When lawyers receive a document — whether hard copy or an electronic document — that they know the adversary sent them inadvertently (for example, a fax or email mistakenly sent to an adversary lawyer instead of to co-counsel), the black letter rule in Rule 4.4 requires the lawyer to notify the other side. However, this Rule does not require the receiving lawyer to return the document unread. Whether the receiving lawyer can use that document depends, in essence, on the law of evidence. If the court decides that the document lost its privileged status (perhaps because the sending lawyer acted unreasonably), the receiving lawyer can use the document.
In some cases, the sending lawyer sends a document advertently (for example, in response to a discovery request). In that situation as well, the lawyer should be able to use the document, unless some other law, such as the law of evidence, says otherwise. For example, the sending lawyer advertently sent over a large group of documents, one of which is a privileged document that the sending lawyer did not intend to disclose. In many cases, courts will hold that the document in question remains privileged if the sending lawyer acted reasonably. Hence, the receiving lawyer should not use that document in that particular circumstance. As stated in Formal Opinion 05-437, “Rule 4.4(b) thus only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. The rule does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer.”
The Restatement (Third) of the Law Governing Lawyers also concludes, it “is not a violation [of legal ethics] to accept the advantage of inadvertent, and even negligent, disclosure of confidential information by the other lawyer, if the effect of the other lawyer’s action is to waive the right of that lawyer’s client to assert confidentiality.” Moreover, if the receiving lawyer may use the document, the receiving lawyer should be able to examine and use all of the information within the document, including information embedded within the document. That information may be embedded in a hard copy document (such as fingerprints, the age or type of the paper), or it may be embedded in a digital document (metadata). If the sending lawyer does not want the receiving lawyer to look at metadata, he or she should not send it. As ABA Formal Opinion 06-442 advised, the Model Rules do not prohibit lawyers from discovering and using metadata found in documents that other lawyers transmit to them, even though the other lawyer may not know that the electronic version of the document contains metadata.
However, in 2012, the ABA added a new Comment to Rule 4.4, which provides that Rule 4.4 creates an obligation on the receiving lawyer “to promptly notify the sender” only when “the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.” The concept of sending metadata inadvertently is peculiar when applied to a lawyer who advertently intends to turn over the particular document that contains the metadata. One wonders how the receiving lawyer should know that the sending lawyer sent the document advertently but sent the metadata “inadvertently,” when the sending lawyer turns over the digital document pursuant to discovery and does not claim that the document itself (as opposed to the metadata within it) was sent by accident. After all, no ethics Rule requires the receiving lawyer “to promptly notify” the sending lawyer that an analogue document has other data embedded within it — such as fingerprints, the age of the paper, and the age of the ink on the paper.
In the midst of these Opinions, language in the Comments to ABA Model Rule 4.4, which the ABA House of Delegates added in 2012, confuses the matter. The Comments suggest that metadata in a digital document has an exalted position, in contrast to analogue data in a hard copy. The Report to the ABA House of Delegates did not make clear that it is exalting metadata or intending to overrule any ABA Formal Opinion. Yet, the changes in the Comments to Rule 4.4 treat metadata differently. There is no justification for treating metadata differently, as this paper explains.
Given past history, many courts will simply refuse to follow the ABA’s lead on this issue, just as they have refused to follow the ABA’s efforts to ban non-misleading lawyer participation in internet chat rooms. Other courts may adopt these Comments, but may interpret them to mean very little by always concluding that the sending lawyers always meant to include the metadata on electronic documents that they voluntarily turned over to the other side.
Available at: http://works.bepress.com/ronald_rotunda/374/