Monday, May 28, 2012

Washington Weighs in on Metadata

The Washington State Bar Association recently issued its Informal Op. 2216 (2012), discussing ethical issues relating to metadata in electronic documents exchanged among counsel.  As the 15th state ethics body to do so, Washington is a little late to the party.  The New York State Bar issued its Opinion 749 in December 2001.  I’ve been lecturing and writing about legal ethics and metadata even longer.    See Luce, What’s the Matter with Metadata, 36 Colorado Lawyer 113 (Nov. 2007).  (For those who prefer an outline format, here’s a link to the 2011 edition of my Metadata Crib Notes.)

One might think that after 14 state and one ABA opinion, and countless articles on the subject, Washington would have little to add.  However, Opinion 2216 does make at least one thought-provoking contribution, opining that, while “ethical rules do not expressly prohibit [lawyers] from utilizing special forensic software to recover metadata that is not readily accessible or has otherwise been “scrubbed” from the document”:

Such efforts would, . . . , in the opinion of this committee, contravene the prohibition in RPC 4.4(a) against “us[ing] methods of obtaining evidence that violate the legal rights of [third persons]” and would constitute “conduct that is prejudicial to the administration of justice” in contravention of RPC 8.4(d). To the extent that efforts to mine metadata yield information that intrudes on the attorney-client relationship, such efforts would also violate the public policy of preserving confidentiality as the foundation of the attorney-client relationship.
The possibility that such “special forensic software to recover metadata” exists, or will exist in the future, is hardly beyond the pale.  In 2006 AT&T’s lawyers uploaded a brief from which they attempted to electronically expurgate certain portions.  Alas, the purportedly expurgated portions were readily viewable with certain standard Apple software.  See AT&T Leaks Sensitive Info In NSA Suit  (CNet May 26, 2006).  

However, most modern metadata scrubbers do a fine job eradicating, not merely lining-out, the standard metadata found in most documents attorneys might exchange, i.e., word-processing documents, e-mail messages and spreadsheets.  Invoking RPC 4.4(a) and 8.4(d) against a receiving attorney – especially in the same opinion that correctly recognizes that the sending attorney has a duty to employ standard metadata removal techniques – uses a questionably heavy bat to address a matter better governed protocols of professionalism.  It also muddies the waters in the era of electronic discovery, for as Opinion 2216 recognizes: “in the context of discovery production, where certain metadata may have evidentiary value, RPC 3.4(a) specifically prohibits a lawyer from “alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value[,]” or assisting another person in doing so.”

Documents produced to opposing counsel, by definition, are not privileged.  Attempting to reapply some level of privilege to deeper layers of electronic documents is an analytically dubious and erroneous as a matter of both interpretation of the Rules of Professional Conduct and policy.  Washington’s Opinion 2216 makes this wrong turn, as others have before it, apparently because it takes pity on the sending lawyer who, under the opinion’s hypothetical, took no steps to scrub comments from an agreement which includes “comments . . . about the terms of the agreement, as well as the factual and legal strengths and weaknesses of the client’s position.”

Let’s not mince words:  In 2012, an attorney who sends or uploads such a document without employing standard metadata scrubbing techniques commits malpractice and violates, at a minimum, RPC 1.1 (competence) and 1.6(a) (confidentiality).  As a matter of policy, the onus must be on the sending attorney to employ basic scrubbing procedures which are cheap and readily available.

A basic tenant of legal competence is a rudimentary understanding of the tools of the trade, especially where a shortcoming may have disastrous consequences for one’s client.  Attorneys who are unable or unwilling to learn computing basics, such as how to scrub a document of metadata before sending it to counsel for an adverse party, should exercise professional judgment by either delegating such tasks or staying away from computers.  When it comes to the simple task of metadata scrubbing, the time for coddling Luddite lawyers is long, long, past.