by Nicole O'Neal
The complexities of electronic discovery (e-discovery) are leading to disputes regarding the scope of discovery, the form of production, and the protection of privileged and confidential information. Since there is an established trend toward a greater dependence on electronically stored information, as opposed to paper documents, pressure is growing for the creation of solutions and rules to promote uniformity in this area of the Florida Rules of Civil Procedure and the Rules of Professional Conduct. Consequently, ambiguity regarding the disclosure of metadata is becoming a prominent issue throughout Florida’s legal community. Metadata, which is often referred to as “data about data,” is information that becomes embedded within an electronic document, sometimes invisibly, often providing all of the document’s history and changes. Its growing importance is reflected in the fact that it has recently become the topic for continuing legal education seminars.
The purpose of this article is to consider the likelihood that metadata will become discoverable in Florida, and if so, to what extent. The article will assess the possible effects this could have on inadvertent disclosure, the duty to preserve, and the duty to disclose by considering recent measures of The Florida Bar Professional Ethics Committee and the findings of federal courts when applying the Federal Civil Procedure Rules. Federal courts have found that there is not only a duty to preserve metadata, but also a duty to disclose it under Federal Civil Procedure Rules 34 and 26, respectively. Furthermore, failure to comply with these rules has resulted in sanctions from the courts. The Florida Supreme Court may determine that metadata is discoverable, at least in cases where metadata is necessary to the functionality of discoverable documents or where the metadata itself is at issue. The Florida Bar and Supreme Court are currently in the process of developing rules to govern e-discovery, and these rules will play a crucial role in determining how metadata affects future litigation in this state.
Metadata: A Brief Definition
The official definition of metadata is “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, modified and how it is formatted.” In general, metadata occurs within word processing, spreadsheet, and presentation programs. Although there is usually less metadata within Corel WordPerfect or Adobe Acrobat PDF documents, it is certainly still there.
One important question to consider is what exactly remains in a document after it is saved and e-mailed to a client or opposing counsel? Many times it is simply innocuous, albeit embarrassing, information that does not breach any privilege. However, metadata can routinely reveal the original authors of the document, the firm name, the computer name of the drafting computer, the file location on the drafting computer, document revisions and versions, file properties, hidden text, hyperlinks, initials of the drafter, network or server name of the firm, undo/redo history, comments on the document, and tracked changes. Clearly, a significant portion of this information should be kept confidential.
The most vulnerable part of the Microsoft suite of applications is the “track changes” tool, most commonly used in Microsoft Word. When this feature is turned on, the word processor will save all modifications that are made to a document in an easy-to-read format, which could permit the opposing side to discern exactly what was in the mind of the document drafters throughout negotiations and pleadings. In the legal realm, this tool can create more harm than good. As such, it seems preferable to turn the tool off completely, specifically remove it from a document before it is e-mailed, or avoid utilizing e-mail to send the document to opposing counsel.
Unfortunately, unlike the Word “track changes” feature, most metadata is additional text and can be invisibly and unavoidably stored within a document. One quick way to make this invisible text appear is to take any Word document and open it in the Notepad program included with every release of Microsoft Windows. Once a Word document is opened in Notepad, it is immediately apparent that, in addition to the written text within the document, there is a large amount of seemingly arbitrary letters and symbols. Much of this nonsensical text is in fact metadata, and likely includes information such as the firm name or drafting dates.
Current Rules Governing Metadata: Florida Ethics Opinion 06-2
The Florida Bar Professional Ethics Committee is “concerned about the ethical obligations both of attorneys sending documents electronically that may contain metadata and of attorneys receiving such documents.” In response to this concern, The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006. The purpose of the opinion is to outline the ethical duties of lawyers when they send and receive electronic documents from other lawyers in the course of representing their clients. The opinion states:
(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.
(2) It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct, effective May 22, 2006.
(3) If the recipient lawyer inadvertently obtains information from metadata that the recipient knows or should know was not intended for the recipient, the lawyer must “promptly notify the sender.”
The opinion further notes that lawyers may need to pursue continuous “training and education in the use of technology in transmitting and receiving electronic documents in order to protect client information under Rule 4-1.6(a).”
Clearly, The Florida Bar recognizes that metadata can reveal protected information and has taken measures to prevent lawyers from mining electronic documents in order to access it. Recently, other state bar associations have taken similar action. For instance, the New York State Bar Association Committee on Professional Ethics issued Opinion 782, dated December 8, 2004, and stated that when a lawyer sends a document by e-mail, the lawyer must exercise reasonable care to ensure that he or she does not inadvertently disclose a client’s confidential information.
While the opinion represents a step forward in the evolution of e-discovery, it does not specifically address “uses of metadata that are discoverable under applicable rules or that are admissible in a trial or arbitration.”
The Inadvertent Disclosure of Metadata
Under Rule 4-1.6(a) of the Florida Rules of Professional Conduct, “a lawyer shall not reveal information relating to representation of a client . . . unless the client consents after disclosure to the client.” A lawyer has a duty to prevent information from reaching unintended recipients by taking reasonable precautions; however, a lawyer is not required to take special measures if the method of communication affords a reasonable expectation of privacy. Since metadata has the potential to reveal confidential information that may be protected by the attorney-client privilege or work product immunity, special measures may prove necessary if such information is not discoverable.
Rule 4-4.4(b) of the Florida Rules of Professional Conduct requires lawyers to promptly notify the sender when the lawyer knows or reasonably should know that a document was sent inadvertently in order to permit that person to take protective measures. “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived.”
Metadata is an inherent part of every electronic document. Therefore, to send the electronic document requires sending the metadata embedded within it. Pursuant to Rule 4-1.6(a) and subsection (1) of the opinion, the lawyer can take reasonable precautions to protect the client by employing features and programs that will remove most of the metadata in an electronic document.Also, when informing clients of the risks inherent in transmitting electronic documents, the lawyer can address concerns pertinent to metadata before obtaining client consent. However, both of these “special measures” may not be necessary if subsection (2) of the opinion affords a reasonable expectation of privacy to electronic documents that shields metadata from the risks associated with inadvertent disclosure. Since receiving lawyers cannot mine electronic documents for protected information in the metadata, sending lawyers may not be required to take measures to conceal or remove it.
Rule 4-4.4(b) only applies to “documents” and may not be applicable to inherent parts of the document (i.e., metadata). If Rule 4-4.4(b) is applicable, it could not be efficiently implemented. Of the lawyers aware of the existence of metadata, few will spend the time and resources necessary to warn sending attorneys that the metadata in the electronic document they received may reveal protected information. Again, the author recognizes the utility of Ethics Opinion 06-2. If receiving lawyers are prohibited from mining the document’s metadata in the first place, then they will not encounter protected information in the metadata and issues relevant to Rule 4-4.4(b) should not arise. If they encounter this information, they have an obligation under subsection (3) of the opinion to promptly notify the sender.
Certain electronic documents require metadata in order to be navigable, searchable, or fully accessible. Thus, removing the metadata may destroy the document. Also, prohibiting access to the metadata, pursuant to the opinion, may nullify the purpose for which the document was requested. Under these circumstances, sending lawyers could face an impossible dilemma with regard to inadvertent disclosure because disclosing the metadata may be the only way to satisfy the discovery request of opposing counsel. On the other hand, receiving lawyers may be unduly constrained in the discovery process by subsection (2) of the opinion if they are unable to use the document without obtaining information from the metadata. Therefore, The Florida Bar and Supreme Court may establish that metadata is discoverable in cases where the metadata is a necessary part of a discoverable document, and in cases where the metadata itself is at issue.
Federal Courts and the Discovery of Metadata
• The Duty to Preserve
Under Rule 34 of the Federal Rules of Civil Procedure, any party may serve on any other party a request to produce, inspect, and copy any designated documents. The party producing the documents for inspection must produce them as they are kept in the usual course of business or must organize and label them to correspond with the categories in the request. The Rule 34 committee notes state that the rule “applies to electronic data compilations from which information can be obtained only with the use of detective devices,” and “if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs.”
Pursuant to Rule 34, at least one court has ordered the production of electronic documents with metadata intact. Even after receiving hard copies of documents, a party in a New York federal case requested, and was granted, an order from the court compelling the production of electronic versions of the documents. In another case in California, the court went so far as to require that the documents be produced in their native format, thus, converting a document to PDF or another format less likely to reveal protected information in the metadata was prohibited. The court reasoned that, since the documents were kept in electronic format during the usual course of business, they should be produced in exactly the same format. This can also include the document’s metadata. Furthermore, that court held that the burden associated with producing the additional electronic versions was reasonable.
Specific to metadata, federal courts have ordered its preservation when it is necessary for the document to be searchable. However, it remains unclear whether metadata should be produced as a matter of course in the production of electronic documentation. The court’s reasoning in In re Texlon Corp., 596 F.2d 1092 (C.A.N.Y. 1979), suggests that it should be produced. In that case, “missing metadata” was inferred to mean that the defendant was withholding or had improperly destroyed discoverable information.
A duty to preserve metadata could pose a new host of challenges for lawyers in their efforts to protect privileged and confidential information. In some cases, “destroying or overwriting electronic data has the potential to incur sanctions from the court in the same way as if paper-based evidence was destroyed.” If metadata becomes discoverable, Florida lawyers must understand how to identify it in order to take the necessary measures to comply with the duty to preserve it.
Ÿ The Duty to Disclose
Under Rule 26(a)(1)(B) of the Federal Rules of Civil Procedure, a party must provide “a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” Failure to comply with Rule 26 can result in sanctions under Rule 37.
In Hayman v. PriceWaterhouseCoopers, LLP, 2004 WL 3192729, the court found that PriceWaterhouseCoopers, LLP, documents never produced in hard copy during discovery; documents produced in hard copy in a version different from the version in which it existed in the electronic databases; documents modified more frequently than noted on the hard copy; and documents modified by a person not identified as a modifier on the hard copy.The court held that “Hayman In accordance with the Federal Rules of Civil Procedure and the case law developing in the federal courts, it is possible the Florida Supreme Court will establish that metadata is discoverable when it could reveal information crucial to the litigation of a case. How far the scope of discovery for metadata extends beyond this standard remains to be determined. However, trends established both nationally and internationally support a determination that grants wide latitude. When the Supreme Court makes this decision, there will be a duty both to preserve and disclose metadata, and sanctions might be imposed for failure to comply. Uncertainty will arise when lawyers are faced with a duty to comply with these rules at the risk of violating their ethical obligations to safeguard protected and confidential information. Therefore, Florida lawyers must be cognizant of metadata’s existence in order to understand the impact it has on the discovery process and on their client’s rights.
1 On October 12, 2006, the clerk’s office for the District Court for the Southern District of Florida implemented its case management/electronic case filing (CM/ECF) system, which requires that members of the district’s bar file documents electronically. See also Jack R. Reiter, Annual Reports of Florida Bar Committees, 80 Fla. B. J. 30 (2006) (the Appellate Court Rules Committee (ACRC) created a special subcommittee on electronic filing and service “to address developing issues as Florida courts move toward electronic filing”); see also Robert H. Thornburg, Electronic Discovery in Florida, 80 Fla. B. J. 34 (2006), available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “Journal,” then “Issue Archive”); see also Howard Mankoff, Electronic Discovery: The Final Frontier, www.marshalldennehey.com/CM/DefenseDigest/DefenseDigest294.asp.
2 See Gary Blankenship, What’s in Your Document? Board Says It’s Unethical to Mine Hidden Data From E-texts, Fla. B. News, Jan. 1, 2006, at 1, 10, available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “News,” then “Issue Archive”); see also Gary Blankenship, It’s Unethical to Mine Metadata, Fla. B. News, Apr. 30, 2006, at 1, available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “News,” then “Issue Archive”); see also Ethics Advisory Opinions Deal With Firm E-files and Metadata, Fla. B. News, Apr. 30, 2006, at 1-2, available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “News,” then “Issue Archive”); see also Jessica M. Walker, Not So Evident, Daily Bus. Rev., Apr. 17, 2006, at A8.
3 Barbara Busharis, Metadata, 25 No. 2 Trial Advoc. Q. 4 (2006).
4 See Ethics to Take Center Stage in Boca Raton, , May 15, 2006, at 3, available at www.floridabar.org(follow link for “Florida Bar Journal & News,” then follow “News,” then “Issue Archive”).
5 While recognizing that the Florida Rules of Civil Procedure need not be bound by or interpreted in accordance with the Federal Rules of Civil Procedure, it is persuasive nonetheless to analyze the application of these rules to cases that address the issue of whether metadata is discoverable and to what extent.
6 See notes 33-43.
7 See notes 44-46.
8 See notes 43-44.
9 In some cases, metadata may be considered an ancillary part of an electronic document, without which the document is inaccessible. Removing the metadata could nullify the purpose for which the document was requested during the discovery process, thus, discoverability may need to be specifically extended to include the document’s metadata. In other cases, the information revealed in the metadata itself may be pertinent to the case.
10 While issues relating to privacy and the misappropriation of metadata are also relevant, they are not within the scope of this article.
11 Jonathan Redgrave, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, 4 197, 234 (2003).
12 Sheila Blackford, Metadata: Danger or Delight?, Or. St. B. Bull., May 2006, at 29.
13 Id.; see also Campbell Steele, Attorneys Beware: Metadata’s Impact on Privilege, Work Product, and the Ethical Rules, 35 U. Mem. L. Rev. 911, 936 n. 106 (2005) (explaining that “[m]any law firms simply publish external documents as PDF files, under the mistaken belief that the document will be metadata-free . . . PDF documents contain the following forms of metadata: Authors, Create Data, Filename, PDF Version, Page Count, Encryption Status, Permanent ID, Changing ID, Producer, Creator, Custom Fields, Title, Subject, Keywords, Modification Date, Bookmarks (total number), Annotations (total number, type, and total type amount), Page One Size, and Font Name, Type, Embed Status.”).
14 Id. at 30.
16 Steven Wechsler, Professional Responsibility, 56 . 953, 967-68 (2006).
17 See Robert Barrer, Unintended Consequences: Avoiding and Addressing the Inadvertent Disclosure of Documents, . at 35 (Nov-Dec 2005).
18 Id. at 40.
19 J. Brian Beckham, Production, Preservation, and Disclosure of Metadata, 7 Colum. Sci. & Tech. L. Rev. 1, 3-4, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=736226.
20 The Notepad program can be found in Microsoft Windows by clicking the “Start” menu, clicking “Programs,” clicking “Accessories”, and then clicking “Notepad.”
21 Simon Dray, Annual Reports of Florida Bar Committees, 80 . 30 (2006), available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “Journal,” then “Issue Archive”).
22 Professional Ethics of The Florida Bar: Opinion 06-2, www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+06-2?opendocument.
23 Id. Under Rule 4-4.4, “[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Fla. Rules of Prof’l Conduct R. 4-4.4 (2007).
24 Professional Ethics of The Florida Bar: Opinion 06-2, www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+06-2?opendocument. Under Rule 4-1.6 (a), Florida lawyers must take reasonable steps to protect client confidence in all types of documents and information that leave the lawyers’ offices.
25 Bruce R. Kaliner, Managing Metadata: Attorneys Need to Be Aware of Metadata, Especially in Regard to Electronic Discovery and Professional Responsibility Obligations, Best’s Rev., Nov. 1, 2005, at 19.
26 Ethics Advisory Opinions Deal With Firm E-files and Metadata, Fla. B. News, Apr. 30, 2006, at 3, available at www.floridabar.org (follow link for “Florida Bar Journal & News,” then follow “News,” then “Issue Archive”) (emphasis added).
27 Andrew Beckerman-Rodau, Ethical Risks From the Use of Technology, 31 . 1, 33 (2004).
28 Fla. R. Prof’l Conduct 4-4.4 cmt. (2007).
29 There are a number of software programs called “scrubbers” that automatically remove metadata from documents. See DocScrubber by Javacool Software LLC, www.docscrubber.com; see also Metadata Scrubber by BBC Legal Systems, www.beclegal.com; see also ezClean by KKL Software, www.kklsoftware.com.
One of the most well-known scrubbers, a program aptly named iScrub, is a metadata removal and management utility from Esquire Innovations, Inc. The software, which is designed specifically for law firm use, provides centralized administration and control over metadata removal settings while providing integration with Lotus Notes, Novell GroupWise, and Microsoft Outlook software. See iScrub, www.esqinc.com/index.php?p=products&id=2.
Also, Workshare Protect, another popular scrubbing program which integrates itself with Notes, GroupWise, and Outlook, features the ability to convert any Microsoft document into a metadata-free “Secure PDF” document. See Workshare Protect, www.workshare.com/products/default.aspx.
30 Fla. R. Prof’l Conduct 4-4.4 cmt. (2007) (“For purposes of this rule, ‘document’ includes e-mail or other electronic modes of transmission subject to being read or put into readable form).
31 Beckerman-Rodau, Ethical Risks From the Use of Technology, 31 . at 40 (2004) (noting that the removal of metadata can make certain features of the electronic document inaccessible).
32 Fed. R. Civ. P. 34.
33 Fed. R. Civ. P. 34(a) (advisory committee’s note).
34 Nova Measuring Instruments, Ltd. v. Nanometrics, Inc., 417 F. Supp. 2d 1121, 1122 (N.D. Cal. 2006).
35 In re Honeywell Int’l, Inc., 230 F.R.D. 293, 295-297 (S.D.N.Y. 2003).
36 In re Verisign, Inc. Sec. Litig., No. C 02-02270 JW,
38 Sharon Nelson & John Simek, Metadata: What You Can’t See Can Hurt You, A.B.A. L. Prac. Mag., March 1, 2006, at 11; In re Vioxx Products Liability Litig., No. MDL 1657, 2005 WL 756742, at *3 (E.D. La. Feb. 18, 2005); The Pueble of Laguna v. U.S., 60 Fed. Cl. 133, 143 (Fed. Cl. 2004).
39 In re Verisign,
40 Nova Measuring, 417 F. Supp. 2d at 1123; see In re Verisign, 2004 WL 2445243, at *1; see also, In re Honeywell, 230 F.R.D. at 296.
41 In re Texlon Corp., 596 F.2d 1092 (C.A.N.Y. 1979), superceded by statute in, In re Adams Apple, 829 F.2d 1484 (9th Cir. 1987).
42 Derek Bedlow, Ready (or Not), Legal Week, May 27, 2004, at 54.
43 Nelson & Simek, Metadata: What You Can’t See Can Hurt You, A.B.A. L. Prac. Mag., March 1, 2006, at 11.
44 In re Telxon Corp. Sec. Litig.; Hayman v. PriceWaterhouseCoppers, LLP, No. 5:98CV2876, 1:01CV1078, 2004 WL 3192729, at *16-18 (N.D. Ohio July 16, 2004).
45 Id. at *33.
46 Michael Taylor, The Preservation Society, Legal Week, Mar. 1, 2006, at 7-8. The United Kingdom made changes to Rule 31 of the Civil Procedure Rules, and the revised practice direction requires parties to discuss at the outset of the litigation a variety of electronic document disclosure issues, including production format. The reasonableness element of CPR Rule 31.7 may require lawyers to comb for relevant evidence located on PCs, servers, and back-up systems.
Nicole O’Neal is a third year student at Florida International University College of Law. She is a comment editor for the Law Review and a member of the Board of Advocates. She currently interns with Judge Frank A. Shepherd of the Third District Court of Appeal and will be interning with Judge Adalberto Jordan of the U.S. District Court for the Southern District of Florida in Jan. 2008. The author recognizes the generous and helpful input of Professor Carlton Waterhouse, Professor Heather Hughes, Nicole Atkinson, and Meenu Sasser.