eDiscovery Daily Blog

• October 29, 2015

A newly proposed adjustment to ethics rules in New Jersey would restrict attorneys from accessing metadata in documents if the metadata was inadvertently sent.

As discussed in the New Jersey Law Journal – Proposal Burdens Recipient in Ethics of Metadata E-Discovery, by David Gialanella (subscription required) – attorneys would be permitted to access the embedded metadata of documents produced in electronic discovery, but only as long as the metadata doesn’t appear to have been transmitted in error – the same way New Jersey lawyers have been required to treat the paper and electronic documents themselves.  The recommendation came from the Working Group on Ethical Issues Involving Metadata in Electronic Documents, which also urged discovery rule amendments.

In some cases, metadata can be accessed easily, and in others it must be “mined” using sophisticated software.  One big issue is that many (if not most) in the legal profession don’t know how metadata works and some don’t even know what it is.  Reviewing ethics opinions of other jurisdictions, the Working Group “found no consensus – indeed, no clear majority view – in the opinions of other jurisdictions with respect to the ethical implications of a lawyer’s review of unrequested metadata in a document transmitted to that lawyer.”  So, the Group had to make its own recommendations.

In its Report and Recommendations to the Supreme Court, dated September 14, 2015, the Working Group recommended:

• That an Official Comment be added to New Jersey Rule of Professional Conduct 4.4(b) stating that lawyers who receive electronic documents may review unrequested metadata, provided that the receiving lawyer reasonably believes that the metadata was not inadvertently sent;
• That the civil discovery rules be amended (and new Official Comments added) to highlight issues pertaining to metadata;
• That steps be taken to minimize the disclosure of metadata in documents electronically filed with the Judiciary; and
• That judges, lawyers, and law students be educated about metadata issues as a component of judicial education programs, continuing legal education, and law school curricula.

The Working Group recommended the following changes to Rule of Professional Conduct 4.4(b) (additions underlined and shown in red, deletions bracketed and shown in blue):

(b) A lawyer who receives a document or electronic information and has reasonable cause to believe that the document or information was inadvertently sent shall not read the document or information or, if he or she has begun to do so, shall stop reading [the document,] it. The lawyer shall (1) promptly notify the sender[,] and (2) return the document or information to the sender and, if in electronic form, delete it and take reasonable measures to assure that the information is inaccessible.

With regard to metadata in discovery, the Working Group “decided not to recommend any particular approach to metadata in discovery as a general default position”, but did recommend that the general Civil Part discovery rule, Rule 4:10-2, be amended to specifically address metadata in electronic documents.

A copy of the report can be found in the New Jersey Courts website here.

So, what do you think?  Is it unethical for attorneys to review inadvertently sent metadata?  Should discovery rules address the ethics of receiving metadata specifically?  Please share any comments you might have or if you’d like to know more about a particular topic.

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