Of particular importance to the litigator are the amendments to Rules 16 and 26 regarding conferences. The attorney must immediately communicate with the client regarding the client’s electronic data, and must gain at least a basic understanding of the client’s systems, including where the ESI is or could be located and how it can be accessed, to be adequately prepared to discuss ESI with opposing counsel at the initial Rule 26(f) conference. The lawyers on both sides must be able to discuss and agree on e-discovery issues at the Rule 26(f) conference, including identification, collection, production, review, and clawback. The lawyers are then able to go to the court at the Rule 16 conference with fewer discovery disputes and less likelihood of subsequent spoliation accusations and sanctions requests.
What Type of ESI Is Discoverable?
Based on the amended rules and the recent case law, the question arises, “What is discoverable?” The short answer is “everything relevant.” In the six opinions arising from the Zubulake v. UBS Warburg, LLC litigation, the principal ESI at issue was email. ESI can, however, include virtually any form of electronic communications, including emails, instant messages, text messages, and voicemails, and any electronically created or stored documents, including Word or WordPerfect documents, spreadsheets, databases, and any customized electronic information that may be used. No. 1:02cv1243 (S.D.N.Y. filed Feb. 15, 2002).
The e-discovery amendments to the Federal Rules place strong emphasis on the ability to review files in their “native format,” which is the associated file structure as defined by the original application creating the ESI. For example, Microsoft Word documents in their native format are created as “.doc” files. The native format of a Microsoft Word document thus is not the printed or scanned document produced in printed format or electronically as a .pdf or .tiff image, but the original .doc format. While native file format may be unfamiliar territory for many litigators, some familiarity with the concept is important, because the native file format of ESI is where metadata is found.
What Is Metadata?
When a document is created on a computer, the particular computer program automatically creates certain information, such as who created the document, when it was created, how long the user worked on the document, how many words are in the document, who has edited it, when it was last edited, and much more. This computer-created information is called “metadata.” The simple definition of metadata is “information about information.” A more precise definition is provided by the Sedona Conference, a legal think tank consisting of judges, attorneys, and others experienced in electronic-discovery matters:
Metadata is information about a particular data set or document which describes how, when and by whom it was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Can be extracted when native files are converted to image. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed.
The Sedona Glossary for E-Discovery and Digital Information Management (Second Edition), December 2007.
Although metadata is contained in most documents created on a computer, it is embedded in computer files and is invisible to most users. A technologically proficient user who knows what he or she is looking for and how to find it though can “mine” the metadata to discover a potential gold mine of useful information. The file containing the specific metadata is called an OLE (object linking and embedding storage) file. OLE files travel with a document wherever it goes (in native format), and generally contain information such as the user’s name and initials, the company name, the computer name, the server name, previous authors and revisers, the number of revisions or versions, hidden text, comments, and other file properties and summary information.
At first glance, this metadata might appear relatively harmless. In the litigation context, however, metadata can potentially provide the “smoking gun” in a mountain of documents. In the expert’s hands, metadata provides an electronic paper trail of each person that “touched” a particular document and what that particular person did to it. For example, a witness might testify that a document was created and sent on a particular date, or that he or she was the only person who worked on that particular document, while the metadata tied to the particular document would reveal the document’s true origin and edits, and possibly provide counsel with powerful cross-examination ammunition.
Two standard features in Microsoft Word create significant metadata risks: “Versions” and “Track Changes.” The “Versions” feature in Microsoft Word saves a new version of the document in the OLE automatically, without giving the user notice of the changes. The risk is that this feature, if activated, automatically records all of the user’s prior versions, including any revisions by any clients or other counsel, with the attendant risks of inadvertently disclosing confidences. This information, if simply linked to an email, would then be accessible by the receiving attorney, who may well be opposing counsel.
The “Track Changes” feature allows multiple parties to work in collaboration on documents, and permits a user to send drafts of documents, with edits and comments, to others, including co-counsel, the client, and opposing counsel. The receiving user can then review the specific changes made by each user, and either accept or reject them. The risk with using this feature is that changes may be hidden. If, for example, the “Hidden Text” option is turned on, the user editing the document may make changes without realizing that those changes are automatically being recorded in the background without any action by the editing user. This is but a single example of the metadata created by a single software application. Such a software package has its own way of recording and saving metadata, although industry experts agree that metadata is significantly more prevalent in Microsoft products than in those of its competitors.
Why Should Attorneys (and Their Clients) Be Concerned?
In the past several years, metadata has become a concern to anyone who transmits electronic documents. Given the pervasive role of technology in everyday life, an attorney must be at least moderately aware of metadata to effectively, competently, and zealously represent the client. An attorney’s concern with metadata primarily arises in two contexts: electronic discovery, and communications with opposing counsel and/or the client.
There are horror stories regarding metadata. In 2005, an anonymous, unsigned Microsoft Word document was circulated referring to the “anti-civil rights and anti-immigrant rulings” of Judge Samuel A. Alito Jr., shortly after his nomination to the Supreme Court by President Bush. A review of the document’s metadata disclosed that the memo was drafted by two authors who were, in actuality, members of the Democratic National Committee. The metadata revealed both the authors’ names and the date of creation of the document, which was, interestingly (but perhaps not coincidently), prior to Judge Alito’s nomination.
In another example, the New England Journal of Medicine found metadata revealing that Merck & Company had deleted certain data in a study about Vioxx concerning heart attacks. Merckattempted to dismiss the finding, stating that the Vioxx data uncovered by the journal had been deleted because the heart attacks occurred after a cut-off date for information collection in the study.
Another example involves a large law firm partner who passed off an assignment for a corporate client to an associate. A memo was drafted, supposedly by the partner, and transmitted to the client via email without having the metadata scrubbed from the document. The client examined the memorandum’s metadata and determined that it was the associate, not the partner, who was the document’s author. The metadata also showed only minor edits by the partner. The principal embarrassment came, however, when the partner billed the client as if he had drafted the document, charging the client the partner’s rate. This example has not been confirmed, but if true, would likely destroy the attorney-client relationship as well as raise a myriad of ethical concerns.
Is It Ethical to Peek at Metadata?
As with any other facet of the law, counsel must exercise at least minimum competency in the representation of a client, which now involves being versed in electronic discovery. However, most attorneys involved in electronic discovery are under duties not listed in their state’s rules of professional conduct—duties of which they may not even be aware. One of the Zubulake opinions warned that “parties and their counsel are fully on notice of their responsibilities to preserve and produce electronically stored information,” and recognized several duties incumbent on counsel engaged in e-discovery. Zubulake v. UBS WarburgLLC, 229 F.R.D. 422, 440 (S.D.N.Y. 2004). Similarly, another court ordered the parties to “continue to preserve data that they know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically-recorded information”. Kleiner v. Burns, No. 00-2160 2000, WL 1909470 (D. Kan. Dec. 22, 2000). At least one court has held that a lawyer’s duty of fundamental competence now encompasses that same level of competency as it relates to digital technology, especially the information-technology systems used by one’s client. GTFM, Inc. v. Fubutu Home & Educ. Media, Inc., No. 01 Civ. 6595VM, 2003 WL 22439791 (S.D.N.Y. Oct. 27, 2003).
On August 5, 2006, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-442 regarding metadata, concluding that “the Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party or an agent of an adverse party.” ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-442 (2006). The committee pointed out in its opinion that Rule 4.4(b) is the only provision in the ABA Model Rules that addresses the lawyer’s obligations regarding inadvertently received information. Rule 4.4(b), added in 2002, states that a lawyer who receives information that he or she knows or should know was sent inadvertently “shall promptly notify the sender.” The committee’s notes to Rule 4.4 state, “Rule 4.4(b) is silent as to the ethical propriety of a lawyer’s review or use of such information.”
The ABA Model Rules serve as a model for the rules of professional conduct in 47 states, but are not followed in California, Maine, or New York. The states considering the issue have split on whether it is permissible for counsel to examine metadata in documents transmitted by opposite counsel, with a distinction made by some as to whether the production was inadvertent.
Some states have decided that viewing metadata received by opposing counsel is generally not an ethical violation. Maryland, Colorado, Pennsylvania, and Vermont have taken variations of this view. See Md. State Bar Ass’n Comm. on Ethics, Op. 2007-09 (Oct. 19, 2006); Colo. Bar Ass’n Ethics Comm., Formal Op. 119 (May 17, 2008); Pa. Bar Ass’n Comm. On Legal Ethics & Prof’l Responsibility, Formal Op. 2009-100; Vt. Bar Ass’n, Prof’l Responsibility Section, Ethics Op. 2009-1. Other states have determined that such conduct may indeed violate the ethical rules. New York, Florida, Alabama, Arizona, Maine, and New Hampshire generally take this approach. See N.Y. State Bar Ass’n, Op. 749 (Dec. 14, 2001); Opinion 782 (Dec. 8, 2004); Fla. Bar, Ethics Op. 06-2 (Sept. 15, 2006); Ala. State Bar Office of Gen. Counsel, Ethics Op. 2007-02 (Mar. 14, 2007); Ariz. Bar Ass’n, Op. 07-03 (Nov. 2007); Me. Prof’l Ethics Comm’n , Op. 196 (Oct. 21, 2008);N.H. Bar Ass’n Ethics Comm., Op 2008-2009/4 (Apr. 16, 2009).
The District of Columbia and West Virginia have adopted a compromise position that a receiving lawyer is prohibited from reviewing metadata sent by an adversary only where the receiving lawyer has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer. D.C. Bar, Op. 314 (Sept. 2007); W. Va. Legal Ethics Op. 2009-01 (June 10, 2009).
There is an important distinction to be drawn between the day-to-day transmission of electronic documents, both between attorneys, and with their clients, and the production of ESI pursuant to discovery requests. As to the former, the lawyer must always consider attorney-client privilege in communications, and when appropriate, “scrub” metadata from documents sent to opposing counsel to avoid potential liability for disclosure. Failure to remove metadata from documents created or revised by an attorney prior to transmission outside the firm will likely become a fertile source of future attorney-malpractice claims. Conversely, scrubbing metadata from documents produced in discovery, particularly when the metadata is requested to be produced and is potentially relevant, is probably a violation of the new Federal Rules, and according to the Zubulake opinions, will expose both the attorney and the client to potentially severe sanctions.
Once the distinction is made between scrubbing metadata contained in day-to-day communications between counsel and properly requested discoverable metadata, the issues can be more easily parsed. Many lawyers use scrubbing programs that eliminate metadata from electronic documents sent from their offices—in fact, some commentators posit that it may be malpractice not to routinely scrub such metadata.
It is important to note that whichever method is chosen, there should be a standard scrubbing procedure throughout the firm. Attorneys and staff should be trained on the standard protocol, and the process should be automated to the maximum extent possible to avoid the inadvertent transmission of “unscrubbed” documents, particularly by untrained or unaware lawyers.
Although e-discovery is still in its infancy, a body of law is rapidly developing, which requires the federal practitioner (and the state-court practitioner, as well, in those states that have adopted ESI discovery rules) to be familiar with both the concept of e-discovery and ESI production, and the client’s systems, practices, and procedures. Read the amendments to the Federal Rules of Civil Procedure. Read the decisions, including the Zubulake opinions. Talk to your clients, and become familiar with their technology platforms and protocols. The trend seems to be developing among the courts to place at least part of the burden of ensuring client compliance with litigation holds and discovery orders on the attorney, and the sanctions and penalties for a failure to do so can be extremely expensive. It behooves the wise practitioner to become familiar with at least the basics of e‑discovery and, as with other specialty areas, to know when to bring in outside expert assistance. And watch the developing case law as the courts hand down their opinions on this topic to be able to more accurately predict the scope and outcome of future e-discovery battles. Talk to your own consultants regarding metadata in documents sent from your system, and make sure that you have adequately addressed any potential concerns in that regard.
John T. Rouse is an associate with McGlinchey Stafford, PLLC, in its Jackson, Mississippi, office.