Must a lawyer scrub metadata before sending electronic documents, and may a lawyer mine metadata in documents received from an opponent?

Plain-English summary

Formal Opinion EF-12-01, revised April 27, 2018, addresses the duties that arise under Wisconsin's Rules when lawyers transmit and receive electronic documents containing metadata, the embedded data describing a document's history, tracking, and management (such as tracked changes and hidden comments). The opinion notes that these ethics duties do not override discovery rules and that it speaks to obligations outside formal discovery.

For the transmitting lawyer, the opinion grounds two duties. Under the duty of competence (SCR 20:1.1), lawyers who process and transmit electronic documents must stay reasonably informed about the kinds of metadata in the documents they generate and how to remove it when necessary, consistent with the ABA comment that competence includes keeping abreast of relevant technology. Under the duty of confidentiality (SCR 20:1.6, including SCR 20:1.6(d), effective January 1, 2017), lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosure of information relating to the representation, judged by factors such as the sensitivity of the information and the cost and difficulty of additional safeguards. The opinion observes near-unanimous agreement among other states that sending lawyers must take reasonable care to avoid disclosing protected information in metadata, while recognizing that much metadata is trivial and need not be removed.

For the receiving lawyer, the opinion answers three questions. On whether a receiving lawyer may mine for metadata, the opinion notes a pronounced split (Arizona and several states prohibit it as a violation of Rule 8.4(c); the ABA, Colorado, Vermont, and Texas permit it) and adopts the view that the Rules do not prohibit a receiving lawyer from searching for metadata. On what the lawyer must do after finding material information, the opinion concludes the lawyer must normally assume the information was inadvertently disclosed and comply with SCR 20:4.4(b) or (c): under SCR 20:4.4(c), if the lawyer knows or reasonably should know the information is privileged or work product and was inadvertently disclosed, the lawyer must immediately stop reviewing or using it, promptly notify the person or that person's lawyer, and abide by instructions on disposition pending a court ruling; under SCR 20:4.4(b), if the lawyer does not know it is protected, the lawyer must promptly notify the sender. On the third question, the opinion concludes lawyers are not required to routinely search electronic documents for metadata.

In practice

The opinion holds that, under Wisconsin's Rules as they stood at the time, the sending lawyer carries the affirmative burden: competence (SCR 20:1.1) and confidentiality (SCR 20:1.6) require reasonable steps to detect and, where necessary, remove significant metadata before transmitting documents, either by learning the technology or obtaining help from someone who knows it. Under the opinion, a receiving lawyer in Wisconsin is not prohibited from mining metadata, but on finding apparently inadvertently disclosed material or privileged information must follow the inadvertent-disclosure procedure in SCR 20:4.4(b) or (c), and no rule compels a receiving lawyer to search for metadata in the first place.

Common questions

Q: Does a Wisconsin lawyer have to remove metadata before sending a document?

A: For significant metadata, yes. The opinion concludes that competence (SCR 20:1.1) and confidentiality (SCR 20:1.6) require reasonable efforts to prevent disclosing metadata that contains protected information, though trivial metadata need not be removed.

Q: May a lawyer search an opponent's document for metadata?

A: Yes, in Wisconsin. The opinion adopts the view that the Rules do not prohibit a receiving lawyer from mining for metadata, noting other states are split on this point.

Q: What must a lawyer do after finding sensitive metadata?

A: Normally treat it as inadvertently disclosed and comply with SCR 20:4.4. If it is known or reasonably knowable to be privileged or work product, SCR 20:4.4(c) requires stopping review, notifying the other person or lawyer, and following disposition instructions; otherwise SCR 20:4.4(b) requires promptly notifying the sender.

Q: Must a lawyer routinely search received documents for metadata?

A: No. The opinion concludes lawyers are not required to routinely search electronic documents for metadata.

Background and rules framework

The opinion interprets SCR 20:1.1 / Model Rule 1.1 (competence, including technological competence), SCR 20:1.6 / Model Rule 1.6 (confidentiality, including the SCR 20:1.6(d) duty to make reasonable efforts against inadvertent disclosure), and SCR 20:4.4 / Model Rule 4.4 (respect for the rights of third persons; inadvertent disclosure under paragraphs (b) and (c)). It references SCR 20:8.4(c) and SCR 20:7.1 in discussing other jurisdictions' rationales.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / SCR 20:1.6 (confidentiality; reasonable efforts against inadvertent disclosure)
• Model Rule 4.4 / SCR 20:4.4(b), (c) (inadvertent disclosure of documents and electronically stored information)
• Model Rule 1.1 / SCR 20:1.1 (competence, including technology); Model Rule 8.4(c) / SCR 20:8.4(c)

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility (receiving lawyer may review metadata)
• State Bar of Arizona Opinion (receiving lawyer may not mine metadata)
• Colorado, Vermont, and Texas opinions (mining metadata permitted)

See also

• WI Ethics Op. EF-10-03: Prospective-Client Conflicts and Significantly Harmful Information
• WI Ethics Op. EI-17-04: Contact With Persons Represented in Unrelated Matters

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/Wisconsin%20Formal%20Ethics%20Opinion%20EF-12-01%20Revised.pdf