Every electronic document contains metadata – hidden, electronically stored information (ESI) which reveals details surrounding its creation, typically including the document’s creator and the date and time the document was created and edited, among other things. Much of this metadata may be innocuous, but some – for example, the identity of every individual who opened or edited a document, or even tracked changes – may reveal privileged and confidential attorney client communications or work product that was not meant to be visible to or seen by the other side. This, in turn, generates issues of concern for lawyers entrusted with preventing disclosure of such confidential information and for those who receive it.
Following the recommendations of its Commission on Ethics 20/20, the American Bar Association (ABA) recently amended the Model Rules of Professional Conduct (MRPC) to address these issues and provide guidance to lawyers in both situations. In the wake of the ABA amendments, the New Jersey Supreme Court examined these issues, soliciting input from, among others, the Special Committee on Attorney Ethics and Admissions (Special Ethics Committee) and the Working Group on Ethical Issues Involving Metadata in Electronic Documents (Working Group), and rendering Administrative Determinations on the Reports and Recommendations of both groups. The New Jersey Supreme Court largely adopted the groups’ recommendations (which were themselves consistent with the ABA’s Ethics 20/20 recommendations) and amended Rules of Professional Conduct (RPC) 1.0 (Terminology), 1.6 (Confidentiality of Information), and 4.4(b) (Respect for Rights of Third Persons), among others. The amended RPCs were effective September 1, 2016.
Amended RPC 1.0 includes new paragraph (p) which specifically defines metadata (“embedded information”) and provides examples, including “tracked revisions” and “comments inserted in the margins.” Amended RPC 1.6 includes new paragraph (f) and an explanatory comment mirroring the ABA’s amended MRPC 1.6 requiring lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” The comment identifies factors to be considered in determining the adequacy of a lawyer’s efforts to prevent disclosure, including implementation of safeguards.
The amendments to RPC 4.4 (b) and its comment also track the ABA’s amendments to the MRPC and provide guidance to lawyers who receive documents / ESI that contain privileged attorney client communications. Under RPC 4.4 (b), a NJ lawyer who receives a document or ESI containing unrequested metadata may read it if the lawyer “reasonably believes the metadata was not inadvertently sent.” As the detailed comment makes clear, metadata is “presumed to be inadvertently sent when it reflects privileged attorney client or work product information” or when the information is only accessible through “forensic mining software.” Where the lawyer believes the metadata was inadvertently produced, the familiar, long-standing rule requiring the lawyer to not read (or stop reading) the document, notify the sender, and return it, applies. In the case of documents in electronic form, RPC 4.4 (b) requires the lawyer to take the additional step of deleting the document and taking reasonable steps to make sure it is inaccessible going forward.
In sum, New Jersey’s RPC amendments vindicate fundamental notions of common sense and reasonableness and compliance should not prove difficult. Are you in possession of confidential client information, such as client comments in the margins of the electronic version of a mediation statement? Taking reasonable steps to protect that information may be as simple as using a basic software program that “scrubs” the metadata before it is transmitted, or sending the document as hard copy, PDF, or another format that does not contain metadata. Did you receive information that appears obviously privileged, such as the adverse party’s comments to its lawyers in the margins of a mediation statement? The answer is to simply stop reading, notify your adversary, return the document, and delete all traces of it from your own system. And, if you have to go out of your way to find unrequested metadata, you can reasonably conclude you probably weren’t meant to see it. Finally, when in doubt, consult the amended rules and comments, which are clear and easily understood.