The Sending and Receipt of Metadata

Application Metadata

Application metadata is created by the application software that created the document or file, and it “reflects substantive changes made by the user.” Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008). As an example, types of metadata created by Microsoft Word include (but are not limited to) “track changes,” “fast saves,” inserting “comments,” saving multiple “versions” of a document, and the making of any revisions to the original text of the document.

System Metadata

System metadata consists of information created by a user or an organization's information management system. Examples of types of system metadata include “data concerning 'the author, date and time of creation, and the date a document was modified.'” Aguilar, 255 F.R.D. at 354.

Embedded Metadata

Embedded metadata is comprised of data, such as numbers, text or other content, that is input into a file by a user, but which is not usually visible when the file's output display is viewed. Examples include “spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information.” Aguilar, 255 F.R.D. at 354-55.

Why Is Metadata Important?

The inclusion of metadata within documents and files can significantly implicate and impact ethical considerations and duties both in the non-discovery context (whenever in-house counsel or his/her company's outside counsel send and receive documents or files [often created by counsel] having metadata); and in the specific discovery context (when a company's electronically stored information (“ESI”) is sent, produced or received by an attorney in connection with a discovery request or subpoena). See Sedona Commentary on Ethics & Metadata, at iii-iv. This can include ethical duties such as those of confidentiality, competence, and respect for the rights of third persons, as well as duties pertaining to discovery obligations under the applicable rules of civil procedure.

The Non-Discovery Context

Sending Metadata

The ethical duties of confidentiality and competence apply when in-house counsel or his/her company's outside counsel sends documents or files containing metadata to another attorney. The duty of competent representation of a client “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule of Professional Conduct, Rule 1.1, “Competence.” New revisions to the ABA Model Rules of Professional Conduct (as proposed by the ABA Commission on Ethics 20/20 and approved by the ABA in August 2012) specify that the duty of competence (as set forth in Rule 1.1), and its attendant duty to keep abreast of changes in the law and its practice, includes “the benefit and risks associated with relevant technology.” See ABA Commission on Ethics 20/20 Proposals (approved in August 2012), at www.americanbar.org, regarding Comment 6 to Rule 1.1. For an attorney, this should include an understanding “that metadata is stored within the majority of electronic files” and that appropriate action needs to be taken to protect it. See Crystal Thorpe, “Metadata: The Dangers of Metadata Compel Issuing Ethical Duties to 'Scrub' and Prohibit the 'Mining' of Metadata,” 84 N.D. L. Rev. 257, 271 (2008).

The duty of confidentiality precludes an attorney from revealing “information relating to the representation of a client” absent informed consent, implied authorization or another applicable exception. See ABA Model Rule of Professional Conduct, Rule 1.6, “Confidentiality of Information.” The ABA Commission on Ethics 20/20's new revisions impact the issue of the sending of metadata by specifically adding to Rule 1.6 a duty to “make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” See ABA Commission on Ethics 20/20 Approved
Proposals regarding Rule 1.6 and new paragraph (c).

Additionally, some state ethical opinions have specifically found and stated a duty for attorneys to use reasonable care to prevent disclosure of confidential metadata, such as by “scrubbing” metadata from electronic documents before sending them. See, e.g., New York State Bar Association Opinion 782 (Dec. 8, 2004). This duty would include both: 1) employing reasonable available technical means (such as “scrubbing”) to remove confidential metadata prior to sending; and 2) upon discovery that confidential metadata has been sent, acting in a reasonably diligent fashion to notify recipients and to accomplish the return or destruction of such metadata. See Sedona Commentary on Ethics & Metadata, at 8.

Receiving Metadata

General Duty to Promptly Notify The Sender

Under ABA Model Rule of Professional Conduct 4.4(b), an attorney has a duty to promptly notify the sender when a document is received (e.g., from outside counsel or in-house counsel at another company) that the recipient attorney knows or reasonably should know was inadvertently sent. See ABA Model Rule of Professional Conduct, Rule 4.4, “Respect for the Rights of Third Persons.” The ABA Commission on Ethics 20/20's revisions to Rule 4.4(b) expressly apply that same duty to “electronically stored information” that has been inadvertently sent:

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

See Commission on Ethics 20/20 Approved Proposals regarding Rule 4.4(b) (revisions in italics). The majority of state ethical opinions likewise agree that a receiving attorney has a duty to notify the sender of inadvertently sent metadata. See Tomas J. Garcia, “Jurisdictional Discord in Applying Ethics Guidelines to Inadvertently Transmitted Metadata,” 23 Geo. J. Legal Ethics 585, 589 (2010).

In its new revisions, the Commission also clearly recognized situations where an electronic document or file is intentionally sent but contains ESI (such as metadata) that was not intended to be included in the transmission. The Commission's revisions to Comment [2] to Rule 4.4 state as follows (as reflected in italics):

Paragraph (b) recognizes that lawyers sometimes receive a document or Electronically Stored Information that was mistakenly sent or produced by opposing parties or their lawyers. A document or ESI is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or ESI is accidentally included with information that was intentionally transmitted.

See Commission on Ethics 20/20 Approved Proposals regarding Rule 4.4(b) and Comment [2] thereto (revisions in italics).

The Commission further makes clear that “ESI” includes metadata, revising Comment [2] to Rule 4.4 to define the phrase “document or ESI” as including, “in addition to paper documents, email and other forms of ESI, including embedded data (commonly referred to as 'metadata'), that is subject to being read or put into readable form.” Id. The new revisions to Comment [2] also expressly apply the standard set forth in Rule 4.4(b) to metadata, stating that “[m]etadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should have known that the metadata was inadvertently sent to the receiving lawyer.” Id.

The 'Mining' of Metadata

One unique issue in the area of receipt of metadata in the non-discovery context is whether a receiving attorney may ever even view a received file's metadata (often referred to as “mining”) in the first place. The ABA and some states take the position that there is no prohibition against reading metadata received from another attorney so long as the duty imposed by Rule 4.4(b) is followed. See, e.g., American Bar Association Formal Ethics Opinion 06-442 (Aug. 5, 2006). Some state jurisdictions also impose no such prohibition unless the receiving attorney has actual knowledge that the electronic document or file contains confidential metadata. See, e.g., District of Columbia Bar Ethics Opinion 341, Review and Use of Metadata in Electronic Documents (September 2007).

However, a number of other jurisdictions impose a general prohibition on the ability of a receiving attorney to examine an electronic document or file for metadata. See Andrew W. Perlman, “The Legal Ethics of Metadata Mining,” 43 Akron L. Rev. 785, 788-89 (2010) (citing seven jurisdictions that generally prohibit the viewing of a document's metadata). Still other state jurisdictions address the issue on a case-by-basis or have not yet addressed the issue at all. See Sedona Commentary on Ethics & Metadata, at 11. Given the wide disparity in state ethical rules and decisions on this issue, close examination of the rules and ethical opinions from the practitioner's local state of practice is essential. See Joshua Austin, “What to Do About Metadata: A Call to the Illinois State Bar Association for a Formal Ethics Opinion,” 22 DCBA Brief 34, 35 (April 2010).

The Discovery Context

Producing Metadata in the Discovery Context

Unlike the non-discovery context, where in-house counsel and/or the company's outside counsel may typically freely withhold metadata from electronic documents and files that counsel chooses to send, an attorney in the discovery context, if requested to do so, will generally be required by most courts to produce relevant, responsive and non-confidential metadata included in electronic documents or files absent an assertion of privilege. See, e.g., Fed. R. Civ. P. 26(b)(1) and 34(b)(2)(E)(i); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005). In short, most courts find that metadata is fully discoverable if it is relevant to a claim or defense of any party. See id.

As such (and also pursuant to an attorney's ethical duty of confidentiality), prior to production, “[a] lawyer has a duty to review metadata for confidential information, including information protected by the attorney-client privilege, in an otherwise non-confidential responsive file.” See Sedona Commentary on Ethics & Metadata, at 16. Conversely, an act of simply “scrubbing” electronic documents of their metadata prior to a discovery production risks a subsequent finding of spoliation of evidence and/or violation of the ethical duty of fairness to the opposing party and counsel. See ABA Model Rule of Professional Conduct, Rule 3.4, “Fairness to Opposing Party and Counsel,” paragraph (a).

If an attorney discovers that he has inadvertently produced confidential and/or privileged data (including metadata) in response to a discovery request, then the attorney has the same ethical duties discussed, supra, with respect to the non-discovery context. This would include “reasonable efforts” to prevent further authorized disclosure or access to such data, likely including use of reasonable diligence to promptly notify recipients and request the return or destruction of the data. See, e.g., ABA Model Rule of Professional Conduct, Rule 1.6.

Receiving Metadata in the Discovery Context

If a company's outside counsel has served a discovery request that calls for the production of metadata along with responsive electronic documents and files, then the duty of diligence would demand that a review of such metadata be conducted after the production is received. See ABA Model Rule of Professional Conduct, Rule 1.3; see also Sedona Commentary on Ethics & Metadata, at 18. Proper and due diligence likely also requires reasonable efforts to ensure that the produced metadata is complete and has not been deleted or altered from the file's native format. See id. In the discovery context, the restrictions that some jurisdictions place upon metadata “mining” generally have no application and are limited to the receipt of metadata in non-discovery situations where: 1) a discovery request or subpoena is not involved; and 2) the sending of metadata (in contrast to the context of discovery) is typically inadvertent and unintended. See id. at 10-11, 19.

In contrast, where an attorney discovers that metadata has been inadvertently produced to her during the course of discovery, the receiving attorney's ethical duties with respect to that metadata should be same as in the non-discovery context. That would mean, for example, if the jurisdiction follows ABA Model Rule 4.4(b) or its substantial equivalent, then the receiving attorney would have a duty to promptly notify the sender. Further, if a receiving attorney is notified of the inadvertent production of a privileged document or data, then Fed. R. Civ. P. 26(b)(5)(B) would require its return or destruction. See, e.g., Mt. Hawley Ins. Co. v. Felman Prod., Inc., No. 3:09-CV-00481, 2010 WL 1990555, at *3 (S.D. W.Va. May 5, 2010).

Ensuring That Metadata Is Not Sent or Produced Inadvertently

Scrubbing: A simple way to avoid the sending of confidential metadata is through the use of scrubbing software, such as Metadata Assistant. Scrubbing software scans and removes metadata from an electronic document or file prior to it being sent as an email attachment. Of course, in the context of discovery, a producing attorney (depending on the nature and scope of the discovery request) may have a duty to produce non-confidential, non-privileged metadata. In that event, the scrubbing of a document prior to production could be held to amount to spoliation of evidence. See generally Fed. R. Civ. P. 26(b)(1).

Conversion to Static Images: Metadata can also be eliminated by converting an electronic document or file to a static image, such as a .pdf (or a .tiff) file. However, printing and then scanning a document to .pdf, while eliminating metadata, also eliminates its searchability. Another option is electronically converting (rather than scanning) a document to .pdf, which permits the document to retain its searchability. An electronic document converted to .pdf loses its word processing software metadata, although it will have its own Adobe Acrobat-created metadata, such as the individual who created the .pdf and the date and time of the conversion to .pdf. See Sedona Commentary on Ethics & Metadata, at 23.

Electronic Redactions: Although some word processing software offers electronic redaction tools, attorneys should be cautious in electronically producing any documents that have been redacted by such tools because of the danger that the redacted information may actually be retrievable from the document. Id. at 22-23. For example, what is thought to be an electronic redaction tool may simply be an overlay (e.g., word processing software's border and shading options) that still permits the supposedly redacted text to be searched, copied and pasted in and from the document. Id.

Confidentiality and Other Agreements: In the litigation and discovery context, a company's outside counsel can pursue confidentiality or other agreements (such as non-disclosure and non-waiver agreements) and/or protective orders with opposing counsel concerning such issues as the inadvertent disclosure of metadata or the ability to search and use embedded information. Id. at 23. For example, at the start of litigation, counsel for each side can negotiate a confidentiality agreement that provides that any metadata disclosures in communications between them are unintentional and to be promptly deleted.

Conclusion

Although it may be invisible to the eye, metadata cannot be ignored ' not when it is present in most documents or files created electronically. In-house counsel and their company's outside counsel should be aware that distinct ethical duties and considerations arise any time that metadata is sent or received in the course of representing a company. Moreover, the scope and nature of those duties and considerations may directly turn on whether the transmission or receipt of metadata occurs in the context of discovery or non-discovery communications. Finally, practitioners should bear in mind that there are state-specific distinctions with respect to some of those duties and considerations (e.g., the ability to “mine” for metadata) that require close and particular attention to existing and future ethical opinions, rules and amendments in an attorney's state(s) of practice.

Metadata is everywhere ' in the overwhelming majority of electronically created documents and files. Distinct ethical and legal considerations and duties arise for in-house and for their company's outside counsel, both when sending and receiving electronic documents or files containing metadata. Further, those considerations and duties for in-house counsel and his/her company's outside counsel often differ and/or are dependent upon whether the transmission or receipt of metadata occurs in the context of: 1) discovery (i.e., productions pursuant to a discovery request or subpoena); or 2) non-discovery communications. The sections that follow provide an overview of the ethical and legal considerations in both of those contexts with respect to both the sending and receipt of metadata by in-house counsel and the company's outside counsel.

What Is Metadata?

Metadata is frequently defined, simply, as “data about data.” See Sedona Conference', “Commentary on Ethics & Metadata,” Public Comment Version (March 2012) (Sedona Commentary on Ethics & Metadata) at 1. Electronic documents and files “usually include[] not only the visible text but also hidden text, formatting codes, formulae, and other information associated with the file,” with those various types of information frequently grouped together under the banner of “metadata.” See The Sedona Principles (Second Edition): Best Practices, Recommendations & Principles for Addressing Electronic Document Production (June 2007), at 60. However, “metadata” can be broken down into many distinct categories, including application (or substantive) metadata, system metadata and embedded metadata.

Application Metadata

Application metadata is created by the application software that created the document or file, and it “reflects substantive changes made by the user.” Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec. , 255 F.R.D. 350, 354 (S.D.N.Y. 2008). As an example, types of metadata created by Microsoft Word include (but are not limited to) “track changes,” “fast saves,” inserting “comments,” saving multiple “versions” of a document, and the making of any revisions to the original text of the document.

System Metadata

System metadata consists of information created by a user or an organization's information management system. Examples of types of system metadata include “data concerning 'the author, date and time of creation, and the date a document was modified.'” Aguilar, 255 F.R.D. at 354.

Embedded Metadata

Embedded metadata is comprised of data, such as numbers, text or other content, that is input into a file by a user, but which is not usually visible when the file's output display is viewed. Examples include “spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information.” Aguilar, 255 F.R.D. at 354-55.

Why Is Metadata Important?

The inclusion of metadata within documents and files can significantly implicate and impact ethical considerations and duties both in the non-discovery context (whenever in-house counsel or his/her company's outside counsel send and receive documents or files [often created by counsel] having metadata); and in the specific discovery context (when a company's electronically stored information (“ESI”) is sent, produced or received by an attorney in connection with a discovery request or subpoena). See Sedona Commentary on Ethics & Metadata, at iii-iv. This can include ethical duties such as those of confidentiality, competence, and respect for the rights of third persons, as well as duties pertaining to discovery obligations under the applicable rules of civil procedure.

The Non-Discovery Context

Sending Metadata

The ethical duties of confidentiality and competence apply when in-house counsel or his/her company's outside counsel sends documents or files containing metadata to another attorney. The duty of competent representation of a client “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule of Professional Conduct, Rule 1.1, “Competence.” New revisions to the ABA Model Rules of Professional Conduct (as proposed by the ABA Commission on Ethics 20/20 and approved by the ABA in August 2012) specify that the duty of competence (as set forth in Rule 1.1), and its attendant duty to keep abreast of changes in the law and its practice, includes “the benefit and risks associated with relevant technology.” See ABA Commission on Ethics 20/20 Proposals (approved in August 2012), at www.americanbar.org, regarding Comment 6 to Rule 1.1. For an attorney, this should include an understanding “that metadata is stored within the majority of electronic files” and that appropriate action needs to be taken to protect it. See Crystal Thorpe, “Metadata: The Dangers of Metadata Compel Issuing Ethical Duties to 'Scrub' and Prohibit the 'Mining' of Metadata,” 84 N.D. L. Rev. 257, 271 (2008).

The duty of confidentiality precludes an attorney from revealing “information relating to the representation of a client” absent informed consent, implied authorization or another applicable exception. See ABA Model Rule of Professional Conduct, Rule 1.6, “Confidentiality of Information.” The ABA Commission on Ethics 20/20's new revisions impact the issue of the sending of metadata by specifically adding to Rule 1.6 a duty to “make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” See ABA Commission on Ethics 20/20 Approved
Proposals regarding Rule 1.6 and new paragraph (c).

Additionally, some state ethical opinions have specifically found and stated a duty for attorneys to use reasonable care to prevent disclosure of confidential metadata, such as by “scrubbing” metadata from electronic documents before sending them. See, e.g., New York State Bar Association Opinion 782 (Dec. 8, 2004). This duty would include both: 1) employing reasonable available technical means (such as “scrubbing”) to remove confidential metadata prior to sending; and 2) upon discovery that confidential metadata has been sent, acting in a reasonably diligent fashion to notify recipients and to accomplish the return or destruction of such metadata. See Sedona Commentary on Ethics & Metadata, at 8.

Receiving Metadata

General Duty to Promptly Notify The Sender

Under ABA Model Rule of Professional Conduct 4.4(b), an attorney has a duty to promptly notify the sender when a document is received (e.g., from outside counsel or in-house counsel at another company) that the recipient attorney knows or reasonably should know was inadvertently sent. See ABA Model Rule of Professional Conduct, Rule 4.4, “Respect for the Rights of Third Persons.” The ABA Commission on Ethics 20/20's revisions to Rule 4.4(b) expressly apply that same duty to “electronically stored information” that has been inadvertently sent:

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

See Commission on Ethics 20/20 Approved Proposals regarding Rule 4.4(b) (revisions in italics). The majority of state ethical opinions likewise agree that a receiving attorney has a duty to notify the sender of inadvertently sent metadata. See Tomas J. Garcia, “Jurisdictional Discord in Applying Ethics Guidelines to Inadvertently Transmitted Metadata,” 23 Geo. J. Legal Ethics 585, 589 (2010).

In its new revisions, the Commission also clearly recognized situations where an electronic document or file is intentionally sent but contains ESI (such as metadata) that was not intended to be included in the transmission. The Commission's revisions to Comment [2] to Rule 4.4 state as follows (as reflected in italics):

Paragraph (b) recognizes that lawyers sometimes receive a document or Electronically Stored Information that was mistakenly sent or produced by opposing parties or their lawyers. A document or ESI is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or ESI is accidentally included with information that was intentionally transmitted.

See Commission on Ethics 20/20 Approved Proposals regarding Rule 4.4(b) and Comment [2] thereto (revisions in italics).

The Commission further makes clear that “ESI” includes metadata, revising Comment [2] to Rule 4.4 to define the phrase “document or ESI” as including, “in addition to paper documents, email and other forms of ESI, including embedded data (commonly referred to as 'metadata'), that is subject to being read or put into readable form.” Id. The new revisions to Comment [2] also expressly apply the standard set forth in Rule 4.4(b) to metadata, stating that “[m]etadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should have known that the metadata was inadvertently sent to the receiving lawyer.” Id.

The 'Mining' of Metadata

One unique issue in the area of receipt of metadata in the non-discovery context is whether a receiving attorney may ever even view a received file's metadata (often referred to as “mining”) in the first place. The ABA and some states take the position that there is no prohibition against reading metadata received from another attorney so long as the duty imposed by Rule 4.4(b) is followed. See, e.g., American Bar Association Formal Ethics Opinion 06-442 (Aug. 5, 2006). Some state jurisdictions also impose no such prohibition unless the receiving attorney has actual knowledge that the electronic document or file contains confidential metadata. See, e.g., District of Columbia Bar Ethics Opinion 341, Review and Use of Metadata in Electronic Documents (September 2007).

However, a number of other jurisdictions impose a general prohibition on the ability of a receiving attorney to examine an electronic document or file for metadata. See Andrew W. Perlman, “The Legal Ethics of Metadata Mining,” 43 Akron L. Rev. 785, 788-89 (2010) (citing seven jurisdictions that generally prohibit the viewing of a document's metadata). Still other state jurisdictions address the issue on a case-by-basis or have not yet addressed the issue at all. See Sedona Commentary on Ethics & Metadata, at 11. Given the wide disparity in state ethical rules and decisions on this issue, close examination of the rules and ethical opinions from the practitioner's local state of practice is essential. See Joshua Austin, “What to Do About Metadata: A Call to the Illinois State Bar Association for a Formal Ethics Opinion,” 22 DCBA Brief 34, 35 (April 2010).

The Discovery Context

Producing Metadata in the Discovery Context

Unlike the non-discovery context, where in-house counsel and/or the company's outside counsel may typically freely withhold metadata from electronic documents and files that counsel chooses to send, an attorney in the discovery context, if requested to do so, will generally be required by most courts to produce relevant, responsive and non-confidential metadata included in electronic documents or files absent an assertion of privilege. See, e.g., Fed. R. Civ. P. 26(b)(1) and 34(b)(2)(E)(i); Williams v. Sprint/United Mgmt. Co. , 230 F.R.D. 640 (D. Kan. 2005). In short, most courts find that metadata is fully discoverable if it is relevant to a claim or defense of any party. See id.

As such (and also pursuant to an attorney's ethical duty of confidentiality), prior to production, “[a] lawyer has a duty to review metadata for confidential information, including information protected by the attorney-client privilege, in an otherwise non-confidential responsive file.” See Sedona Commentary on Ethics & Metadata, at 16. Conversely, an act of simply “scrubbing” electronic documents of their metadata prior to a discovery production risks a subsequent finding of spoliation of evidence and/or violation of the ethical duty of fairness to the opposing party and counsel. See ABA Model Rule of Professional Conduct, Rule 3.4, “Fairness to Opposing Party and Counsel,” paragraph (a).

If an attorney discovers that he has inadvertently produced confidential and/or privileged data (including metadata) in response to a discovery request, then the attorney has the same ethical duties discussed, supra, with respect to the non-discovery context. This would include “reasonable efforts” to prevent further authorized disclosure or access to such data, likely including use of reasonable diligence to promptly notify recipients and request the return or destruction of the data. See, e.g., ABA Model Rule of Professional Conduct, Rule 1.6.

Receiving Metadata in the Discovery Context

If a company's outside counsel has served a discovery request that calls for the production of metadata along with responsive electronic documents and files, then the duty of diligence would demand that a review of such metadata be conducted after the production is received. See ABA Model Rule of Professional Conduct, Rule 1.3; see also Sedona Commentary on Ethics & Metadata, at 18. Proper and due diligence likely also requires reasonable efforts to ensure that the produced metadata is complete and has not been deleted or altered from the file's native format. See id. In the discovery context, the restrictions that some jurisdictions place upon metadata “mining” generally have no application and are limited to the receipt of metadata in non-discovery situations where: 1) a discovery request or subpoena is not involved; and 2) the sending of metadata (in contrast to the context of discovery) is typically inadvertent and unintended. See id. at 10-11, 19.

In contrast, where an attorney discovers that metadata has been inadvertently produced to her during the course of discovery, the receiving attorney's ethical duties with respect to that metadata should be same as in the non-discovery context. That would mean, for example, if the jurisdiction follows ABA Model Rule 4.4(b) or its substantial equivalent, then the receiving attorney would have a duty to promptly notify the sender. Further, if a receiving attorney is notified of the inadvertent production of a privileged document or data, then Fed. R. Civ. P. 26(b)(5)(B) would require its return or destruction. See, e.g., Mt. Hawley Ins. Co. v. Felman Prod., Inc., No. 3:09-CV-00481, 2010 WL 1990555, at *3 (S.D. W.Va. May 5, 2010).

Ensuring That Metadata Is Not Sent or Produced Inadvertently

Scrubbing: A simple way to avoid the sending of confidential metadata is through the use of scrubbing software, such as Metadata Assistant. Scrubbing software scans and removes metadata from an electronic document or file prior to it being sent as an email attachment. Of course, in the context of discovery, a producing attorney (depending on the nature and scope of the discovery request) may have a duty to produce non-confidential, non-privileged metadata. In that event, the scrubbing of a document prior to production could be held to amount to spoliation of evidence. See generally Fed. R. Civ. P. 26(b)(1).

Conversion to Static Images: Metadata can also be eliminated by converting an electronic document or file to a static image, such as a .pdf (or a .tiff) file. However, printing and then scanning a document to .pdf, while eliminating metadata, also eliminates its searchability. Another option is electronically converting (rather than scanning) a document to .pdf, which permits the document to retain its searchability. An electronic document converted to .pdf loses its word processing software metadata, although it will have its own Adobe Acrobat-created metadata, such as the individual who created the .pdf and the date and time of the conversion to .pdf. See Sedona Commentary on Ethics & Metadata, at 23.

Electronic Redactions: Although some word processing software offers electronic redaction tools, attorneys should be cautious in electronically producing any documents that have been redacted by such tools because of the danger that the redacted information may actually be retrievable from the document. Id. at 22-23. For example, what is thought to be an electronic redaction tool may simply be an overlay (e.g., word processing software's border and shading options) that still permits the supposedly redacted text to be searched, copied and pasted in and from the document. Id.

Confidentiality and Other Agreements: In the litigation and discovery context, a company's outside counsel can pursue confidentiality or other agreements (such as non-disclosure and non-waiver agreements) and/or protective orders with opposing counsel concerning such issues as the inadvertent disclosure of metadata or the ability to search and use embedded information. Id. at 23. For example, at the start of litigation, counsel for each side can negotiate a confidentiality agreement that provides that any metadata disclosures in communications between them are unintentional and to be promptly deleted.

Conclusion

Although it may be invisible to the eye, metadata cannot be ignored ' not when it is present in most documents or files created electronically. In-house counsel and their company's outside counsel should be aware that distinct ethical duties and considerations arise any time that metadata is sent or received in the course of representing a company. Moreover, the scope and nature of those duties and considerations may directly turn on whether the transmission or receipt of metadata occurs in the context of discovery or non-discovery communications. Finally, practitioners should bear in mind that there are state-specific distinctions with respect to some of those duties and considerations (e.g., the ability to “mine” for metadata) that require close and particular attention to existing and future ethical opinions, rules and amendments in an attorney's state(s) of practice.