May a D.C. lawyer review the metadata embedded in an electronic document received from opposing counsel?

Plain-English summary

Opinion 341 (published September 2007) addresses a lawyer's obligations regarding metadata, the electronically stored information embedded in documents (such as tracked changes, comments, or spreadsheet formulas) that is not visible on the printed page but is retrievable by a competent computer user. The Committee distinguishes documents exchanged voluntarily outside discovery from those produced in discovery or under subpoena, and treats the sending and receiving lawyer separately.

Outside discovery, the sending lawyer has a duty under Rule 1.6 to take reasonable steps to maintain confidentiality, which includes using reasonably available technical means to remove metadata that contains client confidences or secrets before sending the document. The receiving lawyer's duty turns on knowledge. The Committee draws on prior Opinions 256 and 318 on inadvertent production of privileged material: a receiving lawyer who has actual prior knowledge that the metadata was inadvertently included must not review it before consulting the sender, because reviewing and using known inadvertently disclosed material is a dishonest act under Rule 8.4(c). Mere uncertainty about whether the disclosure was inadvertent does not trigger that duty; the lawyer is then free to review the metadata. The opinion notes that D.C. Rule 4.4(b), effective February 1, 2007, is more expansive than the ABA version and largely codifies Opinion 256: a lawyer who knows before examining a writing that it was inadvertently sent must not examine it, must notify the sender, and must abide by the sender's instructions. The opinion concludes Rule 4.4(b) applies to an inadvertently transmitted portion of a writing, such as metadata, as well as to whole documents. This is a more restrictive position than ABA Formal Opinion 06-442, which found no rule prohibiting review of metadata.

In the discovery or subpoena context, additional rules apply. The sending lawyer must be aware that Rule 3.4(a) bars obstructing access to evidence or altering, destroying, or concealing it; scrubbing metadata from electronic documents that constitute tangible evidence may therefore be prohibited, and the scope of protection narrows from confidences and secrets to material covered by an evidentiary privilege. The receiving lawyer is generally justified in assuming metadata produced in discovery was sent intentionally, and has a duty under Rules 1.1 and 1.3 to competently and diligently review and preserve the evidence, including by consulting a computer expert where useful. Even so, if the receiving lawyer has actual knowledge that protected metadata was inadvertently produced, the Rule 8.4(c) duty to advise the sender still applies, subject to applicable rules of procedure and court orders, and the receiving lawyer may take protective measures and preserve the right to challenge any privilege claim.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer who receives an electronic document from an adversary may review its metadata unless the lawyer has actual knowledge that the metadata was inadvertently sent. The opinion concludes that, with such actual knowledge, the receiving lawyer should not review the metadata before consulting the sending lawyer to determine whether it contains work product or client confidences or secrets, should follow the sender's instructions, and may reserve the right to challenge a privilege claim. Mere uncertainty does not trigger that duty.

The opinion concludes the sending lawyer has a Rule 1.6 duty to take reasonable steps to remove metadata before sending a document outside discovery, but that in discovery or under subpoena, Rule 3.4(a) may prohibit scrubbing metadata from electronic documents that are tangible evidence. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Can a lawyer review the metadata in a document received from opposing counsel?

A: The opinion concludes yes, unless the lawyer has actual knowledge that the metadata was sent inadvertently. Mere uncertainty about the sender's intent does not bar review.

Q: What must a lawyer do who knows the metadata was inadvertently sent?

A: The opinion concludes the lawyer should not review the metadata before consulting the sending lawyer, should abide by the sender's instructions, and may reserve the right to challenge any claim of privilege. Reviewing known inadvertently disclosed material is a dishonest act under Rule 8.4(c).

Q: What must the sending lawyer do about metadata?

A: The opinion concludes that, outside discovery, the sending lawyer has a Rule 1.6 duty to use reasonably available technical means to remove metadata containing client confidences or secrets before sending the document.

Q: Does the analysis change for documents produced in discovery?

A: The opinion concludes the receiving lawyer is generally justified in assuming discovery metadata was sent intentionally and must competently review and preserve it under Rules 1.1 and 1.3, while the sending lawyer must not scrub metadata that constitutes tangible evidence (Rule 3.4(a)). Actual knowledge of inadvertent disclosure still triggers the Rule 8.4(c) duty to advise the sender.

Background and rules framework

The opinion interprets D.C. Rule 8.4(c) (dishonesty, applied to "mining" known inadvertently disclosed metadata), Rule 4.4(b) (the D.C. inadvertent-receipt rule effective February 1, 2007, broader than the ABA version), and Rule 1.6 (confidentiality, source of the sending lawyer's duty to scrub metadata). In discovery, it applies Rule 3.4(a) (fairness; not obstructing or altering evidence) and Rules 1.1 and 1.3 (competence and diligence). It builds on prior D.C. Opinions 256 and 318 on inadvertent disclosure.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 8.4(c) / Model Rule 8.4 (dishonesty)
• D.C. RPC 4.4(b) / Model Rule 4.4 (inadvertently sent writings; D.C. version is broader)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)
• D.C. RPC 3.4(a) / Model Rule 3.4 (fairness; access to and alteration of evidence)
• D.C. RPC 1.1 and 1.3 / Model Rules 1.1 and 1.3 (competence and diligence)

Cases:

• Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005) (discoverability of metadata in spreadsheets)
• Adams v. Franklin, No. 05-CV-233 (D.C. May 10, 2007) (confidentiality duty broader than the privilege)

Other opinions cited:

• D.C. Ethics Ops. 256 and 318 (inadvertent disclosure)
• ABA Formal Op. 06-442 (review and use of metadata; contrary view)
• N.Y. State Bar Ass'n Ops. 749 and 782; Florida Bar Op. 06-2; Alabama State Bar Op. RO-2007-02; Maryland Bar Ass'n Ethics Docket No. 2007-09

See also

• ABA Formal Op. 06-442: Review and Use of Metadata
• FL Bar Ethics Op. 06-2: Metadata in Documents
• AL Ethics Op. 2007-02: Mining and Metadata
• ABA Formal Op. 05-437: Inadvertently Sent Documents

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-341