Confidentiality Obligations
6/26/2009 3:33:51 PM EST
Westermeier on Recent Ethics Opinion on Metadata Support New Best Practice
Of Counsel, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Legal ethics opinions have been issued by the American Bar Association, a number of State Bars, and the D.C. Bar regarding metadata that is embedded in electronic documents that are transmitted and received by attorneys. The important issue of just what effect these legal ethics opinions have on document retention policies is analyzed by J. ("Jay") T. Westermeier, of counsel at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. Mr. Westermeier writes as follows:
Most (but not all) of the legal ethics opinions issued regarding the obligations of lawyers regarding the treatment of electronic documents with metadata embedded impose upon the sending lawyer an obligation to exercise reasonable care when transmitting electronic documents to ensure that the lawyer does not disclose his or her client's secrets and confidences. These ethics opinions take the position that the lawyers duty respecting confidentiality extends to metadata. As the D.C. Bar Ethics Opinion provides, a lawyers obligation to use reasonable steps to use available technical means to remove such metadata before sending the document. Most of the ethics legal opinions require the sending lawyer to use reasonable care to avoid transmitting metadata to the other party's lawyer inadvertently. We believe removal of metadata documents remaining in a company's files once they are no longer needed is consistent with the legal obligation imposed upon the sending lawyer given the risks relating to discovery of these documents in the event of litigation or compliance with a subpoena.
. . . .
Metadata has been shown in some cases to be probative evidence in litigation. Documents containing metadata are different versions of the document without metadata. Each version is subject to production in discovery or pursuant to a subpoena. Metadata may also result in additional questions during depositions or at trial. If the metadata is scrubbed from documents during discovery or in connection with complying with a subpoena the other party may compel production of the metadata and the scrubbing party may be found to have destroyed evidence. Since it is impermissible to alter electronic evidence that constitute tangible evidence, the removal of metadata may be prohibited as well. The alteration or destruction of evidence may result in discovery sanctions in some circumstances.
(footnotes omitted)
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