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Idealistic musings about eDiscovery
If you have done one of these published “Q&A” things before, as I have, you know that the author not only provides the A, but also the Q. The author gets to emphasize exactly what she wants to emphasize, in exactly the way she wants to emphasize it. That being said, Gabriela Baron reminds us of some important ethical points on the subject of technology-assisted review that need emphasizing: specifically, that the ethical attorney must develop at least some competence with the technology:
Comment 8 to ABA Model Rule of Professional Conduct 1.1 requires lawyers to ‘keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’ Lawyers need not become statisticians to meet this duty, but they must understand the technology well enough to oversee its proper use.
Her blog post is a pretty good, succinct summary, and one that bears being used to refresh our memory.
Metadata, frequently referred to as “data about the data” and specifically referring to electronically stored information (ESI), poses an interesting ethical dilemma for lawyers on two fronts:
To Scrub or Not to Scrub?
Metadata typically consists of information regarding the creation of and changes to an electronic document. Some metadata, such as the software used to create the file, and who created the file and when, tends to be relatively benign. Less benign may be metadata containing a record of changes made to the content and comments typed in during the revision process, as well as who made the changes and comments. A Microsoft Word document, for example, may contain a complete version history of the document if the “Track Changes” setting had been ticked in the application.
Needless to say, if counsel is not aware that old versions of the content are being tracked and stored, it would be very easy to miss this metadata during privilege review. For example, an attorney may inadvertently reveal her client’s bottom line on a contract negotiation by failing to erase comments on a draft to another party.
Is it ethical for counsel to scrub metadata before sending ESI to opposing counsel in discovery? On the one hand, changing (or deleting) metadata within an electronic file is tantamount to changing the file itself, and therefore amounts to intentional spoliation of the data. On the other, many attorneys have for years tried to avoid the review of metadata by imaging all electronic files into paper or TIFF format – thereby stripping all metadata except for the visible content – and then including an electronic “load file” containing limited metadata so that the receiving counsel can load the files and metadata into their own document review platform.
Much of this practice of selective scrubbing should have come to a stop when the Federal Rules of Civil Procedure (FRCP) were amended in December 2006. FRCP 34(b) requires the parties, in the absence of an agreement to the contrary among counsel, to produce ESI as normally kept by the party in the usual course of business. This typically requires production of the native ESI files, along with their attendant metadata. Similarly, Texas Rule of Civil Procedure 196.4 requires the requesting party to specify the form of production it seeks, and the responding party must produce responsive ESI that “is reasonably available to the responding party in its ordinary course of business.”
While there’s certainly nothing unethical about redacting and logging hidden metadata that may be subject to privilege, a lawyer arguably fails in her ethical duty of competence if her “technophobia” results in privileged metadata ending up in the hands of her more technogically-adept opponent.
Mining the Metadata
The magnitude of such a failure expands because the jurisdictions cannot agree on whether “mining”, or examining, the metadata in received ESI productions is ethical. A technologically proficient user who knows what she is looking for and how to find it can unearth a potential treasure trove of useful information within the metadata. For example, the metadata might contain a list of people who collaborated on a document and the date on which it was created and sent. This metadata might then be used to impeach a witness who testifies that he was the sole author of the document, who created and sent it on a different date.
The Texas Supreme Court Professionalism Committee has not yet spoken to this issue. The national and state bars that have cannot agree as to whether metadata mining is ethical or unethical, or even whether a bright-line test is appropriate.
(Note: This post contains text left over from a Texas-specific article I recently wrote. Needless to say, please do the research for the applicable rules in your jurisdiction.)