Liability for Inadvertent Metadata Disclosure

In the modern practice of law, attorneys are expected to be familiar with discovery of electronically stored information.  Often this involves the production of files in their native format, which preserves metadata such as the document author, dates of creation and alterations, and where the document was stored.  Production of electronic information thus facilitates document review, but also could lead to the disclosure of information that is beyond the scope of permissible discovery.

In a recent opinion, the State Bar of Texas considered the duties of attorneys to prevent the inadvertent transmission of metadata under the rules of professional conduct.  The Bar considered a scenario in which an attorney representing a client in a settlement sent a draft settlement agreement to the opposing counsel as an attachment to an email.  The attachment included confidential metadata from the attorney’s client that was not intended to be included with the document.

In analyzing the ethics issues, the Bar noted that the exchange of metadata between lawyers is often mutually beneficial, but that the inadvertent disclosure of a client’s confidential information could be damaging to the client.  The Bar continued that a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic files which may include confidential information, and that lawyers are obligated by their duty of confidentiality to remove such information prior to production by electronic means or by limiting production to hard copies of the file.

Attorneys who fail to take reasonable measures to avoid transmission of confidential information could not only jeopardize their client’s personal information, but could also expose themselves to costly disciplinary action.

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  1. B.Casey Yim

    What happens if court orders production of electronic data?

  2. thomas

    When used ethically as a legitimate discovery tool, metadata searches can provide for a proper exchange of information if performed close to the time of the event. If a metadata search is requested by the defense over three years after the event and two weeks before trial in order to find some argument to force another continuance, such as one irrelevant email that was not released in response to one of over 100 discovery requests, that is an unethical abuse of the discovery process and attorneys who engage in that behavior should be sanctioned. Preferably their licenses should be suspended for at least one year.

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