rules apply to the lawyer in the ordinary course of business? For example, Microsoft Word has features such as “Track Changes” and “Comments.” If a docu-ment is edited using “Track Changes,” and an elec-tronic document is disclosed with the feature still activated, the receiving attorney may view every change that was made to the document. Campbell C. Steele, Attorneys Beware: Metadata’s Impact on Privi-lege, Work Product, and the Ethical Rules, 35 U. Mem. L. Rev. 911, 937 (2005). Microsoft Word’s “Com-ments” feature allows for multiple parties (e.g., at-torney and client) to add comments to a specific electronic document. Id. Like “Track Changes,” this feature, if not de-activated before disclosure, allows the receiving party to view any comments that were added—comments by the disclosing attorney’s client, for example. Id. Similar features to WordPerfect as well as other Microsoft applica-tions, such as PowerPoint and Excel, also contain these metadata hazards. Id.; see also The Dangers of Document Metadata: The Risks to Corporations, available at http://www.metadatarisk.org. In addition to ethical problems arising from “Track Changes” and “Comments,” other seem-ingly innocent and efficient practices may be haz-ardous. For example, many users of electronic documents or templates will do a “save as” over a previous version, making the appropriate changes

and deletions. This technique—dubbed “dupe-and-revise”—saves time but leaves intact original au-thor information, print dates, and even hidden text. Randy Farrar & Susan McClellan, Metadata Management in Microsoft Office: How Firms Can Protect Themselves against Unintentional Disclosure and Misuse of Metadata, (May 2006) available at http://www.abanet.org/genpractice/ereport/2006/may/metadata.html. This metadata information may contain Rule 1.6 information from current or previous clients.

reasonableness: new York state Bar association ethics opinion 782 As the only state bar to do so, the New York State Bar Association issued Ethics Opinion 782 in 2004 in order to clarify whether the inadvertent disclo-sure of metadata was an ethics violation under the state’s rules—specifically confidentiality rule DR 4-101(B), which is an analog of MRPC 1.6 The com-mittee concluded that “[l]awyers have a duty under DR 4-101 to use reasonable care when transmitting documents...to prevent the disclosure of metadata containing client confidences or secrets.” N.Y. State Bar Ass’n Comm. on Prof ’l Ethics, Op. No. 782 (Dec. 8, 2004) (emphasis added). Thus, the com-mittee used a reasonableness standard and defined “reasonable care” as placing a duty on lawyers to “stay abreast of technological advances” and the potential risks involved. Id. In an article in the Journal of the Kansas Bar Asso-ciation, a state court judge observed that most courts require attorneys to use “reasonable efforts” to keep client information confidential. Hon. Steve Leben, Considering the Inadvertent Disclosure of Metadata, 75 J. Kan. B. Ass’n 26 (Apr. 2006). The judge reasoned that the attorney who has not taken the time to learn about metadata and to take measures to prevent its disclosure has not made a “reasonable effort.” Id. Otherwise, the disclosing attorney risks violating the Model Rules in addition to waiving privilege of the disputed metadata information. Id.

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This majority rule reasonableness approach to the attorney’s duty to protect confidential informa-tion within the context of the attorney-client and work-product privileges is reflected in the recent decision of Maldonado v. New Jersey, supra. The fac-tors employed by the court included:• The reasonableness of the precautions taken

to prevent inadvertent disclosure in view of the extent of the document production;

• The number of inadvertent disclosures;• The extent of the disclosure;• Any delay and measures taken to rectify the

disclosure; and• Whether the overriding interests of justice

would or would not be served by relieving the party of its error.

Id. at 128. To determine whether the attorney-client privilege applied, the court focused on the first factor and addressed the “reasonableness of the precau-tions taken” to protect the disputed correspondence. Id. at 129. Similarly, the court determined that the key question with respect to the work-product privi-lege was whether the material was kept away from adversaries. Id. at 131. In the case of work-product, it is easy to see how a question of privilege may turn on the reasonableness of the measures taken to protect the work-product information. Thus, Mal-donado outlines a helpful framework within which to analyze whether the inadvertent disclosure of metadata waives privilege, breaches the ethical duty of confidentiality, or both. In summary, a plain reading of Rule 1.6 in-tuitively covers the hidden information contained in metadata. Indeed, Comment 17 requires the lawyer to take “reasonable precautions” to protect confidential information. The contemporary view outlined by Maldonado regarding the waiver of the attorney-client privilege reinforces the idea that “reasonableness” will be the focus of any inquiry into a breach of the attorney’s ethical duty of con-fidentiality when sensitive metadata is disclosed. Therefore, it is incumbent upon all practitioners to

be aware of the hidden dangers posed by inadver-tent metadata disclosure and to make reasonable efforts to protect the metadata information when appropriate.

“scrubbing” Metadata and preventing inadvertent Disclosure Ethical Opinion No. 782 of the New York State Bar Association demonstrates that attorneys in New York have a duty to investigate, and, if necessary, prevent metadata from disclosure when it contains confidential information. Whether reasonableness requires the attorney to obtain scrubbing soft-ware—widely available on the market—remains an open question in virtually all jurisdictions. J. Bri-an Beckham, Production, Preservation, and Disclosure of Metadata, 7 Colum. Sci. & Tech. L. Rev. 1 (2006). In some cases, the deletion of metadata may be seen as comparable to shredding documents, especially if the metadata is permanently lost. In most cases, however, the use of this software will be the rea-sonable and safer alternative when the metadata is not under dispute or is the subject of privilege. The best alternative is for the litigants to be specific as to the form of production in their discovery confer-ence and to assert privilege early.

Conversion To .pdf or .tif In response to discovery requests, many attor-neys routinely convert electronic documents into more limited electronic formats such as Adobe PDF “.pdf ” or a similar file name extension called a TIFF image (“.tif ”). This practice is a good way to guard against metadata inspection and confiden-tiality disclosures when there is no duty to preserve the documents in the original format. Problems may arise in litigation, however, when the parties involved are not clear at the outset regarding the form of discovery documents. See, e.g., Hagenbuch v. 3B6 Sistemi Elettronici Industriali, 2006 WL 665005, at *2 (N.D. Ill. Mar. 8, 2006) (holding that defen-dant did not comply with discovery order that was