E-Discovery and the Meta-Ethics of Meta-Data
June 22, 2009
Most people probably have never heard of “meta-data,” and I would venture to say that most practicing lawyers haven’t got a clue as to what it is either. Essentially it is data about the document itself that isn’t overtly contained in the document itself, things like deletions, cut-and-paste, etc. that are stored outside the body of a digital document but still digitally attached to the readable content of the document. This can have serious consequences in terms of electronic discovery at trial, where the production of digital documents can inadvertently include meta-data that is not within the purvue of required discovery. This can lead to a host of ethical issues for both the sending and receiving attorney,
In Opinion 782, the New York State Bar Associationic Committee on Professional Ethics found that sending attorneys must use reasonable care to ensure that confidential client information is not disclosed through metadata contained in documents exchanged with adverse parties. New York State Bar Association additionally prohibits receiving attorneys from mining metadata, noting that receiving attorneys “may not ethically use available technology to surreptitiously examine” metadata. Following New York’s lead, the Alabama, Arizona, and Florida State Bar Associations have also placed an ethical responsibility on both the sending attorney to remove all confidential client information from an electronic document’s metadata before sending, and also on the receiving attorney to refrain from reviewing metadata containing such information. Some commentators have opined that even in states that have not explicitly addressed the ethical issues presented by metadata, most state’s ethical rules would likely impose requirements similar to those in Alabama, Arizona, Florida, and New York. Adam K. Israel, To Scrub or Not to Scrub: The Ethical Implications of Metadata and Electronic Data Creation, Exchange, and Discovery, 60 Ala. L. Rev. 469, at 488 (2009).
Thus we see that metadata can be problematic to sending an receiving attorney both. So how does a prudent attorney go about protecting clients from inadvertent meta-data slipups? Well one solution is convert more maleable data like Word documents into PDF format. However this may not solve all the problems:
According to Donna Payne of the Payne Consulting Group, a legal consulting firm specializing in metadata removal, PDF files may contain information regarding: Authors, Create Data, Filename, PDF Version, Page Count, Encryption Status, Permanent ID, Changing ID, Producer, Creator, Custom Fields, Title, Subject, Keywords, Modification Date, Bookmarks (Total number), Annotations (total number, type and total type amount), Page One Size, and Font Name, Type, and Embed Status. Thus, “the least revealing electronic paper, then, is also the least functional: printing the document to paper, then scan sic it into PDF.” According to Payne, however, “there is at least one third-party utility to help eliminate the risk of PDF metadata.” ibid. at 474-475
So what’s the bottom line here? Basically it is that e-discovery can be a mine-field for even a technically savvy attorney. There is a need, I think, for a new scheme for dealing with this issue:
To some degree, these new rules, technology, and business developments ignore the root causes of the e-discovery crisis. The volume of information is not itself an insuperable problem. Rather, the problem largely stems from the fact that much of the information in modern businesses and other major institutions is not well organized or centrally collected. Instead, effective e-discovery requires that far-flung information in multiple formats be located in a standard, searchable format before the e-discovery process can really begin.
Fortunately, an emerging trend may address some of the root causes of e- discovery problems. Growing efforts aimed at improving records management (RM) involve systematic organization of information in standardized locations. These efforts permit the collection and search of well-organized records with greater ease and efficiency. Steven C. Bennett, RECORDS MANAGEMENT: THE NEXT FRONTIER IN E-DISCOVERY? 41 Tex. Tech L. Rev. 519, at 520