"I have run, I have crawled.
I have scaled these city walls,
Only to be with you.
But I still haven't found,
What I'm looking for."
I Still Haven't Found What I'm Looking For
Following closely on the heels of the ABI's Annual Spring Conference, the Commercial Fraud Task Force e-newsletter reprinted an outline ( Ethical Duties Regarding ESI in Bankruptcy Pursuant to the ABA's Model Rules of Professional Conduct, Commercial Fraud Task Force - ABI Committee News, vol 4, No. 2, April 2007)that I had hastily prepared for the DC panel presentation. One of the many topics covered in the outline was the ABA's position regarding ethical obligations in "mining" for metadata.
Within 15 minutes of the ABI releasing the APril newsletter, Richard Carmody with Adams and Reese in Birmingham, Alabama was kind enough to forward to me a report on a March 14 opinion from the Alabama State Bar's ethics panel finding that "mining" for metadata to locate confidential information in "electronic documents" constitutes professional misconduct. See Alabama State Bar Ethics Opinion , RO 2007-02, Office of the General Counsel).
Wow. Anytime that an ethics opinion begins to establish its foundations for authority by citing to Wikipedia ought to serve as signal that the dear reader is in for a wild time. The Alabama opinion does not disappoint. I mean, really... WOW.
The opinion purports to actually address two questions: 1) does an attorney have an affirmative duty to take reasonable precautions to ensure that confidential metadata is properly protected from inadvertent or inappropriate production via an electronic document before it is transmitted; and, 2) is it unethical to mine metadata from an electronic document an attorney receives from another party?
Aside from the Wikipedia tip-off that the conclusion to this opinion is going to be two mason jars short of a full batch of legal moonshine, any attorney that plans to practice beyond the end of... well beyond the end of this week, ought to ask themselves if there really is any principled difference between an "electronic document" and some other kind of document. In case of a tie-breaker, call your malpractice carrier and see what they think. If a document is a document, (and certainly the Federal Rules of Civil Procedure seem to indicate that a document is a document) then presumably the opinion should have gone farther and added that, in the case of a paper document, it is impermissible for counsel to hold the paper up to the light to find the watermark on the document so as to not disclose the manufacturer of the paper. Most, if not all, new printers sold in the US today apparently utilize some form of micro print for homeland security, counterfeiting, and general aluminum hat tom-foolery. Presumably, it is also bad form in Alabama to mine for the micro printing, for fear that counsel might discover what brand printer her opposition is using. Since you can't hear the Lewis Black impersonation raging in my head, yes, I have chosen absurd examples to highlight an absurd distinction.
The Alabama opinion is exactly the type of thing that non-lawyers, academics, aging rock stars and politicians alike will bandy about to prove that the bar prefers to protect itself over the interests of our clients. By paying short shrift to the reasonable, affirmative steps that counsel must take to avoid disclosure of confidential (even privileged) information and shifting the burden to receiving counsel by ordering them just not to look sort of ignores the reality of technology. It is akin to determining that, since there is a risk that plumbing will back up and overflow, we prefer just to continue using the reliable outhouse just up the hill.
Incredibly, the opinion imposes, as a drive by mention of disclosing counsel's duties not to disclose, a "case by case" review citing the decreased risk in the mining of documents filed with the Court, as opposed to the likelihood that documents disclosed to opposing counsel will be "mined". The inferred result is that disclosing counsel has less of a duty to take reasonable, affirmative steps to protect confidential or privileged information if filing on PACER. Really? Elvis has left the building, but anyone else agreeing with that analysis, please scroll down to the previous post, then come back. Don't worry, I got all day, I'll be here when you get back...
It is not adequate, nor appropriate, to fix the metadata "problem" by telling disclosing counsel to play carefully, and further instructing receiving counsel not to be a tattle-tale. There are too many other bullies out on the playground, who are not attorneys, and who are even more technically equipped to ferret out metadata. If disclosing counsel is given a pass on its ethical duties regarding the proper care and feeding of the secrets of clients, who then is going to be responsible when a reporter, a hedge fund director, or my 12 year old takes a look at the metadata and discovers that the client is a cross-dressing drug fiend who is wanted on bench warrants issuing from 34 different states?
Another mystery that the Alabama opinion presents, is that, in the initial answer, the prohibition seems to be limited to those "electronic documents" (whatever the hell those may be) that are inadvertently or improperly received from another party. But the opinion never addresses under what circumstances receiving counsel might inadvertently or improperly receive such verboten confidential goodies from disclosing counsel. Indeed, the examples cited by the opinion refer to pleadings filed by disclosing counsel. Does this mean that, if disclosing counsel advertently and properly sends correspondence to receiving counsel that is loaded with damning metadata, then it is ok to mine the data? Or is the opinion limited to the dolt in all of us who pushes Send on the email, at the same instant we realize that opposing counsel is in the recipient list? Who can be sure. I have read the opinion three times this morning and still cannot tell.
Given that the opinion concludes that mining of metadata constitutes a knowing and deliberate attempt to acquire confidential and privileged information in order to obtain unfair advantage against the opposition suggests that the scope of the opinion is not so narrow as one would hope.
The opinion is not a total wash though. Apparently, even in Alabama, there is some concession that in the course of discovery, there may be that occasion when metadata might be possibly, in some limited role, be perfectly discoverable. I am glad we can agree that issue has been settled.
As always seems to be the case, the unique needs of bankruptcy get the red-headed step child treatment. In our little niche of the legal world, metadata is more than just some Sherlock Holmes gotchya. Metadata can be the electronic underpinning and foundation of the ESI which makes up the books and records of the estate. How, one wonders, will trustees, committees, creditors and other interested parties in Alabama based bankruptcies proceed with their vital and necessary investigations of the books, records and financial affairs of the estate without doing some data mining? As a profession, we need to understand that, despite the obvious persuasive authority of Wikipedia, that metadata is more than just "data about data".
Finally, the Alabama opinion crows about following earlier New York ethics opinions reaching the same conclusion. I recall reading, and will provide an update, efforts in Florida to establish ethical rules reaching the same conclusion. Just because all the other kids are doing it does NOT mean that it is alright for you to do it...
Wednesday, May 16, 2007
"I have run, I have crawled.