Technological Entanglements: Evidentiary and Ethical Considerations of Metadata in Interjurisdictional Litigation
| Author | Edward A. Morse |
| Position | Mc Grath, North, Mullin & Kratz Chair in Business Law Creighton University School of Law, Omaha, Nebraska |
| Pages | 94-104 |
Key words: confidentiality, discovery, electronic evidence, ethics, metadata
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A version of this paper was published in Kierkegaard, S. (2006) Business Law and Technology Vol. 1 and presented in the 2006 IBLT Conference , Denmark.
Page 94
Technological change has impacted the practice of law in many ways. Electronic communication practices have increased not only the speed at which we exchange information, but also the scope of available data to be stored, managed and protected. Attorneys in the United States are governed by ethical rules that constrain their professional conduct, including the handling of client information. These rules develop primarily at the state level, thereby creating obligations and protections that may differ depending on the jurisdiction(s) in which an attorney is professionally licensed. Other legal rules govern the substantive, procedural, and evidentiary dimensions of legal claims. These rules emanate from either federal or state sources, and they can directly impact the presentation (and possibly the outcome) of a client's case. Technological changes often generate modifications of legal and ethical rules to adapt to new conditions. However, the differing sources for generating these rules can translate into inconsistent obligations and results, and particularly so during these transition periods where the legal system is adapting to technological change. This paper addresses the phenomenon of metadata embedded in electronic documents. Metadata presents challenging evidentiary and ethical questions that are often interconnected, and which remain unresolved in most jurisdictions. Current legal and ethical rules need to be coordinated in order to develop a workable framework that appropriately balances the interests of client confidentiality with the associated costs to the legal system, including the costs of preventative measures to protect against the disclosure of metadata, the costs of discovering metadata content, and decision-making costs associated with disputes over evidentiary privileges.
Metadata is a relatively new term that can be used to describe the particulars of an electronic document. The Sedona Guidelines, which are the product of an influential working group of lawyers, judges, and technology experts, define metadata as follows: "Metadata is information about a particular data set which describes how, when and by whom it was collected, created, accessed or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)." (SEDONA GUIDELINES at 94). Whereas data content in a printed document is generally limited to what can be seen, metadata is hidden to casual observation, but can be made visible through exercising appropriate technical skills. (Lange & Nimsger at 247). Examples include the file name, size, date of creation, or dates of last access. Information about authorship, time for creation and editing, and the source of the original document may also be available. Features like the Page 95 "track changes" function of Microsoft Word may also provide extensive information about the nature and extent of document modifications, so that text that appears to be deleted may in fact become accessible. Metadata adds significant utility for electronic document users, as some dimensions of metadata are essential for the management of electronic fi les. Database functions, which allow searches by date or author, for example, could not be used without the presence of metadata. (SEDONA GUIDELINES at 84). Metadata may also prove useful in authenticating files, showing their provenance and creation within the requisite timeline. "Track changes" features also prove highly valuable for collaborative work, facilitating efficient and effective editorial modifications. On the other hand, metadata may sometimes be incorrect or misleading. For example, some software may carry forward an original author's name and not track the identity of the person making a modification to that document. (SEDONA GUIDELINES at 84; Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005). Even more problematic is the possibility that metadata may reveal information that should not be disclosed to others, whether for purely prudential reasons or to fulfill a professional obligation to protect confidential client information. Inadvertent disclosures of metadata publicized in the popular press include:
* Political operatives circulated a Microsoft Word document without attribution, seeking to criticize the nomination of Justice Samuel Alito to the Supreme Court. Metadata in this document revealed the author to be the Democratic National Committee and pegged the date of authorship to the time immediately following the
* Resignation of Justice O'Connor. (Zeller, 2005)
* A U.N. report on Syria's involvement in the assassination of Lebanon's former prime minister, when examined for metadata, showed the names of others involved in the plot that were ultimately deleted from the final draft, thus causing suspicion about their involvement. (Id.)
* The California Attorney General distributed a letter critical of the use of peer-to- peer file sharing software. Metadata revealed one of the authors of the letter was "stevensonv" - a senior VP at the MPAA, leading to political criticism. (Id.)
* A job candidate submitted a resume in Word format. The firm reviewed it and discovered that it had been heavily edited by a professor. As the firm noted, "It did not help his case." (Walker, 2006).
Attorneys also wish to avoid embarrassment and unwanted scrutiny for themselves and their clients, as shown in these examples. But other weightier matters are also involved, including the disclosure of confidential client communications or attorney work product, with potential harm to a client's case and the possibility of violating professional ethical standards. Evidentiary and ethical issues lurk here, and both are addressed below.
Although the quest for truth is important, truth is not the only value recognized in developing a system of justice. Two important evidentiary privileges operate to protect against the disclosure of confidential communications between clients and their counsel: the attorney-client privilege and the work product doctrine. An understanding of each is important to an analysis of the significance of metadata disclosure.
The attorney-client privilege is among the oldest privileges for confidential communications. Rooted in the common law, (FRE 501, 2006) it is based on the premise that promoting effective communications between lawyers and their clients will enhance not only the observance of law, but also the administration of justice. ( Swidler & Berlin v. United States , 524 U.S. 399 (1998)). The protection of the privilege goes beyond matters of criminal liability, extending to a broad range of human motivations. As the Supreme Court has observed, Clients consult attorneys for a wide variety of reasons, only one of which involves possible criminal liability. Many attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged. ( Id ., 524 U.S .at 407-408).
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Though the attorney-client privilege is quite robust, it is not absolute. As discussed below, it may be waived expressly or implicitly by conduct. For example, clients may waive the privilege for matters they disclose, through testimony or otherwise. Waiver can also occur with regard to matters that their attorneys disclose in the course of the representation. For example, an attorney may waive the attorney-client privilege by offering a document into evidence which contains otherwise privileged communication. (Note: Representative cases include Miller v. Continental Ins. Co. , 392 N.W.2d 500, 505 (Iowa 1986); Brandon v. West Bend Mut. Ins. Co. , 681 N.W.2d 633, 639, 642 (Iowa 2004). ("The waiver may be express or implied. It may be based not only on words expressing intent to waive, but conduct making it unfair for a client to invoke the privilege. Thus, we recognize waiver occurs when a person holding a privilege discloses or, for purposes of discovery, plans to disclose privileged matters."))Less clear, however, is the effect on waiver in the case of an inadvertent disclosure, a problem which is shared with that of the privilege associated with work product doctrine.
A similar evidentiary privilege is followed with regard to the materials prepared by attorneys, or at their direction, in preparation for litigation. The work product doctrine provides for a qualified privilege from discovery regarding these materials. The underlying purpose of the doctrine is quite similar to that for the attorney-client privilege, as it is rooted in...
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