E-Discovery: Avoiding Inadvertent Disclosure of Embedded Material
Published on: 16 May, 2012
The Tech Revolution is creating ever new ways to communicate with increasing speed as well as scope. Lawyers need to be increasingly vigilant that these new communication formats don’t become paths to inadvertent disclosure of confidential material. Some of the new technology, i.e., “social networking” sites like Facebook and MySpace, carry obvious dangers for those who have a tendency to be over-expansive in their musings.
However, other tech trends carry more subtle dangers of inadvertent disclosure. One of the emerging areas has to do with the inadvertent disclosure of embedded info — called “metadata”– which can become encoded in electronic documents. Metadata can include comments/revisions regarding draft discovery and other documents which are generated and produced electronically and then forwarded among those in an organization during the process of revisions and approval. Once the document is complete and ready for sending/service, the sending attorney has a duty to make sure that such info is “scrubbed” and is not included in the submission.
There are scrubbing processes contained within common programs such as Word and WordPerfect, in addition to programs available to guard against production of such embedded materials. Lawyers have an obligation to take the necessary steps to scrub such materials. Those steps are dependent upon the parameters of the electronic production being made; in most common instances simply producing documents in pdf format rather than Word or WordPerfect will create less chance of inclusion of metadata. However, the suggestion is that the initial document still be “scrubbed” prior to conversion to pdf. While lawyers don’t necessarily have an obligation to become technical experts in the finer points of embedded code, there is an ethical obligation to “know what you don’t know” and thereby retain those who do have the expertise to appreciate what embedded codes may be contained in an electronic submission.
A truly unsettled issue exists as to the ethical obligations of an attorney who receives inadvertently produced electronic material. Generally, there is a duty to disclose if the information is obviously privileged; however, there exists an open question as to whether a receiving attorney has a duty to not search or “mine” electronic data for such material. Some view such mining as improper; however, that is not a complete certainty. Indeed, one state has set forth that a lawyer is ethically charged with doing the best he or she can for his client, and that means thorough review of materials produced — which would include mining of electronic documents for embedded material.
Courts are all over the board on what to do about inadvertent disclosures. Some have held that an inadvertent disclosure is a Waiver; others that it is not a Waiver. Others have held that use of the inadvertently disclosed materials is wrongful and may be grounds for disqualification of the attorney using the material. So, the anticipated trend is toward a case-by-case “balancing test.” Pragmatically speaking, the inherent problem is that technology moves at a much faster pace than does the law. In short, the best course is to take particular care NOT to disclose privileged matter. Once electronic modifications to documents are made, and when in doubt, simply format a new document incorporating the changes made as a separate, new document. If that approach isn’t feasible, then make sure you have the final product reviewed by a staff member with the requisite IT savvy to ensure that a clean document is going out.