D.C. Bar Association Ethics Opinion 341

Brief Summary
The D.C. Bar Association Legal Ethics Committee concluded that when a lawyer has actual knowledge that an adversary has inadvertently provided metadata in an electronic document, the lawyer should not review the metadata without contacting the sending lawyer and abiding by the sender’s instruction. This gives the sender the opportunity to determine if the metadata includes work product or confidential information of the sender’s client. In all other circumstances, however, the receiving lawyer is free to review the metadata contained in electronic files provided by an adversary.

Complete Summary
Responding to inquiries from lawyers regarding the obligations that arise upon receipt from opposing counsel of documents that contain imbedded metadata, the D.C. Bar Association Legal Ethics Committee (the “Committee”) looked to Rule 1.6 (confidentiality of information), Rule 3.4 (fairness to opposing party and counsel), Rule 4.4 (respect for the rights of third persons) and Rule 8.4 (misconduct) of the District of Columbia Rules of Professional Conduct, in determining what the receiving lawyer’s duty is under these circumstances.

Metadata provides information regarding the creation and modification of a document and may include comments by those who created, reviewed or revised the document. Although most metadata may be of little or no interest, in some cases it may at times be quite significant. The Committee distinguished between electronic documents provided in discovery or in response to a subpoena from those that are voluntarily provided by opposing counsel.

The Committee noted that lawyers who send electronic documents outside of discovery or subpoena have a duty under Rule 1.6 to take reasonable steps to maintain the confidentiality of the documents, including removing potentially harmful metadata before sending the documents. This requires that the lawyers understand the software they use or they have employees who can safeguard against unintended disclosures. However, there is also a duty upon receiving lawyers who actually know that a sender has inadvertently included metadata along with a document.

The Committee looked to opinions regarding the inadvertent production of privileged material to determine the receiving lawyer’s obligations in these situations. The Committee concluded that Rule 8.4 regarding dishonesty and misconduct is pertinent only when the receiving lawyer had actual knowledge that the metadata was inadvertently provided. “We believe that mere uncertainty by the receiving lawyer as to the inadvertence of the sender does not trigger an ethical obligation by the receiving lawyer to refrain from reviewing the metadata.”

Nonetheless, and in spite of the negligence or perhaps even ethical violations of sending lawyers who allow metadata to be sent, the receiving lawyers have an ethical duty to refrain from reviewing it. The receiving lawyer must first contact and then abide by the instructions of the sender, although the receiving lawyer may reserve the right to challenge the claim of privilege.

The Committee recognized that their conclusion differed from other ethics opinions on the subject, including that of the ABA. In Formal Opinion 06-442, the ABA found no rule expressly prohibiting the receiving lawyer from reviewing the metadata. The Committee noted that the D.C. version of Rule 4.4(b) regarding respect for the rights of third persons is more expansive than the ABA version. The Committee also asserted that the purpose to be served by the DC rule, which was to address the inadvertent disclosure of entire documents, was equally applicable here.

Electronic documents provided in discovery or pursuant to subpoena are subject to the Federal Rules of Civil Procedure. See F.R. Civ. P. 16(b) See F. R. Civ. P. 16(b), 26 (f), 33(d), 34(a) and 37(f) (effective Dec. 1, 2006). Under these new rules, parties are required to discuss at the outset of a case the nature of pertinent electronic documents in their possession and the manner in which they are maintained. These discussions should include whether a receiving party wants to obtain the metadata, and whether the sending party intends to assert a claim of privilege as to any of the metadata. The Committee applied to sending lawyers in a discovery context the standards of fairness to opposing counsel found in Rule 3.4(a). In a discovery context, the receiving lawyer is generally permitted to assume metadata was intentionally provided. Ultimately, however, the Committee concluded that even in a discovery context, a receiving lawyer who actually knows that metadata was inadvertently sent must contact and then follow the directions of the sending lawyer, but may take necessary steps to challenge the claim of privilege.

Significance of the Opinion
This opinion reflects the various approaches that have been and can be taken by the different states in applying the Rules of Professional Conduct to the appropriate handling of metadata. Attorneys should be aware of these mandates in all states in which they practice or in which their clients may be engaged in litigation.

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