The Sedona Conference’s recently published draft Commentary on Ethics & Metadata is a practical guide to the different and sometimes conflicting duties a lawyer faces in two very different contexts: every day communications with third parties and discovery. In short – context is everything when it comes to metadata.
The Commentary begins with a brief primer on the different types of metadata and makes the strong point that courts and, in particular, state bars, must understand the differences and tailor their rules and guidance accordingly. Do you know the difference between application metadata, system metadata, and embedded metadata? You will after reading the Commentary, or after consulting additional resources cited by the Commentary including The Sedona Conference Glossary, Magistrate Judge Frank Maas’s comprehensive discussion of metadata in Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008), or the United States District Court of Maryland’s Suggested Protocol for Discovery of Electronically Stored Information.
In the context of third-party communications, the American Bar Association and various state bars have focused on the duty of a lawyer to prevent the disclosure of confidential and privileged client information in outside communications. This duty extends not just to data that is apparent in the communication, but to less apparent metadata that travels with the communication as well. Still, there are disparate and sometimes conflicting views as to ethical duties of a sender or recipient of metadata. Indeed, authorities do not agree on:
- the scope of a sender’s obligation to identify, review and scrub metadata;
- a recipient’s responsibility to avoid looking for or reviewing confidential metadata in a communication sent by counsel; or
- a recipient’s duty to notify a sender’s concerning the sender’s inadvertent disclosure of confidential or privileged metadata.
In the context of discovery, lawyers face a different question: when, if at all, should metadata be produced to in response to a discovery request. Relevant non-privileged metadata is subject to production in litigation under Fed. R. Civ. P. 26(b)(1). For example, in a dispute over how pay was calculated, one court found that the hidden mathematical formula in an Excel spreadsheet containing the calculations was relevant under Rule 26. Apart from relevance, production of certain metadata may be needed to render a production reasonably usable. See The Sedona Principles: Second Edition (in assessing the appropriate form of production, the parties should consider “the need for metadata to organize and search the information produced”).
The Sedona Commentary is a public comment draft, and Sedona Working Group 1 is accepting feedback through its website. And the subject of metadata and ethics is under further review by the ABA Commission on Ethics 20/20. The Commission is accepting comments through April 2, 2012 on draft revisions to the Model Rules of Professional Conduct intended to further clarify when and how the existence of metadata in a document gives rise to ethical duties.