The well-known (but rarely well understood) Attorney-Client privilege, by its very existence, lays on attorneys a strong obligation to carefully protect the confidences of their clients. Among other responsibilities, attorneys must meticulously refrain from acts, whether intentional or inadvertent, which may disclose confidential information. Many legal ethics opinions have been written regarding lackadaisical care of, for example, notes and working papers, resulting in information being compromised.
Several months ago I commented on a post about the case of Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009), in which the Arizona Supreme Court considered whether, for purposes of discovery, an electronic “document” includes the metadata (the Court, overruling the Court of Appeals, found that it does. {See my August 8, 2011 post, The “Public” Character of Electronic Document Metadata.} At the time, I speculated that this question was probably just the tip of a very large iceberg.
Well….
On December 6, the Oregon State Bar e-flashed members with Oregon Formal {Ethics} Opinion 2011-187.
Briefly stated, the opinion attempts to delineate some of the ethical responsibilities of attorneys surrounding the inadvertent sending of, and (on the other end) use of metadata in legal documents.
My favorite part of the opinion reads “With respect to metadata in documents, reasonable care includes taking steps to prevent the inadvertent disclosure of metadata, to limit the nature and scope of the metadata revealed, and to control to whom the document is sent. What constitutes reasonable care will change as technology evolves.” {Emphasis added}.
If ever there was a backhanded acknowledgement that the legal system, despite best efforts to the contrary by some of its participants, cannot fully and/or indefinitely insulate itself from the winds of change, this has got to be it. To function at an acceptable level of professionalism, attorneys must become increasingly techno-savvy.
The flip side question is, to me, a cute one: Suppose an attorney receiving a document fails to check for metadata, and thereby misses information potentially helpful to the client. Would that constitute malpractice?
I predict society in general, the legal system especially, and courts in particular are going to be grappling with an exploding myriad of metadata questions, concerns, and paradigm distortions very soon. Just a few that leap to mind are Post-Dated Signatures, Falsified Metadata and Metadata-Centric Design.
To put it mildly, in most courts document and metadata structural considerations are still in a great state of anarchy. Attorneys, agencies, prosecutors, courts and police all use different document production, management, and control systems. While some metadata is intentionally produced, the creation, transmission, receipt, storage and usage processes generate a far greater volume of metadata as a “side effect”. This begs for a centralized document management approach.
If history is any guide (no guarantees there; but it’s the best I’ve got), then in many places, over time, informal standards will begin to coalesce around the practices and rules of the central player in the system – the courts. And that can be good only if the courts begin to enunciate clear standards (hopefully something a little more far-thinking than “What constitutes reasonable care will change as technology evolves.”).
Things tend to work much better when the court takes responsibility for the system standards. All court enterprise content management (ECM) initiatives, most particularly E-Filing and ECM, offer the opportunity to consider and systematize issues regarding metadata. Future posts will discuss some thoughts on how to obtain the maximum leverage through court rule-based standards. Meanwhile, we’d love to hear what courts are doing now.