Administrative Determinations by the Supreme Court on the Report and Recommendations of the Working Group on Ethical Issues Involving Metadata in Electronic Documents
Kelley Drye Client Advisory
Last week, the New Jersey Supreme Court accepted the recommendation of a task force it established to study whether New Jersey’s civil discovery and ethics rules should take account of “metadata” in electronically-transmitted documents. Metadata is information embedded within an electronic document, revealing (for example) who created the document and when, who edited it, and potentially even the substance of those edits. Some metadata can be viewed readily; other information requires specialized “mining” tools. And when documents are exchanged electronically among litigation adversaries or transactional counterparties, the documents’ metadata very well may contain information that the sender did not intend or want to share.
Members of the Supreme Court task force included state trial and appellate judges, attorneys who regularly represent corporate defendants both in-house and at small and large law firms, attorneys who represent plaintiffs in cases against corporate defendants, family law attorneys, attorneys who advise pro se litigants, and professional staff who advise the judiciary on technology matters.
Opinions about whether and to what extent to prohibit metadata mining were as diverse as the task force’s participants. One position is that unless a litigant specifically demanded to receive a discovery document in its native format, and the parties expressly discussed metadata, an attorney should not attempt to view any metadata in a document. At the other extreme, the task force could have recommended that an attorney sends an electronic document at his or her peril, and that an attorney’s proficiency in finding helpful information in a received document’s metadata is part of the value that attorney provides to his or her clients. Or, put another way, if an attorney is less sophisticated about metadata than his adversary, and inadvertently disadvantages his client by including metadata in a document transmitted to his adversary, too bad for him (and for his client).
The one issue that commanded broad agreement, and that ended up as the seed around which the task force framed its recommendations to the Supreme Court, was that if a receiving attorney spots information in metadata that is protected by the attorney-client privilege, that attorney should treat it the same as any other privileged information inadvertently given to her: stop reading it, notify the sender of the apparent error, and return and/or delete the information. Ultimately, because New Jersey’s Rule of Professional Conduct 4.4(b) already imposed this “stop, notify, and return” requirement on any kind of document that the receiving lawyer “has reasonable cause to believe . . . was inadvertently sent,” the task force determined that the ethics rule should not treat “privileged” metadata any different from other information that, though not privileged, could be detrimental to the sender’s client and that the sender clearly did not intend to transmit. The task force therefore recommended that Rule of Professional Conduct 4.4 be expanded to impose the “stop, notify, and return/delete” requirement on “electronic information” as well as “documents.” (And because electronic documents often cannot be wholly “deleted,” or at least not without Herculean effort, the Rule also was amended to require only “reasonable measures to assure that the information is inaccessible.”)
Following adoption of this Rule amendment, therefore, a receiving lawyer may not be able to look at or to mine for metadata at all, unless the receiving lawyer reasonably believes that the sending lawyer intended to include the metadata. Certainly, receiving lawyers in New Jersey mine at their peril, because the moment they run across information that they have reason to believe was included “inadvertently,” they must “stop, notify, and return.” The official comment the Supreme Court agreed to append to the Rule says both that privileged information is presumed to have been inadvertently sent, and that “[i]f a lawyer must use forensic ‘mining’ software . . . to reveal metadata in an electronic document . . . it is likely that the information so revealed was inadvertently sent.”
Still, the new Rule does not flatly prohibit searching for metadata, and receiving lawyers may find information in metadata that is useful to their clients but does not trigger the notification requirements. The task force acknowledged in its report that leaving this window open “imposes a burden on the lawyer who sends an electronic document to be aware that the document may contain metadata, and [to] transmit documents in a form that minimizes that metadata.” To have prohibited all metadata viewing would essentially reward New Jersey practitioners who remain totally ignorant of metadata, and the task force – which separately recommended broader education about metadata for New Jersey lawyers, and changes to New Jersey civil discovery rules to encourage early discussion of how electronic documents should be exchanged, including metadata issues -- was not willing to go that far. Indeed, one of the civil discovery rule amendments specifically directs that “[l]itigants and lawyers should be aware that metadata may be present in electronic documents produced in discovery,” and the task force also recommended that “metadata be addressed in judicial education.”
In adopting these Rule changes, the New Jersey Supreme Court has taken a cautious middle ground between states, such as Vermont, that permit all forms of metadata mining as part of an attorney’s duty to provide competent and diligent representation, and other states, including New York, that more or less prohibit all mining for unrequested metadata as “conduct prejudicial to the administration of justice.” The New Jersey Supreme Court’s actions also provide an important reminder to all attorneys, and to their clients, of the need to consult the ethics rules in all applicable states before mining for metadata in any documents they receive, unless that metadata was specifically requested and produced pursuant to that request.