COMMITTEE OF FLORIDA BAR MOVES AGAINST METADATA . . . In Florida, the Ethics Committee of the Florida Bar has issued a proposed advisory opinion about metadata that instructs lawyers to take “reasonable steps” to safeguard metadata in documents and instructs lawyers receiving documents not to view metadata if they know or should know that "the information is not intended for the recipient.” The proposed rule specifically excludes metadata “that is discoverable under applicable rules or is admissible in a trial or arbitration.”
For background about the meaning of "metadata," see "Mining the Value from Metadata," a column at DiscoveryResources.org by Dennis Kennedy, Tom Mighell, and me, and "What's a Little Metadata Mining Between Colleagues?" by Jessica M. Walker. For a longer list of resources about metadata, see Ben Cowgill's "Making sense of metadata: a mega-list of links for lawyers."
The proposed Florida rule states, in part:
In order to maintain confidentiality under Rule 4-1.6(a), Florida lawyers must take reasonable steps to protect client confidences in all types of documents and information that leave the lawyers’ offices, including electronic documents and electronic communications with other lawyers and third parties. The duties of a lawyer when sending an electronic document to another lawyer and when receiving an electronic document from another lawyer are as follows:
(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.
(2) It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit.
Here are a few preliminary thoughts about the proposed rule, particularly its second subpart:
- The proposed rule will not keep lawyers from looking at metadata, since the ban only applies when "the recipient knows or should know that the information is not intended for the recipient." How can you tell anything about the sender's intent without seeing the metadata first? Though the ethics committee tried to write a rule that keeps lawyers away from metadata, the rule cannot be applied unless lawyers do just the opposite.
- In allowing lawyers to look at metadata only in exceptional circumstances, the proposed rule treats metadata as a useless byproduct of word-processing technology, a particularly troublesome type of electronic trash. In fact, metadata is generated as a feature of word-processing programs to assist authors in tracking many different types of information about their documents. Thus the proposed rule is founded upon a misunderstanding of what metadata is.
- The misunderstanding upon which the rule is based is also evident in the way that it defines metadata as a subcategory of "confidential" information. The proposed rule is based on the premise that metadata is hard to get to without a struggle. Metadata must be “mined” in order to be seen. But the metaphor isn’t apt. For example, in Word and Word Perfect, you simply have to follow a few menu items in order to see metadata. The software is designed to make metadata easily visible, not hidden.
- To call metadata “confidential” and “hidden” when it isn’t is to create fictions about software that just aren’t true. To restrict lawyers from acting based on these fictions is to create rules that puts the human users of software at cross purposes with the human designers of software.
- Reading between the lines of the proposed rule, it seems that the Florida Bar doesn’t trust its lawyers enough to let them alone with word-processing software that might create metadata that they don't know about. The proposed rule is fueled by a fear of technology. Though the proposed rule tries to create a safe harbor for the technology inept by putting the onus on recipients (telling them not to look), the onus should lie on whoever creates the document. That's the point of the first subclause of the rule, which would suffice to accomplish what I think the Florida Bar is trying to accomplish.
- Finally, I wonder if people ever choose lawyers based on the ethical rules of the state where those lawyers practice. Given a choice between hiring a lawyer in Florida, where lawyers may not be allowed to use technology as it was intended, and hiring a lawyer somewhere else, why would anyone choose the lawyer from Florida?
Thanks to Dennis Kennedy for giving me a heads up about the proposed Florida rule. For related posts on this weblog, see "Florida Bar Baffled and Upset by Metadata" and "The Legal Underground Podcast Episode #45."