« Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP) | Main | Ind. Decisions - More on: A reminder of today's COA oral argument in Orange County casino case »

Wednesday, May 28, 2008

Courts - More on "GE Suffers a Redaction Disaster"

Updating this ILB entry from earlier today, if your opponent does ineffectually redact information, can you look?

Presumably redacted material is the same as any other metadata, there have been several articles addressing this issue; the most recent is this one by David Hricik and Chase Edward Scott, of Mercer Law School. A quote:

Can You Look?

Given that metadata is a relatively new concern for lawyers, it is not surprising that formal ethical rules do not yet directly address the question of whether it is proper for a lawyer to search an electronic file sent by another lawyer to see if any useful embedded data is present. However, like most states, Georgia has a general catchall rule that prohibits "professional conduct involving dishonesty, fraud, deceit or misrepresentation." Although the Georgia Bar has not yet addressed the question of whether it is dishonest to look for metadata in a document exchanged between counsel, bar associations in other jurisdictions have and may provide some guidance to Georgia lawyers.

Unfortunately, however, the bar associations that have analyzed the issue have openly split on whether it is ethical for a lawyer to look for metadata. And the split is deep, direct, and irreconcilable.

On one end of the spectrum, the bars of New York, Florida, Arizona, and Alabama have concluded that conducting a purposeful search for metadata is unethical. The New York Bar Association emphasized that "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets" in the embedded data. Alabama's Bar similarly condemned the act of mining for metadata as "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." Florida's Bar also agreed but more softly wrote that a recipient should not try to view metadata the lawyer knows or should know was not intended for his or her viewing. Most recently, Arizona's Bar issued an opinion advising lawyers that as a general rule a lawyer may not "mine" documents from opposing counsel for metadata.

On the other end of the spectrum, both the American Bar Association ("ABA") and the Maryland Bar Association found nothing unethical with deliberately mining documents sent by opposing counsel outside the context of discovery for metadata. The ABA expressed its disagreement in mild terms, however, stating only that "the Committee does not believe that a lawyer . . . would violate" his or her professional duties by mining for metadata. Taking a slightly more nuanced approach, the District of Columbia Bar reasoned that viewing metadata was dishonest only if, before viewing it, the lawyer actually knew that the metadata had been inadvertently sent.

Perhaps representing the more balanced view is a very recent opinion from the Pennsylvania Bar Association. After noting the split detailed above, the Pennsylvania Bar refused to take a bright-line position on whether mining for metadata is unethical. Instead, it stated that "each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer's judgment and the particular factual situation." Similarly, the Pennsylvania Bar stated that whether the information should be used turned upon "the nature of the information received, how and from whom the information was received, attorney-client privilege and work-product rules, and common sense, reciprocity and professional courtesy."

For more, see this article from earlier this year by Marcia Coyle of The National Law Journal titled "Metadata, can you get it, can you use it?" and this one by by Donald R. Lundberg, Executive Secretary of the Indiana Supreme Court Disciplinary Commission, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."

Posted by Marcia Oddi on May 28, 2008 01:31 PM
Posted to Courts in general