Transcript Data Mining Options - Welcome to the Corporate Counsel

Data Mining Opinions
Rita Assetto
E-Discovery
Fall 2009
Metadata
• Data typically stored electronically that describes characteristics of
ESI found in different places in different forms.
• It can be supplied by application, users or the file system.
• Metadata can describe how, when and by whom ESI was collected,
created, accessed, modified and how it is formatted.
• Metadata can be altered intentionally of inadvertently.
• Some metadata, such as file date and sizes can be seen easily by
users; other data can be hidden or embedded and unavailable to
users not adept to searching for it.
• Certain metadata can be extracted when native files are processed
for litigation purposes.
Data Mining
• Mining Data refers to the practice of
deliberately searching a document’s
underlying metadata for hidden or
embedded information.
– The ability to look at metadata can be hugely
beneficial to the receiving party and
detrimental to the producing party
Data Mining
• Is it ethical to mine data?
– Currently there are conflicting answers to the
question of whether attorneys can ethically
mine data.
– The views range from mining is ethical to it
is completely unethical.
– Where does the debate come from?
Data Mining
• Generally, the debate surrounding the
answer stems from differing interpretations
of ABA Model Rule 4.4(b)
Data Mining
• Rule 4.4(b):
– A Lawyer who receives a document relating to
the representation of the lawyer’s client and
knows or reasonably should know that the
document was inadvertently sent shall
promptly notify the sender.
Data Mining
• New York was the first jurisdiction to address the
ethical obligations of attorneys in relation to
metadata.
• The New York State Bar Association Committee
on Professional ethics recognized that modern
computer technology enables sophisticated
users who receive documents by electronic
transmission to get behind what is visible on the
computer screen to find potentially vital
information. It issued Opinion 749 on 12/14/01.
Data Mining
• Opinion 749 specifically responded to the
question:
– “May a lawyer use available technology to
surreptitiously examine and trace e-mail and
other electronic documents in the manner
described?”
– Their answer was that mining this information
constituted an impermissible intrusion on the
attorney-client relationship.
Data Mining
• Opinion 749 stated that public policy favored
preserving confidentiality as the foundation of
the lawyer–client relationship, use of technology
to surreptitiously obtain information that may be
protected by the attorney-client privilege, the
work product doctrine or that may otherwise
constitute a “secret” of another lawyer’s client
would violate the letter and spirit of the
Disciplinary Rules.
– The bar associations of Florida, Alabama and Arizona
have adopted a similar view as New York about the
unethical nature of mining metadata.
Data Mining
• In August 2006, The ABA’s standing Committee
on ethics and Professional Responsibility issued
Opinion 06-442.
• In contrast to New York, the ABA found that the
Model rules did not contain provisions that would
forbid attorneys from reviewing and using
metadata.
• ABA maintained the Rule 4.4(b) was silent as to
the ethical propriety of a lawyer’s review or use
of such information.
Data Mining
• ABA-Formal Opinion 06-442 stated that:
“A lawyer who is concerned about the possibility of
sending producing, or providing to opposing
counsel a document that contains or might
contain metadata or who wishes to take action to
reduce or remove the potentially harmful
consequences of its dissemination, may be able
to limit the likelihood of its transmission by
“scrubbing” metadata from documents or by
sending a different version of the document
without the embedded information.”
Data Mining
• Then in 2007 the Maryland State Bar Association issued
yet another opinion. The Maryland Opinion was in line
with the ABA but followed a different rationale.
• The Maryland opinion addressed three questions.
– 1.Whether it is ethical for the attorney recipient to view or use
metadata in documents produced by another party.
– 2. Whether the attorney sender has any duty to remove
metadata from the files prior to sending them.
– 3. Whether the attorney recipient has any ethical duty not to view
or otherwise use the metadata without fist ascertaining whether
the sender intended to include such metadata in the produced
documents.
Data Mining
• The Maryland Opinion found that there is
no ethical violation if the recipient attorney
reviews or makes use of the metadata
without first ascertaining whether the
sender intended to include such metadata.
• Note: the Maryland Rules of Professional
Conduct have not been amended to
include Model Rule 4.4(b)
Data Mining
• Hybrid Opinions:
– D.C. Legal Ethics Opinion 341 (2007)
• A receiving lawyer is prohibited from reviewing
metadata sent by an adversary only where he has
actual knowledge that the metadata was
inadvertently sent.
Data Mining
• Hybrid Opinions:
– Pennsylvania Bar Association Formal Opinion 2007500.
• “Each attorney must determine for him or herself whether to
utilize the metadata…”
• The decision of how or whether a lawyer may use the
information contained in metadata will depend upon many
factors, including:
– Judgment of the lawyer; facts of the situation lawyer’s view of
his or her obligations to the client; nature of the information
received; how and from whom the information was received;
attorney-client privilege and work product rules; and common
sense, reciprocity and professional courtesy.
Data Mining
• Hybrid Opinions:
– Colorado Bar Association Ethics Opinion 119 (2008)
• The Committee concluded that a receiving lawyer generally
may ethically search for and review metadata embedded in
an electronic document received from opposing counsel or a
third party.
• However, if the receiving party knows or reasonably should
know that a sending lawyer has transmitted metadata that
contains Confidential Information, the receiving lawyer should
assume it was transmitted inadvertently and must properly
notify the sending party.
Data Mining
• Access to and the use of metadata pose a
number of ethical concerns.
– Duties of Sending Attorneys
– Duties of Receiving Attorneys
Data Mining
• 1. Which view do you agree with? What do
you think the duties of the sending and
receiving attorney are?
• 2. Should there be a “safe Harbor
provision similar to 37(e) for the good faith
operation of a software scrubbing
program.