Metadata Opinion from the New York County Bar

Add this opinion to the growing list of bar opinions on whether a lawyer can look at the metadata contained in an adversary's electronic documents.  In the non-litigation context, the New York County Bar says that the answer should be no, essentially agreeing with the earlier New York State Bar Association opinion on the issue and disagreeing with the more recent ABA opinion.

As I've mentioned before, I think there needs to be a nuanced approach to the subject, and a simple "metadata is off limits" or "you can always look at metadata" approach is too simplistic.  I'm happy that the New York County Bar opinion is explicitly limited to the transactional context, as I think the argument against reviewing metadata is much stronger in that arena.

Comments

[J]

I can across this issue recently & by accident and I couldn't get anyone to tell me what the right answer was. Or more precisely, people kept telling me different things. I was reviewing documents in a diligence context. One of the things I tend to do when reviewing PDF documents is put "comments" on them as I review. I then collect the comments into a single document (because having two documents open reduces real estate on my screen too much). Anyway, when I clicked "remove comments" a "redacted" box also disappeared. There was some relevant (although not particularly exciting) data under that box. Obviously, I immediately saw that data when the box disappeared.

So, what are my obligations under ethical rules? (FWIW, I'm in California and the data was sent to me from a Chicago firm). Do I need to disregard the data? Can I inform my client of the content of it? Do I need to inform opposing counsel that their system for hiding information sucks? Suggestions still taken, although the issue was resolved in this case. But I'd love to know your views.

[Andrew Perlman]

J,

Nearly every state in the country requires the recipient of inadvertently disclosed privileged information to notify the sender about the mistake. But I'm in no position to give you any legal or ethical advice on a blog, so you might want to check out this post: http://legalethicsforum.typepad.com/blog/2007/12/rico-v-mitsub-1.html

You also can find a 50 state survey of the governing inadvertent disclosures here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=905596

[J. Bogart]

Nuance is an invitation to endless motion work.

[Andrew Perlman]

More motion work, indeed. But it would get us closer to the best, most just outcome, no? The classic rules vs. standards debate.

[J. Bogart]

I do not think it will get us closer to the best, most just outcome. More motions means more decisions all over the map (consider counting interrogatories) and, in effect, less guidance to lawyers or parties. Which in turn means more fees and longer cases. (I do not know what it would do in the transactional world.)
A less practical argument is that this is not a subject on which 'more just' makes much sense. It is not an issue of justice at all as far as I can tell.

[J. Bogart]

I do not think it will get us closer to the best, most just outcome. More motions means more decisions all over the map (consider counting interrogatories) and, in effect, less guidance to lawyers or parties. Which in turn means more fees and longer cases. (I do not know what it would do in the transactional world.)
A less practical argument is that this is not a subject on which 'more just' makes much sense. It is not an issue of justice at all as far as I can tell.

[Andrew Perlman]

I think the interests of justice are implicated here in a number of ways. If the recipient of a document reviews the metadata and reveals privileged information, the sender (and particularly the sender's client) will feel that the recipient acted unfairly. If the recipient not only looked at the information but also acted on it, and if the information impacted a proceeding (if we're talking about litigation), the mistaken sender might feel that the outcome was unjust, as it was the product of violating a privilege. Conversely, the recipient's lawyer might feel that justice requires looking at this sort of information. After all, what if it reveals some important information that would allow a court to get closer to the truth (if we're talking about litigation) or would allow a party to get a more accurate picture of an adversary in contract negotiations? In short, the recipient might also feel that justice is affected by what a lawyer is allowed to do here.

I guess that's a long way of saying that there are many interests implicated in an advertent disclosure/metadata scenario, including perceptions of justice, truth, and fairness. I discuss many of these in the article that I cited in the earlier comment. If you take a look at it, I'd value your feedback.