April/May 2006

Ethical Issues Concerning Metadata

Holland & Knight Newsletter
Timothy J. Conner

Metadata may become the latest high-tech ethical and discovery issue to confront litigators. For example, in the litigation surrounding Vioxx, the New England Journal of Medicine recently cast doubt on a study it published in 2000 after discovering, through metadata on a computer diskette, that some data for the study had been deleted just two days before being submitted for publication.

Metadata is information embedded in electronic documents, or information stored externally and used by your computer’s file system, to create a means of organizing and managing documents. Metadata exists in documents created using Word, WordPerfect, Excel, Powerpoint and even PDF files, and is created with every active file stored on a computer. It can be benign, or it can carry revealing information, including the following:

  • authorship
  • the firm’s or organization’s name
  • the name of the author’s computer
  • the name of the network server or hard drive where the document is saved
  • when the document was created, how many times it has been viewed/printed and to which printer it was sent
  • revisions made to the document, including deleted text
  • document versions
  • whether a template was used
  • readers’ comments

It does not take much imagination to understand how metadata could be critical to a litigator’s efforts to learn the truth of what happened and when. But it also is easy to see how an opponent’s metadata mining can prejudice a client’s position or cause unnecessary embarrassment.

The New York State Bar Association has addressed metadata in two formal ethics opinions. In Opinion 749 (12/14/2001) the Committee on Professional Ethics concluded that “[a] lawyer may not make use of computer software applications to surreptitiously ‘get behind’ visible documents or to trace e-mail.” The Committee reasoned that strong public policies in favor of protecting attorney-client confidentiality, and the work product doctrine, compelled their conclusion that viewing metadata “would violate the letter and spirit” of rules prohibiting a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation” and “conduct that is prejudicial to the administration of justice.”

Three years later, in Opinion 782 (12/08/2004), the same Committee in New York concluded that a lawyer must exercise “reasonable care” to prevent disclosure of confidences and secrets contained in metadata in documents transmitted electronically to opposing counsel or other third parties. This time the Committee focused on the duty of a lawyer to take reasonable precautions against the disclosure of client confidences to third parties.

Florida also has delved into the ethics of mining metadata. The Florida Bar Board of Governors at its December 2005 meeting heard the story of an attorney who purposefully mined an e-mailed Word document. One Board member then reportedly said: “I have no doubt that anyone who receives a document and mines it … is unethical, unprofessional, and un-everything else.” The Board referred its ethical questions to the Florida Bar’s Professional Ethics Committee.

The only reported federal decision to discuss metadata in detail in the discovery context is a Kansas case. In Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D. Kan. 2005), the District Court held that, as a general proposition, when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, then the documents should be produced with their metadata intact, absent a timely objection to such production, agreement of the parties, or in light of a request for a protective order. The District Court specifically found that the metadata in Excel spreadsheets was relevant to the case.

What steps can you take to make sure you do not transmit potentially embarrassing metadata to your adversary? You could send a facsimile, or mail a hard copy of the document. However, if these procedures are not practical or efficient, software programs exist that will “scrub” metadata from an electronic document before it is sent to an adversary.

As this is an evolving area of law, answers are not yet clear. The key to dealing with questions concerning metadata, however, would appear to depend upon the context in which you find yourself.

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